eNotes: Liability – February 2022

CLIENT ADVISORY

NJ CLIENT ADVISORY

New Insurance Fair Conduct Act – Bad Faith Exposure in UM/UIM Claims Handling

The New Jersey Legislature passed a bill that will reshape insurance bad faith litigation in New Jersey. On January 18, 2022, Governor Murphy signed the bill into law and the same went into effect immediately. This new law is titled the “New Jersey Insurance Fair Conduct Act” (“IFCA”). The IFCA creates an individual cause of action for insurance bad faith in the handling and payment of claims for uninsured motorist (“UM”) and underinsured motorist (“UIM”) benefits. The IFCA makes three major changes, which can be summarized as follows.

1. A claimant who is unreasonably denied a claim for coverage or payment of benefits, or who experiences an unreasonable delay for coverage or payment of benefits, under an uninsured or underinsured motorist policy, may, regardless of any action by the commissioner, file a civil action in a court of competent jurisdiction against his or her automobile insurer.
2. Upon establishing that a violation of the IFCA has occurred, the claimant will be entitled to actual damages caused by the violation, including, but not limited to, actual trial verdicts not exceeding three times the applicable coverage amount, and pre- and post-judgment interest, reasonable attorney’s fees, and reasonable litigation expenses.
3. The Commissioner of Banking and Insurance may determine whether an insurer’s rates are constitutionally adequate pursuant to the provisions of this bill and, if the Commissioner determines that rate relief is necessary, the Commissioner will be required to determine an appropriate rate adjustment.

The IFCA is a significant change to New Jersey’s first-party bad faith law, which has for many years been governed by the standards set forth in Pickett v. Lloyd’s, 131 N.J. 457 (1993); Am. Home Assurance Co. v. Hermann’s Warehouse Corp., 117 N.J. 1 (1989); and Rova Farms Resort Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 (1974). Fortunately, the New Jersey Legislature limited the scope of the IFCA to claims for UM/UIM benefits. (The version of the IFCA introduced in the prior legislative session would have applied to all first-party insurance claims.)

We should expect a substantial amount of litigation to develop regarding the rather vague and broad language used to define violations. For example, the phrase “unreasonably delays in providing coverage or payment of benefits” is not clear, as no definite time frame was set forth (e.g. 10 days or 30 days from the date the claim is made or settlement is reached). In addition, determining the elements required for establishing whether a denial of a claim is or was “unreasonable” is left for the courts to define. Underwriters of automobile policies in New Jersey should review their UM/UIM claims-handling guidelines and best practices to make sure they comply with this new New Jersey law. With regard to such a review and/or the development of appropriate revisions, TTH is available to provide assistance.

Questions about this advisory can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARIES

Jefferson v. Lias
United States Court of Appeals for the Third Circuit
No. 20-2526, 21 F.4th 74

Decided: December 16, 2021

Third Circuit addresses the circumstances under which a police officer may be entitled to qualified immunity in action claiming excessive force.

Background

Plaintiff was driving home from a concert with an open container of alcohol while nearing the end of their five-year probation term. Fearing the consequences of a probation violation, Plaintiff did not pull over when a member of the Elizabeth, New Jersey police force activated his lights and sirens that evening. A police chase ensued, which Officer Lias eventually joined. Near the end of the pursuit, Plaintiff crashed his vehicle into a fire hydrant before reversing the vehicle and striking an officer with his car. Officer Lias, whose positioning is contested, discharged his firearm into the cabin of Plaintiff’s vehicle as Plaintiff drove away. The bullet entered and fractured Plaintiff’s forearm. Plaintiff drove away and checked himself into a hospital before being arrested. Jefferson then brought two claims – one against Officer Lias for excessive force and a Monell failure to train claim against the City of Elizabeth.

Both parties moved for summary judgment. The District Court held in favor of Officer Lias that the use of deadly force was reasonable under the circumstances, but even if it was not, Lias was shielded from liability by qualified immunity because his actions did not violate clearly established law. The District Court then dismissed the Monell claim because the underlying constitutional violation was dismissed. Plaintiff Jefferson appealed to the Third Circuit.

