eNotes: Liability – October 2022 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Baybrook v. Bologna
Pennsylvania Superior Court
No. 331 WDA 2022

Decided: September 7, 2022

Entry of summary judgment in dog bite case was improper where issues of fact existed.

Background

Plaintiff was bitten by Defendants’ dog upon exiting his vehicle at the Defendants’ residence. Defendant-daughter acknowledged that her dog did not like being approached and that she told people not to approach her dog. She also had two “Beware of Dog” signs in her driveway and explained that same was due to the reputation of her dog’s breed. She further acknowledged that her dog’s leash allowed the dog to reach the driveway. Defendants moved for summary judgment and the Trial Court granted same finding that there was no record evidence establishing that Defendants had knowledge of their dog being violent such that they would need to exercise special care to prevent injury to others. Plaintiff appealed the Trial Court’s decision, arguing that the Trial Court did not take the facts of record in the light most favorable to Plaintiff, the non-moving party.

Holding

The Superior Court began its analysis by outlining that in a negligence action against a dog owner in a dog bite case, a plaintiff must show that the owner knew or had reason to know of the animal’s dangerous propensity, which must be supported by evidence that (1) the dog displays vicious tendencies; (2) the animal’s owner had reason to know or actually knows that the animal has those dangerous propensities; and (3) the owner of the animal failed to act prudently in response to those vicious or dangerous propensities. Given the standard as set forth above, the Superior Court noted that the Trial Court improperly viewed the evidence of record (i.e. knowledge that the dog did not like being approached and took precautions to keep people away from her dog and knowledge that the leash extended into the driveway) and drew inferences in the light most favorable to the moving party, Defendants, which is the opposite of how a Trial Court must view evidence in summary judgment matters. Accordingly, the Superior Court reversed the Trial Court and held that there were issues of fact as to whether the dog had a propensity toward viciousness about which Defendants were aware and whether Defendants failed to act prudently in response to that vicious propensity.

This opinion should not be interpreted as the Superior Court making factual determinations that the dog had violent propensities or that the Defendants were aware of same, but rather, that there were factual issues that must be decided by a jury.

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

Jones v. Erie Ins. Exch.
Pennsylvania Superior Court
No. 690 WDA 2020

Decided: September 7, 2022

Superior Court refuses to stay appeal pending Supreme Court decision on same issue and holds that its prior decision requires determination that “regular use” policy exclusion is unenforceable because it limited scope of UIM coverage required by the MVFRL.

Background

This is a motor vehicle accident case wherein Plaintiff-driver was injured while operating his employer’s bucket truck. Plaintiffs settled with the third-party driver/tortfeasor for the maximum amount allowed under the tortfeasor’s automobile insurance policy. Plaintiffs then sought underinsured motorist (“UIM”) benefits pursuant to their policy of automobile insurance with Erie Insurance Exchange. Erie denied Plaintiffs’ UIM claim pursuant to a “regularly used, non-owned vehicle” exclusion.

The Trial Court granted Erie’s Motion for judgment on the pleadings based on the exclusion. Plaintiffs appealed, arguing that the Trial Court’s holding is in conflict with Rush v. Erie Ins. Exch., 265 A.3d 794 (Pa. Super. Ct. 2021), allowance of appeal granted, 2022 Pa. LEXIS 912, 2022 WL 2299279 (Pa. June 27, 2022), and that the exclusion violated the Motor Vehicle Financial Responsibility Law (“MVFRL”) by improperly limiting required UIM coverage.

The Superior Court denied a joint motion to stay the appeal pending a decision by the Supreme Court of Pennsylvania on the exact same issue in the Rush case.

Holding

The Superior Court reversed the Trial Court on the grounds that it was bound by its prior decision in Rush that the regular use exclusion is invalid because (1) Plaintiff-driver suffered injuries arising out of use of a motor vehicle; (2) he was legally entitled to recover damages from the tortfeasor; and (3) the Named Insured never signed a rejection form waiving UIM coverage.

Comment

This decision has little if any long-term significance because the same issue will be decided by the state Supreme Court in Rush.

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

Williams v. Geo Group
Pennsylvania Superior Court
2022 PA Super 148

Decided: August 24, 2022

Discovery of psychological autopsy report prepared following inmate’s death was permitted as it did not qualify as a peer review document, was not protected under the work product doctrine, and was “highly relevant” to whether the prison met its standard of care.

Background

Williams’ son committed suicide while an inmate at a private prison operated by Geo Group, Inc. Williams’ suit against Geo alleges the company was negligent in connection with the suicide and sought discovery of a “psychological autopsy” report prepared by Geo’s Director of Behavioral Health Services, and others in the company, following the suicide. Geo refused to produce the report, claiming it was privileged as a peer review document, and a work product document, and argued it was irrelevant to Williams’ claim in negligence. Following Williams’ Motion to compel, Dr. Hermann, who helped author the report for Geo, affirmed that following the suicide, Geo conducted a peer review of the circumstances surrounding the death, consulted legal counsel regarding the report, and prepared the report following Williams’ request for preservation of evidence should they institute a lawsuit. Geo argued the report was prepared by a “peer review committee” for purposes of improving the quality of care at the prison and reducing future inmate injuries and deaths. However, deposition testimony of the prison’s mental health coordinator indicated that the report was required under the prison’s suicide prevention policy in accordance with internal processes, and she never heard a “psychological autopsy” referred to as a product of peer review.

