Swartz Campbell - Swartz Campbell's e-Update

Swartz Campbell's e-Update
Swartz Campbell LLC

April 2008

SUPREME COURT TRIFECTA

Swartz Campbell LLC attorneys regularly represent clients in Appellate Court proceedings. Recently, James C. Haggerty, Esquire presented oral argument before the Supreme Court of Pennsylvania on April 14, 15 and 16, 2008 in the following cases:

Forester Vanderhoff v. Harleysville Insurance Company, 123 MAP 2006;
Nationwide Insurance Company v. Paul Schneider, Sr., 11 MAP 2007; and,
Alan Tannenbaum v. Nationwide Insurance Company, 100 MAP 2007.

In each case, Swartz Campbell LLC represented the insurer in a coverage dispute arising under the Motor Vehicle Financial Responsibility Law. Decisions in these cases are expected in the coming months.

SACKETT UPDATE

On December 27, 2007, the Supreme Court issued its decision in Sackett v. Nationwide Mutual Insurance Company, 940 A.2d 329 (Sackett II). The decision modified its prior ruling in the case and remanded the matter to the trial court for further proceedings. Judge Ackerman of the Court of Common Pleas of Westmoreland County conferenced the matter and requested that the parties jointly petition the Supreme Court for clarification. Thus, to date, a final decision in the case has not been rendered. The case was featured in the Top Cases of 2007. For a copy of this article as a featured case, click here .

SUMMARY JUDGMENT AFFIRMED BECAUSE ISSUES WAIVED

In Jiricko v. GEICO Insurance Co., 2008 PA Super 63 (April 4, 2008), the Superior Court affirmed the grant of summary judgment by the Lancaster County Court of Common Pleas in favor defendant-appellee GEICO. The pro se plaintiff-appellant appealed summary judgment in favor of the defendants after the plaintiff-appellant had filed copious filings in the matter and after the Court found him in contempt of the Court Order requiring participation in the arbitration for the uninsured motorist claim. The Superior Court ruled that the pro se appellant had waived any issues for appeal because the "statement" he filed failed to conform to Pennsylvania Rule of Appellate Procedure 1925(b). While the rule requires a short and concise statement of the issues for appeal, appellant's "statement" was, in the Court's opinion, not only lengthy, but also "an incoherent, confusing, redundant, defamatory rant accusing GEICO's attorney and the trial court judge of conspiring to deprive [the appellant] of his constitutional rights." Because appellant had failed to present a legitimate appellate issue in his "statement," affirmance of summary judgment was appropriate. Swartz Campbell attorneys represented the insurer in this matter. For a full copy of the opinion, click here.

PRELIMINARY OBJECTIONS DISMISSING ACTION GRANTED IN LEGAL MALPRACTICE CLAIM

In Ramos v. Luber, 2006 Phila. Ct. Com. Pl. LEXIS 392 (2006), the Philadelphia Court of Common Pleas sustained the defendants’ Preliminary Objections for failure to state a claim in this legal malpractice action. The plaintiff had alleged the defendant attorney did not properly investigate the names of two undercover police officers who subjected the plaintiff to physical abuse after he was involved in an automobile accident with a suspect fleeing from the police. The defendants filed Preliminary Objections asserting that plaintiff’s Complaint failed to state an actionable claim against the defendants as the plaintiff was unable to differentiate between those injuries suffered in the automobile accident and those injuries sustained at the hands of the police officers. The Court sustained the objections and dismissed the plaintiff's Complaint. The plaintiff appealed the decision to the Superior Court arguing, inter alia, that he should have been granted leave to amend the pleading. The Superior Court affirmed the Court of Common Pleas in a recent unpublished decision. Swartz Campbell attorneys represented the defendant in this matter. Click here for a full copy of the Court of Common Pleas decision.

JURY VERDICT RENDERED ON BEHALF OF DEFENSE IN LEGAL MALPRACTICE CLAIM

In Rosett v. W (name withheld), a jury in the Philadelphia Court of Common Pleas rendered a verdict in favor of the defendant attorney in this legal malpractice action. This action was based on an underlying representation in a divorce matter. The plaintiff alleged the defendant was negligent in not specifying prior to a binding arbitration, that any alimony amounts were not modifiable. The plaintiff asserted that, following the divorce, he became permanently disabled, and due to the defendant's alleged negligence, he was unable to obtain a modification of the arbitrator's alimony award. The defense argued that the plaintiff was properly informed of the benefits and liabilities of having modifiable alimony, and that modifiable alimony would not have been appropriate given the plaintiff's situation at the time of the arbitration and his stated goals for the litigation. Swartz Campbell attorneys represented the defendant in this matter.