Holding

The Third Circuit vacated the judgment, and remanded the case for further consideration. The Judges held that the District Court erred in determining that excessive force did not occur, because the district court did not discuss any of the factors identified in Tennessee v. Garner, nor did it discuss the Court’s precedent interpreting and applying Graham’s reasonableness standard. These factors include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he actively is resisting arrest or attempting to evade arrest by flight.” Further, consistent with precedent and several other circuits, the Circuit Court held that because the decision to shoot could be found to be objectively unreasonable, Lias is not entitled to qualified immunity. Lastly, because the underlying constitutional violation is still possible, the Monell claim was reinstated.

Questions about this case can be directed to Logan Nagle at (717) 255-7234 or lnagle@tthlaw.com.

Atain Ins. Co. v. Kaz Tire, Inc.
United States District Court for the Eastern District of Pennsylvania
No. 21-3651, 2021 U.S. Dist. LEXIS 220695

Decided: November 16, 2021

Insured not entitled to attorney’s fees and costs despite prevailing in a declaratory action where insurer’s denial was not frivolous or in bad faith.

Background

Katz Tire was sued in state court by a plaintiff claiming injury from an exploding tire. Katz Tire requested that Atain Ins. Co. provide it defense and indemnity for plaintiff’s claims. Atain denied coverage under the theory that the designated products exclusion applied. Atain sued for a declaratory judgment and asked the Court to decide coverage as a matter of law. The Court found that Atain must provide a defense and indemnity under its policy because the policy did not contain a designated work exclusion.

Katz Tire requested attorney’s fees and costs which were denied by the Court.

Holding

Insurer was not required to pay reasonable costs and attorney’s fees when denial of coverage was not in bad faith and was not frivolous.

Questions about this case can be directed to Hannah Molitoris at (267) 861-7589 or hmolitoris@tthlaw.com.

Pickett v. Target Corp.
United States District Court for the Middle District of Pennsylvania
No. 3:20-237

Decided: November 5, 2021

Absent evidence of constructive notice of hazardous condition, landowner had no duty to protect invitee from open and obvious condition.

Background

Plaintiff claimed injuries as a result of a slip and fall in the main aisle of a well-lit Target store. Plaintiff had entered the store approximately 45 minutes before she fell and had walked down the same aisle without incident. As Plaintiff was returning down the main aisle towards the registers, she slipped and fell on a child’s grabber toy called a “spritz grabber.”

Defendant filed for summary judgment arguing no duty because there was no notice of the condition and the condition was open and obvious. Plaintiff posited a genuine issue of material fact as to constructive notice because defendant employees didn’t know when the area had last been monitored before Plaintiff’s fall. Plaintiff offered no evidence regarding the duration of time that the toy had been on the floor. The only evidence was the duration of time between the times Plaintiff traversed the area, which was insufficient to prove duration of the existence of the hazard. Without further evidence, a reasonable jury could not conclude that the Defendant had reason to know of the condition. Plaintiff’s argument that the toy was not obvious was unpersuasive. The toy was over one foot long, multi-colored and laid in an area of the store that was well-lit and free of debris. The Court noted that reasonable minds could not differ regarding the obviousness of the toy as it would have been obvious to a reasonable person exercising normal perception under Plaintiff’s circumstances.

Holding

The Trial Court held that absent evidence of the duration of the existence of the condition, there was insufficient evidence to establish constructive notice. Absent constructive notice, the Defendant had no duty to protect the Plaintiff from an open or obvious danger. Summary Judgment was granted in favor of Defendant.

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

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PA CASE SUMMARIES

Mallory v. Norfolk S. Railway Co.
Pennsylvania Supreme Court
No. 3 EAP 2021, 2021 Pa. LEXIS 4318

Decided: December 22, 2021

Pennsylvania statute requiring consent to personal jurisdiction by registering to do business in the state declared unconstitutional. Registration is not consent to personal jurisdiction.

