General Liability eNotes


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TT&H eNotes Liability: March 2017


FIRM NEWS

In an article recently published in the Area Auto Racing News, TT&H Attorney Louis Long examines how a recent court decision on overflow parking might impact the potential liability of race track promotors.  A copy of the article can be accessed here.

Questions regarding the same can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

TT&H LAWYERS IN COURT

Louis Long prevails in municipal boundary dispute action appealed to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court unanimously resolved a municipal boundary dispute in Adams Township v. Richland Township and, in doing so, brought certainty and closure to the residents in the affected area.  The decision, authored by Justice David Wecht, confirmed the constitutionality of the procedures employed to resolve the dispute and endorsed the decision of the board of commissioners.  The commissioners had ruled that evidence was insufficient to ascertain the true boundary as established in 1870, when Adams was carved out from Richland.  However, the board also determined that, over the years, residents relied upon the tax map boundary line in making decisions whether to purchase property, whether to build or improve their homes, and where to educate their children.  The board decided that the municipalities had tacitly induced that reliance by collecting taxes, issuing building permits, etc.  The decision now removes any barriers to a substantial real estate development in the affected area.  The Supreme Court’s ruling adopted the position of Richland Township in its entirety.  Richland was represented in the appeal by Louis C. Long.

Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

TT&H Attorneys win summary judgment for police officer accused of civil rights violations.

On February 17, 2017, the U. S. Court of Appeals for the Third Circuit affirmed the entry of summary judgment in favor of a police officer who was accused of civil rights violations after shooting at a car leaving the scene of a crime.  The driver of the car, who was convicted of aggravated assault, had crashed into a police cruiser and was driving erratically in a residential neighborhood.  In upholding the grant of qualified immunity to the officer, the Third Circuit found that the law was not so clearly established that a reasonable officer in his shoes would have known that the use of deadly force in such circumstances was unlawful.  At the District Court level, the case was handled by Thomas McGinnis and Karin Romano of the firm’s Pittsburgh office.  Karin also assisted Louis Long, chair of the firm’s Appellate Practice Group, in the continued defense of the claim following an appeal to the Third Circuit.

Questions about this case can be directed to:

Louis Long, at (412) 926-1424, llong@tthlaw.com,  

Thomas McGinnis, at (412) 926-1420, tmcginnis@tthlaw.com, or

Karin Romano, at (412) 926-1426, kromano@tthlaw.com.


SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA   |    MD    |    NEW JERSEY    |   D.C.    |   VA
 

PENNSYLVANIA CASE SUMMARIES

Ford v. Am. States Ins. Co.

Pennsylvania Supreme Court

No. 13 WAP 2016

Decided: February 22, 2017

Pennsylvania Supreme Court holds rejection of UIM coverage is valid despite deviations from statutory form.

Background

Named Insured signed a form for rejection of UIM coverage. However, it was not exactly the same as the rejection form set forth in the statute. Specifically, the form signed by the Named Insured added the letter “S” to the word “MOTORIST” in the title of the form and inserted the word “motorists” into the second sentence of the statutory form. Put another way, the form deviated from the statutory form by adding the following highlighted letter and word:

        REJECTION OF UNDERINSURED MOTORISTS PROTECTION

By signing this waiver I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in my household. Underinsured motorists coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.

American States denied the UIM claim made by the Named Insured’s daughter, Ford, who then brought a declaratory judgment action, contending that the rejection form was invalid because it differed from the statutory form.  The trial court held that the rejection form was valid and the Superior Court affirmed.  

Holding

In a 5-2 decision, the Pennsylvania Supreme Court affirmed, rejecting Ford’s argument that a rejection form is invalid unless it is a “verbatim reproduction of the statutory rejection form,” stating: “[W]e hold that a UIM coverage rejection form specifically complies with Section 1731 of the MVFRL even if the form contains de minimis deviations from the statutory rejection form . . . .” 

Comment

This common sense decision is a relief to insurers as it is the first decision of the current Court in this area of the law. Although, the opinion leaves much room for debate as to what deviations will be considered “de minimis,” or as the Court also termed it, “inconsequential,” the Court stated that deviating from the statutory form at all is “ill-advised” and hinted that the greater the deviation the less likely that the form will be valid. The Court indicated that any deviation that would “inject ambiguity” (e.g., omitting the word “all” from the statutory form’s statement that UIM applies when a negligent  driver “does not have enough insurance to pay for all losses and damages”)  or create confusion would invalidate the form. The Court also stated that it was the legislature’s intent to require an insurer “to make certain that, if an insured decides to reject UIM coverage, the insured does so by signing a rejection form that explains what coverage the insured is waiving as a result of her decision,” implying that a form that does so may be held valid despite slight deviations from the statutory form. 

