It Might Come as a Shock — Pennsylvania Business Owners Need Not Provide AED’s for Invitees

The Pennsylvania Court of Common Pleas for Philadelphia County recently clarified the duty owed by business owners to invitees who suffer catastrophic medical emergencies on their properties.

In the case of Kronfeld v. SugarHouse HSP Gaming, L.P., the estate of a former gaming patron of Sugar House Casino sued the local cardroom following an August 2013 incident wherein the decedent and his wife’s night of gambling was unfortunately interrupted by the former’s sudden collapse and death.  Specifically, the decedent’s son sued Sugar House, arguing that Casino employees failed to timely perform resuscitation and use an AED device to help his father.  Sugar House moved to dismiss these allegations, contending that Pennsylvania law merely requires business owners to promptly summon medical attention for those invitees who are injured or become ill on their property.

In considering these arguments during the lawsuit’s nascence, Judge Frederica Massiah-Jackson explained that the duty owed by business owners to injured or ill invitees tracks the Restatement (Second) of Torts § 314A, and generally obliges the same to “give first aid . . . and care for [the injured] until they can be cared for by other.”  Seizing upon the language calling for business owners to “care for” invitees, the plaintiffs contended that the Restatement should be read in conjunction with Pennsylvania’s EMS Act and AED Good Samaritan Act as requiring defendants to affirmatively perform lifesaving first aid in conjunction with a defibrillator.  Ultimately, however, Judge Massiah-Jackson believed that such an interpretation of Pennsylvania’s approach to the Restatement goes too far, and instead sided with precedent from the Commonwealth holding that timely summoning first responders satisfies the business owner’s duty to its invitees.

Although Kronfeld is simply a trial court opinion, the reasoning Judge Massiah-Jackson employed evidences Pennsylvania’s increasing temperance with respect to the duty owed by possessors of land and business owners.  Specifically, the facially broad phrase “care for” in this context would seemingly tip the scale in favor of the plaintiff when coupled with other state laws encouraging third-parties to act on behalf of the sick and injured. Kronfeld, however, reminds us that, as a matter of tort law in Pennsylvania, there has to be a difference between behavior we might aspire to versus that which is legally expected of us.

Thanks to Adam Gomez for his contribution to this post.

Failure to Pursue Timely Claim Defeats Claim of Flyer’s Widow

 

Earlier this month, the Pennsylvania Superior Court held that the statute of limitations barred Polina Tertyshnaya, the widow of Philadelphia Flyer’s hockey player Dmitri Tertyshny, from pursuing a claim against her late husband’s insurers for accidental death proceeds.

Dmitri died in a tragic boating accident in July of 1999. At the time, he was in Canada for Flyer’s summer training camp. Dmirtri left behind Polina, who was four months pregnant at the time of his dead.

Sometime in the months before Dmitri’s death, he purchased an insurance policy from Standard Security Life Insurance Company of New York (“SSLIC”), HCC Specialty Underwriters, Inc. (“HCC”), and American Specialty Underwriters, Inc. (“ASU”). Although Polina believed the policy included coverage for permanent total disability (“PTD”) and accidental death and dismemberment (“AD&D”), the insurers maintain that the policy was only for PTD coverage.

Beginning May 27, 2010, nearly 11 years after Dmitri’s death, Polina took legal action against the insurers, Dmitri’s agent, his employer, the insurance broker for his policy, and his company (collectively, the “defendants”). Polina alleged that the defendants intentionally hide Dmitri’s AD&D policy to avoid paying her death benefits. Polina alleged the defendants committed acts of concealment by issuing an insurance policy for PTD, as opposed to AD&D coverage, on August 30, 1999 and backdating it to March 1, 1999.

Unfortunately for Polina, the trial court dismissed her case. The court determined that even though Polina may have held the belief that she was entitled to AD&D since Dmitri’s death in 1999—and even employed three attorneys to investigate the matter—she did not file a claim for death benefits until 2010. In fact, Polina did not obtain a copy of her late husband’s insurance policy until after she filed suit.