SUMMARY JUDGMENT GRANTED IN LEGAL MALPRACTICE ACTION

In Scaramuzza v. Sciolla, 2006 U.S. Dist. LEXIS 8264 (E.D. Pa. 2006), the Eastern District of Pennsylvania granted defendants’ Motion for Summary Judgment in this legal malpractice action. The plaintiff was an insurance broker who wrote insurance through his solely owned business for an insurance company. The plaintiff's company did not remit premiums as required by its brokerage agreement with the insurance company, and the company brought an action to recover the premiums owed. Following a non-jury trial, judgment was entered against the plaintiff's company and against the plaintiff individually. The plaintiff contended that the defendant attorney was negligent in not moving for a nonsuit as to the plaintiff's individual liability, and, but for the defendant’s negligence, no judgment would have been entered against him individually. A Motion for Summary Judgment was filed on behalf of the defendant, arguing that there was sufficient evidence to find the plaintiff individually liable at the time of the underlying trial. The defendant further argued that because the underlying action was not tried before a jury, the plaintiff was not entitled to a jury trial on that issue. The Court agreed with the defendant’s argument and granted summary judgment in favor of the defendant on the basis that the plaintiff had been an agent of the insurance company and was individually liable for the unremitted funds. Swartz Campbell attorneys represented the defendant in this action. Click here for a full copy of the decision.

2008 MEDICAL FEES PUBLISHED

On December 1, 2007, the Pennsylvania Department of Health published the 2008 fee schedule for medical records. This schedule identifies the amounts that may be charged by a health care facility or a health care provider for the copying of medical records or charts upon receipt of a records request or subpoena. This fee schedule is adjusted annually to reflect changes in the consumer price index. Click here for a copy of the 2008 fee schedule.

DISCOVERY OF PERSONNEL RECORDS PERMITTED

In Moses Taylor Hospital, Inc. v. Chamberlin & Reinheimer Insurers, Inc., (C.P. Lackawanna Sept. 5, 2007), the Court of Common Pleas of Lackawanna County granted the plaintiffs’ Motion to Compel the production of personnel files of an insurance company’s claims representatives because information contained in those files could lead to discoverable evidence. The Court ordered the release of the personnel files, allowing for the redaction of personal information such as home addresses, bank accounts, Social Security numbers, medical history information unrelated to job performance, and any other personal or embarrassing information not related to job performance. Click here for a full copy of the decision.

REGULARLY USED VEHICLE AND CARRYING PERSONS FOR A FEE EXCLUSIONS APPLY TO CAB DRIVER

In Nationwide Assurance Company v. Easley, GD 04-8079 (C.P. Allegheny, June 26, 2007), the Court of Common Pleas of Allegheny County held that a cab driver, while operating a cab, was precluded from recovery of underinsured motorist coverage based upon the “regularly used vehicle” exclusion as well as the “carrying persons for a fee” exclusion. At the time of the accident, Easley was driving his taxicab to his home, with the intention of returning the taxicab to the garage/staging area the next day, within the time limitations of Yellow Cab. The Court noted that the “regularly used vehicle” exclusion precluded recovery based upon the fact that Yellow Cab provided Easley with a vehicle every day. Further, the Court noted that the “carrying persons for a fee” exclusion applied because at the time of the accident, Easley was using the cab pursuant to a “lease” from Yellow Cab to carry persons for a fee and it was of no consequence that Easley was not carrying a person for a fee. An appeal is currently pending in Superior Court. Swartz Campbell attorneys are co-counsel for Nationwide in this matter. Click here for a full copy of the decision.

