Significant Case Digests
PENNSYLVANIA CASE DIGEST
Ranalli v. Rohm and Haas Company
2009 Pa Super 178
Decided: September 8, 2009 (Petition for Reargument denied November 10, 2009)
Even where an otherwise compensable disease is not covered by the Workers’ Compensation Act, due to a time limitation in being able to bring a workers’ compensation claim, the exclusivity bar prevents a civil action in tort against the employer.
Background: A wrongful death suit was filed against Rohm and Haas (Rohm) arising out of exposure to vinyl chloride while employed by Rohm. Preliminary objections were filed claiming that suit was barred under the exclusivity provision of the Workers’ Compensation Act. Plaintiff argued that Rohm could be sued in a civil action because: 1) the Act excludes from its definition of “injury” occupational diseases which manifest more than 300 weeks after the last date of workplace exposure, thus allowing a common law action against an employer for injury which is non-compensable under the Act; and 2) Rohm was “fraudulent” in not revealing studies that showed the danger of vinyl chloride. The trial court denied the preliminary objections and Rohm appealed.
Holding: On appeal, the Superior Court notes that the Act was a compromise to provide recovery without any employer fault. As part of the compromise, recovery for pain and suffering was eliminated and a time limit imposed, to limit compensation to those injuries which manifest themselves within 300 weeks of exposure to a hazard. The legislature intended that this limitation protect employers from strict liability from stale claims and prevent later speculation about whether an injury was work-related. The court holds that there is no constitutional guarantee of recovery under the Act when in some cases a time limitation precludes recovery. It is not the law that simply because an employee is unable to recover under the Act, the employee may file a civil action in tort against the employer. The workers’ compensation bar prevents recovery even though the injury may not be compensable under the Act. Because compensation is allowed without fault, the “trade-off” of limiting the time for suit is not unconstitutional. The Superior Court also holds that the fraud count is barred. Generally, fraud claims are barred unless the employer knew its employee had a disease and withheld that information causing an aggravation of the disease. Here, Rohm had knowledge of a study conducted long after employment ended and had no knowledge of the employee’s disease. The employee was not actively misled into avoiding treatment.
Any questions regarding this case can be directed to Paul Walker at 717-441-7061 or (pwalker@tthlaw.com).
Hain v. Borough of West Reading
No. 1059 C.D. 2009
(December 23, 2009).
Borough and Fire Company granted summary judgment based on governmental immunity as scaffolding was not a fixture and therefore the real property exception to immunity barred the claim.
Background: Plaintiff was an employee of a subcontractor, injured in a fall from scaffolding while constructing a new fire house for the Borough fire company. Plaintiff sued the Borough and fire company, the general contractor (Sterling) and Envirotech, an entity that was to handle inspections and provide reports to the Borough on the construction process. On summary judgment, the trial court concluded that the Borough and fire company were entitled to governmental immunity pursuant to the Political Subdivision Tort Claims Act; Sterling was entitled to “statutory employer” immunity under the Workers’ Compensation Act, and Envirotech did not have a duty to inspect the work site for safety..
Holding: The Commonwealth Court affirmed, granting summary judgment for all defendants. As to the Borough and the fire company, the Commonwealth Court noted that the scaffolding was not a fixture. The general contractor, who supervised day to day operations on the project, was entitled to “statutory employer” status and, therefore, was immune from suit pursuant to the Workers’ Compensation Act, 77 P.S. §203. The immunity provision of the Act does not violate the right to legal redress because a remedy is available for workplace injuries through the Act.
Envirotech was also granted summary judgment. The Court affirmed the lower court finding that, based upon the contract, Envirotech did not have a duty to inspect the work site for safety as this remained the obligation of the general contractor.
Any questions regarding this case can be directed to Kathy Williams (610-332-7029) or kwilliams@tthlaw.com.
Johnson v. Progressive Insurance Company
2009 Pa. Super. 255
Decided: December 28, 2009
Where an underinsured motorist claim is made and the insurance company performs a good faith investigation by timely seeking medical records, wage statements, an examination under oath and an IME, there is no bad faith claim pursuant to 42 Pa.C.S.A. §8371, even if the insurer makes a low, but reasonable, estimate of an insured’s damages.
Background: Levan Johnson, Sr., an insured of Progressive Insurance Company (“Johnson”), filed claims for fraud, negligence and statutory bad faith, pursuant to 42 Pa.C.S.A. §8371, against Progressive Insurance Company (“Progressive”). The trial court dismissed the claims for fraud and negligence, leaving only the bad faith claim. After discovery, Progressive filed a motion for summary judgment which was granted. Johnson appealed.
