Significant Case Digests
PENNSYLVANIA CASE DIGEST
Kurowski v. A. Parker Burroughs, editor, et al,
2010 Pa. Super 69 (Decided April 26, 2010)
Summary Judgment for Defendant Publisher on Defamation Claim Affirmed
Background: Plaintiff’s property was set afire by an arsonist. Then, Defendant newspaper published several articles and editorials about the incident as well as about other properties that had code violations against them. The Plaintiff property owner filed a defamation action against the Defendant publishing company, a newspaper, and an editor, arising from articles and editorials written about his property. The trial court granted Summary Judgment for the Defendants because none of the publications were capable of defamatory meaning.
Discussion: On appeal, Plaintiff property owner argued that the publications were capable of a defamatory meaning, because they portray him as an unscrupulous businessman and a cold-hearted slumlord. The Court reviewed the standards to prove defamation and noted that a distinct standard is applied here because the publication is of an opinion. The Court explained that a simple expression of opinion based on disclosed facts is not itself sufficient for an action of defamation. A statement in the form of an opinion is actionable only if it may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.
Holding: The Court found that the editorial at issue did not imply the author was basing the opinion on undisclosed facts. Rather, the point of the editorial, in the Court’s view, was to express the author’s opinion that the city was not doing enough to force owners to repair rundown properties. Thus, the Superior Court upheld the grant of summary judgment finding that the publications were not capable of defamatory meaning.
Gormley v. Edgar,
2010 Pa. Super 71 (Decided April 26, 2010)
Superior Court Affirms Order Compelling Plaintiff to Execute Authorization for Release of Mental Health Records
Background: Plaintiff brought a personal injury action to recover for injuries sustained as an occupant in a motor vehicle involved in a collision. Defendant sought, among other materials, production of Plaintiff’s out-patient mental health treatment records. Plaintiff refused to execute an authorization for release of these records asserting, among other grounds, that the statutory psychiatrist-psychologist/patient-client privilege, 42 Pa.C.S.A section 5944 protected her mental health records from disclosure. The trial court, reviewed the records, in camera, agreed that this privilege was applicable, but held that it was waived because Plaintiff placed her mental health at issue and, thus, ordered Plaintiff to execute the release.
Discussion: On appeal, the Superior Court discussed that placing one's mental condition at issue in a civil trial is an implicit waiver of pertinent statutory privileges. Moreover, it explained that allowing a patient to hide a pre-existing condition behind a claim of privilege when that condition is placed directly at issue in a case would simply be contrary to the most basic sense of fairness and justice.
Holding: The Superior Court found Plaintiff had waived her psychiatrist-psychologist/patient-client privilege by alleging “anxiety” as one of the harms she had suffered, because anxiety is a recognized mental disorder under the DSM IV and affirmed the order compelling Plaintiff to execute the authorization for release of the records. The Court noted that general averments of shock, mental anguish and humiliation, are routinely recoverable damages for non-economic loss in Pennsylvania and, thus, neither place a party's mental condition at issue nor result in a waiver of privilege. The Court explained that allegations of mental injury, severe emotional trauma requiring treatment, or psychiatric/psychological conditions may, if otherwise relevant, result in a waiver of privilege protecting confidential communications.
Tannenbaum v. Nationwide Insurance Company,
100 MAP 2007 (April 16, 2008)
PA Supreme Court Upholds UIM Arbitration Panel Decision to Offset, under 75 Pa.C.S section 1722, an Award for Disability Payments received by Insured
Background: Claimant Tannenbaum, M.D. suffered injuries in a motor vehicle accident, rendering him permanently disabled. In addition to Social Security Disability payments, he received income-loss benefits under a plan from his employer, as well as benefits from two personal disability policies. He also obtained a settlement against the other driver and that driver’s employer. Then, Dr. Tannenbaum sought income-loss benefits under the underinsured motorist provisions of a vehicle policy issued by Nationwide Insurance Company. Nationwide sought to offset the benefits he had received under the group plan and personal disability policies from any UIM recovery.
Holding: The Court finds that under Section 1722’s plain terms, an insured’s recovery under UM/UIM policies may be offset by group/program/arrangement benefits, including disability benefits purchased, in whole or in part, by the insured, at least so long as those benefits are not subject to subrogation such as federal preemption for ERISA-governed plans. In so holding, the Court rejected the insured’s assertion that the Section 1722 offset provision is limited to health insurance benefits.
