Trial Court Judge Creates a Remedy for a Bad Limited Tort Election Form

In what appears to be the first decision of its kind, in the case of Thomas v. Nguyen, No. 231003324 (C.P. Phila. Co. Jan. 30, 2025 Padova, J.), the court agreed with a Limited Tort Plaintiff that a tort election form provided by the carrier was defective and that, therefore, the Plaintiff should have the remedy of being deemed to be a Full Tort Plaintiff instead.

In this case, the Plaintiff argued that a Liberty Mutual Insurance standard Tort Election Form that Liberty Mutual had secured from the Plaintiff and which purported to indicate that the Plaintiff had knowingly elected the Limited Tort option, was defective. The Plaintiff argued that the form was defective in that it deviated, in several areas, from the language required by 75 Pa. C.S.A. §1705(a) for such tort election forms.

The trial court judge agreed with the Plaintiff and found not only that the tort election form was defective, but that its defective nature rendered the form invalid, which therefore rendered the Plaintiff a Full Tort Plaintiff.

The court rejected the defense argument that the statute at issue did not provide for any remedy for instances in which a tort election form is different from the language required by the statute.

As stated, the court in this case found that the discrepancies were sufficient in quantity and quality to allow the court to rule that the Plaintiff in this case should be deemed to be a Full Tort Plaintiff. The trial court stated that, here, the Plaintiff was not making a free and informed choice as to the tort election where the carrier’s form did not include alll of the required statutory language, most crucially when describing the parameters of the Limited Tort option to a customer purchasing automobile insurance.

The court stated that the statute at issue, 75 Pa. C.S.A. §1705(a)(3), is clear that, when no tort election is made the insured is presumed to have chosen the Full Tort option. Here, the court found that, given that the Plaintiff had signed a Limited Tort option form without being accurately informed as to the meaning of a limited tort election by way statutorily prescribed language, the Plaintiff effectively made no valid tort election under the statute.

The court rejected the defense argument that the deviations from the statutory language were de minimus. 

The court also noted that, if an insurance company was permitted to deviate from the language required by the language when describing the tort options, and still have the insured’s subsequent choice constitute a valid tort election form, then the statutory provisions §1705 would have no effect.

As such, the court granted the Plaintiff’s Motion for Summary Judgment and provided the remedy not found in the statute that, where the language of the tort election form so substantially deviates from the statutorily required language for such forms, an insured customer of the insurance company should be deemed to be covered by the Full Tort option even though the Limited Tort Option was selected on the form.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney John H. Aitchison, of the law office of Steven L. Chung, in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Cytonn Photography from www.pexels.com.

Court Finds Nursing Home Arbitration Agreement to be Unconscionable and, Therefore, Unenforceable

In the case of Harrington v. Kramer, No. 2024-CV-774 (C.P. Luz. Co. Jan. 14, 2025 Gelb, J.), Judge Lesa Gelb of the Luzerne County Court of Common Pleas found that the terms of a nursing home Arbitration Agreement was unconscionable and, therefore, unenforceable.

The court also denied Preliminary Objections filed by the Defendants against the punitive damages claims. The court noted that these punitive damages issues could be revisited during the Motion for Summary Judgment stage.

According to the Opinion, the Plaintiff filed claims for vicarious and direct corporate liability against nursing home Defendants in which the Plaintiff’s decedent resided. The Plaintiffs alleged that the decedent sustained injuries while staying at the Defendant’s premises from which the decedent eventually passed away.

A central issue in the case relative to the arguments addressed in this decision were whether the Plaintiff decedent had sufficient cognitive function and understanding to properly agree to the admission paperwork, which included an Arbitration Agreement. 

There was evidence that the decedent was on medications on her arrival to the nursing home and also that she was forgetful and had a short attention span. The court noted that the nursing home’s admission paperwork at that time was over seventy-five (75) pages in length and the Arbitration Agreement was the second to last document in the packet.

It was additionally alleged that the nursing home did not have any written policies about what the Director of Admissions should do in order to prepare for initial meetings with incoming residents, in part, in terms of determining if a person is competent to sign an arbitration agreement.

Judge Lesa Gelb
Luzerne County

Judge Gelb provided a thorough review of Pennsylvania law regarding the validity and enforceability of arbitration agreements in this context. The court noted that, although Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements, the enforcement of such an agreement to arbitrate can be denied by a court where the party opposing arbitration proves a contract defense that invalidates the agreement to arbitrate. One such defense to an allegation that a valid arbitration agreement has been entered into is the defense of unconscionability.

The court noted that, to invalidate enforcement of a contract based upon unconscionability, the party challenging the contract must show both an absence of a meaningful choice, referred to as procedural unconscionability and contract terms that are unreasonably favorable to the other party, which is known as substantiative unconscionability. The court noted that these tests are assessed under a sliding-scale approach, with a lesser degree of substantiative unconscionability required where the procedural unconscionability is very high.

Applying the law to the facts of this case, the court found that the Arbitration Agreement at issue was unconscionable and, therefore, unenforceable. The court found that the Arbitration Agreement at issue was equally and procedurally substantively unconscionable.