Holding: The Superior Court affirmed the trial court’s grant of summary judgment. The court summarized the current case law on statutory bad faith and concluded that the insured must demonstrate that the insurer breached its duty of good faith through some motive of self-interest or ill will. The court noted that Progressive conducted a good faith investigation and promptly: 1) acknowledged the UIM claim; 2) consented to the settlement of the underlying tort action; 3) sought information on Johnson’s wages, medical records and his five prior motor vehicle accidents; 4) retained counsel; 5) conducted an examination under oath; 6) obtained an independent medical examination; and 7) made an offer of settlement prior to the arbitration hearing. The arbitration award was lower than the policy limits, but higher than Progressive’s offer. The court found that the fact that Progressive made a low offer (which was also lower than its reserve) did not demonstrate bad faith because Johnson refused to lower his demand from the policy limits, which stalled negotiations. The court held that this case involved nothing more than an ordinary dispute between an insured and insurer over the value of an UIM claim.
Any questions regarding this case can be directed to Michele Thorp at (717) 237-7153 or (mthorp@thlaw.com).
Excavation Technologies, Inc. v. Columbia Gas Company of Pennsylvania
No. 32 WAP 2008 (Pa. Dec.. 29, 2009)
Economic Loss Doctrine precludes excavator’s claim for negligent misrepresentation under the One Call Act – Application of Negligent Misrepresentation Rejected.
Background: Plaintiff made claims for “down time” caused while performing excavation work for a water line project after the utility-defendant improperly marked certain gas lines in the vicinity of plaintiff’s work and failed to mark others, in accordance with the provision of the One Call Act. Plaintiff alleged that it struck the defendant’s lines several times, and had to search for the defendant’s gas lines, costing plaintiff approximately $75,000 in down time of personnel and equipment.
The plaintiff filed suit against the defendant, asserting a claim for negligent misrepresentation, and the defendant filed Preliminary Objections raising the Economic Loss Doctrine, which provides that “‘no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.’” Excavation Techs. v. Columbia Gas Co., No. 32 WAP 2008, at 2 n.3 (Pa. 2009) (citations omitted). The trial court sustained the Preliminary Objections, and the Superior Court affirmed.
On appeal to the Pennsylvania Supreme Court, the plaintiff cited existing Pennsylvania authority and argued that the Economic Loss Doctrine did not preclude its claim for “negligent misrepresentation” because said claim was brought under Restatement (Second) of Torts §552, which creates an exception to the Economic Loss Doctrine. The plaintiff relied upon subsection (1) of Restatement §552, which governs negligent misrepresentation claims against those who provide information “in the course of [their] business, profession or employment, or in any other transaction in which [they have] a pecuniary interest[,]” and upon subsection (3) of Restatement §552, which governs negligent misrepresentation against those who are under a public duty to provide information where the failure to properly do so causes harm to someone within the class of persons meant to be protected by that duty.
Holding: The Supreme Court affirmed the lower courts, finding that the Economic Loss Doctrine operates to bar claims by excavators for negligent misrepresentation brought against those who supply information under the One Call Act. The Court found that plaintiff’s claim did not fall within Restatement §552. It found subsection (1) of said section inapplicable because, in marking the location of its lines pursuant to the One Call Act, the defendant did not provide information for pecuniary gain or as part of a commercial transaction. It then found subsection (3) of said section inapplicable because, while the defendant may be one who is under a public duty to provide information by virtue of the One Call Act, the Act itself is not designed to protect against economic losses. Rather, the Act’s purpose is to protect against physical harm to those working on construction sites and to avoid damage to the utility’s equipment and the structures surrounding same. Accordingly, the Economic Loss Doctrine applied to bar the claim.
Any questions regarding this case can be directed to Joseph A. Holko at (610) 332-7005 or jholko@tthlaw.com, or Bernard T. Kwitowski at (610) 332-7018 or bkwitowski@tthlaw.com
NEW JERSEY CASE DIGEST
Pote v. Atlantic City, et. al,
2010 N.J. Super. LEXIS 5
(App. Div. 2010)
The New Jersey Appellate Division affirmed the trial court’s grant of summary judgment to defendant SMG, deciding not to expand the duty of a business property owner to maintain the abutting public way.
Background: Plaintiff Pote instituted this suit as a result of injuries from a slip and fall on an icy patch on the Atlantic City Boardwalk. Pote traveled to Atlantic City on a bus tour to see a show at Boardwalk Hall. The only entrance to Boardwalk Hall is from the Atlantic City Boardwalk, which is owned and controlled by Atlantic City. Pote fell approximately fifty (50) feet from the entrance to Boardwalk Hall. Approximately 5 inches of snow had fallen on February 24, 2005. The City performed snow removal and inspections on February 24 and 25, but not on February 26, 2005, the day Pote fell. Plaintiff sought to impose on the defendant business-owner the duty to maintain the abutting public way, which was owned and maintained by a public entity, when the business owner could expect crowds to gather in front of its establishment. The trial court declined to expand the duty of a business property owner and Plaintiff appealed
Holding: The New Jersey Appellate Division affirmed, finding that there is no public policy consideration supporting the creation of another exception to the general rule providing that property owners, who are not otherwise at fault, owe no duty to pedestrians to maintain the abutting public way. It is generally recognized in New Jersey that the relationship between a business and its patrons requires the exercise of a higher degree of care than is owed by other property owners. However, here, plaintiff failed to provide evidence that SMG had the ability and authority to shovel, salt, or place warning signs on the Boardwalk. The Court also held that plaintiff could not have had an expectation that SMG would provide a safe path along her entire route to Boardwalk Hall.