MOTION FOR SUMMARY JUDGMENT DISMISSING ACTION GRANTED IN PREMISES LIABILITY CLAIM

In Roman Davis v. City of Philadelphia et. al., February Term, 2007 No. 127 (C.P. Philadelphia County, February 11, 2008), the Court of Common Pleas of Philadelphia County granted summary judgment and dismissed all claims against the defendant intramural sports club, finding that the plaintiff’s injuries were caused by a premises defect so trivial and common that no negligence could be found. At the time of the accident, the plaintiff was engaged in a game of men’s flag football organized by the defendant intramural sports club at Fairmount Park. Although the game was organized by the defendant sports club, the park is owned and maintained by the City of Philadelphia. While intercepting a pass, the plaintiff tripped on a small depression in the grassy area where the game was being played and was injured. In its Motion for Summary Judgment, the defendant sports club argued that the defect which allegedly caused the plaintiff’s fall was so trivial and common that no negligence could be found. The defendant sports club also successfully argued that the plaintiff assumed the risk of injury when he decided to engage in a men’s game of flag football on a non-regulation football field used for many other purposes. Swartz Campbell attorneys represented the defendant sports club in this matter.

LAY TESTIMONY OF WITNESS REGARDING SPEED OF VEHICLE ADMISSIBLE

In Fisher v. Central Cab Co., 2008 Pa Super 37, 2008 Pa Super LEXIS 167 (March 12, 2008), the Superior Court affirmed the trial court’s admission of lay witness testimony concerning her estimation of the speed of an oncoming vehicle because the witness had (1) observed the movement of the vehicle in question; and (2) established that she had observed similar vehicles at relative speeds on prior occasions. The witness was a passenger on a bus struck by plaintiff’s vehicle. Prior to the accident, the witness had observed the plaintiff’s vehicle for a significant period of time as it approached the bus. At trial, defendant offered and the court admitted the witness’s testimony to prove that the plaintiff was speeding at the time of the accident. In affirming the trial court’s decision to admit such testimony, the Superior Court determined that the witness’s observance of the plaintiff’s vehicle was more than just a “fleeting glimpse.” The witness had observed the vehicle for approximately 100 feet prior to impact. Furthermore, the court found that the witness’s eighteen years of driving experience gave her sufficient knowledge to estimate the speed of an approaching vehicle. Click here for a full copy of the decision.

RELEASE LANGUAGE EXTINGUISHED CLAIMS OF BOTH DIRECT AND VICARIOUS LIABILITY

In Maloney v. Valley Medical Facilities, Inc., 2008 Pa Super 32, 2008 Pa Super LEXIS 155 (March 7, 2008), the Superior Court found that the phrase “arising from” in a joint tortfeasors release extinguished claims of both direct and vicarious liability against health care providers. In this case, the plaintiff, on behalf of its decedent, sued various health care providers alleging a claim of medical malpractice. After filing suit, the plaintiff and several of the defendant health care providers executed a joint tortfeasors release. The release defined the extinguished claims as those “as a result of, arising from or in any way connected” to medical professional services provided by all listed health care providers except one defendant doctor. However, the plaintiff sought to maintain claims of vicarious liability against all the defendants, asserting that the release only extinguished claims of direct liability. The Superior Court disagreed, finding that the language “arising from or in any way connected” effectuated the discharge of all listed health care providers by encompassing any and all claims of direct or indirect liability. Click here for a full copy of the decision.

EVIDENCE OF PRIOR ACCIDENT ADMISSIBLE IN PREMISES LIABILITY ACTION

In Houdeshell v. Rice, 939 A.2d 981, 2007 PA Super 406 (December 31, 2007), the Superior Court determined that testimony regarding a prior accident was admissible as it established constructive notice of a condition on the property. In this case, the plaintiff was injured when she walked into a sliding glass door in the rear of the defendants’ home. At trial, the plaintiff sought to introduce testimony concerning an accident with the sliding glass door in the front of the defendants’ home, alleging that this accident established that the defendants were aware of the danger of plate glass doors. In reversing the trial court’s exclusion of such evidence, the Superior Court found that such evidence was relevant as it established constructive notice to the defendants of the danger of plate glass doors and the potential for them to cause injury to persons on their property. However, the Superior Court did affirm the trial court’s decision to admit expert testimony regarding the differences between plate glass and safety glass doors, finding that the trial court appropriately limited this testimony. Click here for a full copy of the decision.