Background

Plaintiff Mallory worked for Defendant Norfolk Southern Railway for almost 20 years in its Ohio and Virginia offices. During that time, Plaintiff alleged that he was exposed to asbestos and other toxic chemicals that caused him to develop colon cancer. At the time of filing the lawsuit, Plaintiff was a Virginia resident, and Defendant Norfolk was incorporated in Virginia and had its principal place of business in Virginia. Nevertheless, Plaintiff filed suit in the Court of Common Pleas of Philadelphia County.

Defendant Norfolk filed Preliminary Objections which asserted, among other things, lack of personal jurisdiction. In support of personal jurisdiction, Plaintiff cited the Pennsylvania statutory requirement that all foreign corporations who wish to do business within the state must register. Further, as part of the registration, foreign corporations agree to personal jurisdiction in Pennsylvania. Plaintiff argued that Defendant Norfolk’s registration to do business in Pennsylvania constituted consent to personal jurisdiction. Defendant Norfolk argued that the Pennsylvania requirement of consent to personal jurisdiction as a part of the registration to do business within Pennsylvania was unconstitutional. The Trial Court agreed with Defendant Norfolk and granted the Preliminary Objections.

The Pennsylvania Supreme Court granted a direct appeal pursuant to 42 Pa.C.S. § 722(7), as the matter dealt with a Pennsylvania statute in conflict with the Constitution. The Pennsylvania Supreme Court upheld the Trial Court’s ruling. In so doing, the Court found that consent to personal jurisdiction by registering to do business within the state deprived a foreign corporation of a constitutional right, a foreign corporations’ Fourteenth Amendment due process right guaranteeing that they will not be subject to judgments on any and all claims filed against them in a forum state in which they are not at home. Further, the Court held that legislatively coerced consent to general jurisdiction is not voluntary consent and cannot be constitutionally sanctioned. Accordingly, Pennsylvania’s statutory scheme is unconstitutional to the extent that it affords Pennsylvania courts general jurisdiction over foreign corporations that are not at home in the Commonwealth.

Holding

Personal jurisdiction over a foreign corporation cannot be established by registering to do business within Pennsylvania.

Questions about this case can be directed to Jonathan Danko at (717) 441-3957 or jdanko@tthlaw.com.

Boyle v. Main Line Health, Inc.
Pennsylvania Superior Court
2022 Pa. Super. Unpub. LEXIS 71, 2022 WL 96613

Decided: January 10, 2022

Pennsylvania Superior Court holds that the collateral order doctrine applies to a discovery Order pertaining to the release of psychiatrist’s records. However, the waiver of protections of physician-patient privilege are strictly construed.

Background

The Boyle Plaintiffs initiated suit by filing a Complaint against Main Line seeking damages for injuries suffered by their minor son during his birth. In that litigation, Plaintiff husband/father had filed claims for negligent infliction of emotional distress, which were removed in response to Preliminary Objections. During the course of the litigation, the Defendant subpoenaed Plaintiff husband/father’s psychiatrist’s records, to which the Plaintiffs objected. In response, the defense argued that Plaintiffs had waived the physician-patient privilege and, therefore, the records should be discoverable.

Holding

While the Plaintiff husband/father had not specifically made a mental injury claim, it was asserted by the defense that the allegations of his Complaint should be read so as to permit review of such mental health records. These allegations indicated that Plaintiff husband/father would continue to suffer emotional pain, suffering, upset and distress; that he felt anxiousness and fright, which he suffered in the delivery room; and asserted, as an element of damages, harm upon his relationship (both mental and physical) with the Plaintiff wife/mother. Citing that the Plaintiffs did not specifically allege that Mr. Boyle was suffering from “anxiety,” it was opined and, therefore, held by the Superior Court, that Mr. Boyle had not directly placed his mental condition at issue in the case and, therefore, the records would not be properly released to Defendants.

Questions about this case can be directed to Ryan Blazure at (570) 825-3867 or rblazure@tthlaw.com.

