Category Archives: Auto

Plaintiff’s Gets Tangled in a “Net Opinion” (NJ)

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Expert reports can provide significant support for a party’s case- so long as the expert can provide the necessary support for his or her findings.  The conclusory remarks in plaintiff’s expert report were challenged in Perdomo v. Orgacki, when plaintiff submitted an expert report that defendant claimed should be barred as a net opinion.

In December 2010, plaintiff was a passenger in an automobile involved in an accident.
An MRI revealed that plaintiff sustained disc bulges that were attributable to the accident. Plaintiff’s expert, a chiropractor, had opined that there was some degree of permanency. Three years later, in November 2013, plaintiff was in a second accident, when she was rear-ended by an automobile driven by defendant. Subsequent MRIs revealed disc bulges in the same areas as found in her 2010 MRI results. The same chiropractor treated plaintiff for this subsequent accident, issuing a report that acknowledged his 2010 diagnosis of a low back injury with some degree of permanency. However, the doctor opined that plaintiff suffered further permanent partial impairment of her lower back that is 70% attributable to the 2013 accident.

Defendant subsequently moved for summary judgment, arguing that plaintiff failed to establish through credible objective medical evidence that she sustained a permanent injury because of the accident. In the alternative, defendant moved to bar plaintiff’s expert report as a net opinion. The trial court ultimately barred plaintiff’s expert report as a net opinion, leading to plaintiff’s appeal.

The appellate court opined that an expert report must be grounded in facts or data derived from the expert’s personal observations, evidence admitted at trial, or data relied upon by the expert which is not necessarily admissible in evidence, but is normally relied upon by experts. The net opinion rule forbids admission of reports into evidence wherein an expert’s conclusions are not supported by factual evidence. Expert reports must give the why and wherefore of their opinions.

Based on this analysis, the appellate court held that the trial court properly barred plaintiff’s expert report as a net opinion, as he failed to explain why the 2013 accident resulted in a partial impairment of plaintiff’s lower back.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

PA Court Reverses $21 Million Bad Faith Judgment Against Auto Insurer

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In Berg v. Nationwide Mutual Insurance Company, plaintiff sought coverage from Nationwide for repairs to their vehicle after an auto accident. Ultimately, the plaintiffs ended up suing Nationwide for bad faith, due to Nationwide’s decision to repair the plaintiffs’ vehicle rather than declaring it a total loss.  Nationwide initially received an estimate that the vehicle should be totaled, but rejected it, repaired the vehicle, and returned what it allegedly knew was a dangerous vehicle back to its insured.

Plaintiffs asserted claims for negligence, fraud, conspiracy and insurance bad faith. After a trial, the jury found in favor of Nationwide on all counts except for the catchall provision of the Unfair Trade Practices and Consumer Protection Law, or UTPCPL. The jury awarded the plaintiffs $295.00.

But in the second phase, the trial court found that Nationwide acted in bad faith by repairing the plaintiffs’ vehicle rather than declaring it a total loss and ordered Nationwide to pay $18 million in punitive damages and $3 million in attorneys fees.

On appeal, the Superior Court noted that a finding of bad faith will be reversed where the trial court’s critical findings are either unsupported by the record or do not rise to the level of bad faith. In this case, the Superior Court reversed the trial court’s finding of bath faith, finding that the evidence of record did not support the trial court’s finding that Nationwide overrode or vetoed a total loss appraisal. Upon review of the record, the Superior Court found that the record indicated that Nationwide and the entity handling repairs had support to determine that plaintiffs’ vehicle was repairable. In support of its reversal, the Superior Court noted that the record did not support a finding that Nationwide had actual knowledge of or recklessly disregarded any knowledge of the vehicle’s allegedly faulty condition when the repairing entity returned it to plaintiffs.

In addition, the Superior Court admonished the trial court for incorporating an irrelevant critique of the insurance industry in its holding, stating that a judge sitting as fact finder should confine his or her analysis to the facts of the case at bar without consideration of the perceived ills of the insurance industry in general.

Thanks to Alexandra Perry for her contribution to this post and please write to ">Mike Bono for more information.

Deemer Statue Leads to Dismissal of Damages (NJ)

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In Sulpizi v. LM General Insurance, plaintiff appealed from the trial court’s dismissal of his claim for PIP benefits under the Deemer Statute, and the appellate court reviewed the lower court’s decision on appeal. Plaintiff, a resident of Pennsylvania, owned a vehicle that has a Pennsylvania automobile insurance policy provided by defendant. Plaintiff also owned a vacation home in New Jersey.

