WCM Obtains No Cause Result in Philadelphia Premises Case.

Partner Robert Cosgrove and associate Erin Connolly recently obtained a finding of “no cause” in a Philadelphia County slip-and-fall case. In Yolanda Jefferson v. Marriott Hotel Services, Inc., the plaintiff alleged that she slipped and fell on snow and ice while exiting a SEPTA bus outside of the Downtown Philadelphia Marriott located at 12th and Market Streets. The plaintiff argued that Marriott negligently maintained its property by failing to clear the snow/ice, causing the plaintiff to fall and sustain injuries. In opposition, WCM argued that Marriott could not be held liable for the plaintiff’s alleged injuries because the plaintiff could not establish that she fell on Marriott property. WCM further argued that the plaintiff (1) failed to establish any evidence regarding the snow and ice and whether it unreasonably obstructed her travel as required under PA law; (2) failed to establish any evidence of Marriott’s notice of the snow/ice; and (3) failed to establish medical causation to the alleged incident. After hearing the evidence, a verdict in favor of WCM’s client was returned.

For more information about this post please e-mail Bob Cosgrove.

Jury Must Decide Whether Release Obtained by Fraud (PA)

A Pennsylvania court recently dealt with whether claims of a language barrier were sufficient to raise issues of fact as to whether a release was obtained by fraud.  In Del Pielago v. Orwig, the defendant failed to stop at a stop sign and struck the plaintiff’s vehicle. As a result of the collision, the plaintiff was injured and underwent surgery for a rotator cuff tear, and trauma induced carpal tunnel to his left wrist, among other injuries. Prior to filing suit, however, plaintiff signed a pre-litigation release, in exchange for payment of $2,857.92.

The defendant filed a motion for summary judgment, which was granted by the trial court. The action was dismissed, and on appeal plaintiff argued that the release should be set aside based on fraud, alleging that twelve days after the accident, an adjuster from Progressive Insurance Company showed up at plaintiff’s home without an interpreter, knowing that plaintiff did not speak or read English. The adjuster presented a check for $2,857.92 and the release, which he scrolled through on an iPad.  Plaintiff claims she signed the release, believed that the payment only covered lost wages.

In granting summary judgment based on the signed release, the trial court relied on the fact that plaintiff’s daughter, who speaks and reads English, was present. On appeal, the Pennsylvania Superior court reversed the trial court’s award of summary judgment, finding that it was clearly an issue for the jury to decide whether the release had been procured by fraud, based on plaintiff’s claims that the adjuster rushed her into signing a release he knew she was unable to understand.

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

Philadelphia Jury Awards Man $2,729 in Past Medical Costs for Fractured Ankle

A “trial loss” is not always as bad as it sounds. In murray-v-tripoldi, a Philadelphia jury awarded the plaintiff, who fractured his ankle after slipping and falling on an icy residential sidewalk, just $2,729 in past medical expenses.

In February of 2014, the plaintiff slipped and fell on ice accumulation on the defendants’ sidewalk, resulting in a fractured ankle. The plaintiff claimed the ice presence resulted from a snowstorm that occurred days earlier. The defendants argued that plaintiff assumed the risk of traversing the ice-laden sidewalk, as neighbors had shoveled their sidewalks and there were safer alternative routes the plaintiff could have taken. Defendants also argued that the accumulation was an open and obvious condition for which the defendants could not be held liable. The defendants successfully argued these defenses at court-mandated arbitration, which resulted in a no-cause award. The plaintiffs appealed the arbitration award and the case proceeded to trial.

At trial, the plaintiff sought to recover $2,729 in past medical costs to treat the fracture and for physical therapy, plus damages for pain and suffering – especially for pain experienced while dancing. At trial, defendants relied only on their liability defenses and did not challenge the plaintiff’s injuries or medical treatment. The case went to verdict, and the typically plaintiff-friendly Philadelphia jury only awarded the plaintiff the exact amount of his medical expenses.

