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TT&H eNotes Liability: February 2017


TT&H LAWYERS IN COURT

Attorney Monica O’Neill wins defense verdict following a one-week trial in the State of Delaware.

On January 27, 2017, following a trial conducted by the Honorable Jeffrey J. Clark of the Superior Court in Kent County, Delaware, Monica O’Neill won a unanimous verdict in favor of her clients. The verdict was returned after four days of testimony and a jury deliberation of more than four hours.

The case involved a plaintiff who claimed physical injury when a floor collapsed beneath him.  The plaintiff, who had been served eviction papers two months prior to the date of the incident, claimed the defendant-landlords were guilty of negligence.

At trial, Monica presented uncontradicted expert testimony that the damage to the linoleum floor was intentionally caused, creating an opening in the floor of sufficient size to allow the plaintiff’s leg to pass through the floor surface.  Monica also presented evidence that the plaintiff’s post-incident surgeries were attributable to a debilitating degenerative condition that existed prior to the date of loss, as opposed to being caused by the subject incident.

Monica would like to recognize the contribution her team brought to this victory, with Kim Dutch assisting with the pre-trial filings and motions, Jonathan Greenberg assisting with over 7,000 pages of exhibits, and Susan Ohrt maintaining the file materials in an organized fashion.  Questions about this case can be directed to Monica O’Neill, at (215) 564-2928 ext. 8503 or moneill@tthlaw.com.


CLIENT ADVISORY

MARYLAND CLIENT ADVISORY

New legislation proposed in Maryland is attempting to broaden the pre-litigation disclosure of policy limits.

Maryland State Senator Robert A. Zirkin has proposed legislation that would expand the types of cases in which insurers must disclose policy limits to claimants before a lawsuit is ever filed. Under the proposed law, Senate Bill 144, insurers would be required to disclose policy limits to claimants pre-suit in all tort cases, not just cases arising out of motor vehicle accidents. The text of the proposed legislation can be found here: Senate Bill 144.

The proposed legislation is the most recent in a line of legislation that has eroded insurers’ ability to protect the disclosure of policy limits pre-suit. Before 2015, Maryland law required insurers to disclose policy limits pre-suit only in cases arising out of motor vehicle accidents, if claimants provided certain information (e.g. the date of the accident, the name and address of the tortfeasor, a copy of the accident report, the insurer’s claim number, medical records and bills, and lost wage documentation) and if the medical bills and lost wages were at least $12,500. However, in 2015, the General Assembly (Maryland’s legislative body) passed Senate Bill 146, which also was sponsored by Senator Zirkin. That bill altered the statutes governing the pre-litigation disclosure of policy limits in two ways. First, the 2015 amendment eliminated the provision requiring a claimant’s medical bills and lost wages to exceed $12,500 before requiring disclosure of the policy limits. Second, the 2015 amendment eliminated a claimant’s obligation to provide insurers with medical records and bills, and lost wage documentation, before requiring disclosure of the policy limits.

The new proposed legislation is set for its first hearing on January 26, 2017. Maryland’s 2017 legislative session runs from January 11, 2017 to April 10, 2017.

Questions about this development can be directed to Ben Peoples, at (202) 904-2362 or cpeoples@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA   |   NEW JERSEY    |   D.C.    |   VA


FEDERAL CASE SUMMARY

CX Reinsurance Co. v. Leader Realty Co.

United States District Court for The District of Maryland

NO. JKB–15–3054

Decided: January 10, 2017

Permissive intervention is warranted where there is a common question of law or fact.

Background

Natasha Johnson and Katiara Harper, resided in properties owned or operated by Defendants. While residing there, Johnson and Harper suffered lead-paint poisoning. They filed personal injury lawsuits against the Defendants in state court. Separately, Defendants, including Leader Realty Company, were accused of making material misrepresentations in their insurance application with CX Reinsurance Company. CX filed an action for rescission and damages against the Defendants in the U. S. District Court for the District of Maryland. Johnson and Harper filed motions to intervene requesting that, in the event that they received favorable judgments in their state court lawsuits, such judgments should be satisfied by the Defendants’ liability insurance policy with CX.

Johnson and Harper sought intervention pursuant to Federal Rule of Civil Procedure 24(a)(2); or alternatively, permissive intervention under Rule 24(b).

