General Liability eNotes


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TT&H eNotes: Liability: May 2017


TT&H LAWYERS IN COURT

Francis DiSalle wins defense verdict in premises liability case.

Francis DiSalle obtained a defense verdict for a Condominium Association in the Court of Common Pleas of Allegheny County, Pennsylvania.  Plaintiff sued for injuries arising from a slip and fall on ice while leaving her parents’ condo unit after dark.  The ice formed after a valve leaked water onto the walkway.  Plaintiff also alleged that the Condo Association was negligent for having inadequate lighting.  Following a 4-day jury trial, the jury returned a verdict in favor of the Condo Association finding no liability.

Questions about this case can be directed towards Fran DiSalle at (412) 434-8596 or fdisalle@tthlaw.com.


CLIENT ADVISORY

MARYLAND CLIENT ADVISORY

New Maryland law requires insurers to offer enhanced uninsured motorist coverage.

During the 2017 legislative session, the Maryland General Assembly passed House Bill 5. It is now law and requires that every private passenger motor vehicle liability insurance policy issued, sold, or delivered in Maryland on or after July 1, 2018, allow the first named insured to elect enhanced uninsured motorist coverage (“EUIM”) instead of the uninsured motorist coverage (“UIM”) generally required. The text of the legislation can be found here:
http://mgaleg.maryland.gov/2017RS/bills/hb/hb0005T.pdf

Once the election is made, the EUIM will apply to each renewal or extension of that policy until the policyholder changes the election in writing. There are certain threshold requirements, but EUIM coverage cannot exceed the amount of liability coverage under the policy.

The law requires that the EUIM insurer provide coverage payments. If an injured person receives a written offer from a motor vehicle liability insurer or its agent to settle a claim for bodily injury or death and the amount of the settlement offer (plus any other settlements) would exhaust the limits of the applicable policies, the injured party must send, via certified mail, a copy of the offer to her EUIM insurer. The EUIM insurer then must consent or reject the offer within 60 days. Within 30 days of the rejection, the EUIM insurer must pay the amount of the settlement to its insured in order to preserve any subrogation rights.

Importantly, EUIM coverage differs from UIM coverage because UIM coverage does not pay unless the limits of all other applicable collectible liability policies are less than the UIM coverage. EUIM coverage pays in addition to the limits of liability for all other applicable collectible liability policies.

Questions about this advisory can be directed to Renita Collins, at (410) 653-0460 or rcollins@tthlaw.com.


 

SIGNIFICANT CASE SUMMARIES

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

PENNSYLVANIA CASE SUMMARIES

Fazio v. State Farm Fire & Cas. Co.

United States District Court for the Eastern District of Pennsylvania

2017 WL 1102713

Decided: March 22, 2017

If insurer presents a prima facie case that an exclusion to the dwelling coverage applies, the burden shifts to the insured to present evidence to raise a factual question sufficient to withstand summary judgment on the application of the exclusion.

Background

Plaintiffs claimed that their house sustained damage due to ice and water following a winter storm. They sought recovery of the cost to replace the stucco and many windows and to repair several rooms. The estimated damages exceeded $85,000. After inspecting the house twice, the insurer made aggregate payments of about $17,000 for patching of stucco and some interior repairs.

The insurer had a construction expert report establishing that: (1) the stucco damage was not the result of ice damming or an isolated weather event; but, rather, was due to the effects of long-term age, wear, installation deficiencies, and lack of proper closure details; (2) the aging of the window system was due to the loss of seals and not due to any ice damming or isolated weather event; and (3) other interior damage was not due to any accidental direct physical loss. Plaintiffs’ repair estimates were conclusory and did not adequately respond to the causation issue.

Holding

The Court held that Plaintiffs did not meet their burden to present sufficient evidence to raise a genuine issue of fact as to the cause of their alleged losses. With regard to the patching or replacement of the stucco, the Court rejected the Plaintiffs’ claim that, as a matter of law, the insurer was obliged to replace the entire exterior, as well as remove and reinstall doors and windows to correct original construction deficiencies. Rather, the Court ruled that the insurer was only required to patch the stucco, for the patching could be accomplished successfully using proper materials, tools and techniques in order to meet old code requirements. Further, it was not obliged to replace the entire stucco exterior to bring it up to new code standards. With regard to damage to the windows and floor, the absence of any evidence to counter the insurer’s expert report on causation was fatal to the Plaintiffs’ claim.

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

 

Bransfield v. N.J. Mfr. Ins.

