General Liability eNotes


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TT&H eNotes: Liability: August 2017


FIRM NEWS

Pennsylvania Defense Institute Honors Thomas, Thomas & Hafer LLP as Defense Firm of 2017.

Thomas, Thomas & Hafer LLP was recognized by Pennsylvania Defense Institute (PDI) as the “Defense Firm of the Year.” The award was given at PDI’s Annual Conference held in Bedford Springs, PA on July 13-14, 2017. Accepting the award on behalf of the firm were partners from four of the firm’s Pennsylvania offices: Pete Speaker, past president of PDI (Harrisburg office); Rebecca Sember Izsak, Co-Chair of the Trucking & Transportation Committee (Pittsburgh office); Monica O’Neil, Director for the Eastern Region and incoming Secretary (Philadelphia office); Lou Long, outgoing president of PDI and Co-Chair of the Amicus and Appellate Committee (Pittsburgh office); and, Joe Holko, Co-Chair of the Civil Practice Committee (Lehigh Valley office).

The award is presented annually to the civil defense firm that “best exemplifies the qualities of professionalism, dedication to the practice of law, promotion of the highest ideals of justice in the community, and has a demonstrated commitment to PDI and its members.” Since the firm’s inception, Thomas, Thomas & Hafer LLP attorneys have been leaders and active members of PDI, whose mission is to advance the law and legislation favorably for the defense bar and its clients. Pete Speaker added that “Our firm’s 40th anniversary and 40 years of continuous support of PDI show our commitment to this excellent organization.”


TT&H LAWYERS IN COURT

Thomas McGinnis, Louis Long and Karin Romano win summary judgment for pharmacy and pharmacist accused of misrepresentations

The Superior Court of Pennsylvania affirms summary judgment entered for a pharmacy and pharmacist accused of Unfair Trade Practices and Consumer Protection Law violation because they sold a compounded medication, called an Intestinal Mixture, that contained phenobarbital. The Court ruled that there was no misrepresentation or deception because the label did state that the product contained phenobarbital, and the lack of any misrepresentation or deception was fatal to the case. The appeals court also ruled that a federal statute regulating the sale of drugs did not provide a private right of action. Countless other issues were not reviewed because they were not properly raised and preserved. The case was handled below by Tom McGinnis and Karin Romano. Karin Romano authored the winning brief, and Lou Long argued the appeal.

For more information, please contact Thomas McGinnis, at (412) 926-1420 or tmcginnis@tthlaw.com, Louis Long, at 412-926-1424 or llong@tthlaw.com, or Karin Romano at 412-926-1426 or kromano@tthlaw.com.

 

Joshua Bovender wins summary judgment in Adams County trip and fall case.

The Adams County Court of Common Pleas granted Littlestown Borough’s Motion for Summary Judgment in a case involving a trip and fall incident. Following the incident, the Plaintiff brought suit against his neighbor, who in turn joined the Borough as an Additional Defendant, alleging that the hole which caused the fall was the result of the Borough’s failure to maintain a storm water line running beneath the subject property. Attorney Bovender successfully moved for summary judgment, raising principals of municipal immunity, while also underscoring the lack of evidence suggesting that any maintenance work on the storm water line factually caused or contributed to the hole’s existence.

Questions about this case can be directed to Joshua J. Bovender at (717) 237-7153 or email at jbovender@tthlaw.com.



CLIENT ADVISORY

MARYLAND CLIENT ADVISORY

Proposed Maryland legislation attempting to further broaden the pre-litigation disclosure of policy limits fails.

During Maryland’s most recent legislative session, legislation was proposed to expand the types of cases in which insurers must disclose policy limits to claimants before a lawsuit is filed. Under Senate Bill 144, insurers would have been required to disclose policy limits to claimants pre-suit in all types of tort cases, and not just cases arising out of motor vehicle accidents, as presently required. While the bill passed the Senate, the bill stalled in the House Judiciary Committee and was not enacted into law.