Questions about this case can be directed to Pete Speaker, at (717) 255‑7644 or pspeaker@tthlaw.com.

Gillingham v. County of Delaware

Pennsylvania Commonwealth Court

No. 2532 CD 2015

Decided: February 14, 2017

The real property exception will not apply to pierce a political subdivision’s immunity, unless the object is a fixture of the real property. 

Background

Plaintiff was visiting the Recorder of Deeds of Delaware County and was situated at a computer performing property searches.  Unbeknownst to the Plaintiff, while seated, her foot became entangled in cables and wires attached to the computer. Plaintiff stood, started to walk, and then tripped and fell suffering injury.

Plaintiff filed suit against the County of Delaware and The County of Delaware  asserted an immunity defense pursuant to the Political Subdivision Tort Claims Act.  Following the completion of discovery, the County of Delaware moved for summary judgment, relying upon the immunity provisions arguing that the real property exception was not applicable as the evidence suggested the computers and its support were not affixed to the realty.  Plaintiff contended that the real property exception applied, and her burden was to prove the County of Delaware failed to maintain and care for the real property.  The Trial Court granted the County of Delaware’s motion for summary judgment, dismissing Plaintiff’s claims. 

Holding

The Commonwealth Court sustained the ruling.  In order for a plaintiff to pierce the immunity afforded by the real property exception, plaintiff must show the object causing injury was a fixture.  A plaintiff will not be successful if the cause of the fall was personalty on the realty.  Here, although the Plaintiff fell on the floor, the object causing the fall was not a fixture.  So, the immunity applies. 

Questions about this case can be directed to Shayne McGrady, at (570) 820-0240 ext. 8608 or smcgrady@tthlaw.com.

Hartford Ins. v. Kamara, et. al.

Pennsylvania Superior Court

2017 Pa. Super 31

Decided: February 10, 2017

Superior Court holds that Plaintiff insurer properly brought a single action against the third-party tortfeasors in the name of the injured employee for recovery of workers’ compensation lien.

Background

Chunli Chen was standing in the parking lot of Thrifty Car Rental, waiting to rent a car while in the course and scope of her employment, when she was struck by a rental car operated and owned by Defendants.  Plaintiff Hartford Insurance brought suit in the name of Chunli Chen, as it had paid $59,424.71 in workers’ compensation benefits.  Defendants filed preliminary objections, claiming that the complaint must be dismissed because Plaintiff filed suit to assert subrogation rights directly against the alleged third-party tortfeasor, where the right to bring suit lies with the injured employee.  The Trial Court sustained the preliminary objections and dismissed the Complaint with prejudice. 

Holding

The Superior Court reversed.  The right of action against a third-party tortfeasor lies with the injured employee.  Accordingly, an employer/insurer’s right of subrogation under the Workers’ Compensation Act must be achieved through a single action brought in the name of the injured employee or joined by the injured employee.  The Court found that Plaintiff properly brought a single action against the third-party tortfeasors in the name of Chunli Chen to recover the entire amount to which Chen was entitled, rather than solely to recover Hartford’s subrogation interest.  

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

Gallagher v. GEICO Indemnity Co.

Pennsylvania Superior Court

No. 352 WDA 2016

Decided: January 27, 2017

The household policy exclusion in UIM provision does not constitute an unknowing waiver of stacking.

Background

The Superior Court recently revisited the holding that the standard household exclusion provision in UIM policies is valid and does not violate the Motor Vehicle Financial Responsibility Law’s prohibition on unknowing waivers of stacking, even where the same insurer covers all vehicles owned by an insured.  Here, the Plaintiff was insured by two UIM policies through GEICO for coverage of two automobiles and for coverage of a motorcycle.  GEICO decided to provide separate policies for each type of vehicle.  In August, 2012, Plaintiff was involved in a motor vehicle accident while operating his motorcycle.  GEICO paid $50,000 of UIM coverage under the motorcycle policy, and denied Gallagher’s claim under the UIM policy for his automobiles under the household exclusion.                 