D’Adano v. Erie Insurance Exchange,
2010 Pa. Super 77 (April 30, 2010)
Superior Court Affirms Offset of UIM Award to Include Third Party Automobile Insurance and Personal Umbrella Coverage
Background: While proceeding with a third-party liability claim, the two Claimants sought UIM against their insurer. At arbitration, the Claimants were awarded $ 850,000 each. The Panel determined the insurer was entitled to a total setoff of $ 750,000, $ 500,000 of which was attributable to an alleged applicable umbrella policy. The tortfeasor driver's liability insurance for compensation included his personal umbrella policy limits and was included by the Panel when defining the driver's underinsured status.
Holding: The Superior Court found that automobile insurance liability coverage and personal umbrella policy amounts must be considered in determining the credit due on an uninsured motorist benefits claim. Also, the Superior Court found the exhaustion clause in the Erie Insurance policy to be unambiguous and rejected the argument that the umbrella policy inclusion as part of the exhaustion clause language would violate public policy.
MARYLAND CASE DIGEST
Housing Authority of Baltimore City v. Hyman
Court of Special Appeals
Case No. 2600
September Term, 2008
Unreported
Opinion by Zarnoch, J.
Upholding the Admission of Expert Testimony in a Mold Exposure Case
Background
The plaintiff leased a house from the Housing Authority of Baltimore City (“HABC”) from 1999 to 2006. After being hospitalized on several occasions in 2004, 2005, and 2006, the plaintiff developed hypersensitivity pneumonitis in 2006. The plaintiff notified HABC of the potential tort claim in 2006, and filed suit shortly thereafter. After a trial during which the court admitted expert testimony regarding the causal relationship between mold and hypersensitivity pneumonitis, a jury awarded the appellee $300,000 in non-economic damages, and $3,834 in economic damages.
Holding
The defendant raised two arguments on appeal. First, the defendant argued that the plaintiff failed to provide the defendant, a governmental agency, with adequate notice under the Local Government Tort Claims Act. The appellate court sided with the defendant because the plaintiff did not provide notice to the government official enumerated by statute. The plaintiff merely notified low level staff of defects in the residence. This notice was insufficient.
Second, the defendant argued that the court erred when admitted the expert testimony. The appellate court rejected this argument. The court held that the expert was competent to testify based on her experience, admission as an expert in other cases, educational credentials, and professional accomplishments, despite the fact that the expert had not diagnosed or treated hypersensitivity pneumonitis, and did not have hospital privileges at the time of trial. The court also held that the expert had an adequate factual basis for her opinion despite the fact that she was unable to provide any peer-review studies finding as much, and she couched her findings in terms of “association.”
Barksdale v. Wilkowsky
Court of Special Appeals
Case No. 48
September Term, 2009
Decided: May 7, 2010
Opinion by Graeff, J.
Upholding a Defense Verdict in a Lead Paint Case
Background
A jury found in favor of the defendant in a lead paint case. During trial, the judge admitted evidence that the average blood lead level in the United States in 1976 was 14.6. After the presentation of evidence, the court instructed the jury that the Baltimore City Housing Code imposed a duty on the tenant to maintain a property in a clean and sanitary condition.
Holding
First, the Court held that the circuit court erred when it instructed the jury that the Baltimore City Housing Code imposed a duty on the tenant to maintain a property in a clean and sanitary condition. The Court noted that the instruction was a correct statement of the tenant’s statutory obligation. The Court explained, however, that the statement was not relevant to the issues before the jury—whether the landlord was negligent or engaged in deceptive trade practices in renting the property. Nevertheless, the Court held that the error was harmless, and did not require a new trial. After all, the circuit court’s instructions made clear that the conduct of the landlord was the relevant issue for the jury. Furthermore, the defendant did not argue during closing argument that the landlord was relieved in any way of its statutory obligations to keep the premises free of chipped or flaking paint.
Second, the Court held that the circuit court did not abuse its discretion when it admitted evidence that the average blood lead level in the United States in 1976 was 14.6. The plaintiff/tenant argued that her blood lead levels ranging from 15 to 18 caused her mental impairments. The defendant/landlord argued that the plaintiff/tenant failed to prove that her blood lead levels caused her impairments. The Court explained that the evidence of the average blood lead level in 1976 was relevant to the landlord’s argument.