Senate Bill 144 was the most recent in a line of proposed legislation that has eroded an insurer’s ability to protect the disclosure of policy limits pre-suit by broadening a claimant’s ability to obtain that information. Before 2015, Maryland law required insurers to disclose policy limits pre-suit only in connection with claims arising out of motor vehicle accidents where the medical bills and lost wages were at least $12,500.00, and only if the claimant provided certain information regarding the claim (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). However, in 2015, the General Assembly (Maryland’s legislative body) passed Senate Bill 146, which altered the statutes governing the pre-litigation disclosure of policy limits in two ways. First, the 2015 amendment eliminated the provision that had required a claimant’s medical bills and lost wages to exceed $12,500.00 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.

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



SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARY

On various grounds, Federal District Court denies Rule 12 (b)(6) Motion raised by Defendant medical providers to claims of negligent infliction of emotional distress and corporate negligence asserted by parents, who allegedly watched negligent treatments and omissions, resulting in the death of child.

Background

As alleged, six year old Pedro Arce was first diagnosed with right lung pneumonia when he really had bilateral atypical pneumonia.  The medication given to him at that time was inappropriate for an atypical pneumonia known as Mycoplasma pneumonia.  Although a radiologist read his x-ray to be present in both his lungs, this conflicting opinion was never communicated to the emergency department physician or resolved. Five days later Pedro was brought back to the hospital and diagnosed with bilateral pneumonia and prescribe the right antibiotic for Mycoplasma pneumonia.  The very next day he was diagnosed with only a respiratory infection and was taken off the right antibiotic and prescribed the same medication he had been prescribed in the emergency department.  A day later he was hospitalized and diagnosed again with pneumonia and started on a third kind of antibiotic that is not appropriate treatment for Mycoplasma pneumonia.  After Pedro’s condition worsened, he was transferred to another hospital and doctor.  The new doctor reached the correct diagnosis, but failed to order antibiotics for the Mycoplasma pneumonia. Pedro was then developing Stevens Johnson Syndrome (SJS) and the standard of care is to treat the underlying cause or causes of the condition.  Mycoplasma pneumonia is a known cause of SJs.  By February 8th, Pedro was developing a rash and pancreatitis.  The next day he was placed belatedly on the correct antibiotic, but developed liver failure and pancreatitis. He was transferred to two other hospitals thereafter that, continued to deteriorate in front of his parents, and died.

Holding

Under Pennsylvania Supreme Court authority, the District Court held sufficient to sustain the parents cause of action that they witnessed the injury to and death of their son, although they did not allege that they knew, at the time of his care and treatment, that the treatment was negligent.

In addition, Defendants argued that because the mother alleged that she witnessed negligent omissions which “by their very nature cannot be seen,” and not negligent acts, that her cause of action should be dismissed.  The Court denied the motion on this basis because Pennsylvania case law does not support that assertion.

Lastly, Defendants’ motion to dismiss the corporate negligence claim was also denied because the allegations of the complaint adequately supported this cause of action especially at the early stages of the litigation.

Questions about this case can directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.


SIGNIFICANT CASE SUMMARIES

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

PENNSYLVANIA CASE SUMMARIES

Wilson v. U.S. Security Assocs., Inc.

Pennsylvania Superior Court

2017 Pa. Super. 226

Decided: July 18, 2017

Appellate Court grants judgment notwithstanding the verdict and overturns a jury award of over $38 million in punitive damages arising out of a workplace shooting at Kraft Foods that killed two co-workers.

Background

In an opinion from the Pennsylvania Superior Court filed on July 18, 2017, the Court overturned a punitive damages award of $38 million in a case from Philadelphia County.  The underlying facts concerned the 2010 shooting deaths of two female co-workers at Kraft Foods, who were shot by a disgruntled female employee.  Kraft had security at its facility, but when one of the guards was confronted by the shooter with a .357 magnum, the guard let her in and then did not notify Kraft in time for Kraft to activate its active shooter protocol.  By the time Kraft received notice, it was too late.  The failure of the guard to timely notify Kraft was the gravamen of the negligence claim against the security company.