DENIAL OF RECOVERY OF PREVIOUSLY-AWARDED WORKERS’ COMP BENEFITS IN ARBITRATION FOR UIM BENEFITS UPHELD

In Burke v. Erie Insurance Exchange, 940 A.2d 472, 2007 PA Super. 405 (December 31, 2007), the Superior Court affirmed the arbitrator's denial of workers' compensation benefits that had been previously awarded in the arbitration for underinsured benefits. In Burke, the plaintiff had been injured in a motor vehicle accident while in the course and scope of his employment. After the plaintiff agreed to settle his workers' compensation claim with his employer's workers' compensation insurance provider, Erie, and Erie agreed to waive its right to a lien and its statutory subrogation rights, plaintiff then sought to recover proceeds from the UIM coverages provided in his employer's auto insurance policy, which also happened to be issued by Erie. Upon Erie's motion in limine, the arbitration panel excluded the full amount of the workers' compensation benefits from the final award of proceeds due under Erie's obligation as the carrier of the employer's automobile insurance policy. Burke appealed to the trial court, which also denied the inclusion of the workers' compensation benefits. The Superior Court determined that Burke's attempt to recover the workers' compensation payments as damages in the UIM arbitration proceeding was an attempt to avoid the settlement agreement related to the workers' compensation benefits and that to allow the plaintiff to include the workers' compensation amount in the UIM proceeds would permit the plaintiff to recover twice, which is otherwise prohibited by the Motor Vehicle Financial Responsibility Law. Swartz Campbell attorneys served as co-counsel for the insurer on the appeal. Click here for a full copy of the decision.

DENIAL OF COVERAGE UNDER “REGULAR USE” EXCLUSION OVERRULED

In Erie Insurance Exchange v. E.L., 941 A.2d 1270, 2008 PA Super. 5 (January 3, 2008), the Superior Court, in overturning the judgment on the pleadings in favor of Erie by the Somerset County Court of Common Pleas, held that the “regular use” exclusion did not apply and that the injured minor could recover under underinsured coverages provided by the policy at issue. When the minor was injured in a motor vehicle accident as a passenger in her mother’s owned and insured car that was driven by her brother, she exhausted the coverages provided in her mother’s personal auto policy and sought to recover from her the underinsured coverages provided in her father’s personal auto policies. Focusing on the definition of the word “occupying,” as defined by the policy, the Superior Court concluded that the word “occupying” does not mean “using,” which would otherwise trigger the “regular use” exclusion. The court also determined that the policy was ambiguous, that Erie could have used more precise language, and that the policy must be interpreted in favor of the insured. A dissenting opinion authored by Judge Bowes argued that the injured minor had been in the insured automobile for its intended use and was thus using the car even though she was not operating it. Judge Bowes further argued that there was no ambiguity in the policy and that the majority’s decision was against the public policy of the Motor Vehicle Financial Responsibility Law. Accordingly, Judge Bowes would have affirmed judgment in favor of Erie. Click here for a full copy of the majority and dissenting opinions.

DENIAL OF COVERAGE UNDER “REGULAR USE” EXCLUSION UPHELD

In Brink v. Erie Insurance Group, 940 A.2d 528, 2008 PA Super. 7 (January 4, 2008), the Superior Court held that the “regular use” exclusion applied to police vehicles used in the course and scope of the plaintiff’s employment. The plaintiff, a local police officer, sought to recover under underinsured coverages from his own personal auto policy for injuries that he sustained in a motor vehicle accident that occurred in a police-owned vehicle while responding to another accident. After both parties filed for judgment on the pleadings, the Dauphin County Court of Common Pleas granted judgment in favor of Erie. On appeal, the plaintiff alleged that the trial court had erred in its ruling. Based upon other cases, the Superior Court ruled that the “regular use” exclusion was not ambiguous and did apply despite the plaintiff’s allegations that the language of the exclusion was ambiguous. The Superior Court similarly determined that no reasonable expectation of coverage was established based upon its determination that the exclusion was unambiguous and that the plaintiff had not alleged fraud or misrepresentation by Erie’s agent. The Superior Court also denied the plaintiff’s appeal based upon his argument that the exclusion was against public policy because the policy functions as a safeguard to insurers from having to insure against unknown or undisclosed risks. Click here for a full copy of the decision.

