PENNSYLVANIA CASE SUMMARIES
Williams v. Geico
2011 PA Lexis 2522
Decided October 19, 2011
The PennsylvaniaSupreme Court holds that the regular-use exclusion contained in a personal automobile insurance policy is valid to preclude payment of underinsured motorist (UIM) benefits to a police officer injured in the course of employment operating a police vehicle.
Background
Williams, a police officer with the Pennsylvania State Police, was injured in an automobile accident while on duty and driving a state-owned vehicle. Williams submitted a claim for UIM benefits with his personal auto insurance carrier, Geico. The claim was denied per the regular-use exclusion, which precludes coverage for injuries suffered in automobiles not covered under the policy that are furnished for the regular use of the insured. Declaratory judgment was entered for Geico by the trial court and affirmed by the Superior Court.
Holding
The Pennsylvania Supreme Court affirmed the decision of the Superior Court holding that the regular-use exclusion in a UIM policy is valid and precludes coverage for the claim of a state trooper. The court rejected the trooper's claim that the regular‑use exclusion, as applied to a police officer injured in the line of duty, violates public policy to protect first responders. Citing its previous decisions upholding the regular-use exclusion, the court held that voiding the exclusion would frustrate the public policy of cost containment in the Motor Vehicle Financial Responsibility Law as well as the correlation between the scope of coverage and the amount of premium charged.
Any questions regarding this case can be directed to Gordon Einhorn at 717‑441‑7054 or geinhorn@tthlaw.com.
O’Donnell v. Hovnavian Enterprises, Inc., et al
2011 Pa. Super. 210
Decided October 4, 2011
PennsylvaniaSuperior Court declines to enforce a binding arbitration provision in a contract where party seeking arbitration availed itself of the judicial process and failed to raise the arbitration provision at any time between the filing of the 2007 complaint and the filing of the 2010 complaint.
Background
April 25, 2007, Plaintiffs filed a suit against Hovnavian Enterprises, Inc. and Intech Construction, Inc., related to Plaintiffs’ purchases and occupancy of condominium units. Hovnavian and Intech filed preliminary objections to the complaint and failed to raise the arbitration provision contained in a relevant contract. Plaintiffs filed an amended complaint, and Hovnavian and Intech filed preliminary objections which again did not raise the arbitration provision. On February 13, 2008, the court ruled on the preliminary objections and dismissed Plaintiff’s count for Breach of Implied Warranty of Habitability. The parties then executed a Tolling Agreement, discontinuing the litigation without prejudice as of February 26, 2008. An amendment to the Tolling Agreement was executed on December 16, 2008. Settlement negotiations failed, and Plaintiffs reinstituted the litigation by filing a complaint in 2010. Hovnavian filed preliminary objections and, for the first time, raised the binding private arbitration provision. Ultimately, the court transferred the matter to binding arbitration. This appeal followed.
Holding
The Superior Court found that Hovnavian waived its right to binding arbitration because it availed itself of the judicial process by: filing preliminary objections in 2007 and failing to raise the arbitration provision; winning a favorable ruling on the preliminary objections for dismissal of Plaintiff’s count for Breach of Implied Warranty of Habitability; entering into a Tolling Agreement and an amendment to engage in settlement negotiations without raising the arbitration provision; and failing to raise the arbitration provision at any time between the filing of the 2007 complaint and the filing of the 2010 complaint. When Hovnavian availed itself of the judicial process, it waived its right to binding arbitration.
Any questions regarding this case can be directed to Lauren Clein at (215) 564-2928 or lclein@tthlaw.com.
Casselbury v. American Food Services
2011 Pa. Super 217
Decided October 12, 2011
Pennsylvania Superior Court holds that Defendant had a duty, pursuant to contact, to third parties as set forth in Reinstatement (Second) of Torts Section 324(a)
Background
The Plaintiff was injured when he slipped on cooking oil and fell. The cooking oil had leaked from a dumpster deposited there by Defendant. The Defendant, pursuant to contract, had an obligation to place the cooking oil into a sealed container and dispose of it in the dumpster. Defendant did not own or control the dumpster or the area where Plaintiff fell.