United States District Court for the Eastern District of Pennsylvania

No. 17-0088

Decided: February 23, 2017

Court for the Eastern District of Pennsylvania declines to exercise jurisdiction where Plaintiff alleged she was entitled to UIM coverage because the insurer did not secure new UIM coverage forms or new UIM stacking rejection forms upon adding a new vehicle to her policy, citing uncertainty in Pennsylvania law on the issue.

Background

Plaintiff Lauren Bransfield sustained injuries in a motor vehicle accident on September 26, 2014. At the time, she was covered by a policy issued to Linda Bransfield by New Jersey Manufacturers Insurance. After receiving policy limits from the other driver, she pursued a UIM claim against NJM. NJM contended that there was no UIM coverage, as Linda Bransfield had rejected both UIM coverage and stacking UIM coverage in 2006 and 2007. However, in 2013, Linda Bransfield added a new vehicle to the list of covered vehicles. Plaintiff contended that the Pennsylvania Motor Vehicle Financial Responsibility Law required that upon addition of a new vehicle to a policy, the insurer was required to secure a new waiver of UIM coverage, including a rejection of stacking.

NJM argued that the Federal Court should decline to exercise jurisdiction to resolve the dispute between the parties and remand the matter to state court for determination. It was noted that the Federal Court “may” resolve the dispute under the Declaratory Judgment Act, but was not required to hear the case. The Third Circuit has previously held that jurisdiction should not be exercised under the Declaratory Judgment Act when the state law involved is unsettled, particularly in the case of insurance coverage disputes.

Holding

The Eastern District for Pennsylvania notes that the resolution of the dispute between the parties would involve two questions of state law: whether UIM coverage needed to be rejected again upon adding an additional vehicle to the policy and whether stacking of UIM coverage needed to be rejected again upon adding an additional vehicle to the policy. The Court repeatedly notes that under the Declaratory Judgment Act, the federal court should not hear a case addressing unsettled state law. Citing the uncertainty created by the Sackett line of cases, as well as the case currently pending before the Pennsylvania Supreme Court on this issue (Toner v. The Travelers Home & Marine Ins. Co.), the Court holds that Pennsylvania’s law is unsettled, and it declines to exercise jurisdiction over the dispute.

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

 

Pennsylvania Mfs.’ Ass’n Ins. Co. v. Johnson Matthey, Inc.

Pennsylvania Commonwealth Court

No. 330 M.D. 2015

Decided: April 21, 2017

All occurrence-based CGL policies, without a pollution exclusion and in effect during the course of environmental contamination, may be required to provide coverage for claims seeking recovery for property damage.

Background

Pennsylvania Manufacturers’ Association Insurance (PMA) issued a number of commercial general liability insurance policies to predecessors of Johnson Matthey, Inc. (JMI). Pennsylvania Department of Environmental Protection (DEP) claimed that operations conducted by the JMI predecessor on a piece of property that it owned caused environmental contamination. The DEP filed suit against JMI to recover the costs of remediation. JMI sought coverage under the PMA policies. PMA claimed that the policies in question did not apply to the DEP’s lawsuit because the property damage was not discovered while those policies were in effect.

Holding

The Commonwealth Court disagreed. The Court stated that an insurance policy which covers property damage that occurs during the policy period is triggered if contamination takes place while the policy is in effect. This is the case even if the contamination is unknown at that time. Because the DEP was claiming that damage to the environment was taking place during the PMA policy periods and PMA had failed to show that this was not the case, PMA was not entitled to a declaration that it did not have a duty to defend or indemnify JMI with respect to DEP’s suit. In arriving at this conclusion, the Commonwealth Court applied the same principle that has been usedin latent disease cases, such as health problems caused by exposure to asbestos.

Questions about this case can be directed to Jeanette Ho, at (412) 926-1449 or jho@tthlaw.com.

 

Kreidie v. Commw. of Pa., Dept. of Revenue

Pennsylvania Commonwealth Court

2017 WL 943241

Decided: March 10, 2017

Failure to serve the Pennsylvania Attorney General deprived the Court of jurisdiction and required that a default judgment against a Commonwealth party be stricken.

Background

Plaintiff, a former employee of the Pennsylvania Department of Revenue, brought suit against the Department of Revenue, following his discharge, alleging discrimination in employment. In the Affidavit of Service filed with the Philadelphia Court, Plaintiff indicated that service was made on a “manager” from the Department of Treasury, not the Department of Revenue, but there was no evidence submitted of service on the Attorney General. Under Pennsylvania Rule of Civil Procedure 422(a) and 42 Pa. C.S. § 8523(b), a party serving process on any Commonwealth party must additionally serve process on the Attorney General.

