eNotes: Liability – February 2020

TT&H LAWYERS IN COURT

TT&H Attorney Lacey Conn wins dismissal of multi-million dollar wrongful death suit.

Attorney Conn has won the dismissal of a wrongful death suit with multi-million dollar exposure.  The action, filed in Fauquier County, Virginia, arose out of a motor vehicle accident where the decedent drove off an interstate, and into the end of a guardrail, which speared and killed her.  Plaintiffs alleged, in part, that the guardrail was improperly installed and that Lacey’s client trained a third-party how to install the guardrail.  Lacey successfully argued that Virginia law does not recognize a tort for negligent training, and convinced the Court to dismiss the case, with prejudice.

Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or lconn@tthlaw.com.

TT&H Attorneys Louis Long, Joseph Pulcini and Voula Mamounas win appeal from the entry of summary judgment in limited tort action.

The Superior Court affirmed the entry of summary judgment in favor the Defendant driver, finding the action was barred by the statute of limitations.  Plaintiff’s decedent, subject to a limited tort election, died before the original complaint was filed.  The Court dismissed the initial complaint because the personal representative of the estate failed to bring the action.  After the estate was raised, a new complaint was filed, after the statute of limitations had expired. The Court rejected Plaintiff’s attempt to use the discovery rule concerning Decedent’s injuries to extend the statute of limitations and excuse the delay. Instead, the Court found that Plaintiff and counsel knew the seriousness of the injuries to about a dozen different body parts, as evidenced by the initial procedurally defective complaint.  The Court added that Plaintiff and counsel did not exercise due diligence to bring the new complaint before the statute ran.  The case was handled in the Lower Court by Attorneys Joseph Pulcini and Voula Mamounas.  The appeal was handled by Attorney Louis Long.

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

Pennsylvania Superior Court vacates judgment for Plaintiffs following appeal filed by Attorney Louis Long.

The Superior Court has vacated a judgment for Plaintiffs and remanded for a hearing to determine whether Plaintiffs’ settlement of another matter would give rise to a set-off against the damages claimed in the instant case.  The Plaintiffs’ home had been damaged by a series of contractors, including a contractor involved with subsequent repair efforts to the home.  Plaintiffs brought separate cases.  They had settled with the original contractors, but went to trial against the subsequent contractor and Plaintiffs’ homeowners’ insurer.  The case was handled in the Lower Court by Attorneys Tom McGinnis and Tom Zumpella.  The appeal was handled by Attorney Louis Long.

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

TT&H Attorney Matthew Ridley wins dismissal of toxic tort action in Union County, Pennsylvania.

TT&H Attorney Matthew Ridley wins summary judgment in a Union County action asserting premises liability and negligent interference with assistance. The action was brought by a patient in Defendant’s drug and alcohol addiction treatment facility. Plaintiff claimed various physical and psychological injuries allegedly caused by exposure to a hazardous chemical emitted from a fire suppression sprinkler in the facility. After five years of litigation, and with jury selection a mere four days away, Attorney Ridley convinced the Court to enter summary judgment for the Defendant. Dismissing the case, the Court found a lack of competent evidence to support Plaintiff’s allegations that Defendant failed to maintain the sprinkler system, while also finding a lack of credible evidence that any hazardous chemical was involved or that Plaintiff suffered any injury.

Questions regarding this case can be directed to Matthew Ridley, at (717) 255-7239 or mridley@tthlaw.com.

TT&H SPEAKING OUT

If you didn’t attend Thomas, Thomas & Hafer, LLP’s first educational event of the new year on January 23, 2020, you missed out! Ben Peoples and Judge Monty Ahalt presented “Valuing Personal Injury Claims” to approximately 120 adjusters from over 28 different carriers.

Here is a sample of the feedback from some of the attendees:

• “It was one the best presentations I’ve seen, and it was certainly one I need despite having 30+ years of experience.”
• “By far (for me) the most informative and interactive talk I have had!”
• “Excellent presentation today.”

The seminar discussed the three components of value in personal injury claims and twelve methods that can be used to value personal injury claims. The seminar concluded by testing attendees’ valuation skills with three hypotheticals based on real life situations. Attendees participated in surveys regarding claim valuation issues throughout the presentation. The results can be found with this link – Poll Results.