Defendant’s Motion for Summary Judgment was granted based on the Trial Court’s finding that Defendant was not responsible for maintaining the area around the dumpster and, therefore, did not breach any duty to the Plaintiff.
Holding
The Superior Court reversed the decision of the Trial Court finding Defendant had a duty pursuant to contract for the benefit of third parties per Section 324(a) of the Reinstatement (Second) of Torts. This section provides that “one who undertakes to render services which should be recognized as necessary for the protection of a third party is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care.”
Any questions regarding this case can be direct to Joseph Pulcini, Jr. at (610) 332-7003 or jpulcini@tthlaw.com.
MARYLAND CASE SUMMARIES
Troxel v. Iguana Cantina, LLC
Court of Special Appeals
September Term, 2010, Case No. 820
Filed: October 3, 2011
Holding that an establishment can be held liable for injuries that its patrons inflict on other patrons.
Background
The Defendant nightclub held “college nights.” At one college night, the Plaintiff was involved in a physical altercation with other patrons, and sustained injuries. The Plaintiff sued the nightclub, alleging negligence. The trial court granted summary judgment to the night club on the grounds that the cause of action was akin to dram shop liability, which is prohibited in Maryland.
Holding
Maryland’s intermediate appellate court reversed. The court explained that the night club could be held liable under a premises liability cause of action. The gravamen of the cause of action was that the plaintiff’s injury resulted from the nightclub’s failure to protect patrons from a dangerous condition and not the furnishing of alcohol. The court further explained that the nightclub owed the plaintiff a duty to prevent the assault because the nightclub had knowledge of prior similar instances, such as assaults, robberies, and rapes, and also knew that the most violent incidents occurred on “college night.” .
Any questions regarding this case can be directed Ben Peoples at (410) 653-0460 or cpeoples@tthlaw.com.
Greenstein v. Council of Unit Owners of Avalon
Court of Special Appeals
September Term, 2009, Case No. 0485
Holding that condominium unit owners can sue a condominium board of directors for failing to institute a construction defect suit.
Background
A condominium’s council of unit owners filed a complaint against the company that built the condominium, seeking recovery for damage due to water infiltration related to design and construction defects. The case was dismissed due to the statute of limitations. The unit owners then filed suit against the council alleging that the council was negligent in failing to bring a lawsuit against the developer within the statute of limitations. The council filed a motion for summary judgment, arguing that it had no duty to bring the legal action. The trial court granted summary judgment to the council.
Holding
Maryland’s intermediate appellate court reversed. The court relied on out of state precedent to establish that a condominium association can be sued by its unit owners for failing to discharge its duties. The court explained that a condominium association has “a fiduciary relationship to the unit owners, comparable to the obligation that a board of directors of a corporation owes to its stockholders. Acts of the governing body should be properly authorized. Fraud, self-dealing or unconscionable conduct at the very least should be subject to exposure and relief.” The court ultimately held that “the duty to ‘maintain, repair and replace’ the Common Elements, together with the exclusive right to initiate litigation regarding the Common Elements, creates a concomitant obligation on the part of the Council to pursue recovery form Questar on behalf of [the unit owners] for damage to the Common Elements caused by Questar’s negligence, breach of contract, or violation of any applicable law.”
Any questions regarding this case can be directed Ben Peoples at (410) 653-0460 or cpeoples@tthlaw.com.
NEW JERSEY CASE SUMMARIES
Baskett v. Cheung
A-0755-10 T4
Decided October 17, 2011
New JerseyAppellate Division holds that the 2008 amendments to R. 1:13-7(a) provides that in single defendant cases, reinstatement of a Complaint is permitted upon a showing of good cause. In multi-defendant cases, reinstatement within ninety (90) days is permitted on a showing of good cause, but otherwise a party must demonstrate exceptional circumstances.