The underlying action arose when plaintiff was at his NJ home when he decided to mail a letter. He drove his car from his home and parked across the street from a mailbox. Plaintiff exited his vehicle and began to walk across the street towards the mailbox. As he crossed the street, he saw a pickup truck approaching him and he rushed to the side of the road. He tripped and fell on the curb near the mailbox resulting in personal injuries.

Plaintiff’s Pennsylvania automobile policy issued by defendant provided $5,000 in PIP medical benefit coverage. Plaintiff submitted a PIP claim to defendant for benefits exceeding $5,000, claiming he was entitled to $250,000 in additional coverage under the Deemer Statute. NJ’s Deemer Statute applies to out-of-state driver who are injured in accidents in New Jersey. Under the Deemer Statute, if you are an out-of-state resident and you are hurt in an accident in New Jersey, you will be subject to New Jersey’s restrictive limitation on lawsuit or “verbal threshold” if your insurance company is licensed to transact business in New Jersey.  The verbal threshold places limitations on the right to recovery for injuries sustained in a motor vehicle accident.

The appellate court reviewed whether the Deemer Statute requires coverage for a claim involving a pedestrian injured after parking his car and while walking across the street. The court determined that the coverage under the Deemer statute demanded a substantial nexus between the out-of-state vehicle and the accident for which benefits were sought. The court opined that because plaintiff never came into contact with the oncoming vehicle and was injured as he moved out of the way, there was no nexus between his use of his vehicle and the resulting injuries. The appellate court thereby afirmed the trial courts ruling and maintained the dismissal against defendant.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Insufficient Proof of Negligence Prompts Nonsuit in TBI Motor Vehicle Accident (PA)

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On March 29, 2018, the Superior Court of Pennsylvania affirmed the entry of nonsuit by the Court of Common Pleas of Dauphin County in the matter of Talley v. Bethea.  The case stems from a 2012 motor vehicle accident.  Defendant Bethea was driving the car while plaintiff Talley, along with Kramer and Rynearson, were his passengers.  Bethea pulled into a parking lot on the Penn State Harrisburg campus and Talley and Rynearson exited the vehicle. Then Bethea drove forward to another part of campus.

Moments after driving away, Kramer heard banging on the back of the car and for the first time noticed that Talley was on the back of the vehicle.  Kramer quickly requested Bethea stop the vehicle, but Talley had already fallen from the car.  Kramer and Bethea found Talley bleeding on the ground and called 911.  Bethea suffered a traumatic brain injury and had no recollection of the accident nor why he had gotten onto the car.  As a result of the injury, Bethea suffers from permanent memory loss, a loss of his sense of smell, hearing damage, and was unable to enlist in the United States Marine Corps.

At the conclusion of Talley’s case before the jury, Bethea filed a motion for nonsuit, arguing that Talley had not met his burden of proof that Bethea had breached a duty owed to him.  The trial court granted the nonsuit and directed verdict in favor of Bethea.  Talley then filed a timely appeal alleging the trial court erred in granting Bethea’s motion for nonsuit.  Talley claims that he established that Bethea was negligent in his operation of the vehicle.  Additionally, Talley argues that because the trial court “considered” Bethea’s “defense” during cross examination, nonsuit was improper.

The court indicated that Bethea owed a duty to Talley to operate the vehicle with the ordinary care of a reasonably prudent person.  However, the sole testimony given on the breach element was that Kramer did not realize Talley was on the back of the car until they began to drive away from the parking lot.  No testimony was provided regarding why Talley was on the back of the car, whether Bethea could have seen him, or how long Talley was on the back of the car.  Further, there was no evidence to establish what happened prior to the accident.  Thus, the sole evidence presented by Talley was his serious injuries which is not sufficient to establish a breach.

Further, the court quickly dismissed Bethea’s argument that nonsuit was inappropriate because Bethea’s cross examination somehow constituted “defense evidence” as cross examination is not evidence.  Lastly, the court rejected Talley’s argument that he be granted a new trial because the court rejected his request to produce demonstrative evidence.  Talley sought to produce photographs of an actor on the back of a vehicle to the jury.  However, no evidence was admitted establishing where Talley was on the vehicle, when he got on the vehicle, or how he fell off the vehicle.  Therefore, any reenactment could be nothing more than speculation and would possess a danger of misleading the jury.