A video of the presentation appears below.

Written materials can be found through this link – Valuing Personal Injury Cases – Final.

Please contact Tony Mariani with any questions at amariani@tthlaw.com or (717) 237-7114.

SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARIES

Biela v. Westfield Ins. Co.

United States District Court for the Eastern District of Pennsylvania

2019 U.S. No. 19-04383

Decided: December 4, 2019

Court grants Defendant’s Motion to dismiss Plaintiff’s bad faith claim finding that Plaintiff failed to plead sufficient facts in support.

Background

Plaintiff hired a plumbing company to install an above-ground oil tank on her property, and the plumbing company contracted with another entity to deliver the oil. When the tank was being filled, it suddenly ruptured, causing an oil spill on Plaintiff’s property. As a result, Plaintiff was forced to vacate her property. She contacted Westfield seeking coverage for the loss, but Westfield denied her claim.

Plaintiff filed suit against Westfield, alleging that Westfield engaged in bad faith by performing a substandard and hasty investigation of the loss and improperly denying her claim. Westfield filed a motion to dismiss the bad faith claim.

Holding

The Court granted Defendant’s motion to dismiss the bad faith claim, finding that the Complaint contained only conclusory and unsupported statements regarding Westfield’s conduct. The Court noted that the Complaint must establish more than mere threadbare recitals of elements of a cause of action, legal conclusions, and conclusory statements. Absent additional facts regarding Plaintiff’s insurance claim and the accompanying investigation in support of the contention that Westfield’s conduct was unreasonable and reckless, the Court would not infer bad faith on Westfield’s part. As such, the Court granted Westfield’s motion to dismiss, but allowed Plaintiff the opportunity to amend her bad faith claim with sufficient factual support.

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or jdenicola@tthlaw.com.

PENNSYLVANIA CASE SUMMARIES

Rivera v. City of Reading

Pennsylvania Commonwealth Court

No. 1616 C.D. 2018 (unreported)

Decided: January 3, 2020

An evidentiary hearing or oral argument on a motion for sanctions must be heard prior to a trial court’s ruling.

Background

This decision concerns a number of discovery disputes between the parties. The City of Reading served written discovery upon Plaintiff that went unanswered for a number of months. A motion for sanctions was filed by the City, ultimately resulting in Plaintiff untimely responding to the written discovery. Thereafter, the City attempted numerous times to schedule the Administratrix of the Estate’s deposition. Each time the deposition was scheduled, Plaintiff’s counsel cancelled the deposition for failure to locate the Administratrix. Consequently, the City filed a second motion for sanctions seeking dismissal of the Estate’s Complaint with prejudice. Two days after the motion was filed, the Court granted the motion without a hearing or oral argument. The Estate appealed.

The Court found that the Pennsylvania Rules of Civil Procedure require that opposing parties have an opportunity to argue the merits of a motion before the trial court rules. Thus, the Trial Court erred by granting a motion for sanctions without first providing the parties an opportunity to argue the merits of the motion.

Holding

The case was remanded back to the Trial Court to hold an evidentiary hearing or oral argument on the motion for sanctions.

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

 

Jones v. Plumer

Pennsylvania Superior Court

No. 747 WDA 2019, 2020 Pa. Super 7

Decided: January 15, 2020

Superior Court affirms summary judgment for Defendant estate of a deceased landlord in a slip and fall case, because Plaintiff was not competent to testify as to the cause of her own fall under the Pennsylvania Dead Man’s Act.

Background

Plaintiff Jessica Jones fell down steps outside her rental apartment and injured her wrist. She was the only witness to the fall and claimed the heel of her shoe caught on the top riser of the steps. Plaintiff’s landlord, James Stover, died about a year after the fall and before Plaintiff filed suit. Plaintiff sued the administratrix of Mr. Stover’s estate, Marie Plumber, for negligence. Ms. Jones alleged that Mr. Stover knew the steps were unsafe but neglected to repair them in a reasonable and timely manner. Ms. Plumer moved for summary judgment, and for the purposes of the motion, all parties conceded that the property’s steps were poorly maintained, that Mr. Stover knew of the defects, and that he failed to make the requisite repairs. Instead, Ms. Plumer argued that Ms. Jones lacked evidence to prove that the negligently maintained stairs caused her to fall because Ms. Jones was incompetent testify under the Pennsylvania Dead Man’s Act. Without her testimony, there was no evidence as to causation and summary judgement was appropriate. The Court of Common Pleas of Venango County agreed and granted summary judgment.

