Wednesday, June 18, 2025

Claims of Recklessness and Punitive Damages Allowed To Proceed in Premises Liability Case



In the case of K.H. v. Mill Run Campground, No. 2197 of 2023, G.D. (C.P. Fay. Co., March 10, 2025 Vernon, J.), the court denied Preliminary Objections filed by a Defendant on claims of recklessness and for punitive damages in a premises liability case. According to the Opinion, the case involved a young child who fell off a set of bleachers.

The court overruled the Defendant’s Preliminary Objections and held that, where a Plaintiff stated a cognizable negligence claim and generally averred that the Defendant acted with the state of mind necessary for an award of punitive damages, the Defendant’s challenge to these types of claims was premature such that the Preliminary Objections would be denied. The Defendant was advised that the issues could be revisited in a Motion for Summary Judgment after the close of discovery.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 14, 2025).



Issues of Fact Defeat Summary Judgment Relative To Fall Allegedly Caused by Floor Mat


In the case of Montanez-Fontanez v. Lehigh Valley Health Network, No. 2023-CV-0880 (C.P. Leh. Co. Dec. 17, 2024 Reichley, J.), the court denied summary judgment in a case involving a Plaintiff who was allegedly injured when the wheel was of a walker she was using caught on a worn floor mat and caused her to fall at the entrance to the Defendants’ building where she was visiting for physical therapy. The court denied the Motion for Summary Judgment based upon the existence of genuine issues of material fact that required resolution by a jury.

The court found that genuine issues of material fact existed as to whether the Defendants had notice of the alleged dangerous condition asserted by the Plaintiff.

The court also found that a genuine issues of material fact existed as to whether the alleged condition of the floor mat amounted to an unreasonable risk of harm for visitors to the facility.

Based upon these issues of fact, the court denied the Motion for Summary Judgment.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 8, 2025).


Source of image:  Photo by RDNE Project on www.pexels.com.

Monday, June 16, 2025

Federal Western District Court Puts the Brakes on Evidence of Certain Insurance Matters in a Post-Koken Case


In the Post-Koken federal court case of Binotto v. Geico, No. 3:22-CV-210 (W.D. Pa. May 30, 2025 Haines, J.), the court granted the Defendant UIM carrier’s Motion In Limine to preclude evidence of the UIM limits or premium paid at the trial of a post-Koken matter. 

The court addressed the argument of whether such evidence is relevant in a post-Koken trial. Included in that assessment was whether or not the probative value of such evidence was substantially outweighed by the danger of unfair prejudice or confusing of the issues presented. In this regard, the court cited to Federal Rules of Evidence 401, 402, and 403.

The court in this Binotto matter stated that its research revealed that the courts in Pennsylvania are split on this issue. This court noted that it was choosing to follow the case of Lucca v. Geico Ins. Co., 2016 WL 3632717 (E.D. Pa. July, 2016) and its progeny. 

Relying upon that case law, the Binotto court held that the “limits and premiums of Geico’s insurance policy offered no benefit to fact finder’s determinations of the value of Plaintiffs’ injuries.”

As such, the court ruled that evidence of the carrier’s policy limits and premiums paid were irrelevant. 

The court additionally held that, even if such evidence was somehow found to be relevant to the injury and damages assessments, any probative value of such evidence was substantially outweighed by the risk of unfair prejudice to the Defendant carrier.

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

I send thanks to Attorney Joseph A. Hudock, Jr. of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of image:  Photo by Instawalli on www.pexels.com.

Pennsylvania Supreme Court Expands Ability of Claimants to Secure Recoveries in Work-Related Fatal Accident Matters


In the case of Steets v. Celebration Fireworks, Inc., (WCAB), No. 3 MAP 2024 (Pa. May 30, 2025) (Op. by Donohue, J.), the Pennsylvania Supreme Court overturned decades of precedent in order to allow a new available of worker’s compensation claims to go forward. 

In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect benefits related to claims for disfigurement and injury.