Background
The genesis of this case arises from an automobile accident. Just days before the expiration of the two-year statute of limitations, the Plaintiffs filed a Complaint against a single Defendant. For reasons that remain unclear, the Defendant was not personally served with process. Approximately four months after the filing of the Complaint, a 60-day Notice of Future Dismissal pursuant to R. 1:13-7(a) was forwarded by the Law Division to the Plaintiff’s attorney who was specifically designated as the trial attorney in the Complaint. The attorney that signed the Complaint on behalf of the Plaintiff worked at a different location than the designated trial attorney and never received the R. 1:13-7(a) Notice. The processes of R. 1:13-7(a) began and the Complaint was dismissed without prejudice. Thereafter, the Plaintiffs’ case remained idle.
The Plaintiffs’ attorney was replaced, and Defendant was served with the Complaint. The Plaintiffs’ new attorney then moved to reinstate the Complaint. The Defendant opposed the reinstatement and cross-moved to dismiss the Complaint with prejudice. The Court denied the motion to reinstate and dismissed the case with prejudice. The Plaintiffs motion for reconsideration was also denied. The Plaintiffs then appealed from the order of the Law Division denying their application to reinstate the Complaint and dismiss the action with prejudice as well as sought relief from the order denying the motion for reconsideration. The Appellate Division reversed.
Holding
In single defendant cases, reinstatement is permitted upon a showing of good cause. R. 1:13-7(a). In multi-defendant cases, reinstatement within ninety (90) days is permitted on a showing of good cause, but otherwise a party must demonstrate exceptional circumstances. Given that the case at bar involves only one defendant, the Plaintiffs were required to establish good cause for reinstatement of their Complaint. In applying the “good cause” standard, its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the court rule being applied. R. 1:13-7(a) is an administrative rule designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion. Dismissal under the rule is without prejudice. Accordingly, the right to reinstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal even if the application is made many months later.
Gormley v. Wood-El
A-3894-09T3
Decided October 18, 2011
Defendants are entitled to qualified immunity because the constitutional right asserted by plaintiff was not clearly established
Background
Plaintiff, an attorney, was physically attacked while meeting with his client, a patient at a psychiatric hospital. Plaintiff filed an action against the state-operated hospital alleging that its policies and practices relating to attorney-client interviews created a serious risk of harm and peril while rendering constitutionally mandated legal services to a mentally ill client. Plaintiff claimed that this “state-created danger” violated her substantive due process rights under the Fourteenth Amendment to the U.S. Constitution. In defense, the state hospital argued that it was entitled to qualified immunity from the suit due to its status as a state agency. The state hospital moved to dismiss on the grounds of immunity. The court denied the motion and concluded that whether the hospital is entitled to qualified immunity, is a question of fact for the jury. The hospital appealed.
Holding
The Appellate Division held that the determination of whether the hospital is entitled to qualified immunity is a question of law and that the hospital is entitled to qualified immunity because the constitutional right asserted by plaintiff was not clearly established at the time plaintiff was attacked.
It is significant to note that the court did not rule that any future claims similar to that of Plaintiff’s will be barred. Rather, it indicated that, based upon the current state of the law with regard to a state-created danger theory of constitutional liability, at the time of plaintiff’s attack, the appellate courts had not yet clearly articulated whether such a theory could extend to claims based upon an alleged deliberate indifference by a defendant which places a plaintiff in a position of danger distinct from that facing the public. Thus, once addressed by the appellate courts, such a claim could, in the future, be established as an actionable claim that could preclude a qualified immunity defense to state officers.
Any questions regarding this case can be directed to Oliver M. Bather at 610-332-7006 or (obather@tthlaw.com).
Jacobson v. United States of America
A-1605-10T1, 2011 N.J. Super LEXIS 187
Decided October 18, 2011
The Superior Court of the State of New Jersey holds that sovereign immunity protects the United States from a claim that it failed to garnish a decedent’s retroactive award of disability benefits pursuant to a child support arrearage order.
Background
New Jersey’s state family court had ordered the minor’s father, Mr. Tetz, to pay child support to the benefit of a minor in 1998. In this regard, an income garnishment order was entered. Thereafter, Tetz fell behind on those payments and passed away in 2008, leaving child support arrearages in excess of $79,000. Four months prior, in late 2007, the Social Security Administration had paid Tetz a retroactive award of Social Security Disability benefits exceeding $58,000, yet did not garnish any of that award to satisfy the arrearage.