Holding

On appeal, the Superior Court agreed with the Trial Court that the Dead Man’s Act barred Ms. Jones from testifying about the cause of her own fall because her testimony would be adverse to Mr. Stover’s interests. The language of the Act directly applied to Ms. Jones’ tort action and was unambiguous. Quoting a prior commentator to the Act, the Court stated: “In a personal injury action involving a decedent’s estate, the surviving party is not a competent witness to the circumstances of her injury, for the decedent’s estate is in no position to refute the surviving party’s testimony concerning the decedent’s liability for the injuries.” It did not matter for the application of the Act whether Mr. Stover was a witness to the fall. The Court then addressed the application of a 1976 case, in which the Superior Court sitting en banc held the Dead Man’s Act did not render the Plaintiff an incompetent witness on the extent of their own damages. The Court declined to expand the holding of Strathas beyond its limited exception for testimony on damages to testimony about causation. Finally, the Court held that Ms. Plumber had not waived the protection of the Dead Man’s Act, because she did not engage in discovery prior to moving for summary judgment.

The Superior Court affirmed the grant of summary judgment against the Plaintiff. The Court held that the Trial Court properly applied the Dead Man’s Act as the General Assembly has authored it, and Plaintiff was not a competent witness to testify to the cause of her own fall.

Questions about this case can be directed to Ken Newman, at (412) 926-1425 or knewman@tthlaw.com, or to Rick Murphy, at (412) 926-1443 or rmurphy@tthlaw.com.

Avery v. Cercone

Pennsylvania Superior Court

No. 174 WDA 2019

Decided: December 23, 2019

Trial Court erred in directing jury to award damages for pain and suffering.

Background

Plaintiff sought damages for personal injuries allegedly sustained by Defendants’ negligence in a motor vehicle accident. Undisputed medical evidence at trial provided that Plaintiff sustained a concussion, which is normally associated with some degree of pain and suffering. The jury returned with a verdict in favor of Plaintiff in the exact amount of her unreimbursed medical expenses, although both parties had contended at trial that she deserved some award for pain and suffering. The Trial Court ruled that the verdict was inconsistent and as such, the Court directed the jury to return to deliberate in order to clarify the verdict. The jury later returned with a second verdict adding $10,000 for pain and suffering.

On appeal to the Superior Court, Plaintiff sought a new trial and claimed that it was reversible error for the Trial Court to intervene to correct a verdict which was against the weight of the evidence by instructing the jury to reconsider its prior findings. The Court distinguished an inconsistent verdict, one which appears on the face of verdict slip to not clearly report the jury’s factual findings and simply does not make sense, from a verdict which is against the weight of the evidence, one which shocks the conscience of the trial court in light of the evidence presented. A trial judge is not permitted to suggest to the jury that the weight of the evidence does not support the damage award. An order to resume deliberations based upon a weight of the evidence instruction would intrude on the province of the jury. Appellate review of a weight of the evidence question reviews the trial court’s exercise of discretion, not the underlying question of whether the verdict is against the weight of the evidence. The Superior Court could not review the Trial Court’s discretion in deciding the post-trial motions because the Trial Court did not review the issue of the weight of the evidence.

Holding

The Court held that the Trial Court erred when it concluded that the verdict was inconsistent and returned the jury to deliberate further. The judgment and improper verdict were vacated and the case was remanded to the Trial Court to permit Plaintiff to renew her post-trial motions for a new trial on the grounds that the original verdict was against the weight of the evidence.

Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.

Frick v. Li

Pennsylvania Superior Court

2019 Pa. Super. 367

Decided: December 23, 2019

Trial Court’s denial of Motion to dismiss was appropriate where Plaintiff demonstrated good faith efforts to serve Defendant and did not prejudice the Defendant.

