“What Time Will You Be Home?” Distracting a Driver Via Text Could be Actionable in PA

In a case of first impression, Judge John W. Hodge of the Lawrence County Court of Common Pleas allowed negligence and wrongful-death claims to go forward against a defendant involved in a fatal car accident.  In Gallatin v. Gargiulo, defendant Laura Gargulio was texting while driving and hit plaintiff on his motorcycle, dragging him approximately 100 feet.  The complaint included claims against Joseph Gargulio and Timothy Fend, alleging that Laura was reading and/or responding to text messages sent by either Joseph or Timothy.

Fend filed preliminary objections on the basis that plaintiff had no cause of action to recover against him. However, Judge Hodge noted a 2013 ruling by the New Jersey Court of Appeals, Kubert v. Best, which held that as a matter of civil common law, the sender of a text can potentially be liable if an accident is caused by texting and the sender knew or had reason to know the text would distract the driver. Judge Hodge allowed for the possibility that defendants Timothy and Joseph could not be held to the standard established in Kubert, but felt that the law weighed in favor of keeping the men as parties at least through the discovery period.

Although this ruling currently has limited precedential weight, it could signify a major change in motor vehicle liability law. It would provide additional avenues for a plaintiff to recover and could have a significant effect on motor vehicle coverage in the future.  We will continue to follow this case to determine if it denotes a larger trend in Pennsylvania jurisprudence.

Given the Court’s ruling that the texting / non-driving defendants would remain active defendants “through the discovery period,” we suspect these defendants will be able to seek dismissal if they can demonstrate they were not aware the driving defendant was actually driving at the time.  Thanks to Remy Cahn for her contribution to this post.  Please email Brian Gibbons with any questions.



Woman Awarded $1.19 Million “Aberration” Verdict in UIM Case (PA)

A jury in Beaver County awarded a woman $1.2 million in Alviani v. Horace Mann Insurance.  The suit arose from in a July 18, 2012 when the plaintiff, Britney Alviani, was the passenger in her boyfriend’s car when it was struck head-on by Jodi Morrison.  Alviani was thrown forward where she struck the windshield and suffered a laceration to her face and multiple abrasions and bruises.  She also suffered injuries to her right knee and elbow.  According to the pre-trial memorandum, Morrison was driving under the influence and left her lane of travel.  She was later convicted of DUI.

Follow-up care showed that Alviani had a significant injury to her right elbow.  She underwent two surgeries and various other medical treatments and was diagnosed with chronic pain syndrome.  Plaintiff’s counsel employed a medical expert who opined that Alviani’s injury is permanent and that she will not be able to return to her job as a barber’s apprentice.  The pre-trial memo also stated that Alviani is unable to lift more than one pound and has trouble engaging in recreational activities.

The defense team employed their own expert who stated that Alviani was able to be gainfully employed and pointed to her own testimony which stated that she was currently working on a full-time basis and earning more than a barber’s apprentice.

Morrison only carried $15,000 in liability coverage but Alviani was insured under five additional auto policies which provided $50,000 in UIM benefits each.  Alviani requested $65,000 for lost wages, $892,000 – $1.14 million for lost earning capacity, and a $250,000 UIM claim.  The defense offered a final settlement of $115,000.

After a four day trial, the jury deliberated for five hours and returned a $1.19 million verdict which included $65,488 in past lost earnings, $1 million in lost earning capacity, and $100,000 for pain and suffering.  Defense counsel called the verdict an “aberration” and says that he will appeal.

This case demonstrates the potential for high damages if there is a finding of a permanent injury and also the ability of plaintiffs to stack other insurers through UIM coverage.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Pennsylvania Court Addresses Whether Property Damages Occurred During the Policy Period

Generally the date of loss set forth in the complaint is the date that triggers coverage within a specific policy period.  Where discovery uncovers an earlier trigger date, coverage may apply during a prior policy period.

In Olde Glory Builders LLC v. Donegal Mut. Ins. Co., Olde Glory Builders, built a home and sold it to a third party in 2011.  The plaintiff was insured under a CGL policy from December 2010 to December 2011.  During the first year of owning the property, the buyer reported the property’s roof was leaking to Olde Glory Builders.  Olde Glory Builders was unable to correct the problem.  In June 2013, the property sustained significant water damage, which resulted in the buyer instituting suit against Olde Glory Builders.  In the buyer’s lawsuit, the buyer made claims against Old Glory Builders for negligent construction and its failure to detect and correct problems, which had become apparent in or before November 2012.

The insurer denied coverage contending that the alleged damages did not occur within the policy period.  Subsequently, Olde Glory Builders filed a declaratory judgment action.  In determining whether there was coverage under the policy, the court first reasoned that an insurer’s obligation to defend its insured was triggered when the allegations in a complaint could potentially fall within the scope of the policy’s coverage.  The court further reasoned, in Pennsylvania, an occurrence takes place when the injurious effects of a negligent act “first manifest” themselves to a reasonable person.