Upon Appeal, the Superior Court rejected Polina’s claims that misrepresentations made by the defendants tolled the statute of limitations. Judge Christine L. Donohue explained, “[d]espite the fact that Tertyshnaya [Polina] has consistently maintained, since 1999, the belief that Tertyshny’s [Dmitri’s] policy contained AD&D coverage, she failed to use all reasonable diligence to become properly informed of the facts upon which her potential right of recovery is based.”  In the end, Polina’s failure to bring suit in the 11 years after her husband’s death was fatal to her claims.

Based upon this language, we surmise that the post-decision phone discussion between Polina and her attorneys was not a pleasant one.

Thanks to Erica Woebse for her contribution to this post.

Waiver of Liability Valid — Even Though the Kids’ Version was Signed (PA)

On November 19, 2011, Joseph Belliconish, along with his wife and her two children, traveled to Irwin, Pennsylvania, to patronize Fun Slides, an indoor skate park that includes carpeted ramps, jumps and rails. As with almost all establishments of this kind, Fun Slides required guests to sign an Assumption of Risk, Waiver of Liability and Indemnification Agreement prior to participating in skating. However, rather than signing the waiver intended for adult participants, Belliconish, for reasons unknown, signed the waiver intended for a parent/guardian who is signing on behalf of a minor child. During his skating session, Belliconish made an ill-fated attempt to skate down a narrow, elevated ramp and fell to the ground, fracturing his left patella in the process.

As a result of his injury, which required surgery and physical therapy, Belliconish sued Fun Slides alleging negligence. The skate park filed a motion for summary judgment on the basis that Belliconish’s signed waiver released it from liability for any juries and that Fun Slides had no duty to warn plaintiff against the inherent risks of indoor skating.

In Pennsylvania, exculpatory documents that excuse a party in advance for it’s own negligence – like Fun Slide’s waiver – are typically not favored and are strictly construed by the courts. In order for an exculpatory clause to be valid, the clause (1) cannot violate public policy; (2) must be part of a contract that is between persons relating entirely to their own private affairs; and (3) cannot be part of an adhesion contract, in which one of the parties is not a free bargaining agent to the agreement.

After applying these factors to the facts between Belliconish and Fun Slides, the Westmorland County Court of Common Pleas found that the waiver satisfied all three requirements and accordingly granted the defendants motion for judgment.

On appeal, Belliconish argued that the language of the waiver was not clear and did not waive liability as to his own injuries because the signed waiver form was for a minor child. The court disagreed and found that the language of the waiver, strictly construed, was unambiguous and enforceable. Specifically, the court stated “although the form addresses minor participants and parent/guardians, the language specifically releases appellees from liability of claims by the person who signs the waiver. Moreover, the court noted that Belliconish signed his own name, date of birth and address on the waiver whereas Belliconish’s wife signed waivers on behalf of his minor stepchildren. Thus, the court concluded that there was simply no evidence to suggest that Belliconish signed the waiver for anyone other than himself.

Thanks to Sheri Flannery for her contribution to this post.  Please write to Mike Bono for more information.

Late Expert Report? No Problem. But Do Not Opine on Plaintiff’s Credibility (At Least in one Pennsylvania Court).

In Moritz v. Horace Mann Prop. & Cas. Ins. Co., plaintiff sued to recover underinsured motorist benefits following a car accident.  Prior to trial, defendant filed a motion to preclude plaintiff from entering into evidence a life care plan that had been belatedly produced violating the local rules regarding expert disclosure.  Plaintiff filed a motion to preclude defendant’s medical expert from opining on plaintiff’s credibility, stating that credibility determinations should be left to the jury.