Following entry of a default judgment against the Department of Revenue and a hearing to assess damages on the judgment, the Trial Court awarded Plaintiff $79,989. The Department’s motion for post-trial relief was denied, and the Department appealed.

Holding

The Commonwealth Court reversed holding that the initial default judgment against the Department should have been stricken due to a facial defect on the record. The failure to serve the Attorney General could not be overlooked as such was a fatal defect not subject to waiver.

Questions about this case can be directed to Katelyn McCombs, at (412) 926-1438 or kmccombs@tthlaw.com.

 

Wyszynski v. Greenwood Gaming & Entertainment, Inc.

Pennsylvania Superior Court

No. 766 EDA 2016

Decided: April 17, 2017

Advertising, no matter how pervasive in a county, is incidental to business and does not create sufficient contacts with that county to constitute regular business conduct for purposes of establishing venue.

Background

Plaintiff filed a personal injury in Philadelphia County arising out of a slip and fall accident that occurred at Parx Casino in Bucks County. Defendant, who had its registered office and principal place of business in Bucks County, filed preliminary objections arguing that venue was improper in Philadelphia County as it did not regularly conduct business there. Plaintiff filed an opposition arguing that Defendant regularly conducted business in Philadelphia through extensive advertising campaigns that attracted Philadelphia residents to the Casino. The Trial Court sustained Defendant’s objections and transferred the case to Bucks County.

On appeal, Plaintiff challenged the Court’s findings that Defendant met its burden of proving it did not regularly conduct business in Philadelphia. In its analysis, the Superior Court reviewed the Purcell v. Bryan Mawr Hospital, 579 A.2d 1282, 1285 (1990) “quality” and “quantity” test and looked at past Pennsylvania case law that applied Purcell to hold mere solicitation of business in a particular county is an incidental act of contact with a county.

Holding

The Superior Court held that advertising, no matter how pervasive, is incidental to the purpose of business and does not create sufficient contacts with a county to constitute regular business conduct for purposes of establishing venue.

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

 

Biju v. St. Thomas Indian Orthodox Church, Inc.

Pennsylvania Superior Court

No. 1223 EDA 2016

Decided: March 20, 2017

Superior Court affirms Trial Court’s grant of summary judgment based on assumption of the risk. Superior Court agrees that Plaintiff had assumed the risk of playing tug of war such that Defendants had no duty to protect Plaintiff from any hazards inherent in that activity.

Background

Plaintiff, a church parishioner, was injured when he voluntarily engaged in a game of tug of war at church. Plaintiff alleged that he was injured when he fell after the opposing team let go of the rope too early at the direction of the parish priest. Plaintiff alleged injuries which included a torn ACL and brought suit sounding in negligence. Summary Judgment was granted grounded upon assumption of the risk. Plaintiff appealed.

Holding

Superior Court affirmed. The assumption of the risk defense, as applied to sports and places of amusement, is a “no-duty” rule, meaning that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity. Additionally, the assumption of the risk doctrine arises in cases involving sporting events when the player or spectator knows that an accident or injury may occur and voluntarily assumes that risk by playing or watching. Here, the Court found that Plaintiff knew of and voluntarily assumed the risks of playing tug of war, which include falling down and colliding with other teammates. Additionally, Plaintiff knew of these risks because he was injured during his second game of tug of war.

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


 

MARYLAND CASE SUMMARIES

Yuan v. Johns Hopkins Univ.

Maryland Court of Appeals

No. 35, September Term, 2016

Decided: March 29, 2017

Public policy exception to at-will employment doctrine does not apply where public policy relied on by former employee is not clearly discernible and former employee does not have a claim for conversion when the employer denies him access to research data and materials owned by the employer.

Background

Dr. Yuan had an at-will contract with Johns Hopkins University Hospital School of Medicine (JHU). The lab where he worked was largely funded by a federal grant from the National Institute of Health (NIH). Over time, Dr. Yuan complained to superiors about alleged research misconduct in the lab. At some point, JHU denied Dr. Yuan access to some of his research and archived cells in the lab. His at-will contract expired and was not renewed.

Dr. Yuan filed a complaint against JHU in Circuit Court claiming that he was wrongfully terminated in retaliation for his repeated reports of research misconduct in violation of 42 U.S.C. §289b and 42 C.F.R. Part 93. Further, he sued for conversion and tortious interference with prospective economic advantage because JHU denied him access to the research and archived cells. The Trial Court dismissed the case holding that academic and research integrity are not recognized as clear and necessary to support a cause of action for wrongful termination and because JHU owned the research and cells, it could not have converted them. The Court of Special Appeals affirmed. Dr. Yuan appealed.

