eNotes: Liability – September 2022 – Federal

SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARIES

Cannon v. Watermark Ret. Cmtys., Inc.
United States Court of Appeals for the District of Columbia
Nos. 21-7-67, 21-7096, 2022 U.S. App. LEXIS 21731

Decided: August 5, 2022

D.C. Circuit Court denies nursing homes’ PREP Act appeals.

Background

The subject ruling addressed consolidated appeals from two cases filed with the United States District Court for the Eastern District of Pennsylvania, those two cases being Cannon v. Watermark Communities and Beaty v. Fair Acres Geriatric Center. Common to both cases was the assertion of the Public Readiness and Emergency Preparedness (“PREP”) Act. In both cases, the PREP Act was raised by the defendant nursing home as an affirmative defense to claims for malpractice associated with the residency of certain specified individuals.

The Secretary of Health & Human Services triggered the PREP Act in response to the COVID-19 pandemic, including suits against covered persons who administer covered countermeasures like drugs or medical devices to treat the disease. The PREP Act provides immunity from federal and state law claims related to the administration of certain medical countermeasures during a declared public health emergency.

In the two involved actions, the Pennsylvania District Court denied the Defendants’ Motions to dismiss based on PREP Act immunity. In the Cannon case, the District Court explained that the emergency use authorization for hydroxychloroquine was limited to patients who were hospitalized with COVID-19 and for whom a clinical trial was not available. The Court found that Cannon was neither hospitalized nor evaluated for a clinical trial, concluding that Watermark’s administration of hydroxychloroquine did not fall within the clear, explicit and limited scope of the drug’s FDA emergency use authorization. Importantly, the Estate did not assert that the administration of hydroxychloroquine fell within the willful misconduct exception from PREP Act immunity. In the Beaty case, the District Court also denied a Motion to dismiss filed by Fair Acres, arguing immunity relating to the use of covered countermeasures. The District Court held that the Estate’s claims against Fair Acres did not include social distancing or quarantining, nor a defendant’s failure to use countermeasures that are covered if used.

The respective facilities filed interlocutory appeals with the U.S. District Court for the District of Columbia. The Defendants invoked a provision of the PREP Act, namely 42 U.S.C. § 247d-6d(e)(10), which they claimed gave jurisdiction over their appeals to the United States Court of Appeals for the District of Columbia.

Holding

The Court of Appeals held that the statutory text and structure made clear that paragraph (e)(10) authorizes appeals only from orders allowing claims to proceed under subsection (d) of the PREP Act, relating to the willful misconduct exception to PREP Act immunity. The Court did not reach the merits of the immunity claims raised by the facilities. The U.S. Court of Appeals for the D.C. Circuit held that expanding interlocutory appeals for the nature of the claims asserted by the facilities would essentially create a landslide of appeals to the Circuit from every federal district court and state trial court in the country. The holding by the Circuit Court of Appeals and the underlying rulings from the District Court demonstrate the seemingly narrow protection provided by the PREP Act to long-term care communities in dealing with COVID-19 claims.

Questions about this case can be directed to Hugh P. O’Neill at (717) 255-7629 or honeill@tthlaw.com.

Anderson v. Motorists Mut. Ins. Co.
United States District Court for the Western District of Pennsylvania
2022 U.S. Dist. LEXIS 110116

Decided: June 22, 2022

When claimant’s negligence is not at issue, Pennsylvania’s Fair Share Act does not apply; thus, UIM carrier is entitled to credit for all applicable liability policies without regard to percentages of fault.

Background

Claimant’s decedent was killed in a two-vehicle accident. The host driver had liability coverage in the amount of $100,000, and the other driver, a trucker, had $5,000,000 in liability coverage. The trucker’s coverage consisted of a $1,000,000 primary policy and a $4,000,000 excess policy. With the UIM carrier’s consent, the claims were settled for $650,000. The host driver’s policy was exhausted and the balance was paid by the trucker’s insurer.

