eNotes: Liability – January 2022
January 04, 2022
WEST VIRGINIA CLIENT ADVISORY
West Virginia to introduce intermediate appellate court in 2022.
West Virginia will radically overhaul its appellate court system in 2022. The Intermediate Court of Appeals was created by the West Virginia legislature by Senate Bill 275, known as the West Virginia Appellate Reorganization Act of 2021, codified at W.Va. Code § 51-11-1, et seq. The new appellate court will assume jurisdiction over certain matters filed after June 30, 2022. Of greatest significance to the primary practice areas of the firm, section 51-11-4 provides that the Intermediate Court of Appeals will have jurisdiction over all appeals from final orders or judgments in all civil matters decided in a circuit court after June 30, 2022. Likewise, this section directs that the new court will also preside over all final orders or decisions entered by the Workers’ Compensation Board of Review entered after that date.
The jurisdiction of the Intermediate Court of Appeals will not be exclusive with respect to civil matters. The Supreme Court of Appeals may obtain jurisdiction over any matter filed in the Intermediate Court of Appeals provided that a motion for direct review by the highest court is filed within twenty days after a petition for appeal is filed in the Intermediate Court of Appeals. Under section 51-11-5(b), the Supreme Court may grant such a motion if: (1) the appeal involves a question of fundamental public importance; and (2) the appeal involves exigencies, in which time is of the essence, necessitating direct review. The jurisdiction of the Intermediate Court of Appeals will be exclusive with respect to final orders or decisions in workers’ compensation cases. Moreover, the Intermediate Court of Appeals will not have jurisdiction over any interlocutory appeals in civil or administrative matters, any certified questions of law, or any extraordinary remedies such as writs of prohibition or mandamus.
The Intermediate Court of Appeals shall file a written opinion, order, or decision as a matter of right in all cases within its jurisdiction. Under section 51-11-9, all such rulings will be precedential in all circuit courts, family courts, magistrate courts, and agencies unless or until the ruling is overruled or modified by the Supreme Court of Appeals. Any party in interest may seek discretionary review of an Intermediate Court of Appeals ruling pursuant to section 51-11-10 by filing a petition for review with the West Virginia Supreme Court of Appeals.
The new court will be staffed by three judges initially. Those judges will be appointed by the governor to serve staggered terms or two, four, or six years. At the end of their initial terms, the appointed judges may stand for nonpartisan election to a full term. Currently, twenty-five candidates are seeking appointment to the court. None of the vacancies have been filled to date.
Procedural rules applicable to the commencement and prosecution of appeals have not yet been announced. Nonetheless, as the critical date draws near, careful planning and execution are essential to ensure that the appeals are successfully launched or properly opposed. This may require the selection of experienced appellate counsel.
The Appellate Practice Group of Thomas, Thomas & Hafer has decades of knowledge gained from operating in several state court systems that have established intermediate appellate courts, as well as prior experience with the West Virginia Supreme Court of Appeals. Members of this team are licensed in West Virginia and are ready to assist in any appellate matters arising in that state.
Questions about this transformative statute can be directed to Louis Long at (412) 926-1424 or email@example.com.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
J.D. v. Price
U.S. District Court for the Western District of Pennsylvania
Decided: November 3, 2021
District Court holds that airline has duty of care to protect passengers from intoxicated passenger.
Plaintiff J.D., a female law enforcement officer, was seated next to Defendant Price on a Delta Airlines flight. Prior to the flight, Price visited the TGI Friday’s bar in the airport and was served 40 oz. of beer, three shots of 80 proof whiskey, and was provided a “to go” cup of whisky, which he consumed at the gate and finished on the plane. J.D. testified that Price smelled of alcohol, had red, glassy eyes, and appeared intoxicated at the time he boarded the plane, as he was staggering, grabbing seats to steady himself, and was having problems buckling his seatbelt. Price then passed out in his seat. Prior to the flight’s final descent, Price woke up and began to sexually assault J.D. by cupping her vagina and rubbing down the area in between her thighs. J.D. took hold of Price’s wrist to restrain him for the rest of the flight and arranged for him to be arrested when the plane landed. Price was arrested for public drunkenness and later pleaded guilty to assault of J.D. in the Northern District of Georgia. During discovery, various witnesses gave testimony corroborating that Price appeared intoxicated, while others testified that they did not detect any drunken behavior.
J.D. sued Price, HMS Host (the entity that operated the TGI Friday’s), and Delta Airlines, for damages related to the assault. J.D. sued HMS Host under Pennsylvania’s Dram Shop law, alleging that Price was visibly intoxicated at the time he was served alcohol at TGI Fridays, and that this intoxication was the proximate cause of the assault. J.D. made claims of negligence and negligent infliction of emotional distress as to Delta for failure to stop the assault. Both HMS Host and Delta filed Motions for summary judgment.