Holding

The Court of Appeals concluded that federal law regarding research misconduct does not provide a clear public policy to support a claim for wrongful termination; federal law has a grievance procedure that Dr. Yuan did not follow, he did not allege a clearly discernible public policy to support his claims, and Dr. Yuan was not wrongfully termination because his at-will contract expired. Further, the Court ruled that the conversion claim failed because JHU owned the research data and materials; as a matter of law, it could not convert its own property.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 or rcollins@tthlaw.com.

 

Coomes v. Md. Ins. Admin.

Maryland Court of Special Appeals

No. 2158, September Term 2015

Decided: March 30, 2017

Administrative punishments by two states of individual’s right to hold an insurance producer’s licenses in each respective state does not constitute a violation of the Double Jeopardy Clause and is permissible.

Background

In 2004, Elizabeth Coomes became a licensed insurance producer in Virginia and a nonresident producer in Maryland. In 2011, she mistakenly was sent two checks by Anthem totaling $20,000. The checks were made out to a separate entity and not Coomes. Coomes deposited the checks and, before being informed by Anthem that they were sent in error, she used the money for business expenses. Anthem filed a complaint with the VDI and an investigation was commenced. Coomes voluntarily surrendered her Virginia producer’s license “in lieu of a hearing before the State Corporation Commission.” In 2013, Coomes requested that the MIA change her Maryland license from nonresident producer to resident producer. Coomes did not inform the MIA that she had been investigated by the VDI for mishandling money, but only stated that her surrender was voluntarily. Nevertheless, the MIA learned of Coomes’s violation.

The Maryland Insurance Commissioner issued an order finding that Coomes’s voluntary surrender was an “adverse administrative action” and constituted a violation of I.A. §§ 10-126(a)(1), (6), (12), (13), and (f). The Commissioner revoked Coomes’s license to act as an insurance producer in Maryland and ordered her to pay an administrative penalty of $1,250. Coomes requested a hearing. On December 9, 2014, the Commissioner issued a revised final order granting the MIA’s Motion for Summary Disposition and finding that Coomes violated the above named insurance article. On January 7, 2015, Coomes filed a petition for judicial review in the Circuit Court for Baltimore City and argued that the Commissioner should have applied the law of double jeopardy to her case. The Circuit Court disagreed and affirmed the MIA’s decision.

Holding

Coomes argued that the Virginia Voluntary Surrender Agreement was an adverse administrative action and thus she could not be punished twice for the same alleged offense. The Court of Special Appeals affirmed the Circuit Court’s decision for two reasons. First, the action in Virginia involved Coomes’s violation of Virginia insurance laws, not Maryland insurance laws. Second, Coomes was “never put in jeopardy of life or limb” relating to criminal punishment. Instead, her insurance producer license was all that was at stake. The Court of Special Appeals confirmed that Coomes’s punishment in Virginia and Maryland did not constitute double jeopardy.

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


 

NEW JERSEY CASE SUMMARY

Engle v. Paradise Pavers Pond Landscaping, LLC

New Jersey Superior Court, Appellate Division

No. A-3162-15T3

Decided: April 18, 2017

Residential property owner held immune from sidewalk liability despite hybrid use of property for owner’s landscaping business.

Background

Plaintiff Engle suffered injury as a result of tripping on a sidewalk that he alleged was negligently maintained by the Defendants. Defendants, Melissa and Michael Larkin, owned a home abutting the sidewalk and Paradise Pavers Pond Landscaping (Paradise), was a business owned by Michael Larkin which used the Larkins’ property. There was no dispute that Mr. Larkin placed a sign advertising Paradise on his front lawn or that Mr. Larkin parked Paradise’s trucks in the home’s driveway. Further, the home had a telephone line dedicated for calls from Paradise’s customers. The Larkins’ address was also listed as Paradise’s business address on the company’s website. However, Mr. Larkin provided deposition testimony that the reason he used his home address for the business was to facilitate convenient receipt of mail and that he rarely met customers at home, instead most meetings were held at the customers’ homes. The Defendants moved for dismissal, which was granted by the Trial Court, and Plaintiff’s appeal followed.

Holding

On appeal, the Court addressed the question of whether Defendants were entitled to the community law immunity for sidewalks afforded residential property owners. In Wasserman v. W.R. Grace & Co., 281 N.J. Super. 34 (App. Div. 1995) a dismissal of a sidewalk case was upheld where the defendants were a residential property owner who maintained a one room business office and the property owners’ employer. The decision in Wasserman was based on an assessment of the limited degree to which the entire residential property was used for the employer’s benefit. The Engle Court opined that the Larkins’ use of their property for Paradise’s business was even less material than in the Wasserman case. The Court found that Larkins’ property was used, “predominantly – even if not exclusively –” as a residence. Therefore, the dismissal on account of common law immunity was affirmed.

