THE 2024 TORT TALK TOP TEN
10. Waiting On Supreme Court Decision Doctrine of Forum Non Conveniens
Civil litigators are awaiting a decision from the Pennsylvania Supreme Court relative to the application of the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, Inc., 303 A.3d 1070 (Pa. Super. 2023) appeal granted 367 EAL 2023 (Pa. 2024).
At the Superior Court level, that Court had ruled Defendant did not demonstrate sufficient grounds to support the request for a transfer of venue under doctrine of forum non conveniens in an effort to move the case out of Philadelphia County. The Court ruled, in part, that the affidavits provided by the defense from witnesses regarding whether or not Philadelphia County was an oppressive or vexatious venue from the perspective of those witnesses were not specific enough.
The primary issue for the Pennsylvania Supreme Court to decide is whether the Superior Court misapplied Doctrine of Forum Non Conveniens.
The Tort Talk post on the Superior Court’s decision in this case can be reviewed at this LINK.
9. Supreme Court Addresses Business Interruption Coverage in Context of Covid-19 Shutdown
In the case of Ungarean v. CNA, No. 12 WAP 2023 (Pa. Sept. 26, 2024) (Op. by Brobson, J.), the court addressed issues regarding business interruption coverage in the context of the COVID-19 pandemic.
This case involved a class action that was led by a dental practice which had purchased a commercial property insurance policy from an insurance company, which policy was intended to cover business-related losses.
After the court mandated closures as a result of the COVID-19 pandemic, the insured filed a claim under the policy, which was denied by the insurance company on the grounds that there was no physical damage to the property.
The trial court had granted summary judgment in favor of the insureds. The trial court had interpreted the policy language to include loss of use of the property as a form of “direct physical loss.”
That trial court decision was affirmed by the Superior Court who also found the policy language at issue was ambiguous and should be construed in favor of the insured.
However, the Pennsylvania Supreme Court reversed the Superior Court’s decision.
The Pennsylvania Supreme Court held that the policy language was unambiguous and required a physical alteration to the insured’s property for the coverage to apply.
The court ruled that the economic losses sustained by the insured due to the government shutdown did not meet this requirement.
As such, the Supreme Court ruled that the insured was not entitled to coverage under the policy. The case was remanded to the Superior Court with instructions for summary judgment to be entered in favor of the insurance company.
The Tort Talk post on this case can be viewed at this LINK.
8. Plaintiff Can Secure Both Punitive Damages and Treble Damages in the Same Case Punitive and Treble Damages
In the case of Dwyer v. Ameriprise Financial, No. 2 WAP 2023 (Pa. April 25, 2024), the Pennsylvania Supreme Court held that a trial court may, under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), award both punitive damages and treble damages.
This case involved Plaintiffs who sued Ameriprise Financial for negligent and fraudulent misrepresentation relative to a life insurance policy. The Plaintiffs alleged that the carrier misrepresented to them that their quarterly premium payments would remain the same for the life of the policy. In reality, if the Plaintiff’s premium payment had remained the same, the policy would have allegedly lapsed for insufficient funds in 2020.
The Supreme Court held that treble damages under the UTPCPL are a separate remedy available to the Plaintiffs and must be considered by the trial court without regard to a separate punitive damages award that may be issued on related common law claims. The Pennsylvania Supreme Court noted that nullifying the availability of a statutory award because of a common law award was not a permissible exercise of discretion by the trial court.
The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.
7. Plaintiff Must Answer Questions at IME or DME
In the Monroe County case of Nelson v. Wilkins, No. 1381-CV-2022 (C.P. Monroe Co. Jan. 26, 2024 C. Daniel Higgins, Jr., J.) from earlier this year, the court granted a defendant’s Motion to Compel a plaintiff to provide information to the IME doctor during an independent medical examination of a plaintiff in a case arising out of a motor vehicle accident.