Justice Christine Donohue authored the Opinion and was joined by Chief Justice Deborah Todd and Justices Kevin Dougherty, Sallie Updyke Mundy and Daniel McCaffery. Justices David Wecht and Kevin Brobson dissented in separate Opinions.

Anyone wishing to review a copy of the Majority Opinion for this decision may click this LINK.

Justice Wecht's Dissenting Opinion can be viewed HERE.

Justice Brobson's Dissenting Opinion can be viewed HERE.


Source: Article – “Pa. High Court Rejects Years of Precedent Barring Recovery of Benefits For Workers Who Died From Work-Related Injuries,” By Riley Brennan The Legal Intelligencer (May 30, 2025).


Friday, June 13, 2025

ARTICLE: 5 Tips to Improve Your Chances for Success at a Mediation

The below article of mine was recently published in the Pennsylvania Law Weekly and is republished here with permission from the publisher.


5 Tips to Improve Your Chances for Success at a Mediation


By Daniel E. Cummins











The current trend in civil litigation matters, especially with more generous, headline grabbing jury verdicts coming down in the time since the pandemic, is that most cases are being resolved by way of nonbinding mediations. Experience shows that taking the following steps in advance of mediations and at mediations can improve one’s chances for a favorable settlement of a matter.

Trust Your Selected Mediator


Whether your mediator has a background as a plaintiff’s attorney or an insurance defense attorney, or both over the course of their career, every mediator worth their salt understands the need to approach a mediation from an entirely neutral perspective. It can be safely stated that most, if not all, mediators take pride in their ability to set aside any preconceived notions with respect to litigation matters and thereby offer the parties a balanced view of the pros and cons of the claims and defense presented.

And so once you have vetted and selected your mediator, you should trust your mediator to conduct a fair review of the file in order to assist all parties in working toward an amicable resolution of the matter.

Zoom Is Just as Effective


In the time since the COVID-19 pandemic, the use of remote meeting platforms, such as Zoom, has become the norm for mediations and arbitrations. Experience advises that virtual mediations are just as effective as mediations that are held in person.

The use of remote means to complete meditations also has the added benefit of reducing the stress on the parties involved. Plaintiffs still get to have their day in court but are able to do so from the comfort of their own home or their attorney’s office. Claims professionals participating remotely will have avoided the stress and expense attendant with being required to travel to be present at an in-person and may thereby be in a more comfortable frame of mind as the negotiations begin.

Whether a mediation is set to take place virtually or in person, the key to your success at a mediation, regardless of the format, is to be fully prepared to present your client’s case at the mediation.

Be Prepared


On the plaintiff’s side of a mediation, the day of the mediation is usually going to turn out to be that client’s one day in court. On the defense side, the mediation is a day for the carrier to try to close another file by way of a reasonable settlement and thereby save on further defense costs. As such, whether counsel is on the plaintiff’s side of the matter or the defense side of the matter, with the attorney serving as the mouthpiece for the client, the client deserves counsel that is fully prepared and knows the file inside and out.

Accordingly, in preparation for a mediation, counsel should expect that opposing counsel will be perusing every page of every document in the file in an effort to prepare for the meeting. As such, the file should be equally thoroughly reviewed on your own side as you never know what opposing counsel may find in the deepest corners of the file that could hurt your client’s case.

For example, a gold mine in this regard includes physical therapy notes in which there is typically a treasure trove of information that could help or hurt either side of the case. It also is advisable to peruse the transcripts of the depositions of the parties and witnesses completed in the case in order to be reminded of the overall tone of the case as you prepare to negotiate on behalf of your client at a mediation.

Perhaps one of the most important parts of preparing for a mediation is immersing oneself into the thought processes of opposing counsel in order to fully anticipate the arguments that opposing counsel will make to the mediator. What will opposing counsel’s arguments be on the liability issues? What will opposing counsel’s arguments be on the prior medical history or causation issues? What will opposing counsel argue relative to the type and extent of the injuries and economic damages alleged? Write down an outline of responses to each of these anticipated arguments so that you are prepared to quickly counter the anticipated arguments from the opposition.