The Western District Court denied HMS Host’s Motion for summary judgment, finding that J.D. has presented sufficient circumstantial evidence through the testimony of witnesses, both before and after the plane landed, so as to raise an issue of fact as to Price’s level of intoxication at the time he was served. Similarly, the Court held that Delta, as a common carrier, owed a duty of care to protect J.D. from the “reasonably foreseeable” assaults of other passengers. The Court denied summary judgement to Delta as, again, there were genuine issues of material facts as to the level of Price’s intoxication when he boarded the flight and the foreseeability that he would assault another passenger.
Questions about this case can be directed to Rebecca Sember-Izsak at (412) 926-1446 or firstname.lastname@example.org.
Staiger v. Weis Markets
United States District Court for the Eastern District of Pennsylvania
2021 U.S. Dist. LEXIS 211232, 2021 WL 5084069
Decided: November 2, 2021
Plaintiff failed to state a claim in slip and fall matter where Plaintiff failed to identify cause of slip.
Plaintiff was injured when she slipped and fell in a grocery store. In her Complaint, Plaintiff averred that “there must have been a substance in the aisle which caused her to fall.” The grocery store moved to dismiss the Complaint for failure to state a claim, arguing that Plaintiff did not properly allege the existence of a dangerous condition.
The District Court noted that a Plaintiff must allege the existence of a dangerous condition in order to state a claim in negligence and that it is improper for the Court, or a jury, to presume that a dangerous condition existed based upon impermissible inference contained in the Complaint. As such, the Court dismissed the Complaint, without prejudice, and cautioned the Plaintiff that an Amended Complaint would only be appropriate to the extent that Plaintiff could allege factual allegations in support of a dangerous condition.
Questions about this case can be directed to Brook Dirlam at (412) 926-1438 or email@example.com.
Holohan v. Mid-Century Ins. Co.
United States District Court for the Eastern District of Pennsylvania
2021 U.S. Dist. LEXIS 183967
Decided: September 27, 2021
Court holds bad faith claims are not actionable against claims adjusters in their individual capacities.
Plaintiff Holohan was in a motor vehicle accident and sustained bodily injuries on September 9, 2015. He was covered under his auto policy issued by Defendant Mid-Century Insurance Company. After Holohan submitted a claim for first party benefits, Mid-Century began making payments for his treatment. Subsequently, Holohan was in a second motor vehicle accident on August 18, 2016 which exacerbated his injuries. Mid-Century engaged the peer review process and closed Holohan’s first claim on the basis that his treatment was related to the second collision. Holohan filed a UIM claim arising from the first collision, but Mid-Century continued to deny benefits.
On October 20, 2020, Holohan initiated this lawsuit against Mid-Century, Patrick Eckles and Timothy Harman. Eckles and Harman worked as claims adjusters for Mid-Century. Holohan asserted a breach of contract claim against Harman. Plaintiff also asserted claims for common law and statutory bad faith, and violation of the consumer protection law, against both Harman and Eckles. Defendants filed, inter alia, a Motion to dismiss.
The Court dismissed, with prejudice, all claims against Eckles and Harman individually. Dismissal was appropriate on the breach of contract claim against Harman because his duty as a claims adjuster did not create a contractual obligation between him and Holohan. The statutory bad faith claim failed because such claims are impermissible pursuant to 42 Pa.C.S. § 8371. Similarly, there was no plausible claim for common law bad faith, because Pennsylvania law does not support bad faith claims against a claims adjuster. As to the violations of the consumer protection law, because there was no contractual obligation between Plaintiff and Eckles or Harman, there could be no malfeasance as is required to raise a cause of action.
Questions about this case can be directed to Amanda Hennessey at (717) 237-7103 or firstname.lastname@example.org.
1800 Farragut, Inc. v. Utica First Ins. Co.
United States Court for the Eastern District of Pennsylvania
NO. 20-3449-KSM, 2021 U.S. Dist. LEXIS 177064
Decided: September 16, 2021
In COVID business interruption case, Court denies Plaintiff’s request for targeted discovery on the meaning of policy’s virus exclusion.
Plaintiff owns and operates a pub in Pennsylvania. Plaintiff maintained an insurance policy for the pub through Defendant Utica First Insurance Company. The policy covered, among other things, Plaintiff’s business personal property, business income, special business income, and professional business income. The policy covered losses from business interruptions, including interruptions resulting from government orders. The policy contained an exclusion for losses, costs or expenses that result from “any contamination by any virus, bacterium, or other microorganism.” The Court took notice that the language of this exclusion is essentially standardized language developed by the Insurance Services Office (ISO) after the SARS outbreak in the mid-2000s.