Thus, the ruling of the trial court was affirmed.  However, the fact that this matter required a trial (meaning it was not resolved or dismissed through motion practice) is telling — even when the plaintiff cannot recount the accident circumstances at all, there may still be a “triable issue of fact” for jury consideration.  Here, the defendant stuck to his guns, and prevailed, after a likely stressful pretrial process.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.

Insured or Underinsured?  That Is The Question

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A Pennsylvania Court recently ruled that a plaintiff-insured was not entitled to UIM coverage since the tortfeasor-driver was not underinsured for purposes of UIM coverage.  In Tenbus v. Progressive, the plaintiff-insured was involved in a motor vehicle accident.  At the time of the accident, the other driver had insurance coverage totaling $125,000.  The plaintiff-insured also was insured under her own policy, which included UIM benefits.

The plaintiff-insured subsequently sued the other driver, and the case proceeded to arbitration.  An arbitration award was entered for $125,000, i.e. the amount of the other driver’s insurance coverage.  The plaintiff-insured then attempted to seek UIM benefits from her own insurance policy.  The defendant-insurer countered that there was no UIM coverage available under the policy, as the other driver was not underinsured as that term was defined by the policy or relevant case law.  Specifically, the defendant-insurer argued that the other driver could not be deemed underinsured, since the coverage provided under the other driver’s policy was the exact amount of the plaintiff’s damages / arbitration award.  In response to this argument, the plaintiff-insured attempted to establish that the other driver was underinsured by introducing new evidence of future damages, including future medical expenses.  The court disagreed with the plaintiff-insured’s position.  Ultimately, the court concluded that since the plaintiff-insured had not raised claims for future damages during the arbitration, (which she was entitled to do), her failure to do so collaterally estopped her from pressing this argument in her subsequent litigation for UIM benefits.  Therefore, the court concluded she was not entitled to UIM benefits under her policy, as the other driver was not underinsured.

Consequently, this case offers support for the contention that an insured may not be entitled to recover UIM benefits in a subsequent litigation, if the insured failed to establish that her damages exceeded the tortfeasor’s insurance coverage limits – demonstrating that the other driver was, in fact, underinsured.

Thanks to Colleen Hayes for her contribution to this post.

 

UIM Denial Triggers Statute of Limitations (PA)

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The Pennsylvania Supreme Court has recently decided that, when it comes to an uninsured motorist claim, the statute of limitations only begins to run upon an alleged breach of a contractual duty.  In Erie Insurance Exchange v. Bristol, a commercial automobile insurer brought declaratory judgment action seeking determination that an uninsured motorist claim filed by an injured employee of the insured was barred by the statute of limitations.

This lawsuit was initiated when Michael Bristol  reported a hit-and-run accident that occurred within the scope of his employment on July 22, 2005.  Bristol was employed by RCC, Inc. as a lineman, and RCC, Inc. was insured through Erie Insurance Exchange.  This policy contained an Uninsured/Underinsured Motorist Coverage Endorsement, which provided coverage of $500,000.00 per accident.  The Endorsement also included an arbitration clause which provided for binding resolution of liability disputes and the amount of damages under the Endorsement, reserving other disputes, including the applicability of any statute of limitations, to the courts.

On June 19, 2007, Bristol sent a letter to Erie regarding his claim.  On July 9, 2007, Erie reserved its rights.  Each party selected arbitrators and Erie obtained a statement under oath from Bristol.  Mire than seven years post accident, in September 2012, the parties exchanged correspondence surrounding Bristol’s unrelated incarceration and the qualified delay this would cause.  On May 29, 2013, Erie filed an action for declaratory judgment stating that Bristol’s claim was now barred by the statute of limitations.  Specifically, Erie claimed that the statute of limitations began to run on the date of the accident when Bristol was unable to identify the vehicle involved in the hit-in-run, thereby qualifying it as an uninsured motorist claim.  Bristol’s position was that Erie’s reservation of rights and agreement to arbitrate precluded application of the statute of limitations because there was no contractual requirement to file a court action.

The Pennsylvania Superior Court held that, for purposes of uninsured motorist claims, the statute of limitation begins to run when a claimant injured in an automobile accident initially learns that the other driver is uninsured.  The Pennsylvania Supreme Court disagreed and found that this conclusion was not based in the pertinent statutory text, prevailing statute of limitations doctrine, or significant public policy concerns.