In two consolidated actions, Plaintiffs’ request for punitive damages were first met with preliminary objections.  In response, Plaintiffs entered into a stipulation to withdraw their request for these damages and dismiss them without prejudice, while also agreeing to strike the following words from the relevant paragraphs of the complaint, “reckless,” “outrageous,” “intentional and/or wanton.”  The striking of these words was also made without prejudice.

In October of 2014, Plaintiffs’ counsel filed a motion for leave to amend to add punitive damages to the complaints.  Defendants opposed, but the Court reserved its decision until the time of trial.  Trial began in February of 2015 and on the fifth day of trial, and after a weekend, the Court granted the motion to amend. The punitive damages subsequently awarded were 36 times higher than the compensatory damages.

Holding

On appeal, Plaintiffs argued that the Trial Court was correct in granting the motion to amend since the claim for punitive damages was “merely a revival of an element of damages incident to an existing cause of action.”  Plaintiffs argued that allowing for punitive damages would simply amplify the original causes of action, noting further that the claims were withdraw by stipulation without prejudice.  However, the Superior Court disagreed, holding that the Trial Court committed an abuse of discretion and an error of law.  The Superior Court opined that the claims for punitive damages were not based upon the original  factual allegations of “ordinary negligence” contained in the complaints, but rather wholly new facts supporting a new cause of action based upon “reckless indifference” and “active misrepresentation.”  Since the motion for leave to amend was filed four years after the shooting and sought to add a new cause of action based on facts “greatly different from those contained  [in the complaint]” to support Plaintiffs’ request for punitive damages, there was no legal basis to grant the motion when the statute of limitations had already expired.  Although Plaintiffs argued that the withdrawal of their claims for punitive damages was without prejudice, the Court stated that those two words did not toll the statute of limitations indefinitely.  Rather, tantamount to a voluntary non-suit where Plaintiffs still must re-file the claim within the statute of limitations. This set of facts must be treated the same as “settled controlling authority treats the withdrawal of an entire suit.”

The case is also notable for its discussion and application of the increased-risk-of-harm doctrine.  The Plaintiffs’ bar likely will cite this case for the application of the doctrine beyond the medical malpractice context.  However, the Court nonetheless recognized that the doctrine applied because a duty to protect under Section 323 of the Restatement (Second) of Torts arose in respect to the security-service defendants.  That is the same rationale the Court used to apply increased risk of harm, inasmuch as a doctor undertakes the duty to care for his patients.  Hence, this case does not represent any extension of the doctrine beyond that previously recognized Restatement Section 323 context.

Lastly, the Court held that Pennsylvania law does not allow recovery of damages for “pre-impact fright” or “pre-shooting” damages since long-standing Pennsylvania law only permits recovery for conscious “pain and suffering and emotional distress occurring after the time of injury.”

Questions about this case can directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

 

Atlantic Cas. Ins. Co. v. Zymblosky

Pennsylvania Superior Court

No. 1167 MDA 2016

Decided: July 17, 2017

Pollution exclusion within an insurance policy encompasses all pollutants, including chlorine, and the exclusion will not render the policy illusory, unless it would bar “almost all claims.”

Background

Atlantic Casualty Insurance Company (Atlantic) filed a declaratory action complaint to resolve whether it was under a duty to defend or indemnify any party in the underlying action. The underlying action resulted from the Defendants allowance of chlorine gas to escape from their scrap metal recycling facility, which caused injury to the employees of the neighboring lot, as well as bystanders travelling in a vehicle in the area. The employees and bystanders commenced suit to seek compensation for their bodily injuries. Atlantic rejected the Defendants request of defense and indemnification pursuant to a “Total Pollution Exclusion Endorsement”, which excluded coverage for bodily injury resulting from pollutants.

After the closure of the pleadings and completion of significant discovery, Atlantic filed a Motion for Summary Judgment. In response, the Defendants argued that the exclusion was inapplicable because chlorine is not a pollutant, and in the alternative, Atlantic provided the Defendants with coverage that was less than what they bargained for under the Reasonable Expectations Doctrine. The Trial Court held that chlorine is a pollutant because, among other reasons, the Federal Courts have ruled that Chlorine is a pollutant, and federal/state statutes/regulations define and treat chlorine gas as a pollutant. With regard to Defendants’ Reasonable Doctrine argument, the Trial Court concluded the pollution exclusionary clause was clear and not ambiguous. Atlantic’s Motion for Summary Judgment was granted.