Though an assumption of risk defense and open and obvious defense are intended to shield defendants from liability altogether, in this instance, it appears that these defenses influenced the jury to cap the plaintiff’s damages at their literal amount. This case demonstrates that taking a case to verdict can yield high rewards for defendants when there are low, undisputed damages, coupled with strong liability defenses that highlight common sense.

Thanks to Rachel Freedman for her contribution to this post.

Pennsylvania Court Lacks Jurisdiction Over Settlement Once it was Discontinued

The Pennsylvania Superior Court recently ruled that it did not have jurisdiction to enforce a settlement agreement.

In Camp Horne Self Storage LLC v. Lawyers Title Ins. Corp., the insured sued its insurer alleging breach of contract, bad faith and wrongful denial of insurance benefits. Eventually, the parties reached a settlement and entered into a settlement agreement.  The agreement contained various terms including, among others, that the insurer would have landscaping work performed on the insured’s property.  Upon entering into said agreement, the insured discontinued its lawsuit against the insurer.

Ultimately, the insured was dissatisfied with the landscaping work that had been performed on its property, pursuant to the settlement agreement, and filed a motion with the court seeking to enforce the settlement agreement.  The court denied the motion holding that it lacked jurisdiction to rule on the motion since the insured had discontinued its action against the insurer, and there was no pending action upon which it could exert jurisdiction.

Therefore, this case reveals a court may not be able to enforce a settlement agreement, if a party fails to act under the agreement, if the lawsuit is discontinued too early following settlement.

Thanks to Colleen Hayes for her contribution to this post.



Gym Exercises Contractual Right Under Waiver of Liability Term (PA)

In Toro v. L A Fitness, the plaintiff found out the hard way that in Pennsylvania a signed waiver clause actually means something. The claim arose out of a slip and fall due to soapy water on the floor of the gym’s locker room.  LA fitness filed a motion for summary judgement on the basis of a broadly worded waiver of liability in the membership agreement the plaintiff signed.  Significantly, above the signature line the agreement stated, “By signing this Agreement, Buyer acknowledges that Buyer is of legal age, has received a filled-in and completed copy of this Agreement[,] has read and understands the entire agreement including but not limited to the . . . Release and Waiver of Liability and Indemnity, and other Additional Terms and Conditions on the reverse side hereof.”

The plaintiff put forward a myriad of arguments why the waiver should not apply: the agreement amounted to a contract of adhesion; the waiver was against public policy; and the waiver language was not conspicuous.  Although his signature was on the agreement, he could not recall if he actually read it prior to signing.  The Pennsylvania Superior Court was not persuaded.   The Court agreed that for a waiver to be valid “the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.”

Turning to plaintiff’s adhesion argument, the Court stated that “[a]n adhesion contract is a ‘standard-form contract prepared by one party, to be signed by the party in a weaker position, usu[ally] a consumer, who adheres to the contract with little choice about the terms.” However, the Court found that a waiver involving the “use of a commercial facility for voluntary athletic or recreational activities is not considered a contract of adhesion because ‘[t]he signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services.’” Thus, if Toro did not like the LA Fitness’ terms he was not compelled to sign on the dotted line.

In regards to Toro’s public policy argument, the Court noted that Waiver Clauses “violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The Superior Court further ruled that an agreement between private individuals or entities that do not address matters of interest to the public or state cannot be said to violate public policy.

Lastly, the Court was not swayed by the plaintiff’s memory lapse as to reading the contract before signing. The Court concluded that a “[f]ailure to read an agreement before signing it does not render the agreement either invalid or unenforceable.”  Moreover, above Toro’s signature was language that stated that by signing he agreed that he read it. WAIVER ENFORCED.

Thanks to Marcus Washington for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.

Defective Holster Shoots Manufacturer in the Foot (PA)

A Philadelphia jury awarded a police officer plaintiff $2.6 million after he was injured by an allegedly defective gun holster.  Pennsylvania State Trooper, Jesse Oleksza was injured when his gun discharged into his leg, while in his holster.  According to his pretrial memo, Oleksza was getting his gym bag from out of his police car when his Glock 37 pistol went off.  It was held in a Gould & Goodrich holster.