Plaintiff brought this suit in summer 2020, seeking a declaration that its insurance policy provided coverage for losses sustained due to the Coronavirus Pandemic. Defendant denied that Plaintiff’s policy provided coverage for any losses due to COVID-19, specifically citing the virus exclusion. Defendant revealed that it would be filing a motion for judgment on the pleadings and, in response, Plaintiff asked the court for permission to conduct “targeted discovery” on the origins and meanings of the virus exclusion before Defendant’s Motion was filed. The Court asked both parties to brief the matter. Plaintiff argued that the Court should allow this targeted discovery, because the virus exclusion is ambiguous and regulatory estoppel prevents Defendant Utica from arguing that the virus exclusion bars coverage in this case.
The Court found Plaintiff’s arguments unconvincing and denied Plaintiff’s Motion. The Court made note that this ruling is in line with many other courts across the nation. The Court rejected Plaintiff’s attempts to limit the virus exclusion to only “a contained contamination on a property which could cause discrete instances of illness,” as such a construction of the exclusion goes against its plain language. Further, the argument that the losses were caused by orders of the Pennsylvania government, and not the virus, was also unconvincing. The argument that the term “microorganism” modified the term “virus” in an ambiguous way because viruses are not living creatures was also rejected. Lastly, the claims of regulatory estoppel were denied because no allegations were made about Defendant, or the ISO, representing the virus exclusion as contrary to Defendant’s position.
Questions about this case can be directed to Logan Nagle at (717) 255-7234 or email@example.com.
PA CASE SUMMARIES
Fox v. Smith
Pennsylvania Supreme Court
No. 39 EAP 2019
Decided: November 17, 2021
Where a person is defamed via a medium with worldwide accessibility, a cause of action may be filed in any location in which publication and concomitant injury occurred.
In 2017, Joy Fox ran as the Democratic candidate in the mayoral campaign held in Chester Heights, Delaware County, Pennsylvania, against the Republican candidate, Stacey Smith. Following the election won by Smith, Fox filed a civil action in Philadelphia County against Smith, and other Republican-affiliate organizations, asserting a cause of action for defamation. Fox alleged that during the campaign, Smith, and others, published to a website, on Facebook, in campaign flyers, and on billboards, false accusations of Fox having been charged with criminal conduct in North Carolina.
Smith filed Preliminary Objections complaining that Philadelphia was an inappropriate venue. Fox argued that Philadelphia was proper because the website, which contained the defamatory comments, was accessed by residents in Philadelphia County, including a friend of Fox who claimed that the allegations were damaging to Fox’s reputation. The Trial Court overruled the Preliminary Objections, applying Gaetano v. Sharon Herald Co., 231 A.2d 753 (Pa. 1967). Smith filed an interlocutory appeal to the Superior Court, which affirmed, finding that extending the Gaetano approach to internet-based communications was sound due to the exponential growth of technology and the fact that Smith “knew or should have known the scandalous information they posted online . . . would be read by [Fox’s] neighbors or associates throughout the state.” Appeal was allowed to the Supreme Court to consider application of the precepts of Gaetano in the internet sphere.
The Supreme Court affirmed. While the action involved a dispute among Delaware County residents arising out of internet and social media posts originating in Delaware County during a mayoral election there, the Court reiterated that because a cause of action for defamation arises where publication of defamatory statements occurs, and that occurs where a third-party recipient understands the statements as being defamatory, a cause of action in defamation based on a medium that has worldwide accessibility may arise in multiple venues. Therefore, “[p]er a straightforward application of the civil procedural rules, … a plaintiff may select a single venue in a defamation action in any location in which publication and concomitant injury has occurred, albeit that publication and harm may have ensued in multiple counties.”
Questions about this case can be directed to Julia Morrison at (717) 441-7056 or firstname.lastname@example.org.
Rellick-Smith v. Rellick
Pennsylvania Supreme Court
No. 23 WAP 2020
Decided: October 20, 2021
Defendants were not permitted to amend their New Matter to assert the statute of limitations defense, because under the coordinate jurisdiction rule, the defense was waived.
Plaintiff filed an action alleging breach of fiduciary duties. Defendants filed a timely response to the Complaint, but did not raise any affirmative defenses in their Answer. Four months later, Defendants filed a Motion for judgment on the pleadings. In their Motion, Defendants argued that Plaintiff lacked standing and that Plaintiff’s claim was barred by the relevant statute of limitations. The Trial Judge granted the Motion on standing grounds, but found that Defendants had waived the statute of limitations defense by failing to raise it as New Matter to their Answer. Plaintiff appealed and the Superior Court reversed and remanded the case, finding that Plaintiff did have standing to pursue her claim. On appeal, Defendants did not challenge the Trial Judge’s ruling that Defendants had waived their statute of limitations defense.
On remand, the case was assigned to a new judge. Defendants filed a Motion for summary judgement, again failing to address the statute of limitations defense. The Motion for summary judgment was denied, and the case was assigned to a second Trial Judge. Close to four (4) years after the first Trial Judge found that the Defendants had waived their statute of limitations defense, Defendants filed a Motion to amend their Answer to include affirmative defenses, including a statute of limitations defense. The second Trial Judge allowed Defendants to amend their Answer based on the Superior Court’s decision in Horowitz v. Universal Underwriter’s Ins. Co., 580 A.2d 395 (Pa. Super. Ct. 1990). At a non-jury trial, the second Trial Judge found in favor of Defendants, determining that the two-year statute of limitations had run before Plaintiff commenced suit.