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

 

McDaid v. Aztec West Condo. Ass’n

New Jersey Superior Court, Appellate Division

No. A-0168-15T3

Decided: April 5, 2017

Superior Court affirms grant of summary judgment based on lack notice of the malfunctioning elevator which caused Plaintiff’s injuries.

Background

Plaintiff was seriously injured when she fell after being struck by a closing elevator door in her condominium complex. The elevator doors where equipped with two safety features including an electric eye that emitted narrow light beams across the elevator entrance at two different heights (which would reopen the doors if the beam was broken by an object). This safety feature complied with all applicable codes and provisions of the City of Hackensack. Plaintiff’s expert opined that the electric eye system was not functioning properly at the time of the accident. Defendants moved for Summary Judgment, asserting, inter alia, that they never received notice the electric eye system was malfunctioning before the accident occurred and that absent such notice, they cannot be held liable to Plaintiff.

Holding

The Superior Court affirmed the grant of Summary Judgment holding that Defendants lacked actual or constructive notice of the electric eye malfunction. The absence of such notice barred Plaintiff’s claims of premises liability. The Court also rejected Plaintiff’s attempt to apply the res ipsa loquitur doctrine as the Superior Court has declined to apply the doctrine against an elevator company under a similar factual scenario. The Court also dismissed Plaintiff’s expert’s attempt to claim that Defendants were negligent in failing to equip the elevator with an upgraded safety system as no local, state or national code applicable to the property supported such a claim.

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


 

DC CASE SUMMARY

Mann v. Bahi

United States District Court for the District of Columbia

No. 16-949 (JBD)

Decided: March 17, 2017

Court denies motion to dismiss intentional infliction of emotional distress claim where Defendants allegedly stole personal property from the Plaintiffs.

Background

Plaintiffs hired home nursing aides who allegedly stole Plaintiffs’ personal property. Plaintiffs sued, alleging, among other things, intentional infliction of emotional distress. One Defendant filed a motion to dismiss the intentional infliction of emotional distress count.

Holding

The Court denied the motion to dismiss holding that property damage or theft, as opposed to just bodily injury, can give rise to a claim for intentional infliction of emotional distress. The Court explained that the core inquiry is the outrageousness of the conduct and the distress it causes, and not the particular type of conduct. The Court refused to hold that the theft of personal property by a home health aid could not constitute intentional infliction of emotional distress as a matter of law.

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


 

VIRGINIA CASE SUMMARY

Kimbler v. Spear

United States District Court for the Western District of Virginia

No. 1:16CV00047

Decided: April 11, 2017

Court grants Plaintiff limited discovery in defamation suit before ruling on Motion for Summary Judgment.

Background

Plaintiff Kimbler was employed by Mountain States Health Alliance (MSHA) as a dosimetrist, working as part of a team with a physicist from Defendant Hannleb Physics, Inc. (Hannleb). Defendant Spear conducted an independent audit as an agent of Defendant Hannleb. As part of the audit, Defendant Spear reviewed charts of patients, including patients treated by Plaintiff. After the audit, Plaintiff received a Written Counselling/Correction Action Notice from MSHA. Plaintiff subsequently resigned. Plaintiff brought the instant action alleging that the external audit conducted by Defendant Spear contained false and defamatory statements about her professional ability. She further alleged that the audit was published to her employer with actual knowledge that it was false or with reckless disregard of whether it was false or not.

Defendants filed a Motion for Summary Judgment relying on three grounds: 1) that they are entitled to statutory immunity; 2) that they enjoy a qualified privilege; and 3) that the audit was not defamatory because it does not contain actionable statements. In her Opposition to the Motion for Summary Judgment, Plaintiff contends that the motion was premature and asks the court, before deciding on the motion, to allow her to conduct discovery of certain facts, relying on Fed. R. Civ. P. 56(d)(2).

Holding

The Court found that Plaintiff indeed lacked essential information regarding Defendants’ position, partly because discovery had not yet been conducted and partly because Defendants had not yet filed an answer. Further, as required, Plaintiff set forth specific facts that were yet to be discovered and sought discovery within the control of others. However, while the Court ultimately granted Plaintiff’s Rule 56(d)(2) request for discovery, it set strict limits on that discovery, as well as set a short time frame for conducting the discovery.

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