Klar v. Dairy Farmers of Am., Inc.
Pennsylvania Superior Court
No. 1280 WDA 2020, 2021 Pa. Super. 252

Decided: December 17, 2021

Employer qualified as a social host under the Pennsylvania Dram Shop Act and could not be held civilly liable to injured party.

Background

Plaintiff Klar appealed an Order issued by the Trial Court which granted a Motion for judgment on the pleadings filed by Dairy Farmers of America’(“DFA”), resulting in the dismissal of Plaintiff’s claims against DFA. By way of background, Plaintiff commenced the underlying action against DFA and Roger Williams, alleging that DFA organized and sponsored a golf outing for its employees at the Tanglewood Golf Course in Mercer County, Pennsylvania. Plaintiff further alleged that DFA encouraged its employees to participate in the outing. In order to participate in the outing, employees were required to make a monetary contribution to offset the costs. Specifically, the contribution fee applied to the green fees, food, and alcohol for the outing. Roger Williams, an employee of DFA, signed up for the outing and paid the contribution fee. While at the golf outing, Mr. Williams consumed alcohol furnished by DFA, and DFA allegedly encouraged Mr. Williams to consume more alcohol despite his alleged visible intoxication. After the outing, Mr. Williams was operating his vehicle on Route 18 when he crossed the center line and collided with Plaintiff’s motorcycle. Mr. Williams had a blood alcohol content of 0.23, almost three times the legal limit. Plaintiff sustained serious injuries as a result of the collision. He asserted claims of negligence and negligence per se against DFA and Mr. Williams.

Plaintiff alleged, in pertinent part, that DFA was liable because it was licensee under Section 4-493(1) of the Pennsylvania Liquor Code and as a licensee, it violated the Pennsylvania Dram Shop laws by furnishing Mr. Williams with alcohol when DFA knew or should have known that Mr. Williams was intoxicated. Within its Motion for judgment on the pleadings, DFA asserted that it could not be held liable to Plaintiff because it did not qualify as a “licensee” under Pennsylvania’s Liquor Code and could not be treated as such for the purposes of Dram Shop liability. Specifically, DFA claimed that it was a social host and, therefore, could not be subject to civil liability for serving alcohol to its adult guest.

Holding

The Superior Court affirmed the Trial Court’s Order and held that DFA could not, as a matter of law, be held civilly liable for violating the standard set forth in 47 P.S. § 4-493(1) because DFA was not a licensee and the phrase “any other persons” does not encompass non-licensees. The Court also noted that the contribution fee that Mr. Williams paid to DFA did not place DFA in licensee status because this type of joint contribution did not qualify as remuneration. In sum, the Court agreed with the Trial Court and held DFA was a social host and could not be subject to liability under the circumstances.

Questions about this case can be directed to Danielle Vols at (570) 825-6890 or dvols@tthlaw.com.

Kramer v. Nationwide Prop. & Cas. Ins. Co.
Pennsylvania Superior Court
No. 726 EDA 2021, 2021 Pa. Super 233

Decided: December 2, 2021

A policy exclusion for bodily injury where controlled substances were involved did not preclude the insurer’s duty to defend because the wrongful death claim was not limited to bodily injury, but also sought damages for emotional and mental distress.

Background

Decedent’s mother filed a wrongful death and survival action against Adam Kramer and his parents after the death of her son due to a drug overdose while he was staying at the Kramer’s home. Cruz alleged that Kramer’s parents were negligent in allowing Kramer to use their home to use and sell controlled substances. The wrongful death action included a demand for damages by the beneficiaries of the decedent’s estate, and the survival action included a demand of decedent’s damages for his “sustained pain and suffering” prior to his death. Nationwide relied on the controlled substance exclusion to deny providing Kramer’s parents with a defense. Kramer’s parents filed a declaratory judgment action. Both parties filed Cross-Motions for summary judgment. The Trial Court granted Kramer’s parents’ Motion for summary judgment, finding that Nationwide had a duty to defend. Nationwide appealed, challenging the Court’s interpretation of the exclusion.