Plaintiff appealed the second Trial Judge’s Order to the Superior Court arguing that Defendants had waived the defense of the statute of limitations by failing to raise it in their initial response to the Complaint. They further argued that the second Trial Judge was precluded from granting the Defendants’ Motion to amend their Answer under the coordinate jurisdiction rule. The Superior Court disagreed and affirmed the second Trial Judge’s ruling. Plaintiff filed an allowance of appeal to the Supreme Court of Pennsylvania.
The Supreme Court reversed and vacated the second Trial Judge’s Order granting Defendants’ Motion to amend their Answer to include a statute of limitations defense, resulting in a remand to the Trial Court. The Court found that there was a clear conflict between the rulings of the first Trial Judge and the second Trial Judge, which altered the legal effect of the proceedings. Therefore, the second Trial Judge’s Order permitting the Defendants to file an Amended Answer to include the affirmative defense of the statute of limitations, after a different Trial Court Judge had previously ruled that it had been waived, violated the coordinate jurisdiction rule.
Questions about this case can be directed to Hannah Molitoris at (267) 861-7589 or email@example.com.
Tavella-Zirilli v. Ratner Cos.
Pennsylvania Superior Court
No. 2875 EDA 2019
Decided: December 8, 2021
Court finds portions of Plaintiff’s mental health records privileged and not subject to in camera review in personal injury action.
Plaintiffs filed a negligence action against Defendant hair salon alleging that Plaintiff-wife suffered injuries following a hair color treatment. Alleged injuries included chemical burns to her scalp, permanent scarring from a rash that developed on her scalp, and spread to her neck, face, arms, and chest, associated pain, headaches, stress-induced relapse of smoking, mental anguish, embarrassment, and emotional distress. Plaintiff-wife’s medical records revealed a pre-incident mental health condition that affected her skin.
Through discovery, Defendant learned that Plaintiff-wife had undergone mental health treatment. Defendant served a notice of intent to serve a subpoena on the facility which provided the mental health treatment. Plaintiffs objected, and Defendant filed a Motion to strike which the Trial Court granted. After Plaintiffs received the records from the mental health facility, Plaintiffs filed a privilege log, which indicated that they had received two sets of mental health records. The first set of records related to Plaintiffs’ marriage counseling. The second set related to Plaintiff-wife’s mental health treatment. Plaintiffs objected to producing Plaintiff-wife’s mental health records on the basis that they were privileged and protected from disclosure by the Mental Health Procedures Act (MHPA). Defendants moved to strike the objections and compel in camera review. The Trial Court compelled production of the mental health records and ordered Plaintiffs to produce unredacted copies for in camera review so that the special master could make a privilege determination. Plaintiffs appealed.
The Court considered whether Plaintiff-wife’s records were protected by the MHPA. Section 7111 of the MHPA mandates that all documentation concerning persons in treatment be kept confidential, subject to certain limited exceptions. Section 7103 of the MHPA specifies that the Act establishes rights and procedures for all voluntary inpatient treatment. As such, the Court found that Plaintiff-wife’s records were outside the scope of the MHPA because there was nothing to indicate that her treatment was anything but voluntary outpatient treatment. The Court then analyzed the psychiatrist/psychologist privilege and found that the portions of Plaintiff-wife’s records regarding communication of her private thoughts to her therapist were protected from disclosure, including in camera review. Finally, the Court found that Plaintiff did not waive the psychiatrist/psychologist privilege by commencing the lawsuit. As such, the Court reversed the Trial Court’s Order compelling Plaintiffs to provide unredacted copies of the records.
Questions about this case can be directed to Jillian Denicola at (570) 825-5653 or firstname.lastname@example.org.
Alatrista v. Diamond Club
Pennsylvania Superior Court
1327 MDA 2020
Decided: December 7, 2021
Unverified Complaint sufficient to toll the statute of limitations.
Plaintiffs filed their Complaint two days before the running of the statute of limitations on their claims of assault, battery, intentional infliction of emotional distress and negligence arising out of injuries sustained at Defendant’s club. Defendants filed Preliminary Objections to the Complaint claiming that it was a nullity because it lacked a Verification. Plaintiffs filed a verified Amended Complaint to which Defendants, again, preliminarily objected claiming that absent a Verification attached to the Original Complaint, the Complaint was a nullity and failed to toll the statute of limitations such that the Amended Complaint was futile. The Trial Court sustained the Preliminary Objections since the applicability of the statute of limitations was clear from the face of the pleadings and the absence of a Verification was fatal to the Complaint.