The Claimant sought $200,000 in UIM benefits based upon a policy which afforded stacked coverage for two vehicles at $100,000 each. In a declaratory judgment action, the UIM carrier argued that the UIM policy was not triggered because the Claimant did not exhaust all available liability coverage on the two vehicles involved in the accident.

The Claimant opposed the UIM carrier’s Motion for summary judgment on two grounds. First, Claimant argued that Pennsylvania law did not require exhaustion of the trucker’s $5,000,000 in combined liability coverages because the Pennsylvania Fair Share Act, codified as part of 42 Pa.C.S.A. § 7102, would not allow for joint and several liability unless the trucker was found to be more than 60% causally responsible for the accident. Second, Claimant argued that the UIM policy did not require exhaustion of all potentially applicable policies. The Court rejected both arguments and held, instead, that the UIM carrier was entitled to a credit in the amount of $5,100,000.

Holding

In Boyle v. Erie Insurance Co., 656 A.2d 941 (Pa. Super. 1995), the Pennsylvania Superior Court did not strictly enforce the exhaustion clause contained in UIM policies to bar a UIM claim if the claim was settled for less than the full amount of potentially applicable liability policies. Rather, as the practice evolved after Boyle, a UIM claim could proceed if the claimant gave the UIM carrier credit for the full amount of liability coverage that may be applicable to the accident. Then, it would be up to the factfinder in the UIM proceeding to determine if the value of the claim exceeded the credit to be applied.

In this case, the Claimant argued that Boyle did not require the exhaustion of the trucker’s policies, which aggregated $5,000,000, because the trucker was not jointly and severally liable for the accident under the Fair Share Act. Thus, the Claimant contended that the maximum credit to be given for the trucker’s settlement payment was the amount paid on the trucker’s behalf, $550,000. In rejecting the argument, the Court reasoned that the Fair Share Act was not applicable because there was no contention that the decedent – an innocent passenger – was negligent in any way. For that proposition, the Court relied upon Spencer v. Johnson, 249 A.3d 529 (Pa. Super. Ct. 2021), and Snyder v. Hunt, 2021 Pa. Super. Unpub. LEXIS 2993 (Pa. Super. Ct. Nov. 10, 2021). Thus, the Court determined that the trucker was indeed subject to joint and several liability notwithstanding the passage of the Fair Share Act. Accordingly, the truckers’ policies were potentially applicable and required exhaustion before the UIM carrier would be required to pay UIM benefits.

On the second issue, the Claimant contended that exhaustion of all potentially applicable policies was not required because the verbiage of the particular exhaustion clause was different than that construed and applied in Boyle. In Boyle, the clause expressly required the exhaustion of “all” liability policies, whereas the exhaustion clause at issue in this case required the exhaustion of “any” such policy. The Claimant maintained that, in light of this distinction, the exhaustion clause in the Motorists Mutual policy would permit the UIM claim because the host driver’s liability was exhausted. However, the UIM carrier argued that its exhaustion clause nevertheless required the exhaustion of all policies, including those of the trucker, because the term “any” should be construed to mean “all” or “every.” Although the Court recognized the divergent meanings afforded to the term “any,” as used in the exhaustion clause, it held that the policy language was not ambiguous. Further, the Court found the term “any” should be construed to mean “all” in the context of the exhaustion clause in order to prevent the Claimant from having absolute and arbitrary discretion to determine how payment should be apportioned between his or her own insurance company and the tortfeasor’s liability carrier.

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

Durando v. Trs. of the Univ. of Pa.
United States District Court for the Eastern District of Pennsylvania
No. 21-756, 2022 U.S. Dist. LEXIS 108136

Decided: June 17, 2022

Opinions, coupled with disclosed facts, are non-actionable in a defamation case.