The Pennsylvania Supreme Court relied on the general rule for computing periods of limitation under Section 5502 of the Judicial Code.  That rule states that “the statute of limitations begins to run at the time when a complete cause or right of action accrues or arises, and only at such a time, that is, as soon as the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement.”  Therefore, the statute of limitations would begin to run when the insurer is alleged to have breached its duty under the insurance contract.

Additionally, the Pennsylvania Supreme Court looked to public policy issues to determine if this circumstance required a special rule for determining when the statute of limitations begins in uninsured motorist cases.  The Court concluded that although uninsured motorist coverage serves the purpose of protecting innocent victims from uninsured motorists, that purpose does not rise to the level of a public policy overriding every other consideration of statutory construction.  Additionally, the Court noted that any concerns about an insured delaying submission of a claim or an insurer delaying action on a claim do not justify departing from breach of contract principles attendant to triggering the statute of limitations.    The Court concluded that the proper circumstance to begin the running of the limitation period is an alleged breach of the insurance contract, which will be occasioned by a denial of a claim or the refusal to arbitrate.

Thanks to Zhanna Dubinsky for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Unlisted Driver on Policy is an Uninsured Driver (PA)

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An auto insured has responsibility to disclose the identities of resident, non-family members who have access to the insured’s vehicle. If the insured fails to do so, it is at his own risk.

The question of whether a co-habitating  girlfriend was covered by her boyfriend’s insurer arose in the case of Safe Auto Insurance Company v. Rene Oriental-Guillermo.  The girlfriend, Rachel Dixon, and another driver were involved in a two-car accident in Allentown, Pennsylvania. A passenger in Dixon’s car, Priscilla Jimenez, filed a personal injury lawsuit against Dixon, Dixon’s boyfriend( the owner of the car that Dixon was driving), and the driver of the other car involved in the accident.

The car that Dixon was driving was insured by Safe Auto Insurance Company (“Safe Auto”). The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the Policyholder, but were not related to the Policyholder and whom the Policyholder did not specifically list on the Policy. Although Dixon and the owner lived together, the policy did not list Dixon as a driver. Safe Auto denied coverage to Dixon for the accident.

Jimenez challenged the Unlisted Resident Driver Exclusion’s applicability on a few grounds, but most notably, on the grounds that the exclusion itself violates the public policy of the Commonwealth of Pennsylvania set forth in the Motor Vehicle Financial Responsibility Law (“MVFRL”). Jimenez argued that the Unlisted Resident Driver Exclusion contravenes the MVFRL’s mandate that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance; for this reason, Safe Auto should cover the accident.

The Pennsylvania Superior Court rejected this argument, instead, ruling that the Unlisted Resident Driver Exclusion places the obligation solely on the owner of a vehicle, and not the insurance company, to ensure that anyone who drives the owner’s car has insurance.

While the MVFRL does aim to ensure that all drivers are covered, the court concluded that there was no indication in the MVFRL that the burden of ensuring coverage must fall on the insurance company. In fact, the insured is in the best position to monitor whether members of his household who intend to drive are listed on his policy. Summarily, the court stated that “there is no provision in the MVFRL that indicates that the Legislature, when it enacted the MVFRL, intended to shift the risk to insurance companies to insure individuals who live with the insured, but are not related to the insured.” It’s simply not the insurance company’s burden.

Thanks to Sathima Jones for her contribution.

For more information, contact Denise Fontana Ricci at.

Who’s Behind the Wheel? Unlisted Resident Driver Exclusion Applies (PA)

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On September 18, 2017, the Superior Court of Pennsylvania affirmed summary judgement in favor of Safe Auto Insurance Company (“Safe Auto”) in Safe Auto v Oriental Guillermo.  The case stems from a two-car motor vehicle accident in Allentown, Pennsylvania on April 29, 2013.  Rachel Dixon  was driving a car that her boyfriend, Rene Oriental-Guillermo (“Oriental-Guillermo”) owned, and Priscila Jimenez was a passenger in the other vehicle.  Guillermo insured his car through Safe Auto, which had an Unlisted Resident Driver Exclusion, which excluded from coverage those individuals who lived with Oriental-Guillermo, but were not related to him and whom he did not specifically list on the policy.  Here, Dixon lived with Oriental-Guillermo, but was not related to him and was not listed as a driver on his policy.

