eNotes Liability: March 2021
March 01, 2021
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
Cleveland Brothers Equipment Co., Inc. v. Vorobey
United States District Court for the Middle District of Pennsylvania
No. 4:19-CV-01708
Decided: January 13, 2021
Motion for summary judgment denied where Defendant driver stops suddenly and vehicle traveling behind rear-ends a third party.
Background
This matter arose from a deadly car accident that took place in Tioga County, Pennsylvania. Four vehicles were traveling southbound on State Route 15 when they approached a car crash on the opposite side of the road. The first southbound vehicle, driven by Defendant Vorobey, and the three vehicles behind Vorobey slowed or stopped as they approached the accident. Plaintiff CBEC was traveling behind the four southbound vehicles on State Route 15. Plaintiff CBEC negligently crashed into the four vehicles, resulting in the death of a driver and a passenger. After settling the underlying claims for the accident, Plaintiff CBEC sued Defendant Vorobey for contribution. CBEC’s theory was that Vorobey was negligent in slowing down and causing the vehicles in front of CBEC to a halt; and but for that negligence, CBEC would not have crashed into the vehicles. Vorobey then moved for summary judgment.
Holding
The Middle District of Pennsylvania denied Vorobey’s Motion for summary judgment. Here, Vorobey’s Motion was predicated on the belief that they owed no duty CBEC and that their action was so remote from the alleged injury that it was not a substantial factor in causing the injury.
The Court rejected Vorobey’s first argument, stating that Vorobey owed a duty to CBEC, as every driver owes other drivers a duty of reasonable care. On the issue of proximate cause, the Court held summary judgment failed on that ground as well. Here, CBEC presented facts that Vorobey was leading the vehicles traveling southbound on State Route 15. Whether Vorobey’s slowing or stopping was reasonable or not is a question for the trier of fact.
Questions about this case can be directed to Matthew Gerarde at (267) 861-7584 or mgerarde@tthlaw.com.
Satterfield v. Geico
United States District Court for the Eastern District of Pennsylvania
No. 20-1400
Decided: December 8, 2020
Difference of opinion as to value of UIM claim does not, alone, amount to bad faith.
Background
Plaintiff sustained injuries from a head-on motor vehicle collision when she was a passenger in a vehicle insured by Geico. With the belief that her injuries exceeded the available limits of third party coverage, Plaintiff notified Geico of her claim for UIM, submitted medical records and demanded the policy limits. When Geico failed to immediately tender the policy limits, suit was filed. Geico filed a Rule 12(b)(6) Motion for dismissal of the bad faith count contending that it lacked particularity required to state such a claim and that it only contained conclusory allegations of bad faith.
The Trial Court noted that Plaintiff’s Complaint was required to plead facts which would plausibly constitute bad faith, i.e., that the insurer had no reasonable basis for denying benefits and that the insurer knew or recklessly disregarded its lack of reasonable basis. Mere negligence or bad judgment is not bad faith. The Complaint failed to include any specific facts regarding Geico’s actions which would support a bad faith claim, but only recited “bare-bones” conclusory allegations unsupported by factual averments sufficient to raise the claim to a level of plausibility. In granting the Motion, the Court reminded Plaintiffs that the mere failure to immediately accede to a policy limits demand cannot, without more, amount to bad faith.
Holding
The Trial Court granted the Motion for dismissal of the bad faith count, but granted leave to amend the Complaint to identify the allegedly unreasonable conduct.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or jswartz@tthlaw.com.
DeRito v. Wal-Mart Stores East, L.P.
United States District Court for the Western District of Pennsylvania
No. 2:19-cv-737, 2020 U.S. Dist. LEXIS 225166
Decided: December 2, 2020
The existence of an alleged dangerous condition for less than 31 seconds was insufficient time to establish constructive notice on retailer.
Background
Plaintiff slipped and fell on what he described as powdery snow that had blown into the store when the store’s entrance doors became stuck in an open position. The store’s video surveillance revealed the entrance doors were stuck for approximately 31 seconds prior to the accident. Plaintiff failed to provide any evidence that the store was aware of the malfunctioning door or that the store was aware of the alleged dangerous condition but argued that the general snowy conditions and the store’s inactivity prior to the fall was sufficient to establish constructive notice.
Holding
The Court held that the existence of an alleged dangerous condition of snow in the store for less than 31 seconds was insufficient as a matter of law to establish constructive notice. The Court noted that Plaintiff failed to offer any evidence that there was notice of any defect in the sliding glass door, which allowed the snow to enter the store. Further, Plaintiff’s claims that the store failed to inspect the floor during the hour before were immaterial as to constructive notice when Plaintiff testified that the alleged dangerous condition only came into existence 31 seconds prior to his fall. Noting that there was no case law that would support a finding of constructive notice after such a short time period, the Court held that the Plaintiff had not presented sufficient evidence to establish that the store had notice of the alleged dangerous condition. The Court granted the store’s motion for summary judgment and dismissed Plaintiff’s claim.
Questions about this case can be directed to Brook Dirlam at (412) 926-1438 or bdirlam@tthlaw.com, or to Rebecca Sember Izsak at (412) 926-1446 or rsember@tthlaw.com. Brook and Rebecca were the attorneys who obtained this successful outcome for the store.
PA CASE SUMMARIES
Leight v. Univ. of Pittsburgh Physicians
Pennsylvania Supreme Court
No. 2020 Pa. LEXIS 6468
Decided: December 22, 2020
Pennsylvania Supreme Court determined that mere discussion or consideration of involuntary commitment for psychiatric treatment was insufficient to establish liability under the Mental Health Procedures Act (“MHPA”).