Holding

The Superior Court affirmed the Trial Court’s finding and determined that Nationwide had a duty to defend as the exclusion only excluded coverage as to some, but not potentially all, of the damages sought from the parents. Pursuant to Nationwide’s policy, the controlled substance exclusion excluded coverage for bodily injury and property damages. However, the wrongful death claim was not limited to bodily injury and sought damages for “emotional distress, mental distress or injury or any similar injury.” Therefore, the controlled substance exclusion did not apply to those damages and Nationwide had a duty to defend.

Questions about this case can be directed to Amanda Hennessey at (717) 237-7103 or ahennessey@tthlaw.com.

Dibble v. Page Transp., Inc.
Pennsylvania Superior Court
No. 565 EDA 2021

Decided: November 19, 2021

Preliminary Objections raising improper venue in Philadelphia County, and transferring case to Dauphin County, affirmed.

Background

This lawsuit arose out of a motor vehicle accident that occurred in Clarence, New York. Plaintiffs, who were the driver and passenger in one of the vehicles involved in the accident, resided in Batavia, New York and Corfu, New York. The Defendants were Page Transportation, Inc., Page E.T.C., Inc. and AMS Trucking, LLC. Page Transportation, Inc. and Page E.T.C., Inc. (“Page Defendants”) were both New York Corporations with registered business offices in Harrisburg, Dauphin County, Pennsylvania. AMS Trucking, LLC is a Pennsylvania corporation with a registered business address in Flinton, Pennsylvania. At the time of the accident, the agent-driver for the Defendants was carrying a load from Northern Canada to Pottstown, Pennsylvania, which is in Montgomery County.

Plaintiffs filed their Complaint in the Court of Common Pleas of Philadelphia County. Defendants filed Preliminary Objections to the Complaint raising improper venue and the Trial Court sustained the Preliminary Objections and transferred the matter to the Court of Common Pleas of Dauphin County. Plaintiffs filed a timely appeal and argued that there were sufficient contacts to establish that the Page Defendants regularly conducted business in Philadelphia County.

Holding

The Superior Court affirmed the transfer to Dauphin County as Defendants did not have sufficient contacts with Philadelphia County. The Court, when looking at the specific facts of the case, found that none of the Defendants had any office or authorized dealer in Philadelphia County. Without this, there can be no continuous, habitual connection with Philadelphia County. The mere occasional delivery or pickup of a load in Philadelphia County by the Defendants did not rise to the level of continuous, habitual contact. Essentially, none of the Defendants had any “quality” contacts with Philadelphia County that would require the Trial Court’s decision to be overturned.

Questions about this case can be directed to Michael Weinert at (610) 332-7025 or mweinert@tthlaw.com.

Patel v. Kandola Real Estate, LP
Pennsylvania Superior Court
No. 260 MDA 2021

Decided: November 8, 2021

Claims for intentional or negligent misrepresentation may not survive where one justifiably relies on their own due diligence, rather than on alleged misrepresentations.

Background

Patel was interested in purchasing a business, and, after seeing an advertisement on the internet, contacted Regal, a company in the business of acting as the sales agent for businesses, to inquire about a gas station and truck stop complex. Kandola owned the real estate associated with the complex. Regal provided a one-and-a-half page prospectus indicating that the complex contained a “super volume” gas station and a “high volume” convenience store. The prospectus made representations as to the approximate gross and net yearly income of the complex, which, in this suit, Patel maintained were materially false. After one year of operation and losing money from the outset, Patel closed the complex and filed suit against Regal and Kandola, asserting claims for intentional misrepresentation, negligent misrepresentation, fraud in the inducement, tortious interference with contractual relations, conversion and breach of contract.

Regal and Kandola filed Motions for summary judgment, most notably, as to the claims in intentional and negligent misrepresentation and inducement. They relied upon the “justifiable reliance” standard which, in Pennsylvania, recognizes that the recipient of an allegedly fraudulent misrepresentation is not justified in relying on the truth of that misrepresentation if he knows it to be false. They argued that Patel had the benefit of counsel to assist with due diligence and an accountant to review financial information, including bank statements, spreadsheets, tax returns and the Lease Agreement. They further argued that while Patel identified discrepancies between the financial statements and representations contained in the prospectus, he signed the Lease nonetheless and, therefore, did not rely on alleged financial misrepresentations when he entered into the Lease. The Trial Court agreed and granted summary judgment. Patel appealed.