Holding

Defendants unsuccessfully appealed the holding to the Superior Court. Defendants primary arguments consisted of chlorine is not a pollutant, and if chlorine is a pollutant, the insurance policy was illusory, as Defendants activities would not be covered due to the pollution exclusion. The Superior Court rejected both arguments. The Superior Court dismissed Plaintiff’s argument that chlorine is not a pollutant by incorporating the rationale of the Trial Court. The Superior Court further held that the insurance policy as drafted with the pollution exclusion was not illusory because many of the Defendants’ activities would be covered under the policy.

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

 

Rubin v. CBS

Pennsylvania Superior Court

No. 3397 EDA 2015

Decided: July 17, 2017

Court reverses grant of Motion for Judgment on the Pleadings on the basis that Plaintiff may be able to establish claims of defamation and false light during the course of pretrial discovery.

Background

During an airing of Eyewitness News on a television stationed owned by Defendant CBS, anchor Chris May read the following report related to Plaintiff Rubin’s termination as a school police officer: “A police supervisor at a Philadelphia charter school is fired over allegations of child sexual abuse of an underage male student. Rubin worked at the Multi-Cultural Charter School on North Broad Street.” Subsequent to the news report, Eyewitness News issued a statement that Rubin was never accused of abuse and his termination from the school had nothing to do with any allegations of abuse. Plaintiff filed suit for defamation and false light invasion of privacy against CBS.

CBS’s Motion for Judgment on the Pleadings asserted that Rubin could not meet his burden of proof of demonstrating that the news report was materially false, and that because the report was substantially true it was non-actionable as a matter of law. The Trial Court granted the Motion. Rubin appealed.

Holding

The Court held that without the benefit of pretrial discovery, it was unable to determine whether or not Rubin would be unable to establish the falsity of the CBS report. The Court noted that the question remained, however, whether Rubin would be able to establish that that falsity was material, i.e. was the “gist” of the publication – that Rubin was fired because of allegations of sexual abuse – sufficiently different from what may prove to be the truth – that he was terminated for violating a warning about “fraternizing with minors”. The Court also held that there was not enough information at the early stage in the proceedings to say that Rubin would be unable to establish that CBS acted negligently or maliciously in publishing the report. As to Rubin’s false light claim, the Court again stated that there was not enough information at the early stages of the proceeding to say that Rubin would be unable to establish that CBS acted with actual malice in publishing the report.

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

 

S.J. v. Gardner

Pennsylvania Superior Court

2017 Pa. Super. 216

Decided: July 11, 2017

Superior Court rules that statute of limitations concerning negligent, intentional or otherwise tortious conduct does not begin to run with regard to a minor until the minor reaches the age of eighteen.

Background

In July 2010, S.J., a minor, informed her parents that Defendant had coerced her to engage in sexual encounters multiple times from 2008 to 2010. In July 2011, Defendant pled guilty to Indecent Assault (of a child less than 13 years old). On October 31, 2013, S.J.’s parents filed a civil complaint against Defendant for claims of battery and intentional infliction of emotion distress. Plaintiffs filed a motion for partial summary judgment, claiming Defendant’s guilty plea to Indecent Assault estopped him from denying the abusive acts in the civil action. Defendant filed a cross-motion for summary judgment claiming that the action was untimely as it had not been commenced within the two year statute of limitations period applicable to intentional torts. Plaintiffs argued that the lawsuit was properly filed pursuant to the Minority Tolling Statute.

The Trial Court granted Defendant’s cross-motion for summary judgment. The Court held that the Minority Tolling Statute allows minors to bring suit within two years after their eighteenth birthday in their own name. The Court further held that parents must comply with the two year statute of limitations if they bring suit on behalf of their minor child before he/she reaches the age of majority. Here, S.J.’s parents brought suit more than three years after they learned of the sexual abuse. Plaintiffs appealed.