Regarding defendant’s motion, the court noted that plaintiff had not acted in bad faith in producing the late report.  Further, defendant had an opportunity to cure any prejudice since the report was produced four months prior to trial.  Moreover, defendant, in fact, had cured any potential prejudice by obtaining a supplemental expert report addressing the issues raised in the life care plan.  As such, based on the lack of prejudice suffered by defendant as compared to the importance of the expert report, defendant’s motion was denied.

Regarding plaintiff’s motion, defendant’s expert report noted that during his examination plaintiff denied any pre-accident treatment, which according to the expert was “patently untrue.”  The court concluded that defendant’s expert could testify regarding the statements plaintiff made to him regarding her lack of pre-accident treatment, but he could not opine on the credibility of these statements.  Consequently, plaintiff’s motion was granted.

Typically motions in limine are discretionary, and can turn on the way they are presented to the specific judge assigned.  A good lesson to take away is that for a report to be precluded in its entirety, prejudice and bad faith should be alleged.

Thanks to Colleen Hayes for her contribution to this post.

 

Pennsylvania’s Product Liability Principles Remain Unstable

As we have previously reported, those of us who practice in, or are beholden to, Pennsylvania products liability law, have anticipated the Supreme Court’s decision in Tincher v Omega Flex Inc., where it appeared that the High Court was finally poised to decide whether the Commonwealth would abandon the Second Restatement’s Section 402(a) articulation of strict liability in favor of the increasingly-popular (and allegedly pro-defendant) Third Restatement.  The answer in Tincher may very well have lead to more questions.

Pre-Tincher, strict liability claims were governed by Azzarello’s interpretation of Section 402(a) of the Second Restatement of Torts that “the supplier of a product is the guarantor of its safety [and] [t]he product must, therefore, be provided with every element necessary to make it safe for its intended use, and without any condition that makes it unsafe for its intended use.”  To achieve this end, Azzarello ignored the language of unreasonable danger found in Section 402(a) by holding that negligence concepts could not be considered by the jury when asked to impose strict liability for products.

After years of interpreting the gray areas of Azzarello, several state and federal courts in the Commonwealth suggested that the Supreme Court abandon Section 402(a) by adopting the more hybrid approach found in the Third Restatement. Instead, the Supreme Court recently held that, while instructive, the Third Restatement would not replace Pennsylvania’s “properly calibrated” version of Section 402(a).  Rather, Tincher simply overruled the overbearing Azzarello standard that previously imposed absolute strict liability on manufacturers regardless of reasonableness and foreseeability while affirming the Second Restatement’s place in Pennsylvania common law.

Without the familiarity of Azzarello and its progeny, nor the fresh canvas of the Third Restatement, the reality of Tincher is that Pennsylvania product law is likely to remain in flux for years to come.  However, at a minimum, Tincher eradicated the notion of unconditional liability for product manufactures in favor of allowing the defense to argue traditional negligence concepts to the jury in one of two “composite” approaches.  First, the Court explained that some product cases will lend themselves to a pro-plaintiff “consumer expectations” standard wherein “the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer.”  On the other hand, some product cases will allow the defense to argue that the “risk/utility” of the product militates against imposing liability for the plaintiff’s alleged injuries.

Thanks to Adam Gomez for his contribution to this post.

Faulty Workmanship Complaint not Covered Despite Negligence Claims (PA)

Insurers are often required to defend a lawsuit where a nominal count or allegation implicates coverage, despite the fact that the nature of the complaint is clearly outside of the scope of coverage.

This was recently at issue in State Farm Fire & Casualty Co. v. McDermott. A homebuilder, the PulteGroup Inc., sued  contractor Patrick McDermott Plastering, claiming that McDermott performed defective plaster, stucco, and window installation work on almost 300 homes in a housing community. PulteGroup’s also alleged negligence and breach of contract, which McDermott claimed triggered coverage under the CGL policy.