The court concluded that the effects of Olde Glory Builders’ alleged negligence “first manifested” themselves during the first year of the buyer owning the property (as he reported his complaints to Olde Glory Builders during that time).  Thus, because Olde Glory Builders’ policy was in effect at the time that the damages manifested (in 2011), the insurer was obligated to defend Olde Glory Builders.

This case illustrates how sometimes property damage that seemingly occurs outside the policy period may potentially be covered under a policy, under Pennsylvania law, if a court determines that the injury leading to the loss manifested itself while the policy was in effect.  As such, discovery should be conducted to determine, as best as possible, when complaints began to be made about alleged property damage – as this may ultimately play an important role in determining whether coverage is provided under a policy.

Thanks to Collen Hayes for her contribution to this post.



Another Philadelphia Jury Awards $1.5 Million for Slip and Fall –Notwithstanding Inconsistent Accident Footage

A jury in Philadelphia County jury recently came back with a verdict in favor of a grocery store customer who fractured her wrist in a slip and fall.

In Spencer v. Bottom Dollar Food, the plaintiff, a 51 year old woman, fell on a sticky, wet floor. As a result of the injury, plaintiff required surgery to insert plates and screws.  A store employee could be seen on video cleaning the location of the fall subsequent to the fall; however, the video also shows other customers walking over the area without incident.  Additionally, plaintiff initially told store managers she slipped on a grape, which was inconsistent with the video.

Plaintiff demanded $100,000; however, after a three day trial, the jury issued a verdict in the amount of $1.5 million.  This verdict was despite medical expenses only in the amount of $8,332.  As a result of this award, Bottom Dollar was forced to file a motion for a post-trial remitter, calling the jury’s award “grossly exorbitant.”

This verdict is a surprising result for an otherwise mundane case.  This award is far above the special damages as established in the case, and is reflexive of the sometimes unpredictable and capricious nature of juries.  Overall, this verdict represents a worst case scenario.   It remains to be seen how the court rules on the post-trial motions.

Thanks to Konrad Krebs for his contribution to this post.

Philadelphia Jury Renders $1.64 Million Verdict in Trip-and-Fall Case with Apparent Video Evidence Spoliation

We already know that Philadelphia juries tend to be plaintiff-friendly in personal injury cases. What we have recently learned from Allison v. Forest City Enterprises is that Philadelphia juries can be $1.64 million-friendly when you couple an ordinary trip-and-fall with video spoliation.

On May 17, 2013, the plaintiff tripped and fell on an allegedly defective metal grate on the sidewalk in front of a building in center city Philadelphia. The plaintiff claimed he injured his left arm in the fall, which allegedly led to $1.25 million in multiple surgeries and hospital visits, as well as a total of 70 days in the hospital. Defense argued that the grate was not a dangerous condition, and that any danger was de minimus.

At deposition, a defense witness testified that there was no video surveillance system in place at the time and location of plaintiff’s accident. Subsequent evidentiary developments revealed that this was false; there was in fact a video surveillance system in place. The defense witness amended her testimony in a subsequent deposition, stating that (a) there was video surveillance footage, but she “believed” it was erased after 30 days; (b) she ignored the plaintiff’s spoliation letter since she received it 30 days after the plaintiff’s fall; and (c) she had no knowledge as to how the video surveillance videos for the building were saved or accessed. The spoliation evidence was permitted to be introduced at trial.

The jury deliberated for a full 6 days and ultimately found the defendant building owner 90 percent negligent while finding the plaintiff only 10 percent negligent. Of the $1.64 million award, the jury allocated $1.27 million for past medical expenses, $250,000 for future medical expenses, and $120,000 for pain and suffering.

Plaintiff’s unusually high medical bills likely played a significant role in this seemingly excessive verdict. But – the lesson is that perceived foul-play of a corporate defendant in the discovery process can turn a defensible case into a verdict nightmare.

Thanks to Rachel Freedman for her contribution to this post.

History Of Substance Abuse Allowed to Rebut Lost Earning Claim (PA)

The Middle District of Pennsylvania addressed an issue of first impression in Fife v. Bailey when it ruled that a Plaintiff’s past drug and alcohol abuse was admissible to rebut lost earning claims.

Plaintiff Danette K. Fife was involved in a motor vehicle collision with Defendant Aleesha Bailey. Fife brought suit against Bailey for, among other counts, lost earning capacity. The parties underwent a final pretrial conference in August 2015. Seven months later, Plaintiff Fife filed a motion in limine, arguing that any and all references to her prior drug and alcohol addiction should be precluded as irrelevant and unfairly prejudicial.