On appeal, the Superior Court, while recognizing that an unverified complaint is a nullity, focused on the issue of whether it would be sufficient to toll the statute of limitations. The Court reasoned that since a writ of summons is not verified, but is also a means of commencing suit to toll the statute of limitations, it would seem incongruent for a timely-filed complaint not to effectuate the same tolling as a writ, especially where the absence of a verification can easily be cured by amendment. Absent evidence of willful noncompliance with the rules, rather than mere oversight, and without evidence of prejudice to the Defendants because they were on notice of the claim within the two-year period, the Trial Court erred in permitting an apparent oversight to defeat Plaintiffs’ cause of action in its entirety.
The Superior Court reversed the Order sustaining the Preliminary Objections and remanded the case to the Trial Court holding that a timely-filed, albeit unverified, Complaint was sufficient to toll the statute of limitations.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or email@example.com.
Keystone Specialty Serv. Co. v Ebaugh
Pennsylvania Superior Court
No. 1289 WDA 2020, 2021 Pa. Super. 228
Decided: November 22, 2021
Exculpatory clauses contained within commercial lease were valid and enforceable to shield landlord from liability.
Plaintiff tenant entered into a commercial lease agreement with Defendant landlord. Under the agreement, Plaintiff leased a 1,500 square-foot space to store property. Plaintiff initiated this action after the stored property was damaged as a result of water infiltration. Plaintiff asserted negligence and a breach of contract due to landlord’s failure to prevent the water infiltration. The Trial Court entered an Order granting summary judgment for the landlord on the basis that the exculpatory clauses contained within the lease barred Plaintiff’s claims. Plaintiff appealed the Order, arguing that the exculpatory clauses were insufficient to shield landlord from liability.
The Court noted that it is undisputed that Plaintiff initiated this action for property damages and the subject lease Plaintiff signed included exculpatory clauses that specifically provided that “Landlord shall not be liable for loss of, or damage to, [Tenant’s] stored items” and that “Landlord shall not be liable to Tenant . . . for . . . any loss, damage or destruction of Tenant’s personal property.”
The Court upheld the Trial Court’s summary judgment Order, finding that the lease “twice expressly stated that Landlord would not be liable for damage to Plaintiff’s personal property and this applied to ‘any loss, damage or destruction of Tenant’s personal property.’” The Court noted that the word “any” is equally all-encompassing as the word “all” in the leases and although the word negligence was not within the subject lease, “Pennsylvania courts have consistently held that exculpatory clauses may bar suits based on negligence even where the language of the clause does not specifically mention negligence at all.”
Questions about this case can be directed to Danielle Vols at (717) 441-7066 or firstname.lastname@example.org.
Rooks v. Walker
Pennsylvania Superior Court
No. 563 EDA 2020, 2021 Pa. Super. Unpub. LEXIS 3112
Decided: November 22, 2021
Default judgment stricken where 10-day notice was defective on its face because it failed to include the required language set forth in Pa.R.Civ.P. 237.5.
On April 28, 2018, Defendant Walker crashed head-on into a vehicle driven by Daniels. Plaintiff Rooks was a passenger in Daniels’ vehicle and sustained physical injuries from the accident. Defendant Walker was driving a vehicle that he purchased from Philadelphia Public Auto, Inc. (PPA). At the time of the accident, however, the vehicle was still registered to PPA and, therefore, legally owned by PPA. On April 7, 2020, Plaintiff filed a Complaint naming Walker, Daniels and PPA as Defendants. On June 20, 2020, Plaintiff served PPA with a copy of the Complaint by leaving it with a clerk at PPA’s place of business on Woodland Avenue in Philadelphia, PA. PPA did not file a responsive pleading to the Complaint. On August 27, 2020, Plaintiff served a ten-day notice of intent to enter default judgment on PPA by certified mail. Again, PPA did not respond.
On September 15, 2020, Plaintiff praeciped for the entry of a default judgment against PPA, which was entered by the Prothonotary on the same day. Notice of the default judgment was sent to PPA. On October 5, 2020, PPA filed a Petition to open the default judgement and a hearing on the Petition was held before the Trial Court. A representative of PPA testified that he received the Complaint, following which he provided it to his insurance company and “assumed they would take care of it.” The representative further testified that he did receive notice that the default judgment had been entered, but he did not receive the notice of intent to take a default judgment. The Trial Court denied PPA’s Petition. PPA filed a timely appeal arguing that the default judgment should be stricken because the default notice was defective on its face, thereby rendering the default judgment void ab initio.
The Court noted that Rule 237.5 requires that the notice of intent to seek a default judgment must include the following language, “You are in default because you have failed to enter a written appearance personally or by attorney and file in writing with the court your defenses or objection to the claims set forth against you.” Herein, the notice of default stated in relevant part, “You are in default because you have failed [to] take action required of you in this case.” The Court found this language to be defective because it did not specify the reason why the Defendant was in default. As such, the ten-day notice was defective on its face, and the Prothonotary was not authorized to enter the judgement against PPA.