Part of being fully prepared for a mediation should also include a conference with one’s own client or insurance company representative prior to the mediation in an effort to determine what expectations exist and, if necessary, to begin to temper or manage such expectations.

Fully preparing for the mediation will serve to avoid surprises for counsel or the client and may make the process move faster given that you will have all of the necessary information to negotiate at the forefront of your mind and at your fingertips.

Be Sure to Exchange Submissions With the Other Side


In addition to planning to draft a mediation memorandum that is concise and to the point, one should also plan to share that memorandum and the supporting exhibits with the other side. Nothing may further the chances for success at a mediation more than sharing one’s submissions with the other side and requesting that the information being exchanged be shared with the opposing party or the opposing insurance company in advance of the mediation.

It is always wise to draft a mediation memorandum that pointedly, but respectfully, emphasizes the weaknesses of your opponent’s case. Soften the harshness of the presentation of information that is detrimental to the other side by phrasing it in terms of the real world impact of that evidence by noting how a jury may react to that information when it comes out at trial.

To add to the credibility of your submissions, it may also be wise to suggest that you acknowledge and understand the issue with your own case while still attempting to minimize the importance of those difficulties.

The mediation memorandum should also outline the reasons that the opposing party should desire to have the case amicably resolved as opposed to litigated further or tried. Never hesitate to point out that a settlement will save time and expenses and will avoid the uncertainty of a jury verdict.

In terms of supporting exhibits, only provide the mediator with the most pertinent liability documents, photographs, medical records, and economic damages supports necessary to drive home the salient points of your case or defense. A documents dump of voluminous records will be frowned upon by the mediator and will only serve to increase the expenses of the mediation given the extra time it will take for the mediator to wade through the documentation. In this digital age of litigation, the symbolism attendant with a large binder of documents that a big binder equals a big case is no longer relevant.

An attorney’s credibility will be enhanced by that attorney taking the time to pinpoint the most relevant documentation to present to the mediator in advance of the mediation. Should there be additional, more detailed documentation you might wish to share with the mediator, you could always have that ready to show the mediator those documents at the mediation.

Also know and keep in mind that, given that the Rules of Civil Procedure pertaining to discovery are designed to provide for full disclosure and to prevent any surprises at trial, there will likely be no secrets on how you will likely present your case at trial by the time you get to a mediation. As such, there is really no reason not to share your mediation memorandum and supporting exhibits with the other side. As noted above, the sharing of your submissions with the other side will not only highlight to the other side the difficulties they may face with their case, but will also let the other side see and know that you are ready, willing, and able to go to bat for your own client at trial if it comes to that.

Certainly, if you are going to instead keep your mediation memorandum and exhibits confidential from the opposing side and only submit them to the mediator, be sure to give the other side the professional courtesy of a heads up in this regard before the other side submits their materials to the mediator. Otherwise, you could look petty, you may irk the opposing counsel and party, and you may cause the mediation to get off to a bad start by creating negative feelings which, in the end, could hurt or delay your client’s chances for a favorable outcome at the mediation.

Avoid Posturing for the Sake of Posturing


Posturing for the sake of posturing at a mediation is never advisable. Everyone involved in the proceedings can easily see posturing for what it is, i.e., the taking of a stance that bears no reasonable resemblance to a fair and practical evaluation of the case presented. The act of presenting an entirely unreasonable offer or demand at a mediation really serves no purpose and hurts the credibility of the attorney advancing such positions to the detriment of that attorney’s client or insurance carrier.

Knowing where your endgame may be in terms of a settlement figure, the better approach at a mediation is to make measured moves in the negotiations that signal a willingness to negotiate while still remaining firm on one’s belief as to the proper number for a settlement from the perspective of your client.

In the end, each side should work with the mediator in an effort to tap out the other side’s complete settlement authority and get to the number that perhaps no one is completely happy with but is more than content with to call it a day in order to avoid additional time-consuming and expensive litigation along with the uncertainty of a jury verdict.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation in these types of cases. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.