As a consequence, Plaintiff brought suit in the Federal District Court against Tetz’ Estate as well as the United States of America to enforce the garnishment order, alleging that the government failed to comply with that order and that, therefore, it was liable for the amount of money that should have been withheld to satisfy the arrearage.
Without deciding the sovereignty issue, the state lower court entered summary judgment in favor of the Plaintiff from which the United States appealed.
Holding
The Superior Court, Appellate Division, dismissed the Plaintiff’s claims on a sovereignty basis. A threshold issue was raised in light of the passing mention of sovereignty at the trial court level. The Appeals Court surpassed this issue, holding that it went to the jurisdiction of the case and was not, therefore, waivable, absent express authorization from Congress.
The Court then moved on to the sovereignty issue and noted that in 1974, Congress enacted the Child Support Enforcement Act which waived the U.S. Government’s sovereign immunity regarding garnishment proceedings for enforcement of state court orders for child support. In interpreting this provision, though, the Court noted that in 1998 the law was amended to allow for processing of garnishment orders but that the waiver of sovereign immunity was not so extended to provide for a damages liability assessment against the government for failure to comply with legal process. In other words, the statutory scheme was amended to create a limited waiver of sovereign immunity to the effect that state courts could issue valid orders directed against agencies of the U.S. Government allowing it to attach funds in possession of those agencies and, thereby, treat the government as a “private employer in receipt of a garnishment order”; however, that waiver would not extend to create liability against the Government for failure to so attach those funds.
Any questions regarding this case can be directed to Ryan Blazure at 570-820-0240 or at rblazure@tthlaw.com
Albrecht v. Correctional Medical Services
A-0605-10T4
Decided September 30, 2011
Correctional Medical Services is not entitled to protections under the Affidavit of Merit statute
Background
While a prisoner in the custody of the Department of Corrections (DOC), Plaintiff came under the care of 2 physicians. Defendant, Correctional Medical Services (CMS), was the sole provider of medical care to prisoners pursuant to a contract with the DOC. After receiving treatment from CMS’s physicians, Plaintiff filed an action against Defendant and the 2 physicians alleging that they failed to properly diagnose and treat his medical condition. In answering the complaint, each Defendant demanded an Affidavit of Merit (AOM), which requires plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious. Plaintiff provided AOMs as to the 2 physicians, but failed to provide one as to CMS. Instead, Plaintiff demanded from CMS a copy of their license to provide healthcare services, but CMS failed to produce one. CMS subsequently moved to dismiss the action due to Plaintiff’s failure to file an AOM and its assertion that it was entitled to protection under the AOM statute because it was a “health care facility.” In response, Plaintiff offered documents from other cases involving CMS where CMS had averred that the doctors it retains are independent contractors and that it does not provide any medical services. Plaintiff then argued that there was insufficient evidence to establish that CMS was entitled to protection pursuant to the AOM statute. The trial court disagreed and dismissed Plaintiff’s claim, concluding that CMS was a health care facility such that Plaintiff was required to have served an AOM on it to preserve his claim.
Holding
On appeal, the Appellate Division agreed with Plaintiff and held that CMS is not entitled to protection of the AOM statute because that law only applies to health care facilities that have been licensed by the Department of Health and Senior Services, and CMS failed to offer any evidence of its licensure. In denying CMS’s position that it is a “licensed person” under the AOM statute by virtue of its purported status as a “health care facility” as defined by New Jersey law, the court clarified that the introductory language of the AOM statute specifically indicates that an entity must also be “licensed as” one of the enumerated professions before it can be considered a licensed person” that can receive protection under that statute. Thus, a health care facility must do more than practice one of the enumerated professions to receive protection under that statute. Specifically, it must also hold a valid license as a practitioner of one of those professions. While likely influenced by the evidence produced by Plaintiff that CMS had previously asserted that it was not a health care facility, the court did not address whether CMS was, in fact, a health care facility.
Any questions regarding this case can be directed to Oliver M. Bather at 610-332-7006 or (obather@tthlaw.com).