State Farm, McDermott’s insurer, agreed to defend McDermott in the underlying action under a reservation of rights and subsequently filed a declaratory action arguing that the complaint in the underlying suit failed to allege an occurrence needed to trigger coverage. Specifically, State Farm noted that nothing in the complaint suggested that an accident occurred, which the policy language identified as necessary to qualify as an occurrence. Despite the negligence and breach of contract allegations in PulteGroup’s complaint, State Farm argued that the claims did not suggest an unexpected accident but that the underlying substance of the complaint was faulty workmanship, which was not covered.

The Eastern District of Pennsylvania court ultimately agreed with State Farm that the underlying complaint alleged faulty workmanship which was not an accident as necessary to constitute an occurrence under the policy. The court noted that McDermott’s contract with PulteGroup made it McDermott’s contractual duty to complete the project in a “workmanship like manner,” so any liability McDermott faced would stem from his alleged failure to meet such contractual obligations. Thus, relying on the “substance” of the negligence allegations, the court granted State Farm’s Motion for Summary Judgment.

Thanks to Nicole Pedi for her contribution to this post.  Please write to Mike Bono for more information.

PA Supreme Court to Consider Solo Subrogation

The Pennsylvania Supreme Court recently heard arguments as to whether an insurance company can pursue litigation against a third-party tortfeasor if the injured insured does not file suit herself.

At issue before the court in Liberty Mutual Insurance Co. v. Domtar Paper Co. was whether Section 319 of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 671, allows the employer/ insurer to step into the shoes of the insured employee to pursue subrogation against a tortfeasor.   The case arose when George Lawrence, an employee of Schneider National, Inc. fell on his knee at Domtar Paper’s parking lot while acting in the scope of his employment. Liberty Mutual, who issued a workers’ compensation policy to Schneider National, paid approximately $34,000 to Lawrence for his workers’ compensation benefits claim. In an effort to recover the amount it paid out to Lawrence, Liberty Mutual designated itself a subrogee of Lawrence and brought a negligence action against Domtar Paper, who allegedly owned and maintained the parking lot.

Domtar Paper filed Preliminary objections on the basis that Liberty Mutual’s cause of action was barred because Pennsylvania does not recognize an independent cause of action by workers’ compensation insurers when the injured party has not brought suit in his own right and is not a party in the case.  The trial court sustained the objections and the Pennsylvania Superior Court affirmed.  Specifically, the Superior Court explained that Section 319 of the Workers’ Compensation Act does not give an employer or insurer a cause of action in its own right.

Appearing before the Pennsylvania Supreme Court, counsel for Liberty Mutual argued that the Workers’ Compensation Act permits an employer to be subrogated to the rights of an employee and denying that right would create an economic loss for the carrier. Needless to say, judgment in favor of Liberty Mutual would be important for insurers who pursue subrogation.  Thanks to Sheri Flannery for her contribution to this post.  For more information, please write to Mike Bono.

 

What is Your Business? Describe it Accurately or it May be a Material Misrepresentation.

In Star Ins. Co. v. Treible’s Wrecker Serv. Inc., the underlying plaintiff commenced a negligence action against Treible’s claiming that Treible’s negligence inspection of his car resulted in plaintiff’s damages.  Star Insurance Company disclaimed coverage and commenced a declaratory judgment action seeking to rescind its insurance policy based on a material misrepresentation.  Star claimed that the president of Treible’s fraudulently concealed that Treible’s was operating a state motor vehicle inspection facility in addition to its towing and repossession services.

In its annual renewal application for insurance, Treible’s stated that its business consisted of repossession and towing services.  Moreover, when specifically asked in the application if it conducted any other work, Treible’s responded in the negative.  Further, the insurer’s agent had previously testified that the type of business a potential insured is operating is of the upmost importance in determining whether to issue insurance to that person / organization.  As such, the insurer claimed that it would not have insured Treible’s if it was known that Treible’s operated an inspection business.