According to the decision, the plaintiff had appeared for an examination but refused to answer the IME doctor’s questions, asserting that the questions were allegedly outside the scope of Pa. R.C.P. 4010 about the occurrence of the accident that led to the plaintiff’s alleged injuries.
Judge C. Daniel Higgins, Jr. of Monroe County noted that Rule 4010 provides that the examiner is limited to inquiring into matters regarding the facts of liability that were germane to the issue of damages. Rule 4010 itself provides that “[t]he examiner's oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination.” See Pa.R.C.P. 4010(a)(4)(i).
The court found that the plaintiff’s attorney’s position that the IME doctor should not ask questions regarding the history of the accident that could relate to liability and the plaintiff’s argument that the doctor could avoid the problem by reviewing depositions, police reports, Interrogatories, and other discovery materials “was untenable” because it placed too high of a burden on the examining doctor.
In granting the defendant’s Motion to Compel in this regard, the Court ordered that the plaintiff was required to cooperate and answer the questions of the examining doctor. The court noted that, as set forth under Rule 4010, the plaintiff could have her counsel or other representative present during the examination.
The Tort Talk Blog post, which contains a link to this decision, can be viewed HERE.
6. Hills and Ridges Doctrine
Over the past year, one court addressed the issue of whether the Hills and Ridges Doctrine should be applied where a Plaintiff fell in an area that was covered by an awning or a canopy.
In the case of Johnson v. Harris-Dent, No. 23-00,097 (C.P. Lyc. Co. July 8, 2024 Linhardt, J.), Judge Eric R. Linhardt denied a Motion for Summary Judgment in a slip and fall case that occurred when the plaintiff allegedly slipped on alleged black ice that was allegedly located on the top step of a homeowner's porch that was covered by an awning.
In this case, the Plaintiff had cited to the case of Heasley v. Carter Lumber, 843 A.2d 1274 (Pa. Super. 2004) for the proposition that the Hills and Ridges Doctrine is not applicable where the incident occurred in an area that was covered by a roof or awning. In the Heasley case, the plaintiff’s slip and fall occurred while the Plaintiff was walking in a shed that had three walls, with the fourth side open. The shed had an overhead roof with an awning extending from it. In that case, the Pennsylvania Superior Court held that the Hills and Ridges Doctrine did not apply to a fall occurring inside an outdoor storage shed.
The Court in Heasley reasoned that the Hills and Ridges Doctrine was intended to protect property owners from an undue burden of ensuring that open spaces such as sidewalks and parking lots are constantly kept clear of snow and ice. The court found that the defendant did not present anything that demonstrated that keeping a structure, which is only partially open to the elements, free of snow and ice presented any burden at all, let alone an undue burden on its owners. The Heasley court also indicated that the extension of the Hills and Ridges doctrine to structures and/or other partially opened areas would raise many difficult questions. As such, the Pennsylvania Superior Court in the Heasley case declined to extend the application of the Hills and Ridges Doctrine to an incident that occurred in a structure covered by a roof and/or an awning.
Judge Linhardt applied the rationale of the Heasley case to this Johnson case in which the plaintiff alleged that he fell on black ice on the top step of the Defendant’s covered porch which step was allegedly covered by an awning. Judge Linhardt noted that, under the current status of Pennsylvania law, if that allegation was proven, then it appeared that the Hills and Ridges Doctrine would not be applicable to this litigation. The court therefore found that genuine issues of material fact must be resolved by the jury in this regard and, as such, the Defendant’sMotion for Summary Judgment was denied.
The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.
5. Notable Decisions on Certificates of Merit in Med Mal Cases
There were a couple of decisions of note that came down over the past year regarding Certificates of Merit that are required in medical malpractice cases in Pennsylvania.