Although the Court upheld the defense verdict, ultimately, this case probably is awash in the battle between plaintiffs and defendants to maintain and create favorable lead paint law in Maryland’s appellate courts. On the one hand, the opinion indicates that trial courts may not be able to instruct the jury regarding tenants’ duty to maintain a premise. On the other hand, the opinion suggests that defendants may be able to admit evidence of national averages of lead levels in past years.
Cochran v. Griffith Energy Services
Court of Special Appeals
Case No. 19
September Term, 2009
Decided: March 31, 2010
Opinion by Eyler, Deborah S., J.
The Defendant Effectively Tendered the Judgment—Thereby Stopping the Accrual of Post-Judgment Interest—by Stating that It Wanted to Pay the Judgment, and Requesting the Information Necessary to Issue a Check Three Days after Judgment.
Background
The plaintiffs obtained a judgment against the defendant. Three days after judgment was entered, the defendant wrote to the plaintiffs stating that it wanted to pay the judgment, and requesting information necessary to issue the payment check. The plaintiffs did not respond. Later, the plaintiffs noted an appeal, contending that the trial court erred when it did not allow them to pursue certain statutory claims and to seek “lost business opportunity” damages. The appeal also challenged the trial court’s imposition of sanctions for a discovery violation. The defendant again wrote to the plaintiffs stating its intention to pay the judgment, and requesting the information necessary to write the check. The plaintiffs did not respond. The plaintiffs’ appeal was unsuccessful. The defendant again wrote to the plaintiffs seeking to pay the judgment. Again, the plaintiffs did not respond. The plaintiffs eventually responded to a fourth communication, insisting that the defendant pay the judgment with post-judgment interest to that date. The defendant refused to pay that amount of post-judgment interest, and instead paid into court the full amount of the judgment, with an amount of interest equal to a date on which the defendant contended post-judgment interest had stopped accruing. The defendant moved the court to decide the issue of post-judgment interest. The circuit court concluded that the defendant made a valid tender of the judgment three days after the judgment was entered, that post-judgment interest stopped accruing that day, and that the acquiescence rule did not apply.
Holding
Maryland’s intermediate appellate court affirmed the judgment. The Court held that the communication made three days post-judgment was a valid and effective tender of the judgment. The effective tender ceased the accrual of post-judgment interest as of that date. In addition, the plaintiffs would not have forfeited their appeal under the acquiescence rule by accepting the tender. The plaintiffs’ legal theories on appeal, if accepted or if rejected, would not have disturbed the judgment already entered. The appeal only could have resulted in an increase in the judgment over the established and undisputed minimum. The Court held that the acquiescence rule did not apply because its purpose is to prevent successful plaintiffs from taking a position on appeal that is inconsistent with an acceptance of the judgment below. This situation did not occur in this case.
Prime Rate Premium Finance Corporation, Inc. v. Maryland Insurance Administration
Court of Special Appeals
Case No. 02800
September Term, 2008
Decided: March 31, 2010
Opinion by Matricciani, J.
A Clause in a Premium Finance Agreement Violated Statute When it Allowed a Premium Finance Company to Apply Refunds to Debts Owed Under the Agreement
Background
Prime Rate is a premium finance company registered to do business in Maryland with MIA. On October 25, 2007, Prime Rate submitted for approval to the Maryland Insurance Administration (“MIA”) a revised premium finance agreement. Paragraph sixteen of the proposed agreement read: “the ABOVE NAMED insured . . . [a]grees that any refunds may be applied against any prior debts owed [Prime Rate].” The MIA requested that paragraph sixteen be deleted in its entirety. Prime Rate refused. The MIA disapproved the proposed agreement, finding that the agreement violated Insurance Article § 23-405, which provides that the premium finance company “shall refund to the insured the amount of unearned premium that exceeds any amount due under the premium finance agreement.” The Circuit Court affirmed.
Holding
Maryland’s intermediate appellate court held that the MIA did not err when it disapproved the proposed premium finance agreement, and affirmed the judgment of the Circuit Court. The Court explained that the plain language of § 23-405 supported the MIA’s interpretation of the statute. Furthermore, the MIA is required to approve any changes to a company’s premium finance agreement. The Court stated that this indicates the legislative intent to protect consumers, and also negates Prime Rate’s argument for freedom of contract. Statutory history also supported the MIA’s ruling. The Court recognized that there may be situations in which a premium finance company is compelled to pay an insured’s premium to a third party because of bankruptcy of garnishment proceedings.