Bock’s Tops Spring 2016

Person Injured by Insured Has No Standing to Bring Bad Faith Against Insurer

In Leboon v. Zurich Am. Ins. Co., 2016 U.S. Dist. LEXIS 51381, Judge Pappert of the Eastern District addressed the standing of whether an insurer can be liable for bad faith against a person injured by its insured.  The Court identified plaintiff, Steve Leboon, as “a serial pro se litigant in this and other courts.”

Leboon brought a separate suit against his former employer, Alan McIlvain, who was insured by Zurich.  In the instant litigation, Leboon alleged that he received “zero offers of good faith” for any payment on the insurance policy, and that defendants and their counsel used the entirety of the liability policy for themselves.  As Judge Pappert underscored, the duty to negotiate a settlement in good faith arises from the insurance policy and is owed to the insured, not to a third-party claimant.  Not only was Leboon not an insured within the meaning of the policy, he was an adversary of the insured, who Zurich had a duty to defend.  Leboon was a stranger to the relationship between McIlvain and Zurich, which owed no duties to him to settle.

Thus, the Court dismissed Leboon’s action.

Insurer Not Liable for UIM Benefits Where Insured Allowed Benefits to Lapse

On September 2, 2010, plaintiff was struck by a vehicle while operating her bicycle.  After the driver’s insurer tendered its policy limits, plaintiff sued her alleged insurer for UIM benefits.  Plaintiff had had coverage with Progressive Garden State until August 6, 2010.  Prior to the lapse, she moved from New Jersey to Pennsylvania, and never renewed her policy (despite letters and emails from Progressive warning plaintiff that her coverage would lapse).

Plaintiff received several notices after August 6, 2010 that her policy had lapsed and did not make payment until the day after the accident.  Since there was no policy in effect on the date of the accident, Progressive had no duty to pay UIM benefits.  There simply was no contract.  In Racioppi v. Progressive Ins. Co., 2016 Pa. Super. Unpub. LEXIS 1624, the Superior Court found that the trial court had not erred in granting summary judgment for Progressive.

Nephew Cannot Recover for Loss of Consortium from the Estate of his Uncle and Aunt

Scott Young filed a complaint against the Estates of his late uncle and aunt alleging that certain unnamed individuals mistreated the uncle and aunt in their final days and also interfered with his relationship with his uncle and aunt.  In his complaint, Young alleged a cause of action for “loss of consortium and the loss of support, cooperation, aid, companionship and loving interactive relationship critical in the last days of Frank and Norma’s life.”  Young specifically seeks that their estates compensate him for the loss of support and companionship that resulted from the alleged mistreatment.

In Young v. Estate of Frank J. Young and Norma Young, 2016 Pa. Commw. LEXIS 167, the Pennsylvania Commonwealth Court addressed the viability of plaintiff’s claims.  Per the Court’s analysis, plaintiff’s claim for loss of support and companionship must be considered a tort action for loss of consortium.  Since there is no loss of consortium in a parent/child relationship, no cause of action exists for a nephew’s loss of his aunt’s or uncles’ consortium based on their alleged mistreatment by third parties.

Orthopedist Can Be Expert in Medical Malpractice Case Against Podiatrist

In plaintiff’s malpractice suit against her podiatric surgeon, plaintiff sought to present as an expert a board-certified orthopedic surgeon who had not performed surgery in over eight years.  The trial court granted defendant’s motion to exclude the expert testimony and granted defendant’s motion for compulsory nonsuit.

On appeal, the Superior Court reviewed whether the trial court erred in excluding the testimony of plaintiff’s medical expert.  In Price v. Catanzariti, 2016 Pa. Super. 76, the Court reversed and remanded the matter for trial.

Per the MCARE Act, an expert testifying as to a physician’s standard of care must practice in the same subspecialty as the defendant physician or in a subspecialty with a substantially similar standard of care.  However, in this case, defendant, as a podiatrist, is not a “physician” as the term is statutorily defined.  Therefore, MCARE does not apply.  Instead, the common law standard applies: that a witness is qualified to testify if he has any reasonable pretension to specialized knowledge on the subject under investigation.  The Court opined that the fact the expert has not operated in eight years, or that he specializes in the spine rather than the foot, goes to the weight of his testimony, not its admissibility.