Any questions on this case can be directed to Winifred E. Bellon at (610) 332-7017 or wbellon@tthlaw.com.
MARYLAND CASE DIGEST
St. Paul Travelers vs. Robert Millstone,
31, September Term 2009
filed January 15, 2010. Opinion by Rodowsky, J.
Insurance – Md. Code, §12-104 of the Insurance Article voids a provision in the insurance contract that sets a shorter statute of limitation than required by Maryland law. Maryland law provides for a three (3) year statute of limitations in a breach of contract claim. That cause of action accrues from the date when the claim is filed with the insurer.
Background: The Trustee of Montgomery Scrap Corporation’s profit sharing plan brought a claim against Travelers to recover money that had been stolen from the plan. The Trustee filed suit in 2006, which was one year after filing a claim with the St. Paul Travelers Insurance Company, but this was more than three years after discovering the theft. The trial court granted summary judgment for the insurance company, finding that the time limit within the insurance policy controlled. The Maryland Court of Special Appeals reversed the trial court’s granting of a Motion for Summary Judgment, and Travelers sought a review by the Court of Appeals of Maryland.
Holding: Maryland’s highest court affirmed the ruling by the intermediate Appellate Court and sent the case back to the trial court for a trial. The insurance carrier argued that while the State of Maryland established a three year statute of limitations, it was up to the insurer to decide when that three year clock began to run. Maryland’s highest court declined to allow the insurer to define when the statute of limitations would start to run and referred to traditional notions. Typically, a statute of limitations period begins to run when the cause of action accrues. With regard to insurance policies, the court held that this has traditionally been defined as the date when the insured presents a claim. The action on the insurance policy for breach of promise to pay could not have accrued prior to the submission of a proof of loss. If suit was filed within three years after the submission, it was timely regardless as to a shorter provision in the insurance policy.
Any questions on this case can be directed to Michael E. Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.
E. Daris Warsham vs. James Muscatello Inc.
1041, September Term, 2008
filed December 30, 2009. Opinion by Hollander, J.
Assumption of the risk – the Plaintiff was either contributorily negligent or assumed the risk of his injuries as a matter of law where the Plaintiff falls on ice, even if negligently left by the Defendant, while in the process of remedying the icy condition by salting it.
Background: The Plaintiff arrived to work early one morning to find that there was a large icy area in the parking lot. That icy area was right in front of the bay door of his business. Later that morning, as he was sitting in his office, the Plaintiff noticed a vendor pull up to the icy area in his truck. The Plaintiff then went out of his office to warn the vendor of the ice. After warning the driver of the truck, he grabbed a bucket of salt located near a door and proceeded to spread the salt with a cup onto the icy area to prevent anyone from slipping. Rather than throw the salt on the icy area from the perimeter of the icy area, he decided to walk across the ice to get to the other side. While doing so, he fell and was injured. The Defendant filed a Motion for Summary Judgment, challenging the Plaintiff’s proof as to primary negligence, but also, claiming that the Plaintiff assumed the risk of the icy condition or was contributorily negligent. The trial court found, as a matter of law, that the undisputed material facts, led it to only one conclusion. And that was that the Plaintiff’s claim was barred by the doctrine of the assumption of risk and contributory negligence. The Plaintiff took an appeal to the Court of Special Appeals of Maryland.
Holding: The Appellate Court reviewed a recent line of cases regarding claims of injuries on ice and snow. The Court found that although the Plaintiff’s conduct was admirable in attempting to prevent injuries to others, the facts do not excuse him from using reasonable care for his own safety. Furthermore, the Court found that his decision to walk across the ice was not compelled by the circumstances. The Court stated that when an individual assumes a risk, that individuals voluntary action, showing a willingness to “take a chance”, supersedes any duty the Defendant owed the Plaintiff to act reasonably for the Plaintiff’s safety. The Plaintiff argued that the “rescue doctrine” was an exception to the harsh application of the assumption of risk. However, the rescue doctrine only applies to emergency situations involving immediate peril, in which a Plaintiff acts to save the life or property of another. The Court held that this doctrine only applies when the facts and circumstances justify the conduct. Furthermore, that the rescue doctrine does not always shield a Plaintiff from the harsh effect of the assumption of risk doctrine but may require additional inquiries to determine if the dangerous conduct is appropriate given the potential benefit. In discussing the rescue doctrine, the Court found that Mr. Warsham had many alternatives, including “throwing salt onto the ice from the safety of the grass; contacting the Defendant or the maintenance employees; posting a sign; blocking access to the icy area; or standing near the icy patch to alert others of the danger”. In affirming the granting of summary judgment for the Defendant, the Appellate Court found that the Plaintiff unreasonably chose to confront the risk when there was a reasonably safe alternative.
Any questions on this case can be directed to Michael E. Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.