Questions about this case can be directed to Doug Keil at (412) 926-1428 or email@example.com.
Frazer v. McEntire
Pennsylvania Superior Court
2021 Pa. Super. 211
Decided: October 20, 2021
Court upheld Trial Court’s entry of summary judgment where the Dead Man’s Act applied and Plaintiff could not establish other evidence of decedent’s statement.
Plaintiff’s father, Clair McEntire, died testate on December 28, 2010. Clair’s will named three beneficiaries: (1) his son, David McEntire; (2) his daughter, Plaintiff; and (3) his granddaughter, Rebeca Shick. David was named the executor of Clair’s estate; however, David died on April 30, 2012, prior to the finalization of Clair’s estate. Plaintiff was then named administratrix of Clair’s estate. David’s wife, Defendant, was named executrix of David’s estate.
Plaintiff initiated the matter by filing a complaint against Defendant, as administratrix of David’s estate, alleging conversion and fraud. The basis for the claims arose from a conversation on January 1, 2011, which was the day after Clair’s funeral. The conversation was between Clair’s three beneficiaries: David, Plaintiff and Rebecca. David informed Plaintiff and Rebecca that Clair had cash assets of $130,000 in a safe located at the McEntire Funeral Home for eventual distribution to Clair’s three beneficiaries. Plaintiff alleged that this cash asset was never distributed by David or Defendant, as administratrix of David’s estate. Prior to trial, Defendant filed a Motion in limine alleging that the only evidence supporting Plaintiff’s claim of the cash asset was the alleged statement by David, now deceased. Defendant argued that this alleged statement was barred from being presented as testimony or evidence by the Dead Man’s Act.
The Trial Court found that the alleged statement by the decedent, David, was barred under the Dead Man’s Act. Any evidence or testimony concerning the statement by David could not be used at trial because the Dead Man’s Act applied. Thus, Defendant filed a Motion for summary judgment on the basis that Plaintiff cannot offer any evidence to support her claims. Plaintiff attached two affidavits to her response to the Motion for summary judgment which, she argued, provided additional evidence of the existence of the cash asset. The Trial Court found the affidavits unpersuasive and granted summary judgment. The Superior Court affirmed the preclusion of David’s statement under the Dead Man’s Act and affirmed the entry of summary judgment, finding the affidavits did not establish that these two individuals had actual knowledge of the cash asset and could testify to same, which was required to overcome summary judgment.
Questions about this case can be directed to Michael Weinert at (610) 332-7025 or firstname.lastname@example.org.
Frisch v. James River Ins. Co.
Pennsylvania Superior Court
No. 1520 EDA 2020, 2021 Pa. Super. LEXIS 642, 2021 WL 4889092
Decided: October 20, 2021
After abandoning an objection to a supplemental jury instruction, a party cannot revive the objection and re-assert it in a post-trial motion, and the Trial Court abused its discretion in granting a new trial on the basis of an objection that was waived.
A passenger in a motor vehicle allegedly sustained bodily injuries due to an accident. He had a pre-existing low back injury from a prior fall. In the ensuing underinsured motorist case, the parties disputed whether the alleged injuries were caused by the motor vehicle accident or the prior fall. The Court instructed the jury on both factual cause and pre-existing conditions. During deliberations, the jury asked for further instructions on pre-existing conditions. Initially, defense counsel asked the court to give the jury both instructions again. However, after further discussion of the issue, counsel agreed and the court re-read only the pre-exiting condition instruction. The Court did not instruct again regarding factual cause.
The jury returned a verdict for the plaintiff and the insurer filed a post-trial Motion asserting error in the supplemental instruction being restricted to the pre-existing condition issue. The Trial Judge considered the supplemental charge to be in error, as it did not address factual causation. Thus, the Court granted a new trial.
The Superior Court reversed the Order granting a new trial, holding that the Trial Judge abused his discretion in granting a new trial on the basis of an issue that was waived. The Superior Court explained that supplemental jury instructions should not be viewed in isolation and that they must be considered in context of the charge as a whole. It also reasoned that all objections to jury instructions must be made before the jury retires so that the trial judge is given the opportunity to correct any error. In this case, although the complaining party initially argued that both the pre-existing condition and factual cause instructions should be given, it ultimately did not object to the re-reading of the pre-existing condition instruction alone. The Superior Court concluded that the parties, their counsel, and the court must be able to trust that once a point for charge or an objection to an instruction is abandoned on the record, the aggrieved party cannot, at a whim and in contradiction to that waiver, resuscitate the matter and assert it again in a post-trial motion. The Trial Court abused its discretion in awarding a new trial because it expressly granted a new trial solely on the basis of the alleged instructional error that was waived.
Questions about this case can be directed to Louis Long at (412) 926-1424 or email@example.com.
Green v. Tr. Of the Univ. of Pa.