That household exclusion stated: “This coverage does not apply to bodily injury while occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured from [UIM] [c]overage under the policy.”  Plaintiff argued that he had not intended to waive stacking.  He contended that the household exclusion ultimately amounted to an unknowing waiver of stacking over all three of his vehicles, as but for this provision, he would be able to stack across three vehicles. 

Holding

The Superior Court reluctantly held that the household exclusion did not violate Pennsylvania’s prohibition on the unknowing waiver of stacking. The Court noted that the Ayers Court had specifically held that the household exclusion, even when all owned vehicles were covered by the same insurer under different policies, was not “contrary to the MVFRL or any other discernable public policy.”  Similarly, the Supreme Court in Baker held that the household exclusion did not even involve questions of stacking and thus could not be a “disguised waiver” of stacking.  Noting the precedential value of these prior decisions, the Superior Court held it was bound to reach the same result—that the household exclusion did not violate the MVFRL.  The Superior Court suggested that Plaintiff pursue an appeal to the Supreme Court.

Questions about this case can be directed to Lindsey Cook, at (717) 237-7111 or lcook@tthlaw.com

Newell v. Montana West, Inc.

Superior Court of Pennsylvania

2017 Pa. Super. 15, 2017 WL 219102

Decided: January 19, 2017

Pennsylvania landowner or operator owes no duty to protect an invitee from dangers on adjoining roadways based on insufficient parking at its facility. 

Background

Decedent Victor Newell attended a concert at Montana West, located on the west side of Route 309, a four lane public highway. After leaving the concert, and in crossing Route 309 to reach his parked car, Newell was fatally struck by a motorist.  His estate sued Montana West arguing that it provided insufficient parking for those patronizing its facility, thereby making it necessary for Decedent to incur the risk of parking and crossing Route 309. Notably, a Montana West customer had already been fatally injured crossing the same  highway on which Newell was killed, and Montana West had undertaken sporadic precautions to protect patrons thereafter. The Trial CXourt entered summary judgment for Montana West on the grounds that it did not owe a duty to Decedent when he crossed Route 309.

Holding

On appeal, the Superior Court analyzed the duties imposed on a landowner and operator and found that a pedestrian who walks on a public highway places himself at risk of injury from vehicles traveling on that highway. Any duty of care owed to that pedestrian belong to those who maintain the road and the motorists who travel on the roadway. The Court also found that as a matter of public policy, a duty cannot be imposed upon landowners and/or operators to provide parking above and beyond zoning regulations because the potential for exposure would be too broad.  Lastly, the Court found that even if a landowner and/or operator engages in some protective conduct on some sporadic basis on prior occasion(s), such conduct does not rise to the level of voluntary assumption of a legal duty to provide protective services at all later events.

Ultimately, the Superior Court held that: as a matter of first impression, owners and/or operators: (1) owe no duty to protect patrons against dangers on adjoining roadways; (2) any lack of sufficient parking at a premises does not impose a duty on owners and/or operators to protect patrons from the dangers of parking elsewhere; and (3) past safety precautions does not result in a voluntary assumption of a duty to protect future patrons.

Questions about this case and be directed to Jolee Bovender, at (717) 255-7626 or jmbovender@tthlaw.com.


MARYLAND CASE SUMMARY

Nat’l Union Fire Ins. Co. v. The Fund for Animals, Inc.

Maryland Court of Appeals

No. 18, September Term, 2016

Decided: January 27, 2017

Insured breaches an insurance contract where it fails to provide timely notice of a claim to its insurer. However, an insurer may not disclaim coverage unless it has suffered actual prejudice.

Background

The Fund for Animals (FFA) had a liability insurance policy with National Union.   The “Notice/Claim Reporting Provision” section of the policy required as a condition precedent to the Insurer’s coverage obligations that the FFA “give written notice to the Insurer of any Claim made against [it] as soon as practicable and . . . no later than 30 days after the date such Claim was first made against the insured.”  If notice was untimely, National Union’s obligation to accept tender of the FFA’s defense and all associated costs would be terminated.