Reprinted with permission from the June 4, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.


Tuesday, June 10, 2025

Another Court Upholds The Validity of the Household Exclusion


In the case of Erie Insurance Exchange v. Kennedy, No. 10106 of 2024, C.A. (C.P. Lawr. Co. Jan. 27, 2025 Hodge, J.), the court granted a UIM carrier’s Motion for Judgment on the Pleadings and confirmed that a Plaintiff was barred from recovering UIM benefits under the subject policy based upon an application of the household exclusion. In so ruling, the court relied upon the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023).

According to the Opinion, two (2) individuals were killed in a motorcycle accident. The motorcycle was insured by Progressive Insurance. Progressive denied coverage for UIM benefits.

The decedents were also insured under a policy issued by Erie Insurance Exchange that had an exclusion for damages sustained by any insured who occupied a vehicle owned by the insured but which was not insured for UIM benefits under the Erie Insurance policy.

The court found that the facts of the case fell under the case of Erie Insurance Exchange v. Mione.

The trial court otherwise noted that the household vehicle exclusion is not enforceable if the insured is seeking to stack the UIM coverage in question with UIM proceeds from another policy in order to circumvent the household vehicle exclusion. Here, however, there was no stacking of UIM coverage involved in the case and the carrier was found to have properly denied UIM coverage under the household vehicle exclusion.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 27, 2025).

Source of image:  Photo by Alex Dos Santos on www.pexels.com.

Monday, June 9, 2025

Case Dismissed Due To Lack of Timely Service of Process


In the case of Trinkle v. Herndon, No. 8078-CV-2023 (C.P. Monroe Co. March 25, 2025 Zulick, J.), the court sustained a Defendant’s Preliminary Objections regarding the Plaintiff’s failure to promptly serve a Writ of Summons in a motor vehicle accident case and thereby dismiss the case.

According to the Opinion, following the subject motor vehicle accident that occurred on December 3, 2021, the Plaintiff filed a lawsuit on December 4, 2023.

The Monroe County Sheriff issued an Affidavit of Return showing that no personal service was made on the Defendant at his/her last known address, which service was attempted on December 28, 2023.

There was then no further docket activity until May 8, 2024 when the Court ordered the Plaintiff to file for special service on or before August 6, 2024 because the docket did not reflect an affidavit of successful service of process.

On September 10, 2024, the Plaintiff’s attorney filed a Praecipe to Reissue the Writ of Summons. The Defendant was served thereafter on September 24, 2024.

The Plaintiff then filed a Complaint on January 14, 2025. The Defendant responded with Preliminary Objections seeking to dismiss the action due to the statute of limitations.

In his Opinion, Judge Zulick provided a detailed review of the law of the statute of limitations and the law regarding proper and prompt service of original process.

The Court noted that the Plaintiff had filed a Writ of Summons on the day that the statute of limitations were set to expire on the end of that day. Looking at the record before it, the Court found that date Plaintiff had failed to demonstrate that a good faith effort was made to complete service.

Plaintiff’s counsel pointed to the fact that he was out of the office for a period of time during 2024 due to medical issues and he also sited an error made by his office staff who thought that the Sheriff’s Affidavit filed on December 28, 2023 showed that service had been completed.

The Court noted that, despite these statements, the Plaintiff was put on notice by the Court’s Case Management Order of May 8, 2024 which specifically advised that service was not complete. That Order also directed the Plaintiff to complete service or file a Motion for Special Service by August 6, 2024. According to the Opinion, the Plaintiff did not comply with those Orders and, as such, the Court found that the Plaintiff failed to prove that the Plaintiff acted diligently in attempting to complete service on the Defendant with notice of the lawsuit.

Consequently, the Court ruled that the case must be dismissed due to the bar of the statute of limitations.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 14, 2025).


Source of image:  Photo by Pavel Danilyuk on www.pexels.com.