In the case of Rightmyer v. Philly Pregnancy Center, P.C., No. 23-1925 (E.D. Pa. March 1, 2024 Quinones Alejandro, J.), the court granted a defendant’s motion to dismiss after confirming that the Certificate of Merit requirements for medical malpractice claims under Pennsylvania state law also apply in federal court. In this case, the court also ruled that a nurse is not qualified to execute a required Pennsylvania Certificate of Merit in a medical malpractice action against a medical doctor.
The Tort Talk Blog post, which contains a link to this decision, can be viewed HERE.
In the separate case of Berk v. Rothman Institute Orthopedic Foundation, No. 23-1437 (E.D. Pa. March 28, 2024 Murphy, J.), the court addressed the extent to which a plaintiff could attempt to compel one of the plaintiff’s own doctors to write a Certificate of Merit to enable the plaintiff to pursue a claim against another medical provider.
The court in Berk granted the doctors' Motion to Dismiss after finding that treating physicians do not owe their patients any fiduciary duty to provide them with a Certificate of Merit that would allow the patient to sue other doctors for medical malpractice. The rationale for this decision was, in part, the general rule that potential experts may not be compelled to issue expert opinions against their will.
The court otherwise found that there is no valid cause of action for an alleged intentional deprivation of legal recourse for an alleged injury.
The Tort Talk Blog post, which contains a link to this decision, can be viewed at this LINK.
4. Use of Exhibits in Opening Statements
A common dispute at civil litigation trials is the extent to which one party or the other may utilize demonstrative exhibits during the course of Opening Statements. Typically, trial court judges have punted on the issues and have stated that such exhibits would only be permitted during Opening Statements if the attorneys have agreed on the same.
In what appears to be the first Opinion of its kind, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether a party may utilize demonstrative exhibits during an Opening Statement in the case of Webb v. Scranton Quincy Hospital Company, LLC, No. 2021-CV-4073 (Lacka. Co. March 8, 2024 Nealon, J.). In this decision, Judge Nealon provided a thorough analysis of the law applicable to the reference to admissible evidence during the course of an Opening Statement at a civil litigation trial.
In this medical malpractice case, the Plaintiff filed a Motion In Limine seeking leave of court to utilize admissible excerpts of videotaped depositions of unidentified defense witnesses during the course of the Opening Statement to be presented by Plaintiff’s counsel.
After reviewing the sparse law on the issue, Judge Nealon noted that the reference and showing of admissible evidence during the course of an Opening Statement can be permitted by a trial court judge under the broad discretionary powers of judges to run trials that occur before them.
The court otherwise ordered the Plaintiff to identify which portions of what video deposition they intend to utilize during the course of the Opening Statement so that the opposing party could assert any reserved evidentiary objections to those excerpts so that any required rulings may be made prior to the Opening Statement.
The Tort Talk Blog post, which contains a link to this decision, can be viewed LINK.
3. Service of Process
Over the past year, the Pennsylvania Supreme Court provided its latest guidance on the issue of proper and timely service of process in civil litigation matters. In the case of Ferraro v. Patterson-Erie, No. 1 WAP 2023 (Pa. April 25, 2024), the Pennsylvania Supreme Court addressed a statute of limitations argument related to service of process issues in a slip and fall case.
According to the Opinion, this case arose out of a slip and fall event. The Plaintiff filed her Complaint within the two (2) year statute of limitations. However, the Plaintiff encountered difficulties with serving the Complaint on the Defendants due to issues with the Sheriff’s service and the COVID-19 pandemic.
The Plaintiff thereafter served the Complaint on the Defendant through a private process server. She later reinstated the Complaint and then served it through the Sheriff. However, this service by the Sheriff occurred after the statute of limitations had elapsed.
The Defendants argued that the action was barred by the statute of limitations because the Plaintiff did not make a good faith effort to serve them in a timely manner.
On appeal to the Pennsylvania Supreme Court, the Court held that the Plaintiff had failed to meet her burden of demonstrating that she made a good faith effort in diligently and timely serving process on the Defendants. Accordingly, the Supreme Court found that the Defendants’ informal receipt of actual notice was irrelevant. In the end, the case was dismissed.