Judge Mannion of the Middle District of PA denied Fife’s motion on the grounds that Pennsylvania case law does not support her position. Fife cited Kraus v. Taylor as support for her position that PA courts consistently exclude addiction evidence because the danger of unfair prejudice outweighs the probative value. 710 A.2d 1142, 1144 (Pa. Super. Ct. 1998).  Judge Mannion firmly disagreed, and denied Fife’s motion. The Judge noted that drug and alcohol abuse can significantly shorten life expectancy, which is certainly relevant to a lawsuit alleging lost earning capacity. Judge Mannion also stated that an expert is not required to show that substance abuse can shorten a person’s life expectancy, nor does an opposing party have to show that the abuse was chronic for the evidence to be admissible.

Judge Mannion’s ruling opened the door to evidence of plaintiff’s chronic substance abuse; however, he plans to include a limiting instruction that the substance abuse evidence may only be used for assessing damages in respect of Plaintiff’s earning capacity and life expectancy.

Thanks to Melanie Brother for her contribution.

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


Man Awarded $1.8 Million For Chemical Burns (PA)


On March 17, 2016, a Philadelphia jury awarded a sanitation worker $1.8 million after he was partially blinded from a workplace accident.  The trial lasted for two weeks resulting in the jury’s decision which found the defendant Hatfield Quality Meats 87% liable for plaintiff Joseph Keith Jr.’s injuries.

According to the pretrial memo, the case arose from an incident where Keith was cleaning Hatfield’s facility with sodium hydroxide.  As he was wrapping up the hose he used to spray the chemical, it struck him in the face, knocked off his protective glasses, and caused the chemical to drip into his right eye.  Keith then washed his eyes out in a sink but it was ten minutes before he could find a proper eyewash station.

Keith’s pretrial memo stated that he was rendered blind in his right eye and deaf in his right ear.  He claimed lost earning capacity and future medical care costs of between $1.8 and $2.5 million.  The memo also stated that Keith  was permanently disfigured and “looks like a monster to his five children.”

Plaintiff’s counsel harped on the issue of eyewash stations being placed in accordance with OSHA regulations.  They stated that the nearest eyewash stations were 155 and 210 feet away and there were several obstructions in the way.  According to the pretrial memo, the eyewash station that Keith eventually used was locked in another room.  Under OSHA regulations, eyewash stations should be within 50 feet of where chemicals are being used.

Hatfield contended that Keith’s employer didn’t properly train him and that his employer determined the location of the eyewash stations and chemical hose.  Hatfield also stated that OSHA visited the plant on a quarterly basis and they were never cited for violations.  They also questioned whether Keith was properly wearing his safety glasses in the first place.  Hatfield also contended that Keith is very capable of working and has formed several businesses since the accident and as such overstated his injuries.

At trial the plaintiff’s team used several experts.  One stated that having a closer eyewash station would have significantly lessened Keith’s injuries.  Another stated that an eyewash station would have been irrelevant since the damage to Keith’s eyes was instantaneous.  However, on cross, it came out that this expert based her opinion on a 49% solution of sodium hydroxide while the solution Keith was using at the time of the accident was only 1%.

The case illustrates several important points in litigation, the first being the use of regulations and defendant’s compliance with them.  It demonstrates that all entities should strive to meet them to comply with the law and safeguard their workers even though a company can be found liable with an absence of citations or violations.  The use of experts is also found in this suit and how they can support a case or hurt it when holes are poked in their findings.  And finally, the issue of a sympathetic plaintiff is here with Keith, a young man with a family, suffering blindness and hearing damage and becoming disfigured.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

New Federal Discovery Rules in Action as Eastern District Quashes Spousal Deposition

The Federal Rules of Civil Procedure were recently amended in December 2015 to increase the efficiency – and civility – with which litigation is conducted.  The amendments partially focused on streamlining discovery by implementing a “proportionality” standard that would limit the scope of permissible disclosure, thereby reducing the number of disputes that would result in unnecessary motion practice.  A recent decision from the United States District Court for the Eastern District of Pennsylvania makes clear that federal judges are committed to implementing this new standard – as well as old principles – in an effort to make discovery more efficient.

In the case of Tong v. Mangar Industries, the plaintiff sued her former employer, alleging that she was effectively discharged as a result of a sexually hostile environment created by one of her supervisors that eventually led to sexual assault.  During the course of discovery, the plaintiff noticed the deposition of the offending supervisor’s wife, prompting the employer to timely file a motion for a protective order quashing the deposition on the basis that any disclosures made therein would lead to the destruction of their marriage.  In fact, as part of its petition to quash, the employer went so far as to stipulate that the offending supervisor lied to his wife about his relationship with the plaintiff, and accordingly no deposition was factually necessary.