On May 13, 2015, Safe Auto filed a declaratory judgment action to enforce the Exclusion, and Safe Auto’s a motion for summary judgement was granted by the trial court.  The trial court enforced the Exclusion and held that Safe Auto had no duty to defend or indemnify Dixon.  Priscila Jimenez and Luis Jimenez timely appealed arguing that: (1) the Exclusion does not apply to the facts of the case; and (2) the Exclusion is unenforceable because it violates the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. 7501 et seq. (“MVFRL”) and public policy of the Commonwealth of Pennsylvania.

The court held that the policy language was unambiguous, and further stated that there is no dispute that Dixon lived with Oriental-Guillermo, is unrelated to him, and he did not list her as an additional driver on the policy.  Thus, the trial court properly found that the exclusion applied and Safe Auto was not obligated to defend Dixon.

Next, the court considered whether the Exclusion violated the public policy expressed in the MVFRL.  Appellants specifically argued that the Exclusion contravenes the MVFRL’s requirement that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance.  The court held that this argument supports the trial courts interpretation of the exception because it places the onus on the owner of the vehicle to ensure that everyone who drives his car have insurance.  There is no provision in the MVFRL that suggests the legislature intended to shift the risk to insurance companies to insure unidentified individuals who live with the insured, but are not related to the insured.

Finally, the court held that the Exclusion does not violate public policy.  Appellants argued that the Exclusion is contrary to the MVFRL by analogizing it to a Named Driver Only Exclusion.  This type of policy allows a policyholder to exclude certain individuals from his or her policy.  But the court ruled that the legislature placed the burden on the insured to make sure that individuals who drive the insured’s vehicle have insurance — the insurance company does not bear that burden.  Thus, the court affirmed the trial court ruling and concluded that Safe Auto was entitled to Summary Judgment. Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

Police Report and Settlement Check Inadmissible in Auto Case (NJ)

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Police reports are often important evidence in car accident cases, and the admissibility of such a report was a key issue in a recent case in New Jersey, Almonte v. Ulloa Tineo,  The defendant was driving through an intersection with a green light when he was struck by another vehicle on his passenger side, which drove through a red light. The impact caused defendant’s car to strike two other vehicles, including plaintiff’s parked car.

At trial, plaintiff testified that she did not witness the accident. However, she sought to introduce a police report into evidence where the responding police officer attributed fault for the accident to the defendant. The police report’s narrative included information from an unidentified witness. Over defendant’s objection, the trial court admitted the police report into evidence under the business records and public records hearsay exceptions. The trial court also admitted a letter and check sent to plaintiff from defendant’s insurer, which offered the property damage policy limits because it had determined that defendant’s car was responsible for the accident. Relying only on the police report and the insurer’s settlement offer, the trial court entered a judgment in favor of plaintiff.

On appeal, the Appellate Division reversed the trial court’s judgment because the documents were inadmissible to prove defendant’s negligence. Although police reports are typically admissible under the business record and public record hearsay exceptions, the trial court failed to scrutinize the hearsay statements contained within the police  report.  Specifically, the police report narrative was not based on the police officer’s observations but came from an unidentified witness.

In addition, relying on NJRE 408, which provides that settlement offers and negotiations cannot be used to establish liability, the Appellate Division held that the insurer’s settlement offer was inadmissible. Although the settlement check could be considered for the purposes of adjusting damages, it could not be used to determine defendant’s liability.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Rear-End Hit Not Necessarily Negligence (NY)

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A rear end hit normally spells liability, but in that rarest of rare cases, a plaintiff just might not be entitled to summary judgment on this issue.

The plaintiff, in Greenidge v. UPS, was a passenger in a car rear ended by a UPS truck.  The UPS driver testified that the vehicle the plaintiff was in entered his lane suddenly and then braked suddenly, leaving the him with no time to react.  The lower court granted the plaintiff’s summary judgment motion, finding that a rear-end collision establishes a prima facie case of negligence. 

 The Second Department reversed the lower court’s decision because the testimony regarding the sudden lane change created triable issues of fact.  The court further noted that, even though the parties agreed that the vehicle the plaintiff was in was stopped when it was hit in the rear, the evidence of the sudden lane change and abrupt stop, called into question UPS’ negligence.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at .