Holding

The Court concluded that Johnson and Harper were not entitled to intervene as of right, and that they were entitled to permissive intervention. They were not entitled to intervention as of right because they did not show that disposition of the action would impair their ability to protect their interests. The Court explained that in the event that it was determined there was no coverage under the policy due to CX’s misrepresentations, Johnson and Harper could seek to satisfy their judgments through the Defendants’ assets other than the policy. The Court, further, held that a common question of fact existed to trigger permissive intervention as the Defendants and Johnson and Harper had an interest in whether the Defendants made material misrepresentations on their liability insurance application.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.

PENNSYLVANIA CASE SUMMARIES

Topper v. Maple Creek Inn and Borough of Turtle Creek

Pennsylvania Commonwealth Court

No. 2674 C.D. 2015

Decided: December 29, 2016

Court affirms jury verdict apportioning 100% causal negligence against Plaintiff’s decedent.

Background

Upon exiting the Maple Creek Inn, Mr. Topper fell on a street near a storm drain inlet owned and maintained by the Borough. Mr. Topper died from his injuries. Topper’s estate brought an action against the Borough alleging the fall was caused, in part, by the defective condition of the sidewalk in the area where he fell. The lawsuit also claimed the Inn violated its duties under the Dram Shop Act by serving Topper when he was visibly intoxicated.                                     

The Trial Court directed a verdict against the Borough on the issue of negligence, but left the issues of causation and damages for the jury. The jury instructions addressed contributory and comparative negligence. The jury returned a verdict finding the Inn was not negligent and apportioning 100% of causal negligence to Topper. The estate appealed arguing the Trial Court’s instructions to the jury on contributory and comparative negligence were incorrect and asserting the estate was entitled to judgment notwithstanding the verdict.

Holding

The Court held that the estate failed to timely object to the Trial Court’s erroneous jury instructions on the issue of comparative negligence, thereby waiving any objections on appeal. Regarding the judgment notwithstanding the verdict, the Court held that although there was no dispute of the Borough’s negligence in permitting the area of the fall to remain in a defective condition, there was sufficient evidence that Mr. Topper knew of the defective condition and that he could not have safely navigated the area of the fall due to his high level of intoxication. Thus, the Court could not conclude that the evidence at trial was insufficient to sustain the verdict.

Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or mbishop@tthlaw.com.


Lingham v. Faison

Pennsylvania Superior Court

No. 530 EDA 2016

Decided: January 11, 2017

Superior Court upholds Trial Court’s preclusion of portions of Plaintiff’s medical expert’s testimony regarding the reasonableness and necessity of a surgical procedure, because the expert had limited knowledge, experience and expertise regarding the procedure.

Background

Plaintiff brought suit arising out of a rear-end accident by Defendant. Defendant filed a motion-in-limine to preclude limited portions of Plaintiff’s medical expert’s testimony regarding the reasonableness and necessity of a rhizotomy procedure that Plaintiff underwent with a different medical provider, arguing that Plaintiff’s medical expert lacked a sufficient level of specialized knowledge regarding rhizotomies. The motion was granted. The jury found Defendant negligent, and also found that Plaintiff did not suffer a serious impairment of a bodily function. As a result, Plaintiff was not awarded non-economic damages because he had selected the limited tort option on his policy. Plaintiff appealed, arguing that the Trial Court abused its discretion by precluding the medical expert’s testimony regarding the reasonableness and necessity of plaintiff’s rhizotomy procedure.

Holding

The Superior Court affirmed the decision of the Trial Court. The Court found that the Trial Court did not abuse its discretion because Plaintiff’s medical expert did not perform the rhizotomy, and was unable to illustrate any particularized knowledge of the procedure or identify the applicable standard of care. In fact, the medical expert’s only familiarity with rhizotomies came from observing the procedure performed by a physician nearly fifty years prior.

Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or jshields@tthlaw.com.

Stapas v. Giant Eagle, Inc.

Pennsylvania Superior Court

No. 1287 WDA 2015

Decided: December 23, 2016

Defendant is entitled to a new trial limited to damages, where the jury verdict attributed damages to future lost wages neither proven nor sought by Plaintiff.

Background

Plaintiff Stapas brought suit against Defendant Giant Eagle after he was shot by another customer, outside Defendant’s convenience store. A jury found Giant Eagle 73% negligent and Stapas 27% negligent and awarded Stapas just over $2 million in damages. Although the Trial Court provided only a general verdict form, the jury included notes on the form which set forth the breakdown of their award, including $1.3 million apportioned for future lost wages.