FFA had several cases pending against it in the Court of Special Appeals, including a case involving the Endangered Species Act (ESA), and a case involving the Racketeer Influenced and Corrupt Organizations Act (RICO).  FFA failed to notify National Union within 30 days after the claims were made.  As a result, National Union disclaimed its coverage obligations. It argued prejudice because it was unable to contest many of the facts found by the court in the ESA case which undermined any defense FFA could have raised in the RICO case.  FFA brought a Coverage claim against National Union arguing that, although notice was late, National Union was required to accept tender of FFA’s defense because it was not prejudiced.  FFA argued that National Union had no ability to participate in the ESA case and, at best, could have only monitored that case.  The Court of Special Appeals held that National Union did not suffer actual prejudice by the late notice because it had no “right to intervene in, impact, or influence the ESA Case.”  National Union appealed. 

Holding

The Court concluded that National Union was not prejudiced by FFA’s late notice of the ESA case because National Union had no right to intervene in, impact, or influence the ESA case, and so the outcome of the ESA case did not prejudice National Union’s ability to investigate, settle, or defend the RICO case.  The Court explained that an insured’s breach of an insurance policy is not enough for an insurer to disclaim coverage.  The breach must result in actual prejudice to the insurer, which consists of “harm” that is “more than possible, hypothetical, speculative, or conjectural”. 

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


NEW JERSEY CASE SUMMARIES

McCarrell v. Hoffmann-La Roche

New Jersey Supreme Court

No.  A-28, September Term 2015, 076524

Decided: January 24, 2017

New Jersey Supreme Court favors New Jersey Statute of Limitations in choice-of-law question; reinstates $25 million jury verdict in Accutane litigation.

Background

Plaintiff McCarrell, an Alabama resident, was prescribed Accutane to treat his acne in 1995. After taking the drug, Plaintiff developed inflammatory bowel disease and underwent years of extensive treatment. In 2003, Plaintiff filed a products-liability action in New Jersey against the New Jersey based producer of Accutane, Defendant Hoffmann-La Roche. Defendant’s initial motion to dismiss, premised on Alabama’s two year statute with no discovery rule tolling, was denied under the governmental-interest test. A first trial followed and the jury awarded $2.6 million to Plaintiff. Defendant appealed based on erroneous evidentiary rulings and the Appellate Division vacated the award and remanded for a new trial. The second trial resulted in verdict for Plaintiff for $25 million. Defendant applied for a judgment notwithstanding the verdict based on erroneous application of New Jersey’s statute of limitations, which the Ttrial Court denied. However, in the ensuing second appeal, the Appellate Division sided with Defendant and ruled that Alabama’s statute of limitations applied due to the change in choice-of-law analysis adopted by the New Jersey Supreme Court in P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132 (2008). Defendant then petitioned to the New Jersey Supreme Court, which granted certification on the choice-of-law issue.

Holding

The New Jersey Supreme Court addressed the question, “What are our choice-of-law rules in determining the applicable statute of limitations in a tort action?” The Court noted that its review of the issue was de novo. The Court agreed that the Camp Jaycee case signaled New Jersey’s move away from the governmental interest standard and to the Second Restatement for choice-of-law analysis. However, the Court found that when the choice-of-law concerns a statue of limitations conflict, the specific section of the Second Restatement addressing statutes of limitation, Section 142, should be the guide. In this manner, the Court separated statute of limitations choice-of-law analysis from the previously adopted Restatement analysis for resolving substantive law conflicts (under sections 146, 145, and 6). Applying Section 142, the Court found that New Jersey’s limitations period governed as New Jersey had a substantial interest in the litigation and there were no exceptional circumstances to warrant a deviation. The verdict in favor of Plaintiff was reinstated and the matter was remanded to the Appellate Division to address additional issues not yet adjudicated.

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

Patel v. Riotto

New Jersey Superior Court, Appellate Division

No. 39-2-2499, 2017 WL 541419

Decided: February 9, 2017

Superior Court holds that workers’ compensation carrier’s lien against proceeds recovered by the Plaintiff was enforceable.

Background

The Hartford, the workers’ compensation carrier for Plaintiff’s employer, appealed from the Trial Court’s order denying its motion to enforce a workers’ compensation lien against settlement proceeds recovered by Plaintiff in the underlying litigation.                                           

The underlying litigation stemmed from a motor vehicle accident. The Trial Court held that the workers’ compensation lien was unenforceable and reasoned that since medical expenses covered by the PIP benefits of the Plaintiff’s automobile insurance policy may not be recovered from a tortfeasor under the applicable statute, The Hartford should be similarly precluded from enforcing a lien for its payment of medical expenses that are covered by the PIP provisions of the Plaintiff’s insurance policy.    