Holding

The Superior Court affirmed. It determined that while the question of justifiable reliance is generally an issue of fact for the jury, no question of fact exists where the individual to whom the representation was made relied on his own due diligence and not the misrepresentation. The Court concurred with the Trial Court that the record demonstrated that Patel did not rely on the representations of Regal and Kandola at the time he signed the Lease because he admittedly relied on his own due diligence in requesting and receiving underlying accounting data to ascertain the truth of the representations. Moreover, the information that the complex was “super volume” and “high volume” was mere puffery.

Questions about this case can be directed to Julia Morrison at (717) 441-7056 or jmorrison@tthlaw.com.

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MD CASE SUMMARY

Giant of Md., LLC v. Webb
Maryland Court of Appeals
2021 Md. App. LEXIS 613 (reported)

Decided: December 21, 2021

UPDATE TO APRIL 2021 ENOTE: The Maryland Court of Appeals upholds Court of Special Appeals’ decision to reverse jury verdict entered against grocery store in negligence action.

Background

Plaintiff was a shopping in a Giant supermarket when she was injured by a non-motorized pallet jack operated by a PepsiCo deliveryman. The PepsiCo deliveryman was not an employee of Giant. Plaintiff sued Giant under theories of negligence, negligent hiring, training, and supervision, claiming that Giant was vicariously liable for the PepsiCo deliveryman’s actions. Giant filed a Motion for summary judgment, which was denied by the Trial Court. At the close of Plaintiff’s case-in-chief, Giant moved for judgment on the ground that there was no evidence in support of Plaintiff’s claim for vicarious liability. The Trial Court also denied this Motion. In addition, the Trial Court gave a spoliation instruction to the jury because Giant did not produce a video of the incident despite the presence of numerous cameras in the store. In closing argument, Plaintiff’s counsel highlighted the fact that there was no video of the incident and argued that the missing video would likely corroborate Plaintiff’s testimony. The jury returned a verdict in favor of the Plaintiff.

Giant appealed to the Court of Special Appeals, Maryland’s intermediate appellate court. As summarized in our April 2021 liability eNotes (https://www.tthlaw.com/enotes-liability-april-2021), the Court of Special Appeals found that the Trial Court erred in denying Giant’s Motion for judgment at the close of Plaintiff’s case. The Court of Special Appeals found that there insufficient evidence to show that Giant retained control over the operative detail and methods of the PepsiCo deliveryman’s use of the jack. In addition, the Court of Special Appeals held that the spoliation instruction was improper because there was no evidence that a video of the incident actually existed. Following the Court of Special Appeals’ decision, Plaintiff appealed to the Court of Appeals, Maryland’s highest court.

Holding

The Court of Appeals upheld the Court of Special Appeals’ decision. The Court of Appeals held that Giant’s motion for judgment should have been granted because Giant did not retain control over the operative detail and methods of the PepsiCo deliveryman’s use of the jack. The Court of Appeals further held that the Court of Special Appeals was correct in finding that the spoliation instruction regarding the video was improper. The Court of Appeals found there was no testimony or evidence to show that a video ever existed. In addition, the Court of Appeals found that the spoliation instruction was prejudicial and misled the jury to speculate about the existence of “potentially damning evidence.”

Questions about this case can be directed to Andrew White at (443) 641-0572 or awhite@tthlaw.com.

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DC CASE SUMMARY

Jones v. NY Life Real Estate Holdings, LLC
District of Columbia Court of Appeals
252 A.3d 430

Decided: June 17, 2021

Res ipsa loquitur cannot be invoked when notice or constructive notice of a defective condition is at issue.