Check out Justice Wecht’s Dissenting Opinion in this case for an excellent overview on the current status of the law in Pennsylvania on the issue of proper service of process.
The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.
2. Regular Use Exclusion Upheld as Valid and Enforceable
At the start of the year, on January 29, 2024, the Pennsylvania Supreme Court issued its long-awaited, much anticipated decision in the Regular Use Exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.).
The Pennsylvania Supreme Court has ruled that, as presented in this case, the Regular Use Exclusion contained in motor vehicle insurance policies did not violate the express language of Pennsylvania's Motor Vehicle Financial Responsibility Law [MVFRL].
The Plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle. The Plaintiff recovered the liability limits from the tortfeasor's policy and the UIM limits on the police vehicle. The Plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home. Erie Insurance relied upon a Regular Use Exclusion contained in the policy to deny coverage on the UIM claim.
The Pennsylvania Supreme Court reversed the lower courts' decisions and upheld the validity and enforceability of the Regular Use Exclusion.
In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court once again confirmed that it had previously clarified and narrowly limited its Gallagher decision in its decision in the case of Erie Insurance Exchange v. Mione. In Mione, the Supreme Court had confirmed that the Household Exclusion remained valid and applicable except possibly in cases where the insured was attempting to stack coverage under 75 Pa.C.S.A. Section 1738.
The Supreme Court in Rush also specifically held that the Regular Use Exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL and that, "[w]ith decades of reliance by insureds and insurers, and no justification to allow this Court to depart from decades of established law," the Court would maintain its continued course on this issue "unless and until the General Assembly or the Insurance Department acts in a way that would suggest we do otherwise." Ultimately, the Supreme Court overruled the lower court decisions and held that the Regular Use Exclusion remained valid and enforceable.
The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.
1. The Use of AI to Draft Court Filings
Over the past year, the trending use of AI has apparently hit the legal field with attorneys utilizing AI to draft motions and briefs to be filed with the courts. This has led to bar associations and courts in Pennsylvania taking steps to provide guidance on the proper and responsible use of AI in this regard.
In May of this year, the Pennsylvania Bar Association and the Philadelphia Bar Association issued a Joint Formal Opinion providing advice on the use of Artificial Intelligence in the legal profession. That Joint Formal Opinion can be viewed at this LINK.
The Opinion itself notes that it is an "advisory only" Opinion. Generally speaking, the Opinion recommends that attorneys be aware of, and competent with, the use of AI in the legal profession. The Opinion recommends that those in the legal profession check and confirm the veracity of all information generated through the use of AI, including citations to legal authority. The Opinion also cautions that client confidentiality should be protected at all times.
In terms of steps being taken by the courts of Pennsylvania to monitor the use of AI with court filings, in the federal courts of Pennsylvania, Middle District Court Judge Karoline Mehalchick crafted and issued what appears to be the first Civil Practice Order on Use of Generative Artificial Intelligence to be issued in the Commonwealth.
Under this Order, which can be viewed at this LINK, Judge Mehalchick ordered that if a party to any litigation pending before her has utilized AI in preparation of any filing, that filing must be accompanied with a Certificate of Use of Generative AI.
In that Certificate of Use of Generative AI, the party is required to disclose and certify the following information:
(1) The specific AI tool utilized
(2) Identification of the portions of the filing prepared by the AI program; and
(3) Certification that a person filing the document has checked the accuracy of any portion of the document generated by AI, including all citations and legal authority
In the Order, Judge Mehalchick cautioned that failure to comply with this Civil Practice Order could result in sanctions.
At the state court level, the Pennsylvania Supreme Court has created an Advisory Committee on Artificial Intelligence. That Committee was created to propose appropriate statewide rules to provide guidance to counsel on the use of AI with filings in the state court systems.
Source of above image: Photo by Sergei Starostin on www.pexels.com.
