Seemingly Inconsistent Verdict Results in Defense Win (PA)

On March 6, 2019, the Pennsylvania Superior Court affirmed a judgment entered in the Court of Common Pleas Monroe County in Steudler v. Keating.  The case arises out of a tragic accident in which Kirkland Keating’s car struck and killed Victor Angel Resto while Resto and Steudler were walking on the side of a highway.  At trial, it was undisputed that the Accident occurred on October 19, 2011 at 10:00 pm.  There was also no dispute that Decedent and Steudler were walking in the dark without any flashlights on the same side of a two-lane road as vehicles traveling in the same direction.

However, facts concerning where Decedent and Steudler were walking, Keating’s driving and the weather and visibility conditions were disputed.  According to Keating, he had been obeying all traffic laws at the time of the Accident and did not see Decedent before his SUV struck Decedent.  Further, both Keating and the responding police officer testified the road was dark and it was raining heavily at the time of the Accident.  The police officer also noted the Decedent was wearing dark clothing and he found one of Decedent’s shoes lying partially on the white line of the road.  As such, Keating’s expert opined that Decedent was walking on the road itself at the time of the Accident and not on the shoulder.

After deliberation, the jury returned unanimous verdicts finding Keating was negligent, but Keating’s negligence did not cause harm to the Decedent and Steudler.  Steudler and Decedent’s estate appealed on the ground that the verdicts were against the weight of the evidence.   Based on the verdict sheet, the jury found that the defendant was negligent, but that the negligence did not cause harm to the plaintiffs, which seems at odds with the fact that there was 1) negligence and 2) a collision with the pedestrian plaintiffs.

In Pennsylvania, a new trial cannot be granted on the ground that the verdict was against the weight of the evidence if the evidence at trial was conflicting and the jury could have decided in favor of either party.  Here, both Keating’s negligence and the cause of Decedent’s death were disputed at trial and the evidence was conflicting.  Therefore, the PA Superior Court affirmed the trial court’s ruling.  Thanks to Garrett Gittler for his contirbution to this post.  Please email Brian Gibbons with any questions.

Jury Leaves Portions of the Verdict Sheet Blank – What is Remedy? (PA)

In Mader v. Duquesne, a fifty-four-year-old masonry contractor was conducting chimney repair at a home, and was electrocuted when an aluminum extension ladder he was carrying made contact with underground electrical power lines. As a result, plaintiff was severely burned on his arms and feet, underwent multiple surgeries, and his feet were amputated.

Plaintiff filed a personal injury action against the owner of the power line alleging negligence in maintaining the electric lines too close to the ground. The jury returned a verdict where the power line was found 60% negligent and the plaintiff 40% negligent. The trial court instructed the jury that if liability was found, plaintiff was entitled to compensation for past medical expenses, past lost earnings, future lost earning capacity, past and future pain and suffering, embarrassment and humiliation, loss of ability to enjoy the pleasures of life and disfigurement. The jury awarded only past medical expenses and future medical expenses. The plaintiff then filed a motion requesting a new trial on the issue of damages. Defendant agreed that a new trial on past pain and suffering was appropriate but objected to a new trial on all damages. The trial court granted the plaintiff’s motion and the defendant appealed.

The Superior Court affirmed in part and reversed in part. First, the Court held that the trial court erred in ordering a new trial on the issue of past medical expenses because those damages were stipulated to by the parties. The Superior Court also held that that the trial court erred in granting a new trial on future medical expenses since that issue was fully developed and the jury determined its verdict regarding future medical expenses after fully evaluating the evidence presented. However, the Superior Court affirmed the trial court’s decision to order a new trial on past wage loss and loss of future earning capacity stating that the jury’s verdict for zero damages was against the weight of the evidence.

Finally, the Court affirmed the trial court ordering a new trial on pain, suffering, loss of enjoyment of life’s pleasures and disfigurement.  Interestingly, the defendant’s strategy on appeal was to concede that plaintiff was entitled to a new trial on past pain and suffering, based on the testimony proferred, but instead argued that plaintiff was not entitled to a new trial on present and future pain and suffering.  This was bold but well thought-out strategy by the defense, but the appellate Court sided with the plaintiff on this issue, and awarded a new trial on all pain and suffering claim.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Skier’s Responsibility Act Bars Claim (PA)

A Pennsylvania court recently decided in Vu v. Ski Liberty Operating Corp., 2019 U.S. App. Lexis 4261 (3d Cir. Feb. 12, 2019) whether a ski resort was responsible for a skier’s injuries after they skied over the edge of a trail to avoid colliding with a snowboarder.