Pennsylvania Superior Court
No. 2160 EDA 2020, 2021 Pa. Super. LEXIS 639
Decided: October 19, 2021
Sanctions are appropriate for failure to produce a written statement relied upon in filing a certificate of merit where the moving party can establish a causal connection between the unsupported medical malpractice claim and the sanctions requested.
Plaintiff Ms. Green filed suit against Dr. Rosenfeld and Penn Medicine. Ms. Green claimed that she was sexually assaulted by Dr. Rosenfeld during a hypnosis session. As a result, she brought claims against Dr. Rosenfeld for medical malpractice, battery and intentional infliction of emotional distress. Ms. Green’s claims against Penn Medicine sounded in vicarious liability for the actions of Dr. Rosenfeld, and a direct claim for negligent referral.
Plaintiff’s Complaint included one certificate of merit as to the actions of Dr. Rosenfeld, but did not include a separate certificate of merit as to the actions or inactions of Penn Medicine. Dr. Rosenfeld and Penn Medicine moved to strike the certificate of merit as Plaintiff was required to file separate certificates of merit for each defendant. The Court agreed and granted Plaintiff leave to file the required certificates of merit. Plaintiff never complied with the Order.
At the conclusion of discovery, both Dr. Rosenfeld and Penn Medicine moved for summary judgment. They argued, inter alia, that Plaintiff’s failure to produce expert witness testimony was fatal to her claims as she would not be able to support her claims for medical malpractice. The Court agreed and dismissed Penn Medicine. However, with regard to Dr. Rosenfeld, Plaintiff was given an option to pursue the medical malpractice claims, the battery claim or the intentional infliction of emotional distress claim. Plaintiff elected to pursue the medical malpractice claims and the intentional act claims were dismissed. Plaintiff was then ordered to produce an expert report.
Plaintiff ultimately produced an expert report from a psychiatrist. Dr. Rosenfeld again moved for summary judgment and argued that Plaintiff was required to produce a report from a specialist in internal medicine, the same discipline as Dr. Rosenfeld, in order to meet her burden. Plaintiff failed to properly respond to the Motion and the court dismissed Plaintiff’s remaining claims.
Within thirty days of the dismissal, Dr. Rosenfeld requested the written statement relied upon by Plaintiff in filing her certificate of merit pursuant to Pa.R.Civ.P. 1042.9. Plaintiff’s counsel failed to timely respond. Dr. Rosenfeld then filed a Motion for sanctions. Plaintiff’s counsel again failed to timely respond and the sanctions were granted.
On appeal, the Superior Court agreed that sanctions may be appropriate for filing an unsupported medical malpractice claim. However, the Superior Court vacated the Trial Court’s Order granting sanctions as it found that the Trial Court failed to engage in an analysis of whether the requested relief was causally related to the unsupported medical malpractice claim, and was not related to the accompanying intentional act claims. Thus, the Trial Court’s failure to engage in this analysis was deemed an abuse of discretion and the case was remanded for the Trial Court to engage in the proper analysis before ordering sanctions.
Sanctions will be awarded for filing an unsupported medical malpractice claim where the relief requested is causally related to the unsupported claim, where the relief requested is reasonable, and where the requested relief is of a type a court can lawfully order.
Questions about this case can be directed to Jonathan Danko at (717) 441-3957 or firstname.lastname@example.org.
MD CASE SUMMARY
MCB Woodberry Developer v. Council of Owners
Maryland Court of Special Appeals
2021 Md. App. LEXIS 1081 (reported)
Decided: December 16, 2021
The Maryland Court of Special Appeals rules that a real estate developer’s lawsuit against two home owners’ associations and individual board members violated Maryland’s Anti-SLAPP statute.
A real property developer sought approval from the Baltimore City Planning Commission to modify an approved Planned Unit Development (PUD). In particular, the developer sought to build townhomes on land previously designated as a parking lot and to redevelop another building for office and retail use. Certain residents of the PUD, individually and through their homeowner’s associations (collectively the HOA parties), opposed the changes at meetings of the Planning Commission and in the Circuit Court. After a hearing, the Circuit Court remanded the case to the Planning Commission for further fact finding.
Four days after the Circuit Court’s ruling on the Petition for administrative mandamus, the developer sued the HOA parties. It alleged that the opposition to its proposed changes violated the community declaration and constituted tortious interference with the developer’s business and economic relations. The developer sought a compensatory damages award, $25 million in punitive damages, and declaratory relief. Soon after the developer filed the Complaint, it served requests for production of documents seeking personal banking records of the individual HOA parties. The developer also directed the HOA parties to preserve all electronically stored information on personal and business devices for potential discovery.