Ultimately granting the motion for a protective order, the Honorable Michael J. Baylson first noted that the new Federal Rules of Civil Procedure specifically include the concept of “proportionality” in discovery.  However, although the inclusion of “proportionality” in Rule 26 arose largely out of the concern that discovery had become too costly, Judge Baylson also explained that the standard “applies as much to the concept of relevancy as to expenses.”  With this in mind, Judge Baylson stated that “proportionality” in this case compelled a finding that the likelihood of embarrassment, coupled with the potential destruction of the deponent’s marriage, vastly outweighed the discovery of any probative evidence in addition to the employer’s aforementioned stipulation.

While the Court’s discovery order in Tong is in many ways limited to the facts and circumstances of that case, it is loaded with insight for counsel and their clients.  Specifically, there is little doubt in light of the Tong decision that the new standard for discovery under Rule 26 is being actively applied by federal jurists.  With that said, however, it is equally clear that traditional evidentiary principles like prejudice and relevancy persist as discovery challenges inasmuch as the value of discovery must always be weighed against more than just its economic costs. Thanks to Adam Gomez for his contribution to this post.  Please email Brian Gibbons with any questions.

Failure to Follow Directions Results in $1,000,000 in UM Benefits (PA)

On March 24, 2016, the United States Court of Appeals for the Third Circuit affirmed a summary judgment order, declaring that Zurich was liable for up to $1,000,000 in uninsured motorist (“UM”) coverage for injuries suffered by Stefan Freeth.  Freeth was injured while working on the back of a truck owned by his employer, Road-Con, Inc.  A passing tractor-trailer struck a traffic sign, propelling it into Freeth’s leg.  Because the tractor trailer was never identified, Road-Con’s business insurance provided UM coverage for Freeth’s injuries.  That insurance policy was issued by Zurich, who contended that the policy only had a limit of $35,000 in UM coverage due to the existence of an executed Uninsured/Underinsured Motorists Coverage Selection/Rejection Limits Summary Form.

Freeth filed suit, seeking a declaration that the policy provided $1,000,000 in UM coverage.  In response, Zurich argued that in February 2012, prior to Freeth’s injury, Road-Con (through its president) signed an Uninsured/Underinsured Motorists Coverage Selection/Rejection Limits Summary Form (“Summary Form”) electing to reduce the UM coverage to $35,000.  The Summary Form advised the insured that the form was “NOT A SUBSTITUTE FOR REVIEWING EACH INDIVIDUAL STATE’S SELECTION/REJECTION FORM FOR UM AND UIM COVERAGE. YOU ARE REQUIRED TO DO SO.”  In light of this warning, Freeth argued that the signature on the Summary Form was not a sufficiently clear manifestation of Road-Con’s intent to reduce the coverage, and, therefore UM coverage defaulted to the same amount as the bodily injury liability coverage, or $1,000,000, by operation of Pennsylvania law.

Despite the language in the Summary Form warning Road-Con that signing the form was insufficient to effect a reduction in coverage, Road-Con never signed a Pennsylvania-specific form requesting reduced UM coverage, even though it did so for other states.  The court found this omission to be dispositive, reasoning that to any reasonable reader, the repeated emphatic warnings in the Summary Form would create an expectation that coverage amounts within a given state would be set at levels provided by law unless a form designed and submitted specifically for that state requested otherwise.  The court reasoned that if Zurich warned its insureds that an additional state-specific form was needed to reduce coverage and did not enclose the form (or enclosed it but never received it back), it could not prevail on the theory that an insured’s signature on the very document that contained the warning was, in the absence of the state-specific form, a sufficient manifestation of intent to reduce coverage.

Accordingly, the court affirmed the district court’s decision, holding that the mere act of signing a document like the Summary Form would ordinarily not suffice to reduce coverage, because the language on the Summary Form itself clearly and repeatedly stated that signing the Summary Form was insufficient to effect a reduction in coverage.  Thanks to Hillary Ladov for her contribution.  Please email Brian Gibbons with any questions.

WCM Wins Third Circuit Affirmance in Civil Rights Violation Case.

Philadelphia Partner Bob Cosgrove and associate Colleen Hayes were awarded summary affirmance by the United States Court of Appeals for the Third Circuit. In Nona Farrar v. John McNesby, et al., the plaintiff filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that various defendants, including our client, had conspired, over a ten year period, to deprive her of her constitutional rights. In response, we moved to dismiss the plaintiff’s complaint pursuant to Federal Rule 12(b)(6) contending that the plaintiff failed to state a claim upon which relief could be granted. The district court granted our motion and dismissed all claims against our client. Subsequently, the plaintiff appealed to the Third Circuit. In response, we filed a motion for summary affirmance contending the plaintiff’s appeal presented no substantial question and, as such, the lower court’s order should be affirmed. The Third Circuit upheld the district court’s order and dismissed all claims against our client.

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