Background

Plaintiff, Dr. Micahel Durando, was employed by the University of Pennsylvania as a Postdoctoral Fellow. The laboratory in which Plaintiff worked was led by Defendant, Dr. Marcelo Kazanietz. Defendant’s wife, Dr. Mariana Cooke, also worked in the laboratory. Plaintiff worked under Defendant from February 2019 through February 2020. During this time, Dr. Cooke began submitting applications to residency programs. Having just gone through this process himself, Plaintiff began to help Dr. Cooke with her applications. The amount of time in which Plaintiff helped Dr. Cooke, and whether such help was voluntary or not, was disputed. Nonetheless, it was undisputed that Plaintiff wrote multiple letters of recommendation for Dr. Cooke to submit to various programs. The trio had a falling out in February 2020.

Although both sides have different versions of events, in February of 2020, Plaintiff essentially withdrew his original Letters of Recommendation in support of Dr. Cooke. While the impact of this move by Plaintiff on Dr. Cooke’s application status is disputed, it caused Defendant to become very angry toward Plaintiff. Defendant sent an email to colleagues in which he gave a synopsis of Plaintiff’s actions, stating “he ruined my wife’s career, my family, and the future of our 3 kids.” Defendant sent a second email in which he refers to Plaintiff’s actions as “barbarous and criminal aggression,” among other statements, which Plaintiff found defamatory. Finally, deposition testimony indicates that Defendant told a third party that Plaintiff “made a female or two uncomfortable in the lab,” among other statements that Plaintiff found defamatory. Plaintiff brought a defamation suit against Defendant and Defendant moved for summary judgment.

Holding

The Court looked at the three communications in question. In the first, the Court found that because Defendant had set forth the underlying facts at issue, he was not liable for stating his opinion on the matter. The Court reasoned that a third party could understand the facts and draw their own conclusions. In the second, the Court found Defendant’s characterization of Plaintiff’s conduct as “barbarous” to fall into the categories of “colorful language” or “catchy phrases,” which are non-actionable. The Court further found that “vigorous epithet[s]” and “vulgar name calling” are also non-actionable. Finally, in the third, the Court found Plaintiff had not demonstrated the requisite harm. In Pennsylvania, actual harm must be demonstrated to prevail in a libel claim. This is in contrast to a slander claim, where economic harm must be proven, and slander per se, where only proof of “general damages” is required. Finding all three communications did not give rise to a claim for defamation, Defendant’s Motion for summary judgment was granted.

Questions about this case can be directed to Ryan Hatfield at (412) 926-1422 or rhatfield@tthllaw.com.

Rifkin v. Fitness Int’l, LLC
United States District Court for the Eastern District of Pennsylvania
No. 19-cv-5686

Decided: June 16, 2022

Slip and fall claim defeated by failure to identify cause of slip.

Background

The locker room floor of Defendant’s gym was lined with large tiles which were not slip-resistant. The locker room was divided into two areas: a “wet” area which included the showers, and a “dry” area which included the lockers and areas where members could change clothes. No anti-slip mats were on the floor near the door between the two areas, but a “wet floor” sign was permanently posted, warning patrons of the possibility of a wet floor in the “wet” area. While Plaintiff opened the door from the “dry” area to enter the “wet” area, he stepped on an unknown substance which he claimed caused him to slip and fall, resulting in injury. Defendant moved for summary judgment, arguing a lack of notice of the alleged hazardous condition.

In accepting Plaintiff’s facts as true, the Court determined that the Plaintiff was unable to show a genuine issue of material fact. The Court noted that while the determination of constructive notice was typically one left for the jury, where the jury would be required to engage in conjecture as to how long the condition existed, the determination must be made by the Court. The Court noted that Plaintiff was unable to identify the source of the substance or what it was, nor how long it had been on the floor. Plaintiff offered no evidence that the area was subject to any previous slip and fall incidents or that Defendant knew that this type of spill was a common occurrence. Plaintiff likewise offered no evidence that anti-slip floor mats were required in locker rooms or that there was anything about this particular floor which required them. There was also no evidence that the floor where Plaintiff slipped, in the dry area, was known to be wet.

Holding

The Trial Court entered summary judgment in favor of the Defendant due to Plaintiff’s inability to establish that the Defendant either created the allegedly hazardous condition or had notice of it.

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