The court noted that it found that the Plaintiff decedent did not have the legal capacity to sign the Arbitration Agreement based upon the medications that she was prescribed, the notes from the nursing staff as to the decedent’s cognition, and the other circumstances surrounding the agreement. The court also found the agreement itself to be substantively unconscionable because it imposed additional costs on the decedent and her representatives that they would not have in a court of law. The court also found that the Arbitration Agreement favored the nursing home in that it permitted the nursing home to pursue the decedent and/or her representatives for non-payment outside of arbitration.

Due to the above issues, the court held that the Arbitration Agreement was not binding.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton for bringing this case to my attention.

Superior Court Affirms Order Compelling Discovery of Notes of Interviews Where No Attorneys Were Involved in the Interviews

In the case of King v. Kappa Sigma Fraternity, No. 55 MDA 2024 (Pa. Super. Jan. 13, 2025 Stabile, J., Olson, J., and Stevens, P.J.) (Op. by Stabile, J.), the court affirmed a trial court’s entry of an Order granting a Motion to Compel in this interlocutory appeal on a discovery issue involving the attorney work product privilege and attorney-client privilege.

This case arose out of alleged hazing incidents that allegedly resulted in harm to the Plaintiff.

In its decision, the Pennsylvania Superior Court addressed whether handwritten witness interview notes were properly compelled to be produced by a Defendant sorority.  According to the Opinion, the notes were factual summaries of statements made by the persons interviewed by representatives of the sorority.

The court reaffirmed the well-settled rule that a party asserting a privilege in support of a refusal to produce discovery bears the burden of establishing the validity of the assertion of that privilege.

Here, the court found that the interview notes were not created by or at the request of an attorney, but rather, were written by the Defendant fraternity’s officers. The court confirmed that the record lacked any evidence of an attorney’s role in the creation of the notes of the interviews.

Moreover, nothing established that the notes were prepared at counsel’s direction.

The court also noted that the attendance of non-legal officers of the fraternity at the interviews additionally precluded the privilege from applying.

The court also noted that the notes did not reflect any legal advice being provided. Nor were the persons interviewed, who were fraternity members, informing their attorneys of anything during the course of the interviews.

As such, the appellate court affirmed the trial court’s entry of an Order compelling the production of the notes of interviews in question.

Anyone wishing to review a copy of this decision may click this LINK.

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Discovery Sanctions Awarded

In the case of Hamilton Law Group P.C. v. Hardenstine, No. 1464-CV2020 (C.P. Monroe Co. Nov. 22, 2024 C. Daniel Higgins, Jr., J.), the court granted a Motion for Discovery Sanctions after the Defendants failed to obey a court Order regarding the production of discoverable documents.

The court found that the Defendants’ continued and willful refusal to supply timely and full responses to discovery, even after being ordered to do so, demonstrated disdain towards the court. The court found that appropriate sanctions were authorized by Pa. R.C.P. 4019(a).

The court reaffirmed the general law of Pennsylvania that the imposition of discovery sanctions is a matter that falls under the broad discretion of a trial court judge. Judge Higgins noted that the factors to be considered were (1) the prejudice endured by the non-offending party and the ability of the opposing party to cure any prejudice; (2) the non-complying party’s willfulness or bad faith in failing to provide the requested discovery, (3) the importance of the excluded evidence in light of the failure to provide discovery, and (4) the number of discovery violations by the defending party.

Here, the court granted the Motion for Sanctions and ordered the Defendants to pay $750.00 in attorneys’ fees to the Plaintiffs’ attorneys. The Defendants were also ordered to provide full and complete Responses to the Request for Production of Documents at issue within thirty (30) days.

The court otherwise noted that, if the Defendants again fail to comply, the Plaintiffs were invited to apply for additional sanctions, including attorney’s fees and, possibly incarceration.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 16, 2025).

Trial Court Grants Discovery Sanctions After Med Mal Defendant Led Plaintiff on Wild Goose Chase

In the case of Lapteff v. Abington Mem. Hosp., No. 2021-CV-00536 (C.P. Montg. Co. Nov. 15, 2024 Saltz, J.), the court entered an Order in favor of a Plaintiff in a medical malpractice claim on issues regarding alleged spoliation of evidence and discovery sanctions.

In this medical malpractice case, the Plaintiff filed a Motion for Sanctions relative to the Defendant hospital’s alleged spoliation of an audit trail for electronic medical records.

The court granted the motion in part by ordering the Defendant to pay the Plaintiffs’ attorney’s fees and costs in seeking the production of an audit trail after the Defendant only belated explained that the discovery requested was unnecessary because pertinent medical record updates were reflected on the records themselves.

The court otherwise denied the Plaintiff’s request for an entry of judgment in its favor given that the spoliation committed by the Defendant did not serve to prejudice the Plaintiffs’ ability to prove their case. This was because the details of any after-the-fact changes to the Plaintiff’s medical records were confirmed to be in the medical records themselves.

Nonetheless, the court found that the Plaintiffs were prejudiced by being led on a wild goose chase by the Defendant which had originally simply maintained that it had no responsive documents in its possession when the Plaintiff originally requested the medical record audit trail. At no time did the Defendant, early on, inform the parties or the court that an audit trail was not required because any changes would be noted on the face of the medical records themselves. This revelation was only made after the court invited the Plaintiffs to file a Motion for Sanctions.

The court noted that, whether the Defendant’s conduct was intentional or not, a timely disclosure would have saved the parties and the court from considerable needless effort.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert. (Jan. 8, 2025).

Source of image:  Photo by Cottonbro Studios on www.pexels.com.

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