The Trial Court granted Williams’ Motion to compel. First, the Court found the report was not prepared as a function of peer review and was not privileged under Pennsylvania’s Peer Review Protection Act (“PRPA”), crediting the mental health coordinator’s testimony that the report was the result of routine internal policies following an inmate’s death. Second, the Court found the report was not subject to protection as a work product document under Rule 4003.5 because it was prepared by Geo employees acting in the regular course of their employment, not as “experts” specially retained in anticipation of litigation. Finally, the report was deemed relevant because it was informative of the circumstances surrounding the decedent’s suicide. Geo appealed.

Holding

The Superior Court affirmed the Trial Court’s decision in all respects, citing large portions of the underlying decision. With respect to the claim that the report was a protected peer review document, the Court considered the purposes of the PRPA, which concerns the self-policing of medical professionals to improve medical care, and found that was not the motivation behind the routine prison report; thus, the PRPA did not apply. The Court also found that, while Dr. Hermann may be qualified as an “expert” in his profession, as an employee of the prison, he was not an “expert” within the meaning of Rule 4003.5 and that rule did not preclude discovery of the report. Finally, while Geo argued that the report would only be relevant if Williams was pursuing a claim in medical malpractice, the Superior Court disagreed, quoting the Trial Court’s decision that it was “highly relevant” to determine if the appropriate standard of care was not met, and, therefore, “highly relevant” to a negligence action. Pursuant to Rule 4003.1, as long as information is not privileged, and relevant to the subject involved in the suit, it is discoverable.

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

Massaro v. McDonald’s Corp.
Pennsylvania Superior Court
2022 Pa. Super. LEXIS 320

Decided: August 2, 2022

Whether Plaintiff assumed the risk was a question of fact and, therefore, was sufficient to survive Preliminary Objections in the form of a demurrer.

Background

Plaintiff was assaulted at a McDonald’s restaurant in Philadelphia while he was mentoring a student. While Plaintiff was meeting with the student, a third party, Bryant Gordon, entered the restaurant and began exhibiting erratic and offensive behavior. To that end, Mr. Gordon began verbally assaulting Plaintiff for approximately one hour, threatening him with racist tirades. Plaintiff and the student asked numerous McDonald’s employees for help, but their requests were ignored. Plaintiff and the student were afraid to leave the restaurant believing they would be physically assaulted by Mr. Gordon once they exited the restaurant. Ultimately, Plaintiff left the restaurant and was struck in the head and collapsed to the ground.

Plaintiff filed a Complaint against McDonald’s for its negligence in failing to protect him from Mr. Gordon. McDonald’s filed Preliminary Objections in the form of a demurrer arguing, inter alia, that it did not owe a duty to Plaintiff to protect him from Mr. Gordon. It further argued that Plaintiff assumed the risk of harm due to the fact that he remained in the restaurant for approximately one hour. The Trial Court sustained the Preliminary Objections and found, in part, that McDonald’s did not owe a duty to Plaintiff and, further, that Plaintiff had assumed the risk of harm.

The Superior Court disagreed. First, the Court found that, as a business invitee, McDonalds owed Plaintiff a duty of care and, specifically, to protect him from the acts of third parties where it could be shown that McDonalds had notice of the risk and did nothing. The Court noted Plaintiff alleged that Mr. Gordon was previously escorted from the premises numerous times due to his erratic and violent behavior. Further, the Court reasoned that the employees who witnessed the tirade for approximately one hour had notice of the behavior and should have acted in some way. Second, the Court found that the question of whether Plaintiff assumed the risk of his harm was a question of fact and, therefore, should not have been determined via Preliminary Objections. Plaintiff raised a question of fact by asserting that he had no reason to believe that Mr. Gordon would be at the restaurant at the same time as him nor that Mr. Gordon would verbally assault him. Further, Plaintiff alleged that he did not leave the restaurant sooner out of fear of being assaulted once he left. Finally, the Court stated that, even if some facts may suggest that Plaintiff could have taken action to minimize his risk, that argument goes to his comparative negligence and not whether McDonalds owed him a duty.

Holding

Business invitees are owed a duty to protect against acts of third parties where the harm was known and foreseeable. Further, assumption of the risk is a question of fact and, therefore, should not be decided via Preliminary Objections. Finally, any facts supporting assumption of the risk would go towards a party’s comparative negligence and would not dispose of the duty of care owed.

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

Mertis v. Oh
Pennsylvania Superior Court
No. 154 MDA 2021, 2022 Pa. Super. 128

Decided: August 2, 2022

Law firm could not represent both medical malpractice defendants and non-party treating doctor who received subpoena to testify.