Action Against Veterinarian Required Expert Report

Kimberly King appealed the order from the trial court granting summary judgment to Canon Hill Veterinary Clinic, Inc. and Leah Mitchell.  In a non-precedential opinion, the Superior Court affirmed at King v. Canon Hill Veterinary Clinic, 2016 Pa. Super. Unpub. LEXIS 1602.

King was at Hillside Stables when her friend’s horse showed signs of distress.  King helped Dr. Mitchell walk and calm the horse.  After Dr. Mitchell gave the horse a sedative, the horse fell down and kicked King in the face.

After commencing suit, the trial court ordered King to produce an expert report regarding liability, which King failed to do.  Defendants moved for summary judgment on the basis that King could not meet her burden of proof, since she failed to produce an expert report as required in professional negligence actions.  King tried to argue that the matter sounded in ordinary negligence, but the Superior Court found that the allegations in her Complaint demonstrated that King’s action was for professional negligence, since they related directly to Dr. Mitchell’s improper treatment of the horse.  Thus, the failure to submit an expert report was fatal to her action.

Court Grants Lowe’s Motion to Dismiss After Contractor’s Employee Fell Through Greenhouse

In Holt v. Lowe’s Home Centers, U.S. Dist. Court Middle PA (4:15-cv-01728), Judge Brann granted defendant’s motion to dismiss.

Lowe’s contracted with Rough Brothers, Inc. to provide emergency snow removal services at their stores for their greenhouse buildings nationwide.  To clear the greenhouse at their Montoursville, Pennsylvania location, Rough Brothers, in turn, subcontracted with Extreme Concepts, who employed plaintiff.  While shoveling and raking snow from the roof of the greenhouse, plaintiff slipped and fell through the greenhouse causing catastrophic injuries.

In considering defendants’ motion to dismiss, Judge Brann underscored that the United States Supreme Court has put in place an exacting “plausibility” standard for such motions.  Therefore, the complaint must show more than a sheer possibility that the defendant was negligent.  The court found that plaintiff was an invitee, to whom Lowe’s owed “adequate and timely warning of dangers.”  However, Lowe’s discharged its duty to warn of the damage by virtue of the nature of the instructions passed from Rough Brothers to Extreme Concepts (which identified the extent of the possible damage to the roof).

Judge Brann also addressed the “peculiar risk doctrine.”  A property owner that hires an independent contractor is not liable for harm caused by the contractor or his employees.  However, an exception exists under Section 416 of the Restatement (Second) where the employer should recognize that doing the work could create a peculiar risk of physical harm unless special precautions are taken.  Yet the court determined that the very nature of the work plaintiff was hired to do was risky, and by no means peculiar.

Superior Court Affirms Defense Verdict Where Liability was Admitted

At trial, plaintiff elected to limit her damages to $25,000.00 under Rule 1311.1 (and submit reports of the experts in lieu of live testimony).  Defendant stipulated to liability, as it was a rear-end collision, and that the accident caused plaintiff to suffer neck sprain/strain, but disputed the extent of the injuries in view of a prior accident.  The jury found defendant negligent, but awarded no monetary damages.

In Gold v. Rosen, 2016 Pa. Super. 44, the Superior Court reiterated that not all injuries are serious enough to warrant compensation, even though there may be some pain.  The question becomes whether the conclusion that the injury is so minor that no compensation is warranted defies common sense and logic.

The court underscored that there was no violent collision.  Although the jury found that defendant’s negligence caused harm, it did not find such harm significant enough to warrant a monetary award.  A jury may conclude that discomfort is the sort of “transient rub of life” for which compensation is not warranted.  The court found that the jury’s finding was consistent with the record.