The HOA parties moved to dismiss the lawsuit pursuant to Maryland’s Anti-SLAPP statute. A SLAPP lawsuit is a “Strategic Lawsuit Against Public Participation.” The HOA parties argued that their efforts in opposition to the developers proposed changes were protected by the First Amendment and that the developer’s lawsuit was brought in bad faith in order to inhibit the HOA parties’ exercise of their First Amendment Rights. The Circuit Court dismissed the suit with prejudice, holding that the lawsuit was a prohibited SLAPP suit. The developer appealed.
The Court of Special Appeals affirmed the dismissal of the Complaint for violation of Maryland’s Anti-SLAPP statute. The Court explained that the developer’s claims relied on a strained and meritless construction of the community declaration. The Court further held that the HOA parties engaged in communications protected by the First Amendment regarding a matter within the authority of a government body and on an issue of public concern. In addition, the Court ruled that the lawsuit was pursued in bad faith against the HOA parties in retaliation for their public opposition to the development efforts. Finally, the Court determined that the HOA parties did not act with constitutional malice in opposing the development.
Questions about this case can be directed to Andrew White at (443) 641-0572 or email@example.com.
DC CASE SUMMARY
KS Condo, LLC v. Fairfax Vill. Condo VII
District of Columbia Superior Court
2021 D.C. Super. LEXIS 10
Decided: June 16, 2021
Superior Court for the District of Columbia holds that the pure economic loss rule does not bar a claim where the alleged misconduct renders property uninhabitable.
Plaintiff, a condo unit owner, sued Defendant condominium association, alleging negligence arising from the condemnation of the condominium building. Plaintiff leased its unit to a tenant. During the tenancy, a common area structural wall collapsed, which caused the building to be uninhabitable for nine months. Plaintiff’s condo unit did not suffer any physical damage from the collapse, but the declaration of uninhabitability prevented Plaintiff from leasing the unit. Plaintiff alleged that Defendant failed to properly maintain and promptly repair the wall when it shifted prior to the collapse. Defendant moved for summary judgement arguing that the pure economic loss rule, which prohibits negligence claims for only economic damages, barred Plaintiff’s claims as Plaintiff’s condo unit did not suffer any physical damage.
The Superior Court for the District of Columbia held that the Defendant Condominium Association was not entitled to summary judgement on Plaintiff’s negligence claim. The Court reasoned that Plaintiff suffered more than economic damages because the alleged negligent conduct caused Plaintiff’s unit, and the entire building, to be declared uninhabitable. In addition, the Court reasoned that the special relationship exception, which applies where the defendant has a pre-existing relationship with plaintiff and has a duty to look out for a plaintiff’s economic well-being, applied to this case. The Court concluded that the Condominium’s duty to manage the property and the common areas created a special relationship to individual condo owners. As a result, the Court denied Defendant’s Motion for summary judgement.
Questions about this case can be directed to Ryan Stanley at (202) 945-9504 or firstname.lastname@example.org.
VA CASE SUMMARY
Ayers v. Brooke Road, LLC
Virginia Supreme Court
Decided: October 21, 2021
Virginia Supreme Court holds that void judgment does not become enforceable after debtor learns of judgment and does not challenge it within a specified time.
Ayers obtained loans from Union Bank & Trust Company between 2006 and 2008, and later defaulted on them. Confessed judgments were entered against Ayers on July 27, 2009. A private process server submitted affidavits stating that the process server personally served Ayers with certified copies of the confessed judgments on August 12, 2009. Union Bank assigned the confessed judgments against Ayers to Brooke Road, LLC, on June 7, 2018. Brooke Road attempted to enforce the judgments and filed a Complaint. Ayers was served with the Complaint on July 5, 2019.
On August 28, 2019, Ayers filed a Complaint to vacate the confessed judgments. Ayers argued that the confessed judgments were void ab initio because he was never served with the confessed judgment and that the process server knowingly falsified the affidavits of service. Ayers produced affidavits of his own stating that he was visiting friends in Naples, Florida at the time of the purported service of the confessed judgment. Brooke Road filed a demurrer contending that a confessed judgment may only be set aside when the debtor files a motion within 21 days after notice that judgment has been entered, and thus Ayers’ claims were untimely because his Complaint was not field within 21 days after service of Brooke Road’s Complaint.
Under Va. Code § 8.01-438, the failure to serve a confessed judgment within 60 days of the date of entry renders the judgment void and a “complete nullity.” The Circuit Court erred in finding that Va. Code § 8.01-433, providing that a confessed judgment may be set aside upon filing of a motion within 21 days of the debtor’s notice of the judgment, applied to a judgment that was void ab initio. A void judgment may be attacked in any direct or collateral proceeding where the void-ness is at issue, whereas § 8.01-433 applies where a debtor seeks to set aside a confessed judgment based on a substantive defense to liability for the debt. A contrary reading of § 8.01-433 would allow an otherwise void judgment to be revived. The Supreme Court reversed the Circuit Court’s ruling and determined that Ayers may challenge the validity of the confessed judgment based on the alleged failure of service in 2009.
Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or email@example.com.