Holding

The Superior Court reversed and remanded. The Court held that the Minority Tolling Statute is unambiguous in that the statute of limitations does not begin to run until the minor reaches the age of eighteen. In this case, S.J.’s parents brought suit a little over three years after S.J. first told them of the sexual abuse. As the suit was instituted well before the statute of limitations began to run (on S.J.’s eighteenth birthday), the Trial Court erred in granting Defendant’s cross-motion for summary judgment. The Court also made clear that because S.J. brought an intentional tort stemming from sexual abuse, she would have up until twelve years after her eighteenth birthday to bring suit under the Minority Tolling Statute.

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

 

State Farm Mut. Auto. Ins. Co. v. Fuller

Pennsylvania Superior Court

1488 MDA 2016 (non-precedential opinion)

Decided: June 26, 2017

A driver of a vehicle is only considered a “permissive user” when valid permission to operate the vehicle comes from the named insured either directly or by implication. 

Background

This appeal arose from an underlying personal injury action regarding an automobile accident wherein Nealon was an injured passenger in a vehicle that Fuller was driving. Nealon alleged that Michele Czyzyk, the owner of the vehicle and the named insured on the automobile policy, and her brother Mark allowed Fuller access to the vehicle knowing Fuller was intoxicated. Nealon filed a Complaint alleging negligence against Fuller, negligent entrustment against Defendants Czyzyk, and breach of contract against the vehicle’s insurer, State Farm, with regard to uninsured and underinsured motorist coverage. State Farm initiated a declaratory judgment action asserting that all claims against Fuller, Mark, and Nealon were excluded from coverage because they were not named insureds under the policy, and Fuller did not have permission to be driving the vehicle at the time of the accident. State Farm was granted summary judgment.

The central and dispositive issue on appeal to the Pennsylvania Superior Court was whether Fuller was a “permissive driver” of the vehicle to trigger coverage. The relevant State Farm insurance policy definitions stated: “Your means the named insured or named insureds on the Declarations Page.” “Insured means: . . . any other person for his or her use of: (a) your car . . . such vehicle must be used within the scope of your consent.” The Superior Court found that under the definitions found in the State Farm policy, Fuller could be considered a “permissive user” if Michele Czyzyk’s actions directly or implicitly consented to Fuller’s use of her vehicle.

Holding

The Superior Court held that although there was evidence that Michele Czyzyk gave her brother permission to use the insured vehicle for errands, there was no evidence provided that Michele gave Fuller permission to use the vehicle or gave her brother permission to loan the vehicle to other individuals, including Fuller. Accordingly, there was no direct or implied evidence that Fuller was a “permissive user” of the vehicle, and Trial Court’s grant of summary judgment was proper.

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


 

MARYLAND CASE SUMMARIES

Bainbridge St. Elmo Bethesda Apartments, LLC v. White Flint Express Realty Group

Maryland Court of Appeals

No. 30, September Term, 2016

Decided: July 18, 2017

Court of Appeals upholds award of $3.9 Million for attorney’s fees and costs in first-party indemnification action.

Background

Bainbridge St. Elmo Bethesda Apartments (Bainbridge) is an entity formed by the Bainbridge Companies to manage the construction and operation of a high rise apartment complex in Bethesda, Maryland. It owns property immediately adjacent to 4905 and 4909 Fairmont Avenue (Fairmont Properties). White Flint Express Realty Group (White Flint) owned two concrete buildings on the Fairmont Properties that it leased to several businesses. Bainbridge sought an easement from White Flint for access to the space “under, over, and on the Fairmont Properties” and additional easements to swing a crane and extend scaffolding above the Fairmont Properties. The parties entered into an easement agreement whereby Bainbridge agreed to pay White Flint $425,000 as consideration for the easements (Agreement). The Agreement provided that White Flint could engage consultants at Bainbridge’s expense to monitor Bainbridge’s actions pursuant to the easement. It also contained a prevailing party fee-shifting agreement in the event a dispute was submitted to binding arbitration. Most importantly, it contained an indemnification clause whereby Bainbridge agreed to indemnify and hold White Flint harmless from “any and all claims, demands, debts, actions, causes of action, suits, obligations, losses, costs, expenses, fees, and liabilities (including reasonable attorney’s fees, disbursements and litigation costs) arising from or in connection with [Bainbridge’s breach of the Agreement.]”