SUMMARY JUDGMENT OVERTURNED IN DANGEROUS CONDITION ON PROPERTY

In Jones v. Levin, 2007 Pa. Super., 412, 940 A.2d 451 (December 31, 2007), the Superior Court held that a landlord, out of possession, is liable for the safety of leased premised over which it reserves control. The plaintiff, an employee of Levin Furniture, was injured when she fell on ice in the parking lot of the store premises. She brought suit against Robert Levin as administrator of the estate of Howard Phillip Levin, the owner of the premises, which held a lease on a month to month basis with Levin Furniture. The Allegheny Court of Common Pleas granted a motion for summary judgment in favor of the defendant, finding that a lessor, out of possession, was not liable for an injury to an employee caused by a dangerous condition on leased property. In overturning the Court of Common Pleas, the Superior Court determined that in the context of the public use exception, a dangerous condition of land open to the general public is no less dangerous because the party who happens to suffer injury from the condition is present on the land as an employee. It further held that there was a genuine factual dispute as to whether the Estate of Howard Phillip Levin retained control over the leased premises as a result of certain lease provisions. Click here for a copy of the full decision.

BRAIN INJURY CASE RESULTS IN $1.95 MIL. ACCORD

A $1.95 million settlement was reached last month in the Northampton Common Pleas Court case of a bank employee whose brain was injured during a motor vehicle accident. The plaintiff suffered damage to her brain including diminished cognitive ability and loss of memory after following a collision on a dangerous stretch of Route 611 in Williams Township, Northampton County called “Canal Lock Curve.” While the driver of the vehicle acknowledged that he was driving over the speed limit at the time of the accident, counsel for the insurer argued that it was Canal Lock Curve’s dangerous condition that caused or contributed to the accident. The plaintiff originally sought a settlement of $15 million, up to the defendants’ insurance policy limits, however, defendants’ counsel stated that the plaintiff’s prognosis was good and she had returned to part time work as a bank teller. Swartz Campbell attorneys represented the defendant in this matter. Click here for a full copy of the article.

SUPREME COURT PERMITS ADDITIONAL QUESTIONS DURING VOIR DIRE

By Order dated March 11, 2008, the Supreme Court has approved an additional explanatory comment to Pennsylvania Rule of Civil Procedure 220.1 (“Voir Dire”) concerning the types of questions a juror may be asked during voir dire. In particular, citing Capoferri v. Children’s Hospital of Philadelphia, 893 A.2d 133 (Pa. Super 2006), the Court specifically permits voir dire questions concerning the “effects of pre-trial publicity on prospective juror’s ‘attitudes regarding medical malpractice and tort reform.’” Click here for a full copy of the comments.

FMLA LEGISLATION EXPANDS THE RIGHTS OF MILITARY FAMILIES

Newly passed amendments to the Family and Medical Leave Act of 1993 (“FMLA”) encompassed in the National Defense Authorization Act of 2008 (“NDAA”) have expanded the rights of military families relating to work leave. As amended, FMLA now allows a “spouse, son, daughter, parent, or next of kin [defined as an individual’s nearest blood relative]” of an Armed Forces member (including the National Guard) to take up to 26 weeks’ leave to care for the service person or to deal with exigencies identified by the Department of Labor as they arise. The Department of Labor has not yet published comprehensive guidelines relating to this legislation or defining the “exigencies” in question. In the interim, employers are required to act in good faith in allowing employees with the leave permitted by the NDAA. Click here for comprehensive information regarding the NDAA amendments to FMLA, including the complete text of Title I of FMLA as amended by the NDAA.

NEW JERSEY SENATE PASSES GROUNDBREAKING FAMILY LEAVE LAW

The New Jersey Senate has passed legislation that extends the state’s existing temporary disability insurance (“TDI”) system to allow workers up to six weeks’ paid leave to “care for members of the worker’s family unable to care for themselves, including sick family members and newborn and newly adopted children.” If it becomes law, the program will be financed through an assessment of workers’ wages subject to TDI taxation. Employees must give notice when practicable and must use two weeks’ of sick and/or vacation time before taking family leave time. Small employers (defined as those with less than 50 employees) are exempt from mandatory holding of an employee’s job while she or he is on leave. It is expected that New Jersey Governor Jon Corzine will sign the bill into law, making New Jersey the third state in the union, along with California and Washington, to offer paid family leave. Click here for the full text of this bill, S-786/A-873.