In a post-trial motion, Giant Eagle argued that the jury’s award of $1.3 million was against the weight of evidence because Plaintiff neither proved future lost wages nor even sought to prove future lost wages at trial. The Trial Court denied this post-trial motion.

Holding

The Superior Court held that Giant Eagle was entitled to a new trial, limited to damages. The Superior Court found that the jury had exercised its discretion and issued a “general verdict with special findings” when it broke down the general verdict form into specific categories. The Court found that the jury’s clear allocation of $1.3 million for future lost wages was unsupported by the evidence and that Stapas’ counsel had specifically disclaimed any future lost wages at trial.

Questions about this case can be directed to Eric Horst, at (215) 564-2928 or ehorst@tthlaw.com.

Nicolaou v. Martin

Pennsylvania Superior Court

2016 Pa. Super. 300

Decided: December 22, 2016

Plaintiff’s medical malpractice action was properly dismissed for failure to timely file suit as Plaintiff knew or should have known that she had been injured which was further evidenced by her social media post on Facebook.

Background

Plaintiff was bitten by a tick in 2001 and began to develop initial symptoms of tingling in her left toe, fatigue, and lower back pain. Over time, these symptoms progressed and the Plaintiff began experiencing incontinence, tingling and numbness throughout her body including her legs and feet, difficulty walking, with eventual confinement to a wheelchair. Plaintiff’s physicians ordered a battery of tests, including four which tested for Lyme disease, with none of the tests producing a positive result. Plaintiff then underwent an MRI which suggested that she was suffering from either Multiple Sclerosis (MS) or Lyme disease. Plaintiff was thereafter diagnosed with MS and began a course of treatment with the Defendants.

Sometime in 2007, Plaintiff suspected that she had been incorrectly diagnosed with MS. She then ceased treating with the Defendants in 2008. In July of 2009, Plaintiff began treating with a Nurse Practitioner who had a history of treating patients for Lyme disease whom other medical professionals had previously and incorrectly diagnosed as suffering from MS. Several months after her initial treatment for Lyme disease, Plaintiff underwent a specialized test which ultimately confirmed the clinical diagnosis. Upon learning of the results on February 13, 2010, Plaintiff posted a message on her Facebook page which purported to confirm her subjective opinion that she always had Lyme disease well before the positive result:

Today i got my blood test back from igenix [sic] labs to test for lyme disease and it came back positive!!!!!!!!!!!!! i had been telling everyone that i for years i thought it was Lyme and the doctors ignore me, thank you God you have answered [sic] my prayers!!!!!!!!! Now its [sic] all in your hands!!!!!!!!!!!!

Thereafter, Plaintiff initiated a lawsuit against the Defendants on February 10, 2012. Defendants then filed a motion for summary judgment alleging the Plaintiff initiated her action after the prescribed statutory period had expired and that the statute of limitations was not tolled by the application of the discovery rule.

Holding

In affirming the Trial Court’s ruling, the Superior Court explained the Plaintiff knew, or reasonably should have known, that between July and September of 2009 her long standing health problems may have been caused by the Defendants’ failure to diagnose and treat her Lyme disease and, therefore, such failure could have resulted from the Defendants’ negligence. Plaintiff had been actively treating and was aware of the availability of an objective test that could confirm her clinical diagnosis, but had refused to obtain the objective proof until several months after beginning the treatment regimen. The Superior Court noted that Plaintiff had the burden, pursuant to the discovery rule, to exercise reasonable diligence to know that she had been injured and by what cause. In this case, the Superior Court held that the Plaintiff could have proven that she had Lyme disease by objective testing as early as July of 2009 and, as such, the Trial Court’s entry of summary judgment dismissing the case was proper. The Superior Court was not persuaded by Plaintiff’s argument that she did not subjectively appreciate the clinical diagnosis as she had affirmatively posted her opinions on Facebook once receiving the definitive results in 2010.

Questions about this case can be directed to John Lucy, at (717) 441-7067 or jlucy@tthlaw.com.

Richards v. Ameriprise Financial, Inc.

Pennsylvania Superior Court

No. 265 WDA 2015, 2016 Pa. Super. 289

Decided: December 16, 2016

Punitive damages are not recoverable for claims under the Unfair Trade Practices Consumer Protection Law.