White Flint reported a number of structural and safety issues related to the actions of Bainbridge’s contractors, including: numerous cracks in the walls, building movement, soil loss under the Fairmont Properties, and fears that the roof would collapse. Bainbridge’s structural engineer recommended that the White Flint building be evacuated for safety reasons. White Flint terminated the Agreement for material breach and filed suit. The Circuit Court ruled that Bainbridge breached the Agreement and that the indemnification provision entitled White Flint to recover attorney’s fees because the clause authorized first-party fee indemnification. It awarded White Flint $3,520,256.59 in attorney’s fees and $411,391.88 in costs and expenses. The Court of Special Appeals upheld the award. The Court of Appealed granted certiorari.

Holding

The Court of Appeals held that Maryland follows the American Rule, which means that generally a prevailing party is not awarded attorney’s fees. However, there is an exception where the parties have a have a contract allowing for recovery by the prevailing party. The contract at issue in this case expressly stated that Bainbridge would hold White Flint harmless from “reasonable attorney’s fees, disbursements and litigation costs arising from or in connection with” Bainbridge’s breach. It is closer to a surety contract because Bainbridge agreed to make White Flint whole if Bainbridge breached the Agreement. Therefore, White Flint is not allowed to recover under an implied fee shifting as the prevailing party, but because the indemnification contract between the parties expressly authorized first-party fee shifting.

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

 

Lamalfa v. Hearn

Maryland Court of Special Appeals

No. 87, September Term, 2016

Decided: June 28, 2017

“‘Facts or data’ on which an expert bases his opinion during trial may be . . . disclosed to the jury . . . .”

Background

Ms. Lamalfa was in the rear passenger seat of an SUV. While the Lamalfa SUV was stopped for traffic on Interstate 95 it was rear ended by a vehicle driven by Ms. Hearn. Lamalfa declined treatment to paramedics and proceeded on her way to a wedding that night. The next morning she went to the emergency room at Mercy Medical Center with low back pain and tenderness in her left arm. She was released the same day. One week later Lamalfa presented to a specialist in physical medicine. She complained of upper and lower back pain, pain in both arms, left hip pain, periodic numbness in her right hand, right shoulder pain, weakness in her left arm, tailbone pain, and emotional distress related to the accident. Physical therapy and chiropractic treatment was recommended. In November 2011, approximately one (1) month after the accident, Lamalfa was diagnosed with a right rotator cuff injury and in 2015 she was diagnosed with a right rotator cuff tear.

Lamalfa filed suit in 2014. Dr. Halikman testified for the defense and opined, before a jury, that the girth on Lamalfa’s left and right arms was nearly the same despite her pain and recent surgery to her right arm. According to Dr. Halikman, the fact that her arms were nearly the same girth suggested that Lamalfa used her right arm much more than she led the jury to believe. In forming his opinion, Dr. Halikman relied, in part, on Lamalfa’s treatment records that had not yet been admitted into evidence. Lamalfa’s counsel objected on the ground that the medical records contained hearsay. Counsel for Hearn contended that the records were admissible because Dr. Halikman relied on them in forming his opinion. The records were admitted. The jury returned an award in the amount of $10,576.05, $650.00 of which represented damages for pain and suffering. The remainder of the amount represented medical bills. Lamalfa filed an appeal on the sole issue of whether the medical records should have been admitted.

Holding

The Court of Special Appeals affirmed the Circuit Court’s decision that it did not err in admitting Ms. Lamalfa’s medical records into evidence. The Court relied on Maryland Rule 5-703 in affirming that “facts or data” on which an expert bases his opinion may be . . . disclosed to the jury . . . .” and may be admitted if the party against whom they are so admitted fails to request an instruction to the jury that the jury is only to rely on the records for the purpose of evaluating the expert’s opinions.