Thus, the Court concluded that the representations made by Treible’s in its insurance application were false and material to the insurance contract.  Consequently, the Court granted the insurer’s motion to rescind the insurance policy.

The key question with respect to a material misrepresentation allegation is whether the insurer was induced into the contract by the material misrepresentation.  If the insurer can prove, by clear and convincing evidence, that:  a false representation, material to the transaction, was knowingly or recklessly made with the intent to mislead the party into relying on it, which ultimately resulted in the party’s injuries – then the contract could be rescinded.

Thanks to Colleen Hayes for her contribution to this post.  For any questions contact rcosgrove@wcmlaw.com.

When Does the Clock Strike for PA Bad Faith Claims?

In Blackwell v. Allstate Insurance Company, plaintiff filed a March 2011 claim with Allstate for property damage due to a water leak, and contractor vandalism.  Allstate covered the claim, and paid for the cost to repair plaintiff’s furnace.  In October 2012, plaintiff realized that the furnace was inoperable, and filed another claim for the replacement cost, alleging the 2011 water damage and vandalism caused the furnace damage.  On November 13, 2012, Allstate denied Plaintiff’s claim, explaining that the twenty months between Plaintiff’s initial claim and the furnace damage barred recovery.  Plaintiff filed suit in November 2013 for breach of contract, common law bad faith and statutory bad faith.

The District Court dismissed the claim for breach of contract.  Under Pennsylvania law, the statutory limitation period generally starts to run from the time of breach, however, the parties agreed to a different limitation period in the policy, as “one year from inception of the loss or damage.”  Since the “inception of the loss or damage” occurred in March 2011, the breach of contract claim filed after March 2012 (a year from the inception of loss) was time barred.  The court also dismissed the common law bad faith claim, since a common law bad faith claim fails to exist independently of a breach of contract claim.  However, the statutory bad faith claim survived, since under Pa. Const. Stat. Ann. § 8371, the time period for the statute of limitations on a bad faith claim begins on the date the insurance company first denied the insured’s claim in bad faith, here November 13, 2012.  As such, plaintiff’s November 2013 filing was timely.

This case is instructive as it evaluates the accrual dates for bad faith claims.  In analyzing bad faith claims, attorneys must take into account the common law and any statutory limitations to evaluate dismissal potentials.

Thanks to Coleen Hill for her contribution to this post. For any questions please contact rcosgrove@wcmlaw.com

 

 

 

Court Rejects Asbestos Laundry Case (PA)

Earlier this month, the Superior Court of Pennsylvania denied a wrongful death claim in Haldman v. Eaton Corporation that alleged a women developed terminal cancer as a result of her exposure to asbestos while doing laundry. The suit was brought by Daniel Haldaman, the executor of the estate of his wife, Gerda Haldaman.

Evidence suggested that Gerda’s husband, Ray Haldaman, may have been exposed to asbestos dust in the Pennsylvania steel mill where he worked. In fact, the appeals court concluded that in general, asbestos containing products were present in theRay Haldaman’s workplace during the time of his employment. Daniel Haldaman sued the manufacturers of the asbestos-containing brakes that were present in the mill and further alleged that Gerda routinely washed her husband’s clothes, which were “dirty and covered in dust.”

However, the appeals court determined there was no evidence of specific exposure to any of the asbestos-containing products. According to the court, “those statements identifying particular products and times did not mention the presence of Ray Haldaman, and specific references to Ray Haldaman did not place him in the proximity of specific asbestos containing products at specific times.” In sum, there was no nexus between Ray—and by extension Gerda Haldaman—and the asbestos-containing products manufactured by the defendants.

The court concluded that Daniel had only established the potential for exposure, but did not conclusively prove asbestos exposure from a specific source. As a result, the appeals panel upheld the grant of summary judgment for product defendants. The case provides interesting insight into what future plaintiffs need to establish in the increasing number of asbestos cases.

Thanks to Erica Woebse for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com.