Plaintiff, Quan Vu, was skiing at Liberty Mountain when a snowboarder approached him and cut him off, causing Vu to veer toward the edge of he trail.  Vu skied over the edge and landed in a pile of rocks.  Vu suffered multiple injuries and sued the resort, alleging that his injuries were caused by his skiing over an unmarked artificial cliff at the slope’s edge created by the Defendants’ snowmaking and snow grooming practices.  In his complaint, Vu alleged that the defendants were negligent for failing to keep the slope free from unsafe conditions, warn plaintiff of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the rocks below.  Defendants moved for summary judgment arguing that plaintiff’s action was barred because skiing off trail is an inherent risk of downhill skiing.

The court decided that, under the Skier’s Responsibility Act, ski resorts have no duty to protect skiers from the inherent risks of the sport that are common, frequent, and expected.  Losing control and skiing off the side of a trail is an inherent risk of skiing and inherent risks need not be natural conditions.  Because plaintiff failed to identify any particular industry standard that defendant violated, defendants were properly granted summary judgment.

Employer not Liable for Employee’s Negligence When on Vacation (PA)

In Ludwig v. McDonald et al., the plaintiff  filed suit claiming that she was struck by the defendant’s vehicle when she was exiting into the street from her parked car in Forest City, Pennsylvania.  Plaintiff alleged that after she exited her vehicle, the defendant, who was traveling in the southbound lane, entered the northbound lane to avoid another vehicle and struck her as she was standing by her vehicle.  Plaintiff alleged that the defendant was operating his vehicle in the scope and course of his employment with LTC Associates, a company in the business of operating a nursing home in Forest City.  In the complaint, plaintiff alleged claims of negligence against the defendant and vicarious liability against his employer.

Following discovery, LTC Associates filed for summary judgment, alleging that the defendant personally owned the vehicle involved in the accident, and that the defendant was “on vacation” at the time the incident occurred, and therefore LTC was not vicariously liable.  In support of its motion, LTC cited to the defendant’s time off request form that he submitted to request off on the date of the incident.  LTC also cited to testimony by the defendant stating that he was on vacation on the date of the  accident; however, he did go to work earlier in the afternoon to drop some items off.  Further, the defendant’s written time card confirmed that he did take time off on the date of the accident, as he was fixing his porch.  Based on those facts, the trial  court found that the defendant was not working in the scope of his employment on that date, and granted summary judgment in favor of LTC.

In affirming the trial court’s order, the Superior Court stated that there was no dispute as to employee-employer relationship between the defendant  and LTC.  However, the Court found no genuine issue of material fact establishing whether the defendant was working on the date of the accident.  The Court found that defendant was using his vacation time and was not working, despite the fact that he did stop by his place of employment on that date to drop off something and pick up his tools.  The fact that he was driving home from his place of employment when the accident occurred did not place his actions within the scope of his employment, as he freely chose to travel to his place of employment in his personal vehicle to pick something up.  He was not exercising the business of LTC at the time, and there was no evidence to show that LTC had any actual or potential control over the defendant’s actions.

Therefore, the trial court’s granting of summary judgment in favor of LTC was affirmed by the Superior Court.

Thanks to Alexandra Perry for her contribution to this post.

Dear John Doe (PA)

Don’t forget about John Doe when appealing trial court orders holds Pennsylvania Superior Court.  In William Massaro v. Tincher Contracting, LLC, Kenneth E. Tincher II, & John Does 1-10, William Massaro (“Massaro”) sued Kenneth Tincher and his contracting company, Tincher Contracting, LLC (together, “Tincher”) for breach of contract, breach of implied warranties, and unfair trade practices relative to the build of Massaro’s home.  Tincher successfully moved for summary judgment on all counts at the close of discovery, and an order was entered dismissing Tincher, but not the John Doe defendants, from the case.  Massaro appealed the trial court’s order.

However, the Pennsylvania Superior Court quashed the appeal.  In reaching its conclusion, the Court held that Pennsylvania’s appellate courts have jurisdiction over only final orders.  It is established in the Commonwealth that final orders are those judgments that dispose of all claims and all parties.  If any claim remains unresolved even after a judgment, then the order is not final, and it cannot be appealed.  Here, the grant of summary judgment, the Court concluded, did not resolve the case as between Massaro and the John Doe defendants and, thus, was not final.