Oleksza alleged that a foreign object had managed to lodge itself in the holster due to a defect and thus caused the pistol to fire.  An internal affairs investigation cleared Oleksza of any wrongdoing and found that an object like a key could discharge the firearm if inserted into the holster and trigger area.  Oleksza contended the holster was defective for failing to properly protect the trigger and sought recovery based on negligence, strict liability, and breach of implied warranties.


Gould & Goodrich contended that warnings on the holster stated that users should ensure that the trigger area is kept clear and to make sure that foreign objects stay out of the holster.  The manufacturer also contended that Oleksza was aware of the danger of letting foreign objects into his holster from his training.  In addition, a state investigation found no holster defect, and they argued that it is impossible to design a holster that prevents all objects from entering it.

Plaintiff’s counsel also presented ten state troopers to testify in the case as to the defectiveness of the holster.  The jury was also shown pictures of other holsters that showed more trigger protection than the Gould & Goodrich one.  The jury was asked to decide whether the defect was a cause of harm under the consumer expectations test and the risk utility test, and they found that the holster was defectively designed and manufactured.

This case displays the potential big payouts of products liability cases, even if there are numerous warnings and training for a product.  We suspect the testimony of the ten other officers were persuasive to the jury.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Minor Concession by UIM Insurer Prompts Opening for New Trial (PA)

A U.S. Magistrate judge for the Middle District of Pennsylvania recently granted a new trial, albeit on a very narrow issue, to two plaintiffs who lost their federal lawsuit against the Cincinnati Insurance Co.  In  Angino v. Cincinnati Insurance Co., Richard Angino, a lawyer from Harrisburg, Pennsylvania, and his wife sued their insurance company for compensation from injuries in an underinsured motorist context.  Angino alleged permanent neck and back pain that affected his ability to work as an attorney, and sought compensation for lost wages as a result of his alleged permanent disability.

The insurance company argued that Angino’s permanent neck and back pain were not the result of the car accident, but rather were caused by the 75-year old’s advanced age.  However, the insurance company conceded that Angino did indeed suffer from temporary back pain caused by the accident.  A federal jury determined that Angino’s permanent neck and back pain were not caused by the car crash and thus found for the insurance company.

However, U.S. Chief Magistrate Judge Martin C. Carlson of the Middle District of Pennsylvania granted permission for Angino to pursue a narrow avenue of post-verdict relief in the form of a new trial on the sole issue of his temporary back pain.  Because the insurance company conceded that Angino’s temporary back pain was factually caused by the car accident, Judge Carlson granted Angino the opportunity to pursue a new trial where the only claim at issue would be damages related to Angino’s temporary back pain.  In his ruling, Judge Carlson affirmed the portion of the jury’s verdict that sided with the insurance company concerning Angino’s permanent disability claims; and found that Angino’s permanent back and neck injuries were the result of his advanced age as opposed to the car accident.  Judge Carlson noted that this conclusion was confirmed by Angino’s own medical records, as well as his treatment and physical therapy history that were inconsistent with a claim of permanent disabling pain caused by the accident.

Courts often express frustration with attorneys who are reluctant to make even minor concessions during discovery.  This case illustrates the pitfalls of such a concession. The insurer’s concession that plaintiff’s back injury was related to this accident has resulted in a new trial, which could bear significant exposure before a sympathetic jury.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

No Coverage for ATV Accident Occurring on Public Road (PA)

In O’Brien v. Ohio Casualty Insurance Company, the Pennsylvania Superior court was called upon to determine whether an ATV accident occurred at the policy’s definition of an “insured location.”

This declaratory judgment action was filed following the filing of a personal injury claim against the O’Brien’s.  In the underlying case, plaintiff Charles Catania was at a party at the O’Briens’ home in Lake Ariel, PA. Catania was driving the O’Briens’ son’s ATV when he hit loose gravel and the ATV slid out of control. Catania suffered serious injuries as a result. The O’Briens then sought a declaratory judgment that their homeowners insurance would defend and indemnify them for Catania’s lawsuit.