Background

In 2015, Anthony Jones was injured after being struck in the head by a piece of metal trim that fell from a wall in the office building where he worked. He sued several Defendants, alleging that they had a duty to prevent the risk of injury from the trim’s dangerous condition. Jones also contended that the doctrine of res ipsa loquitur should apply, arguing in the alternative that the cause of the falling trim was “unknown” on that specific day. The Trial Court granted summary judgment on all issues. On appeal, Mr. Jones argued there was “ample basis” for a jury to conclude that the Defendants had constructive notice of the weakened condition of the trim’s adhesive. He also argued that the court below had improperly denied the application of res ipsa loquitur. Jones stated that disallowing this theory of liability would give future defendant’s “a free pass at injuries,” if they could prove their inattentiveness to the maintenance needs of a premises, and that they were unaware of an identical incident occurring in the past.

Holding

The Court of Appeals disagreed. On the issue of notice, the Court of Appeals affirmed that despite the Defendants occasionally polishing and cleaning the trim, this did not give them constructive notice that it was loose or in danger of falling. No one – from janitors to engineers to security guards – had noticed that the trim and it’s adhesive was failing. The Court held that res ipsa loquitur could not apply, as there was nothing left for a jury to infer about the cause of the accident, because there was undisputed record evidence that the cause of the falling trim was the adhesive’s progressive degradation. More fundamentally, the Court affirmed the principle that res ipsa loquitur is inapplicable in cases where notice is an essential element of the Plaintiff’s claim. As a result, Plaintiff was not permitted to substitute res ipsa loquitur for proof of negligence.

Questions about this case can be directed to Matt Ainsley at (202) 945-9506 or mainsley@tthlaw.com.

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VA CASE SUMMARY

Stoots v. Marion Life Saving Crew, Inc.
Virginia Supreme Court
No. 201202

Decided: December 22, 2021

Virginia Supreme Court rules Good Samaritan statute provides immunity for volunteer paramedics accused of gross negligence.

Background

Calvin Stoots (“Calvin”) started having difficulty breathing at his home. He became unresponsive. His sister (“Stoots”) called 911. Two paramedics, Thompson and Powell, from Marion Life Saving Crew, Inc. (“MLSC”) responded. Stoots asked the paramedics to take Calvin to the hospital, and provided them with Calvin’s Advance Directive which gave Stoots authority to request treatment on Calvin’s behalf. Thompson noted the second page of the Advance Directive stated, “no extraordinary methods” and concluded Calvin did not want to be resuscitated. The paramedic misinterpreted the Advance Directive which does not say, “no extraordinary methods,” and his sister told the paramedics that she wanted Calvin treated. The paramedics loaded Calvin into the ambulance, but Calvin died on the way to the hospital. Stoots filed a wrongful death action against MLSC and the paramedics.

MLSC uses volunteer crew members that are eligible to receive payment through an incentive program for each shift beyond the first three worked each month. Participants fill out a timesheet and designate which shifts were paid and which were volunteer. Thompson and Powell filed a plea in bar asserting statutory immunity. Virginia’s “Good Samaritan” statute provides immunity for a paramedic rendering emergency care in good faith, and without compensation. Powell worked 5 shifts that month and designated February 9 as a volunteer shift. Thompson did not participate in the program. The Trial Court ruled that although the paramedics were negligent, and probably grossly negligent, they were statutorily immune from suit. Stoots appealed.

Holding

Stoots argued the Circuit Court erred in granting immunity to Thompson and Powell because the court misconstrued the good faith requirement and overlooked the fact that they were compensated. Stoots contended that “good faith” should be judged by a standard of objective reasonableness. The Court held that with respect to the statute, the question of whether a paramedic has acted in “good faith” is best answered by looking at the person’s mindset, and applying a reasonableness standard would be inconsistent with the purpose of the statute. Though it is undisputed that the paramedics made a grave mistake, there was no bad faith. Further, the Court did not err in finding the paramedics were not compensated. The statute unambiguously requires that the paramedics to be compensated, and not merely be eligible to be compensated. The judgment in favor of the paramedics was affirmed.

Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or nphillips@tthlaw.com.