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

 

Duffy v. CBS Corp.

Maryland Court of Special Appeals

No. 00453, September Term, 2015

Decided: May 31, 2017

Maryland Statute of Repose begins to run when the injury or damage occurs, not when it is discovered by the Plaintiff. It is unconstitutional to use a subsequent amendment to revive a claim barred by the statute.

Background

In early 1970, CBS Corporation’s predecessor entered into a contract to sell a turbine generator for Potomac Power Electric Power Company (Pepco)’s generating station in Woodzell, Maryland. Mr. Piper worked as a steamfitter in the vicinity of the workers installing the turbine generator’s insulation. The last day the workers installed the insulation was June 28, 1970. The turbine generator was operational by July of 1970.

Over forty-three years later, on December 26, 2013, the decedent was diagnosed with mesothelioma. On March 26, 2014, Piper filed suit against CBS claiming that he contracted mesothelioma by inhaling asbestos fibers during his career as a steamfitter, including the time he worked near the turbine generator insulation workers in Woodzell. The Trial Court granted summary judgment in favor of CBS stating that Piper’s claims are barred by Maryland’s 20 year statute of repose. Piper appealed, but died shortly before the appellate court rendered a decision.

Holding

Maryland’s Statute of Repose makes clear that “no cause of action accrues…when… personal injury…resulting from the defective or unsafe condition or an improvement on real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use. The cause of action accrues when the injury or damage occurs.” Here, the cause of action accrued when the turbine generator was operational in July 1970; over forty-three years before Piper filed suit. His claims are time barred.

Further, the Court ruled that Piper’s claims are not saved by the manufacturer’s exemption for asbestos cases enacted in 1991. All of Mr. Piper’s claims were barred on July 1, 1990—20 years after the turbine generator was operational and the installation was complete. If Piper were allowed to use the asbestos manufacturer exemption enacted in 1991, it would retroactively create a cause of action not available to him when the Statute of Repose ran in 1990. Therefore it would violate Article 24 of the Maryland Declaration of Rights by depriving CBS of its property rights because CBS had a vested property right not to be sued after July of 1990.

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


 

NEW JERSEY CASE SUMMARY

Parella v. Compeau

New Jersey Superior Court, Appellate Division

No. L-3679-13

Decided: July 5, 2017

In New Jersey, “letting sleeping dogs lie” will not create an unreasonable risk or dangerous condition to warn guests walking in your home.

Background

Plaintiff Parella filed a negligence action for personal injuries she allegedly sustained as a result of a fall at the home of Defendants Richard Compeau and Rosanna DiMarzio when she tripped over a sleeping dog laying in the hallway. Plaintiff was attending a Christmas dinner at the Defendants’ home with approximately 20 other guests. After finishing the second course, Plaintiff rose from the table to place her dish in the kitchen sink and check on her child who was in an adjoining room. Plaintiff walked between guests without asking anyone to move, until she reached the end of the table, where she was unable to pass behind the Defendant DiMarzio, as her chair blocked the path. Defendant DiMarzio attempted to move her chair forward to allow Plaintiff to pass, while Plaintiff then squeezed by, and shuffled passed. As Plaintiff cleared the chair, she turned right to enter the hall toward the kitchen and fell over a “tan, fairly large dog” which was lying in the hallway, past the threshold of the dining room. Plaintiff landed with her legs draped over the dog’s body. The glass Plaintiff held broke during her fall, cutting her finger. Defendants knew the dog was lying in the hallway.

Defendants moved for summary judgment, which was granted by the Trial Court finding no disputed material facts and that Plaintiff was aware of the dog’s presence. Plaintiff appealed arguing the Trial Court judge “did not completely understand the facts of the case” and failed to afford Plaintiff all reasonable inferences.