Background

Plaintiffs sought to recover damages from Defendants Ameriprise Financial Services, Riversource Life Insurance Company, and Thomas A. Bouchard, due to the alleged violations of the Unfair Trade Practices Consumer Protection Law (UTPCPL). Plaintiffs alleged that Defendants had violated the UTPCPL when Defendants misrepresented payment information related to a life insurance policy. After a bench trial, the Allegheny Court of Common Pleas awarded Plaintiffs treble damages and punitive damages, and allowed Plaintiffs’ counsel to submit a petition for fees and costs, which resulted in the subsequent award of attorneys' fees and costs in favor of Plaintiffs. Defendants appealed.

Under the UTPCPL, a private party may recover damages for any ascertainable loss of money or property caused by an unlawful method, act or practice. The UTPCPL lists twenty practices that constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices”, as well as a catchall provision that prohibits “fraudulent conduct” that creates a likelihood of confusion or misunderstanding. If there is a finding of liability, then the court has the discretion to award “up to three times the actual damages sustained” and provide any additional relief the court deems proper. However, the statute does not confer a right to the court to impose punitive damages.

Holding

The Superior Court affirmed in part and reversed in part the holding of the Allegheny Court of Common Pleas. Specifically, the Superior Court held that the Trial Court had the discretion to award treble damages, but improperly imposed both punitive damages and treble damages upon Defendants in contravention to the UTPCPL.

Questions about this case can be directed to Elizabeth Melamed, at (717) 255-7234 or emelamed@tthlaw.com.

NEW JERSEY CASE SUMMARY

Pisieczko v. The Children’s Hosp. of Phila.

New Jersey Superior Court, Appellate Division

2017 WL 105000

Decided: January 6, 2017

Whether a landowner has a duty to provide a reasonably safe workplace for an independent contractor to work is an issue of law.

Background

Plaintiff Pisieczko, an independent contractor, was hired by Defendant CHOP to repair lights, located in the day-program parking lot, which were affixed to wooden poles. Defendant CHOP provided no guidance or supervision for Plaintiff’s work. On the loss date, Plaintiff checked the wires of two lights attached to two different poles in the parking lot and then turned his attention to a third light attached to a wooden pole. Plaintiff pushed the pole to make sure that it was sturdy and found it did not move. As Plaintiff was on a ladder affixed to one of the wooden poles, testing a light on the pole, the pole broke, causing Plaintiff to jump backwards, to avoid barbed wire, and fall 20 feet to the ground, injuring his heel. Plaintiff alleged that the pole was rotten inside, causing it to break. Both parties agreed that the rot was not visible on the outside of the pole. Defendant moved for summary judgment which was granted. The Court found that the decision to place the ladder against the pole was incident to the work being performed because Plaintiff conducted an inspection of the pole, and the lights Plaintiff needed to fix were located on top of the pole. Plaintiff appealed the decision asserting, among numerous arguments, that the Court failed to apply the first prong of the “hazard incident to work” exception of a landowner’s duty to independent contractors.

Holding

In affirming the Trial Court’s ruling, the Superior Court explained that, the determination whether defendant owed a duty to provide a reasonably safe workplace for an independent contractor to work, is an issue of law and not fact. The Trial Court correctly determined that the risk of the pole was incidental to fixing the light, as the hazard was in ascending the pole, not in it being rotted, and the hazard of climbing the pole was obvious.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmamounas@tthlaw.com.

Guerrero v. Moore

New Jersey Superior Court, Appellate Division

No. A-4197-14T3

Decided: January 5, 2017

Appellate Division enforces application of statute barring personal injury claims by uninsured drivers to plaintiff insured in another state.

Background

Plaintiff Guerrero and Defendant Moore were involved in a motor vehicle accident in Camden, New Jersey. At the time, Plaintiff was driving a vehicle that was titled and registered in her name in Pennsylvania and her vehicle was also insured in Pennsylvania. This Pennsylvania policy did not include Personal Injury Protection (PIP) benefits as mandated by New Jersey law. For three to six months before the subject accident, Plaintiff was residing in Camden, New Jersey and kept her vehicle garaged there. However, Plaintiff retained only her insurance coverage under the Pennsylvania policy. Relying on N.J.S.A. 39:6A-4.5, Defendant successfully moved for summary judgment. Pursuant to this statute, the Trial Court dismissed Plaintiff’s claim for personal injury as she had failed to maintain the required medical expense coverage. Plaintiff appealed.