Thus, while John Doe defendants are easy to overlook, this case shows that they should not be whenever an attorney is assessing appellate court jurisdiction.

Thanks to Robert Turchick for his contribution to this post.  Please email Colleen Hayes with any questions.

It’s Not Your Fault (PA)

In Precision Underground Pipe Servs. v. Penn Nat’l Mut. Cas., Verizon entered into a contract with Parkside to install an underground conduit for Verizon’s fiber optic cable in Villanova, Pa. Under this agreement, Parkside was required to name Verizon as an additional insured and to indemnify Verizon. Parkside subsequently contracted with Precision to provide additional labor. Under this agreement, Precision was required indemnify Parkside and Verizon and name them as additional insureds on their Penn National policy.

The Penn National policy included an “Automatic Additional Insureds-Owners, Contractors, and Subcontractors” endorsement, which stated the following would constitute an additional insured under the policy: “[a]ny person(s) or organization (s) . . . with whom you are required in a written contract or agreement to name as an additional insured, . . . caused, in whole or in part, by: (1) your acts or omissions; or (2) the acts or omissions of those acting on your behalf in the performance of your ongoing operations”.

An employee of Precision suffered injury while working at the work-site and filed a complaint against Verizon and Parkside. Penn National refused to provide a defense and indemnity to Verizon and Parkside. In determining whether Verizon and Parkside were entitled to defense and indemnity, the court looked to the underlying complaint. The court reasoned the complaint lacked any indication that Precision committed any act or omission that lead to the plaintiff’s injury. Specifically, the plaintiff’s complaint alleged wrongdoing on the part of Verizon and Parkside but did attribute fault Precision.  Therefore, the court concluded no additional insured coverage was provided under the policy because there were no allegations that the plaintiff’s injuries were caused by Precision.

Thus, this opinion emphasizes the importance of scrutinizing the underlying complaint’s language when dealing with duty-to-defend matters.

Thanks to Rachel Thompson for her contribution to this post.  Please email Colleen Hayes with any questions.

It’s Not An Accident That You’re Sick (PA)

In Mollura v. Aflac Insurance, the Pennsylvania Court of Common Pleas grappled with determining whether a sickness constitutes an accident under policy language.  In Mollura, a physician, Joseph Mollura, provided health care for the Pennsylvania State Prison System.  Pursuant to his employment, he purchased an accidental injury insurance policy.  Mollura, unfortunately contracted legionella pneumonia from the water source at his job and later died.  Mollura’s widow then sought death benefit payments under the Policy which were denied, and she subsequently commenced a lawsuit seeking those benefits.

The relevant policy language provided that Mollura was only covered for accidents, specifically stating that the Policy “does not pay benefits for loss from sickness.”  The Policy also contained an exclusion for “loss, injury, total disability or death contributed to, caused by, or resulting from…sickness.”  The Policy defined sickness as “any disease or bodily/mental illness or degenerative process.”  In reaching its conclusion, the court looked to case law in Pennsylvania that distinguished between an accident, which was a sudden and unexpected event/occurrence at a particular time, and a sickness, which was always “latent and insidious.”  The Court found that there was a clear distinction between a sickness and an accident.  As such, the Court ruled that the Policy did not provide coverage for Mollura’s contraction of pneumonia and there was no coverage under the Policy.

Thus, this case reveals that, in connection with certain policies, Pennsylvania courts may attempt to draw a distinction between an accident and a sickness.

Thanks to Malik Pickett for his contribution to this post.  Please email Colleen Hayes with any questions.

Is the Independent Medical Exam Landscape about to Change in Pennsylvania?

The Pennsylvania Supreme Court has granted the Third Circuit’s petition for certification of a question of law that has puzzled insurers and their attorneys. The issue is whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing  — without a court order — before they can receive first-party medical benefits.

Insurance companies such as Allstate have been including contractual provisions in their motor vehicle insurance policies that requires insured to submit to independent medical examinations by a physician selected by the insurer, “when and as often as the insurer may reasonably require,” as a condition precedent to the payment of benefits. The problem is that these provisions may conflict with the Motor Vehicle Financial Responsibility Law (“MVFLR”), 75 Pa.C.S. Section 1796(a), which gives courts the authority to order such examinations.