Although the policy excluded coverage for entrustment of a motor vehicle, the exclusion did not apply to an ATV owned by an insured and being used on an “insured location”.    The definition of insured location was broad and included “any premises used by you in connection with” their residence. Here, the specific location of the incident was on someone else’s property off of a public road but the O’Brien’s argued, based on the definition of an “insured location” in the policy, that the road was “used in connection with the property,” and was therefore an insured location.

However, the Court disagreed, citing to the trial court’s reasoning, which stated that the O’Briens did not repeatedly or customarily use the private property where Catania’s occurred.  The O’Briens admitted to never having been at the precise location of the ATV accident. Additionally, Casey O’Brien admits to only riding his ATV on the road once or twice and further, the road was public.   Thus, although the ATV use may have begun on the O’Brien’s property, the ultimate accident was on a public road, and the Court affirmed the trial court’s decision.

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

PA Statute Prevails Over Policy Language

A Pennsylvania Federal Court recently dealt with the competing interests of the Pennsylvania No Fault statutes and policy language in respect of an insurers ability to compel IME.  Scott v. Travelers Commercial Insurance Co., arose from a motor vehicle accident in which Scott was injured and subsequently submitted a claim for first-party medical benefits. The policy has a provision that requires Scott, as often as reasonably required by Travelers, to submit to physical examinations by physicians and cooperate with the settlement, investigation, or defense of any suit.

Travelers subsequently scheduled Scott for an IME. Scott responded, through counsel, that he would be willing to consider an IME, in the absence of a court order, if they sent him the name of three proposed doctors. Travelers did not do so and Scott did not attend. Subsequently, Travelers notified Scott’s counsel that they were relying on the policy language and scheduled another IME. Counsel for Scott responded that Scott would not attend unless a panel of three doctors were chosen and then parties could mutually choose one. After Scott did not attend the second schedule IME, Travelers stopped paying benefits, which gave rise to the bad faith and breach of contract actions in this case.

The bad faith claim was booted as the statute of limitations had already tolled. But Scott prevailed on the breach of contract action, with the court holding that Travelers breached the contract by failing to continue to pay medical benefits, notwithstanding Scott’s refusal to attend an IME outside of his chosen procedure. The court relied upon § 796 of the Motor Vehicle Financial Responsibility Law, which requires insurance carriers to obtain a court order, with a showing of good cause, in order to compel an insured to submit to any mental or physical evaluation for any medical, income, or loss claim. The court held that the statute trumped the policy language and because Traveler’s failed to obtain a court order to compel Scott’s attendance to the IME, Traveler’s non-payment of claims was a breach of the insurance policy.

Thanks to Matt Care for his contribution to this post and please write to Mike Bono for more information.

Costs to Defend and Resolve a Lawsuit Are Not “Resultant Damages” To Substantiate a PA Breach of Contract Claim

A breach of contract claim in Pennsylvania requires 1. Existence of a contract and its essential terms; 2. breach of duty imposed by the contract; and 3. resultant damages. It appears that “Resultant Damages” must be more than defense and indemnity costs.

In Brown-v-concrete-corp, the plaintiff condominium association sued a construction manager and subcontractor for structural damage to a unit’s bathroom. The construction manager, asserted a breach of contract cross-claim against the subcontractor. The construction manager settled the claim with the plaintiff-condominium association for $175,000 and the unit owner for $36,000. The case proceeded to trial on the cross-claims. The court found that the subcontractor was negligent, and the negligence amounted to a breach of its subcontract with the construction manager. However, the construction manager failed to establish damages, because the only damages incurred related to settling plaintiffs’ claims and legal expenses. The court stated that a party must experience direct harm or damages to prevail in a breach of contract claim, and that damages related to lawsuits brought by third parties does not constitute “direct harm or damages” that naturally, ordinarily, or foreseeably result from a contractual breach.

On its face, this decision suggests that an indemnity claim disguised as a breach of contract claim will not succeed. However, the Superior Court ambiguously qualified its ruling by stating that there may be some instances where settling a third party claim could be a foreseeable result of a contractual breach. This opens the door for future contractual breach claims, to explore what those circumstances could be.

Thanks to Rachel Freedman for her contribution to this post.