Holding

Plaintiff’s argument before the Appellate Division was that she should not be considered “uninsured” under N.J.S.A. 39:6A-4.5(a) due to her Pennsylvania based insurance policy. The Court rejected this position because the Pennsylvania policy did not include PIP coverage as required by New Jersey law. Further, the Court found that New Jersey’s requirement was properly applied to Plaintiff as she admitted to living in New Jersey for at least three months prior to the accident. In support of its decision the Court cited to the public policy rationale that N.J.S.A. 39:6A-4.5 “gives uninsured drivers a strong incentive to be compliant with the compulsory insurance laws: either “obtain automobile liability insurance coverage or lose the right to maintain a suit for both economic and noneconomic injuries.” The Court also rejected two additional arguments presented by Plaintiff. First, the Court disagreed that there was a genuine dispute of fact as to whether Plaintiff’s car was “principally garaged” in New Jersey as Plaintiff had testified she kept the vehicle in Camden for at least three months. Second, the Court denied Plaintiff’s argument that the bar to suit should not apply in cases, as here, where the Defendant is an out-of-state resident with out-of-state insurance also not containing the required PIP coverage. The Court opined that for purposes of N.J.S.A. 39:6A-4.5(a), it is only the Plaintiff’s insurance that is relevant. The Trial Court’s summary judgment dismissal was affirmed.

Questions about this case can be directed to Daniel Seger, at (908) 574-0513 or dseger@tthlaw.com.

DC CASE SUMMARY

Gray v. Staley

United States District Court for the District of Columbia

No. 1:14-cv-00937 (APM)

Decided: December 15, 2016

Holding that the statute of limitations tolling period for an incarcerated plaintiff applied to an initial incarceration, but not to a subsequent incarceration.

Background

Plaintiff’s claim accrued in 1985, at the latest, and was incarcerated at the time. Plaintiff was released from prison before December 1992, and incarcerated again sometime after June 1994. In May 2011, Plaintiff filed suit regarding the claim that accrued in 1985. Plaintiff was still incarcerated at that time.

Holding

Under D.C. law, the statute of limitations tolls if the plaintiff is imprisoned when the cause of action accrues. However, when a plaintiff is released, the statute of limitations begins to run and is not tolled again if the plaintiff subsequently is re-incarcerated. The Court held that the statute of limitations barred the Plaintiff’s claim in this case because more than three years elapsed between when Plaintiff was released from his initial incarceration around 1992, and when suit was filed in 2011. The Court explained that Plaintiff’s second incarceration in 1994 did not toll the statute of limitations in the interim.

Questions about this case can be directed to Ben Peoples, at (202) 904-2362 or cpeoples@tthlaw.com.

VIRGINIA CASE SUMMARY

Hensel Phelps Constr. Co. v. Thompson Masonry Contractor

Virginia Supreme Court

791 S.E.2d 734

Decided: November 3, 2016

The applicable statute of limitations ran years before a general contractor brought breach of contract and common law indemnity claims against its subcontractors.

Background

In 1997, Hensel Phelps Construction Company contracted with Virginia Polytechnic Institute to construct the Student Health & Fitness Center. In turn the contractor entered into a number of subcontracts. These subcontracts generally referenced and incorporated the prime contract but did not make reference to and/or adopt any specific provisions of the prime contract. The “indemnity” provision in the subcontracts contained language later determined to be against public policy; thereby rendering the subcontracts’ indemnity provision unenforceable.

Construction began in 1997 and was completed in 1998. Final payment was made to the contractor in 1999. One of the subcontractors returned to fix an identified problem in 2000. Virginia Tech later discovered additional defective workmanship and elected to remove, replace, or repair the defects. In 2012, Virginia Tech asserted a claim against the contractor, which was settled for $3,000,000 in 2014. The contractor brought this breach of contract and common law indemnity action against the subcontractors in 2014. The Circuit Court of Montgomery County granted the pleas in bar as to the breach of contract allegations based on the statute of limitations and sustained the demurrers on indemnity, dismissing the case in its entirety.

Holding

The contractor’s right of action accrued upon the breach of the performance provisions of the contract, at some point between when construction began in 1997 and when it was completed in 1998 or, at the very latest, when the repair work was completed in 2000. Therefore, the statute of limitations ran long before the filing of the instant action in 2014. Judgment of the Circuit Court affirmed.

Questions about this case can be directed to Lacey Conn, at (202) 558-5158 or lconn@tthlaw.com.