Background

Plaintiff filed a Writ of Summons on April 27, 2017. On May 23, 2017, counsel for Defendant entered his appearance and filed a Rule to File Complaint. The controlling Fourth Amended Complaint was filed on December 4, 2017, at which time Plaintiff also filed a Motion to permit alternative service on the Defendant. The Motion detailed the sheriff’s attempts of service on Defendant, the dates the complaints and preliminary objections were filed, and Plaintiff’s contact with the post office confirming that it was not aware of any other addresses for the Defendant. On December 7, 2017, Defendant filed a Motion to Dismiss which was denied.

Holding

The Superior Court, relying on well established Pennsylvania law, reiterated that a plaintiff must demonstrate a good-faith effort to effectuate service on the defendant and that what constitutes a good faith effort is determined on a case by case basis. The Court noted that when a defendant has actual notice of the action, as did the Defendant in this case, dismissal is appropriate if the plaintiff “demonstrate[s] an intent to stall the judicial machinery or where plaintiff[‘s] failure to comply with the Rules of Civil Procedure has prejudiced defendant.” Noting Plaintiff’s counsel’s attempts of service, the Court found no evidence in the record that Plaintiff’s delay in effecting service was done with an “intent to stall the judicial machinery.” Additionally, given that the Defendant had counsel who was actively defending the case and discussing the case with the Defendant, the Court found that the Defendant was not prejudiced by the delay. Accordingly, the Superior Court affirmed the Trial Court’s denial of Defendant’s Motion to dismiss for failure to serve the complaint.

Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or bdirlam@tthlaw.com.

MARYLAND CASE SUMMARY

Won Bok Lee v. Won Sun Lee

Maryland Court of Appeals

No. 13, September Term, 2019

Decided: January 23, 2020

For the appellate clock to run under Md. Rule 8-202(a), a judgment must be on a separate document and both components of Md. Rule 2-601(b) must be satisfied.

Background

In 2002, Won Bok Lee obtained a default judgment against his brother, Won Sun Lee in federal court. In 2004, Won Bok Lee submitted a request to obtain a lien in Maryland based on the federal judgment. The request was granted, and Won Bok Lee obtained a lien in Maryland. In 2015, Won Bok Lee sought to renew the federal judgment. A judgment can be renewed within twelve years of the entry of judgment pursuant to Maryland Rule 2-625. A notice of renewed judgment was subsequently entered by the Circuit Court in 2015.

In March 2016, Won Son Lee sought to vacate the renewal of judgment. After a hearing, the Circuit Court denied the motion and filed a one-page order. The date of the entry of judgment denying the motion was not visible on case search or the Court’s ECMS as required in Md. Rule 2-601(b)(3). Won Son Lee noted an appeal of the Circuit Court’s denial on July 6, 2016, a few days after the thirty-day deadline of when the Circuit Court entered judgment denying Won Son Lee’s motion. Won Bok Lee sought to strike the notice of appeal as untimely, arguing the judgment was entered on June 3, 2016.

Holding

The Court of Appeals held that since the Court failed to comply with Md. Rule 2-601(b)(3), there was no final judgment. Thus, Won Son Lee’s appeal was not late. As to the merits, the Court of Appeals held that the Circuit Court erred when it denied Won Son Lee’s motion to vacate the renewal of judgment. Won Bok Lee had only obtained a lien in Maryland, not a new Maryland judgment. Maryland Rule 2-625’s renewal period applies to judgments, not liens. Therefore, the expiration of the judgment was in 2014, twelve years after the entry of judgment in federal court. The Court of Appeals determined Won Bok Lee’s motion for renewal in 2015 was untimely as there was no longer any judgment present for the circuit court to order renewed.

Questions about this case can be directed to Lauren Upton, at (410) 653-0460 or lupton@tthlaw.com.

NEW JERSEY CASE SUMMARY

Shields v. Ramslee Motors

New Jersey Supreme Court

2020 N.J. Lexis 17

Decided: January 23, 2020

A landlord’s duty to clear snow and ice – and more broadly to repair and maintain property – is a delegable duty.