Holding

In affirming the decision, the Superior Court reiterated that while a host owes a duty to a social guest as to conditions of the property, the duty is limited. A host need only warn “ of dangerous conditions which [the host has] actual knowledge and of which the guest is unaware.” Furthermore, where a “guest is aware of the dangerous condition or by a reasonable use of [his or her] facilities would observe it, the host is not liable.” The Superior Court found that the mere presence of the dog sleeping in the hallway did not create an unreasonable risk or a dangerous condition, triggering Defendant’s legal duty to warn guests walking in their home. Supporting their finding, the Superior Court pointed to the following facts in the record: the dog was not hidden from view; the Plaintiff was aware of the presence of the dog in the home; the hallway was lit; others walking into the dining room from the hallway saw the dog; the dog was not moving at the time of Plaintiff’s fall and the dog’s size made him visible to anyone who was watching where she was going.

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


 

DC CASE SUMMARY

Farmer-Celey v. State Farm Ins. Co.

District of Columbia Court of Appeals

No. 14-CV-793

Decided: July 13, 2017

Holding that a pro se Plaintiff’s Complaint named an individual as a Defendant such that an amended complaint did not change the name of the Defendant, and the relation back doctrine did not apply.

Background

Pro se Plaintiff filed a Complaint naming “State Farm Ins. Co. for Mark Pray, et al.” as a Defendant. A motion to dismiss was filed. Pro se Plaintiff requested leave to amend. The Amended Complaint made clear that Mark Pray was the defendant. The Amended Complaint was filed after the statute of limitations ran. The Trial Court granted a motion for summary judgment on the grounds that her claim against Mark Pray was time barred, and the Amended Complaint did not relate back to the original Complaint.

Holding

D.C.’s Court of Appeals reversed, holding that the original Complaint named Pray as a defendant within the statute of limitations, despite the unique captioning by the pro se Plaintiff.

Questions about this case can be directed to Ben Peoples, at (443) 907-6046 or cpeoples@tthlaw.com.


 

VIRGINIA CASE SUMMARY

Manu v. GEICO Cas. Co.

Virginia Supreme Court

798 S.E.2d 598

Decided: April 27, 2017

Uninsured motorist carrier owed no duty to evaluate, adjust, and settle insured’s claim before insured obtained judgment against uninsured tortfeasor.

Background

Plaintiff Manu was involved in a multi-vehicle accident, purportedly caused by an unknown driver. At the time of the accident, Plaintiff was insured by GEICO pursuant to a personal automobile policy that included uninsured motorist coverage. Plaintiff put GEICO on notice of his UM claim and then brought suit against both John Doe and a Co-Defendant. Prior to trial, Plaintiff settled with the Co-Defendant and proceeded against John Doe only. GEICO offered $5,000 to settle on behalf of John Doe which was rejected. After a trial on the merits, the jury returned a verdict against John Doe for $68,528.24. GEICO promptly paid Plaintiff the limits of its UM policy. Plaintiff subsequently filed an action against GEICO, alleging that it had breached its duty to act in good faith. Defendant filed a demurrer, which was ultimately sustained, and Plaintiff appealed.

Plaintiff argued that Va. Code § 8.01-66.1(D)(1) imposes a duty of good faith upon an UM carrier to evaluate, adjust, and settle a demand by an insured prior to the insured’s obtaining judgment against the uninsured tortfeasor. In response, GEICO argued that any duty of good faith arises concurrently with the UM carrier’s obligation to pay its insured under the policy, which obligation does not arise until after the insured obtains a judgment against the alleged uninsured tortfeasor. The Court analyzed a UM carrier’s obligations arising under Va. Code § 38.2-2206 as well as whether Va. Code § 8.01-66.1(D)(1) independently establishes any duty on the part of the UM carrier to adjust and settle UM claims before trial.

Holding

Neither Va. Code § 8.01-66.1(D)(1) nor any other statute creates a duty for a UM carrier to settle a case prior to trial. Rather, that code section creates a remedy for the conduct of UM carriers that refuse in bad faith to pay once the insured has obtained judgment. The Circuit Court’s judgment was affirmed.

Questions about this case can be directed to Lacey Conn, at (703) 338-2054 or lconn@tthlaw.com.