Background

Plaintiff Mertis brought this medical malpractice case against Defendant Dr. Oh for an alleged nerve injury received during a negligently performed femoral nerve block. Plaintiff received the injection from Dr. Oh, before Dr. Kim performed the surgery. Plaintiff sued Dr. Oh, North American Partners in Anesthesia (Pennsylvania), LLC (“NAPA”), Wilkes-Barre Hospital Company, LLC d/b/a Wilkes-Barre General Hospital and Commonwealth Health. Dr. Oh and his employer, NAPA, were represented by the firm Scanlon Howley. Plaintiff’s Complaint did not name Dr. Kim as a Defendant, despite being critical of the care he provided. Mertis subpoenaed Dr. Kim to appear at a discovery deposition more than two years after the initiation of the suit.

Scanlon Howley had previously represented Dr. Kim in another matter. Dr. Kim asked them to represent him again when he received the subpoena. Dr. Kim waived conflicts, and Scanlon Howley asked Plaintiff to reschedule the deposition. Plaintiff claimed that Defendants’ firm never had authorization to contact and speak to her treating physician. Plaintiff filed a motion for sanctions to disqualify Scanlon Howley from representing the Defendants, preclude further ex parte communications with Dr. Kim, and disqualify the firm from the litigation for violating Pennsylvania Rule of Civil Procedure 4003.6. The Trial Court denied the Motion and Mertis timely appealed.

Holding

The Superior Court reversed the Trial Court’s decision and remanded the case. The Superior Court held that Rule 4003.6 prohibits ex parte communications between opposing counsel and a party’s treating physician. Further, the rule implicitly recognizes the privacy interest underlying the physician-patient relationship and the physician’s duty of loyalty to the patient. The Court held that no exception to Rule 4003.6 envisioned or applied in this situation where the same firm represented the treating physician and the opposing party. Allowing the same firm to represent both would be the same as ex parte communications, giving Defendants access to information which could only be discovered otherwise through discovery which would limit the breach of the doctor/patient confidential relationship to only the extent necessary. The Superior Court remanded for the Trial Court to decide appropriate sanctions.

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

Real Estate Mgmt. Advisors, LLC v. United States Liab. Ins. Co.
Pennsylvania Superior Court
2022 Pa. Super. Unpub. LEXIS 1649, 2022 WL 2815359

Decided: July 19, 2022

An errors and omissions liability insurance policy provides coverage for claims made against the insured by third persons, so absent any such claims by third parties, there is no coverage.

Background

An employee of a real estate management company misappropriated over $360,000 from client escrow accounts. The management company deposited its own funds into the escrow accounts to cover the losses. None of the clients made any claims against the management company. Nonetheless, the management company sought reimbursement from its property managers errors and omissions liability insurer. The insurer denied coverage because there were no third-party claims asserted against the insured.

The real estate management company filed a Complaint seeking a declaratory judgment regarding coverage, and it also requested damages for breach of contract and unjust enrichment. The insurer defended on the ground that there was no coverage because there was no claim against any insured for repayment of the misappropriated funds. In response to Cross-Motions for summary judgment, the Lower Court ruled in favor of the insurance company because there was no claim made against any insured for any of the misappropriated funds. The Superior Court affirmed.

Holding

The coverage grant of the errors and omissions policy stated that the insurer would pay loss “that the Insured shall become legally obligated to pay because of Claims first made against the insured during the policy period . . . for Wrongful Acts of the Insured arising solely out of an Insured’s duties[.]” The policy defined a claim as “a demand for money as compensation for a Wrongful Act” or “any judicial or administrative proceeding initiated against any Insured seeking to hold such Insured responsible for a Wrongful Act[.]” The Superior Court noted that the policy provided third-party benefits, not first-party benefits. It reasoned that the plain language of the liability policy required a third party to assert a claim against the insured to trigger coverage. In this instance, the insurer had no duty to the insured under the policy because no third party had asserted any such claim.

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

Penn Nat’l Mut. Cas. Ins. Co. v. Phillips
Pennsylvania Superior Court
276 A.3d 268

Decided: May 17, 2022

Superior Court continues to hold that a defective ten-day notice may void a default judgment.

Background

After Defendant failed to file a responsive pleading to Plaintiff’s Complaint within twenty (20) days of service, Plaintiff served Defendant with the prerequisite “Ten Day Default Notice.” Of importance, Plaintiff used the “Default Notice” language that pre-dated the 1994 Pennsylvania Rules of Civil Procedure amendments, which did not advise the Defendant what action was required of him. At the conclusion of the ten-day period, Plaintiff filed for a default judgment, which was entered. Subsequent thereto, Defendant filed a Petition to open the default, which was denied. Defendant then filed a timely appeal.

Holding

The Superior Court, relying on its previous decision in Oswald v. WB Public Square Associates, LLC, 80 A.3d 790 (Pa. Super. Ct. 2013), struck the default judgment. The Court found the default judgment was defective on its face for using the “Default Notice” language that pre-dated the 1994 amendments, which did not state the specific reasons why the defendant was in default, i.e. failing to enter a written appearance and file in writing with the court the defenses and/or objections to the claim.

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