Background

On February 6, 2014, Plaintiff Baldwin Shields, a Federal Express driver, delivered an envelope to Ramslee Motors, a used car dealership. After making the delivery, Plaintiff slipped and fell on snow and ice on the driveway leading back to the sidewalk. Ramslee Motors parked used cars for sale on the driveway, which was adjacent to the public sidewalk but separated from the sidewalk by a fence. Ramslee Motors leased the property for its dealership from 608 Tonnelle Avenue, LLC (“Defendant Landlord”). The lease agreement provided that “TENANT shall be responsible for the maintenance and repair of the land and any structure placed on the premises . . . as if TENANT were the de facto owner of the leased premises.” The lease reserved for the landlord the right to enter the premises to make inspections and repairs, as well as “to enter onto the leased premises at any time in the event of any emergency.” The owner of Ramslee Motors testified he was responsible for clearing snow/ice at the property, had shovels and salt onsite to do so and had removed snow/ice the day before the incident. Plaintiff settled with Ramslee Motors and the Defendant Landlord moved for summary judgment, which was granted by the Trial Court. Plaintiff appealed and the Appellate Division reversed, finding that the lease was silent as to who was responsible for snow and ice. The Court further found that there was no “legal or public distinction between a sidewalk and an open driveway used with regularly,” holding that the landlord had a non-delegable duty to “ensure that the driveway abutting the sidewalk was clear of snow and ice”. Defendant Landlord appealed to the New Jersey Supreme Court.

Holding

The Supreme Court reversed the Appellate Court and reinstated the Trial Court’s entry of summary judgment. The Court determined that the lease agreement between Ramslee Motors and Defendant Landlord directly addressed the issue of responsibility for maintenance of the property. The Court explained that while the lease was silent as to who was responsible for clearing snow/ice at the property, the plain meaning of the term “maintenance” includes removal of snow and ice, as the term is defined as ”[t]he care and work put into property to keep it operating and productive; general repair or upkeep.” Next, the Supreme Court found that the duty to maintain the driveway was always a private duty, with the potential of private recovery. Specifically with this case, the driveway was separated from the sidewalk by a gate which was not accessible by passers-by when not expressly opened by Ramslee Motors and, further, the landlord did not retain control over the subject driveway.

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

VIRGINIA CASE SUMMARY

Tingler v. Graystone Homes, Inc.

Virginia Supreme Court

834 S.E.2d 244

Decided: October 31, 2019

Acts of nonfeasance by a builder during construction of a new home does not create a tort cause of action; rather, the remedy lies, if at all, in a breach of contract action.

Background

Plaintiffs entered into a contract with Defendant for the construction of a new home. After the house had been built, rain water leaked into the house and mold developed. Defendant tried, but failed to fix the leaks and to remediate the mold. Plaintiffs and their children abandoned the home due to the mold and sued Defendant seeking tort remedies for personal injuries, property damage and economic losses as well as for breach of contract, seeking recovery for property damage and economic losses. The Trial Court sustained all of Defendant’s demurrers and dismissed all claims. The Trial Court held that, under the source-of duty rule, no negligence claim could prevail because Defendant’s alleged misdeeds consisted of its failure to perform or fully perform its contractual duties.

In analyzing the tort claims, the Supreme Court looked at whether, under the common-law, tort liability may be imposed upon a home builder who negligently failed to complete the work required by the construction contract. In determining whether a cause of action sounds in tort, contract, or both, the source of the duty must be ascertained. In making this determination, a court must examine the specific nature of the allegations of negligence.

Holding

If the allegation is of an act of omission or nonfeasance, without proof of a contract to do what was left undone, the complaint does not give rise to a cause of action based in tort because no duty apart from the contract to do what is complained of exists. No matter the alleged harm, tort liability cannot be imposed upon a contracting party for failing to do a contractual task when no common-law tort duty would have required him to do it anyway. Ultimately, the Supreme Court upheld the dismissal of the tort claims and declined to judicially adopt the modern rule that applies tort-liability principles paralleled after the development of products liability law to the construction of new homes. The Court also reiterated the economic loss doctrine which, in Virginia, holds that damages which are within the contemplation of the parties when framing their agreement remain the particular province of the law of contracts. The Supreme Court reversed the Trial Court’s ruling on the contract claims on other grounds and remanded the case for a trial on those claims.

Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or lconn@tthlaw.com.