In Sayles v. Allstate, U.S. District Judge A. Richard Caputo of the Middle District ruled that Allstate’s policy provision conflicted with the state MVFLR because the plain language of Section 1796 prohibits precisely this type of provision. The plaintiff in Sayles argued that Allstate violated the MVFLR because it never petitioned the court to compel the independent medical exam. Allstate argued that the MVFRL does not mandate a court order and it only suggests when a court may order a person to submit to an IME.  But there is no prohibition in the MVFLR that requires court intervention before an insurer requests medical examinations before paying 1st party benefits.

Once the Pennsylvania Supreme Court rules on this question of law, both auto insurers and insurance attorneys will know how to proceed with respect to independent medical examinations, and whether court intervention will be necessary in advance of every such examination.

Opposition to MSJ Requires Rebuttal Evidence, not just Rebuttal Allegations (PA)

American Southern Insurance Company, Inc. was victorious recently when its summary judgment decision regarding a contractual indemnification dispute was upheld on appeal. In American Southern Ins. Co. v. James A. Halbert , et al., PA Superior Court, No. 504 MDA 2018, the Pennsyvlania Superior Court upheld the trial court’s granting of summary judgment in favor of American Southern.

The underlying case involved a performance surety bond for public improvement in North Cornwall Township, PA.  Back in 2006, American Southern had entered into an indemnity agreement with the Halbert family (on behalf of the Oaklea Corporation) wherein the Halberts agreed to indemnify American Southern from any claim or liability arising from the issuance of a performance bond.  Subsequently, American Southern issued a performance bond in favor of North Cornwall Township to secure completion of improvements for local development by the Oaklea Corporation.  In July 2016, the Township informed American Southern that Oaklea refused to respond or perform certain improvements that were demanded by the Township.  The Township demanded compensation from American Southern, who in turn, demanded indemnification from the Halberts.  The Halberts responded that the improvements demanded by the Township were unnecessary.

In October 2017, American Southern moved for summary judgment asserting that there were no genuine issues of material fact in dispute and that American Southern was entitled to indemnification against the Halberts, as a matter of law.  In response, the Halberts cited their Answer and defense that the improvements were unnecessary and also argued that the indemnification agreement was an unconscionable contract of adhesion.  The trial court concluded that Halbert failed to show that the improvements were unnecessary and that the agreement was not a contract of adhesion. The Halberts appealed.

On appeal, the Superior Court explained that the Pennsylvania rules governing summary judgment explicitly prohibit a non-moving party from merely relying on the allegations or denials of the pleadings, thus rendering the Halberts’ position deficient.  The Halberts conceded that an operative provision of the indemnification agreement granted American Southern the exclusive right to determine whether claims such as the ones brought by the Township should be settled or defended; thereby nullifying Halberts’ repeated defense that the demanded improvements were not necessary.  Furthermore, while the court entertained the Halberts affirmative defense that the indemnification agreement was a contract of adhesion, it concluded that the Halberts failed to cite to any evidence detailing the circumstances that would support their assertion that the contract was, in fact, a contract of adhesion.

Ultimately, the Superior Court denied the Halberts appeal and affirmed the granting of summary judgment in favor of American Southern, emphasizing the Halberts’ failure to cite evidence of record that would support their claims.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Natural Accumulation is Key to Application of “Hills and Ridges Doctrine” (PA)

On January 24, 2019, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of Turkey Hill Minit Markets, the Kroger Co., and D670 Kroger C Stres/Turkey Hill/Minit Mr’s (Collectively “Appellees”) in Brock v. Turkey Hill Minit Markets.  The case stems from a slip and fall, when plaintiff Rebecca Brock was walking toward the entrance of the Store when slipped and fell on ice in the parking lot.  However, whether the slipping hazard was man-made or made naturally became a point of contention.

The “Hills and Ridges Doctrine” precludes liability “where the accident occurred at a time when general slippery conditions prevailed in the community as a result of recent precipitation.”  However, the hills and ridges doctrine can only be applied in cases where the snow and ice complained of are the result of an entirely natural accumulation following a snowfall.  Therefore, on appeal, Appellant attempted to argue that the accumulation of ice in the parking lot was due to employees of the Appellees plowing and salting the parking lot.

The defendant-appellees produced an expert report, which cited that the snow/ice was the result of natural accumulation — and this report was unopposed by the plaintiff-appellant.  As such, the Court affirmed the lower court’s ruling.  Still, the underlying argument in this case is a reminder that a court reading the phrase “natural accumulation” very narrowly could pose problems for defense counsel. Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.