Holding

The Superior Court reversed and held that the workers’ compensation lien was enforceable against the settlement proceeds. The Court reasoned that the enforcement of The Hartford’s lien is explicitly set forth in the provisions of N.J.S.A. 34:15-40(b). 

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

McInroy v. Village Supermarket, Inc.

New Jersey Superior Court

No. L-1822-15

Decided: February 14, 2017

The reimbursement of an IME fee is a just and reasonable discovery sanction against delinquent party.

Background

Plaintiff McInroy filed a negligence action for personal injuries allegedly sustained from a slip and fall in Shoprite. Plaintiff alleged that Shoprite negligently allowed water to accumulate in one of the aisles, which created a slippery, dangerous condition to patrons. Shoprite scheduled an independent medical examination (IME) for Plaintiff for May 31, 2016, and she failed to appear for medical reasons unrelated to the subject incident. The IME physician did not charge a cancellation fee for this first missed appointment. Defendant subsequently scheduled a second IME which the Plaintiff missed and a third IME where the Plaintiff also failed to appear. Plaintiff provided no explanation for these missed appointments. The IME physician issued an invoice to defense counsel in the amount of  $375 representing his fee for the two missed appointments. Defendant moved to compel Plaintiff to pay the $375 fee.         

Holding

In granting the Defendant’s motion, the Superior Court explained that although, Rule 4:19 does not specifically authorize the court to grant such relief, the Court has general discretion to impose such discovery sanctions that are just and reasonable to make the non-delinquent party whole. Plaintiff's counsel was informed of the IME, that the doctor applies missed appointment fees, and the amount of the fee. As Defendant had no control over whether Plaintiff appeared for her IME, the Court deemed the reimbursement of the IME fee a just and reasonable discovery sanction to make the non-delinquent party whole.

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


DC CASE SUMMARY

Smith v. Yeager

United States District Court for the District of Columbia

No. 16-554 (RBW)

Decided: January 13, 2017

Court refuses to transfer a legal malpractice case from DC to Virginia.  

Background

This legal malpractice case arose out of a commercial landlord-tenant matter.  Defendants were located in Virginia.  Plaintiffs were located in New York.  The underlying matter proceeded in DC court, and concerned a commercial tenancy in DC. The legal malpractice case was filed in the DC Superior Court, and removed to DC’s federal court.  Defendants filed a Motion to Transfer the case to Virginia.         

Holding

The Court denied the motion because Plaintiffs chose DC as the forum, the claims arose in DC, any convenience afforded by Virginia was minimal, Virginia courts were only slightly less congested than DC courts, and DC had an interest in deciding the controversy because it arose in DC.

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


VIRGINIA CASE SUMMARY

Mayr v. Osborne

Virginia Supreme Court of

2017 WL 445915; ___S.E.2d___

Decided: February 2, 2017

In a case of first impression, the Supreme Court of Virginia holds that a claim that a surgeon operated on the wrong body part sounds in medical negligence, not battery.

Background

In an effort to relieve back pain, Dr. Mayr performed a posterior cervical foraminotomy and fusion on Decedent Osborne.  The procedure should have been performed at the C5-C6 level and reports revealed that Dr. Mayr believed he had operated at the C5-C6 level.  However, post-surgical films showed that Dr. Mayr had actually fused C6-C7.  The estate of Osborne brought suit in the Circuit Court of Henrico County alleging that Dr. Mayr was negligent and that he had committed battery.  She later nonsuited the negligence claim and proceeded to trial solely on the battery claim, on the theory that surgery on the wrong level went beyond the scope of consent; thereby, constituting a battery.  After a bench trial, judgment was entered for Dr. Mayr.                                               

In recognizing that the torts of both negligence and battery provide avenues of recovery for persons injured by the actions of a health care provider, the Supreme Court did a thorough analysis of the differences.  Importantly, the Court also drew a distinction between technical and medical battery.  Ultimately, whether a technical or medical battery has occurred will generally hinge on the question of consent.

Holding

A physician is not liable for battery, unless the plaintiff establishes a prima facie case that the physician performed an operation against the patient’s will or substantially at variance with the consent given.  The facts must be sufficient to permit an inference that the physician intended to disregard the patient’s consent regarding the procedure or the scope of the procedure.  Since Dr. Mayr did not perform a substantially different or additional procedure from that which the patient consented to, Dr. Mayr did not intend any unpermitted contact.  Therefore, the claim for battery failed as a matter of law.

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