Superior Court Finds that Expert Testimony is Sufficient to Admit Blood Alcohol Results

Plaintiff/decedent was killed while crossing Castor Avenue in Philadelphia.  At trial, the jury found that the defendant driver was negligent, but that her negligence was not the factual cause of the decedent’s death.  The trial judge denied plaintiff’s motion to exclude evidence of the decedent’s intoxication.

In Coughlin v. Massaquoi, 2016 Pa. Super. 70, the only issue presented to the Superior Court was the admission of the intoxication evidence.  The Superior Court noted that the jury’s finding may have been an inconsistent verdict, since there were no other factors that the jury could consider, but that issue was not preserved by plaintiff.

Defendant elicited testimony and evidence that decedent’s BAC was 0.313, which would have rendered him unfit to safely cross the street.  Yet the trial court did not believe the jury relied on that evidence, since the jury did not apportion decedent’s comparative fault.

On appeal, plaintiff argued that the decedent’s BAC was inadmissible as a matter of law where there was no independent corroborating evidence of intoxication, e.g. slurred speech, odor, unsteady gait.  The court found that while there were no eyewitnesses to decedent’s intoxication, the expert testimony of the toxicologist was sufficient to corroborate evidence for admission of the BAC result.

Summary Judgment was Proper in Cheerleading Injury

In Kennedy v. Robert Morris University, 2016 Pa. Super. 16, plaintiff was a freshman on the Robert Morris University (RMU) cheerleading squad, coached by Cynthia Hadfield.  Prior to the start of school, the squad attended a mandatory camp at the University of Scranton conducted by Universal Cheerleader Association (UCA).  At the camp, while practicing a new stunt, plaintiff landed striking the back of her head on the floor and sustained serious injuries.

Plaintiff’s suit alleged that RMU, through Coach Hadfield, was negligent, namely that the coach knew or should have known that the new trick was dangerous, and that there were inadequate spotters.  Plaintiff did not proceed against UCA.  RMU successfully moved for summary judgment on the basis that there was no dispute that UCA evaluated the cheerleaders’ qualifications and skill levels, and exclusively supervised the stunts.

On appeal, plaintiff alleged that there is a special relationship between herself and RMU.  The school conceded that it owed a duty to plaintiff in the selection of the camp, but plaintiff did not allege negligence in the camp’s selection or that the UCA instructors were unqualified.  RMU contends that it had no duty with respect to UCA’s instruction generally or regarding the stunt at issue.

The court found that plaintiff failed to identify any duty on the part of RMU that was breached when she sustained her injury.  Plaintiff contended that RMU’s duty of care was non-delegable to UCA.  The court was not persuaded, especially since plaintiff did not assert any allegations of negligence against UCA.  Consequently, the Superior Court found that summary judgment was properly granted.

Superior Court Addresses Stacking Issue

In Toner v. Travelers Home & Marine Ins. Co., 2016 Pa. Super. 69, the Superior Court once again addressed the issue of stacking UM/UIM benefits.  Toner filed a declaratory judgment action to determine whether Travelers was required to provide his mother with a new waiver of stacking form after she added vehicles to her auto policy.  The trial court determined the carrier had no such requirement, and upon appeal, the Superior Court affirmed.

Pursuant to the Sackett trilogy of cases, the addition of a vehicle to an existing auto policy does not represent the purchase of new insurance, and therefore does not require the provision of new stacking waiver forms.  However, the case turns on whether the language of the “after acquired vehicle” clause is finite in scope (and if so, the insurer is required to provide new waiver forms).

The Travelers policy for Toner did not contain a requirement that the insured purchase a different policy upon acquiring an additional vehicle.  Therefore, Travelers was not required to provide Toner with a new or supplemental wavier of UM/UIM stacking forms.

Superior Court Reverses Summary Judgment in Dog Bite Case

Plaintiff, a minor, was injured when she was bitten by Sevdik’s pit bull.  At the time of the bite, the dog was being walked by an employee of Fetch Pet Care.  Plaintiffs sued the dog’s owner, the dog walker, and the owner of the dog walking company.  The trial court granted summary judgment to the dog walking defendants, and the matter against the dog owner proceeded to arbitration.

Plaintiffs appealed arguing that the trial court erred in finding no evidence that the Pet Care defendants knew or should have known of the dog’s dangerous propensities.  In Franciscus v. Sevdik, 2016 Pa. Super 52, the Superior Court reiterated that a dog owner is subject to liability for negligence for injuries caused by his dog when he knows or has reason to know that the dog has dangerous propensities and yet fails to exercise reasonable care to secure the dog to prevent it from injuring another.  This liability extends to custodians and keepers of dogs.  Moreover, there is no legal distinction between an animal dangerous from viciousness and one merely dangerous from playfulness.

The Superior Court found that the record contained sufficient references to the dog’s propensity for danger.  In addition to having a “Beware of Dog” sign on his front door, the dog owner’s work order to Pet Care advised the company to walk the dog for thirty minutes, “no dogs, children; Broadway – a lot of dogs/people – avoid.”  Moreover, the owner instructed Pet Care to walk the dog with a muzzle, but it was unmuzzled that day.  Per the Court, this evidence created reasonable inferences that the dog had dangerous propensities and that the owner and Pet Care knew of them.  Thus, the Superior Court reversed the summary judgment and remanded the matter.

Trial Judge Grants Summary Judgment for Failure to Identify Driver

In Moore v. Gilligan (C.P. Delaware County), Judge Green granted summary judgment prior to the close of discovery.  In the Complaint, Plaintiff sued and alleged that Brendan Gilligan was the operator of the vehicle.  Gilligan denied the allegation, further stating, “Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments…”  In his answers to interrogatories, defendant stated that his niece was the driver, and that he had no personal involvement in the accident.

In granting summary judgment, the trial judge found that no reasonable fact-finder could conclude that anyone other than the niece was the driver.  Plaintiff argued that the official note to Rule 1029(c) required defendant to specifically deny he was the driver, but the Court determined it could not find defendant knew whether the allegations were true or false.  Moreover, defendant did not conceal the driver’s identity, especially since the driver was identified in the police report.

Judge Green also rejected plaintiff’s Nanty-Glo argument that defendant relied solely on his witnesses’ testimonial affidavits and depositions, since defendant’s presence at the scene was not the type of credibility determinations Nanty-Glo reserved for the jury.  Consequently, the trial court found no error in its granted summary judgment in favor of defendant.

Lawrence County Trial Judge Allows Negligence Claim Against Sender of Text to Driver

In an apparent matter of first impression, Judge Hodge in Lawrence County is allowing plaintiff to proceed with a negligence claim against the alleged sender of a text to a distracted driver in the matter Gallatin v. Gargiulo and Fend.

According to the complaint, while on his motorcycle, plaintiff-decedent was slowing down to turn right and was rear-ended by Gargiulo.  Plaintiff alleges that Gargiulo was text messaging immediately before impact, which distraction caused her to strike decedent.  Plaintiff further alleges that Gargiulo was reading and/or responding to a text message from either Joseph Gargiulo or Timothy Fend.

Defendant Fend preliminarily objected on the basis of a demurrer and argued that there is no statute or case law imposing a duty of liability for a person who merely sends a text message to a person operating a vehicle.  Judge Hodge acknowledged that he is unaware of any Pennsylvania precedent, but referenced the New Jersey case, Kubert v. Best, 432 N.J.Super. 495 (2013), which found that a sender of a text can potentially be liable if the sender knew or had special reason to know that the recipient would view the text while driving and be distracted.

Judge Hodge states that the complaint avers that defendant Fend knew or should have known that Gargiulo was operating a vehicle during their text exchange, and that she would read and/or respond to the text message while operating the vehicle.  Conversely, Judge Hodge acknowledges that the allegations do not indicate that numerous text messages were sent, and that it is quite possible that Fend may not have known that Gargiulo was driving at the time.  However, at the preliminary objection stage, all averments should be considered in the light most favorable to the plaintiff.

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