Background
On March 8, 2012, John F. Shick, a 30-year-old adult, living independently, shot and killed one person and injured several others at Western Psychiatric Institute and Clinic in Pittsburgh, PA. Plaintiff, as one of the injured persons, along with her husband filed suit against various medical providers and organizations who had previously treated the gunman for his mental illness on a voluntary outpatient basis. It was alleged that these medical professionals had discussed starting the involuntary commitment process; however, the legal process was not begun prior to the shooting. Plaintiffs filed claims under the MHPA alleging that the medical professionals owed a duty to warn and/or protect plaintiff from Mr. Shick based upon defendants previous treatment of Shick on a voluntary outpatient basis. In order to establish a cause of action under the MHPA, Plaintiffs were required to demonstrate that the Act applied to the specific care provided and that the Defendants’ conduct rose to the level of gross negligence. Two physicians to the suit filed preliminary objections to the complaint arguing that the MHPA did not cover situations where a patient was receiving voluntary out-patient treatment and, therefore, they owed no duty to third-parties.
Holding
The Supreme Court opined that the purpose of the MHPA is to assure the availability of adequate treatment to those who are mentally ill. The legislature, through the MHPA, sought to assure the availability of both voluntary and involuntary treatment “where the need is great and its absence could result in serious harm to the mentally ill persons or to others.” 50 P.S. § 7114. The scope of the MHPA is limited, however, as it establishes rights and procedures only for the involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for the voluntary inpatient treatment of mental ill persons. The language of the MHPA specifically excludes voluntary outpatient treatment which served as the basis for Plaintiffs’ claims.
The Court ultimately concluded that although the physicians contemplated involuntary in-patient treatment, no such treatment had been provided at the time of the shooting. The Defendant physicians treatment was limited to voluntary outpatient treatment. More specifically, the Court held that “mere thoughts, considerations, or steps short of the mandated [legal] prerequisites for initiating an involuntary emergency examination lie outside of a [MHPA] cause of action.” As the physicians never participated in a decision that the gunman be examined or treated under the MHPA, Plaintiffs were not entitled to pursue their cause of action under the Act as the physicians owed no duty to Plaintiffs.
Questions about this case can be directed to John Lucy at (717) 441-7067 or jlucy@tthlaw.com.
Raynor v. D’Annunzio
Pennsylvania Supreme Court
No. 35 EAP 2019, No. 36 EAP 2019, 2020 Pa. LEXIS 6438
Decided: December 22, 2020
Pennsylvania Supreme Court construes the meaning of “civil proceedings” in the Dragonetti Act.
Background
This case arose from a medical malpractice action where Ms. Raynor was serving as defense counsel, and Mr. D’Annunzio was an attorney with the Plaintiff’s team. The Trial Judge granted a pre-trial Motion in limine from D’Annunzio’s team precluding Defendants “‘from presenting any evidence, testimony, and/or argument regarding decedent’s smoking history’ at trial.” At trial, Plaintiff’s team requested that the Court direct Ms. Raynor to inform defense witnesses of the banned topic of testimony, but the direction was not given. The next day at trial, a defense witness discussed decedent’s smoking history when asked about cardiovascular risk factors. Ms. Raynor was later found to be in civil contempt and ordered to pay $946,195.16 in sanctions. On appeal, the Superior Court reversed and vacated the sanctions imposed and the judgments taken to enforce the sanctions.
After the Superior Court vacated the sanctions, Raynor and her firm filed a complaint against D’Annunzio and the other defense lawyers alleging among other things, a violation of the Dragonetti Act. The Trial Court sustained D’Annunzio and the defendants’ Preliminary Objections, dismissing the Dragonetti claims with prejudice, observing that “case law and the historical context of the Dragonetti Act reveal that wrongful ‘civil proceedings’ pursuant thereto exist only when a party initiates a lawsuit with malicious motive and lacking probable cause.” The Trial Court held that a post-trial motion for sanctions is not a “civil proceeding” for Dragonetti purposes. On appeal, the Superior Court disagreed and reversed in part. The Superior Court held that a civil contempt proceeding is “similar” to a civil trial, and did represent a proceeding contemplated by the Dragonetti Act, but Raynor lacked standing to bring such a claim.
Holding
The Supreme Court of Pennsylvania held intra-case fillings, such as the post-trial motion for contempt at issue, “do not constitute the ‘procurement, initiation or continuation of civil proceedings’ as contemplated under the Dragonetti Act.” The Supreme Court held that they did not need to reach a decision on standing, because “standing becomes relevant only when the challenged filing constitutes the procurement, initiation or continuation of civil proceedings under the [Dragonetti] Act.” A concurrence was filed by Justice Wecht, and Chief Justice Saylor dissented with Justice Donahue joining.
Questions about this case can be directed to Logan Nagle at (717) 255-7234 or lnagle@tthlaw.com.
Cowher v. Kodali
Pennsylvania Superior Court
No. 1111 EDA 2020
Decided: February 8, 2021
Court vacates damages judgment in a survival claim and remands for a new trial on damages, finding that damages for pain and suffering may only be awarded for periods when the Decedent was conscious.
Background
Plaintiff’s Decedent died of cardiac arrest. Plaintiff brought a medical malpractice action with wrongful death and survival claims, alleging that Defendant, Dr. Kodali, was negligent in failing to recognize that Decedent was suffering from unstable angina and in failing to diagnose Decedent’s severe coronary artery disease.
Plaintiff’s cardiology expert noted in his report that Decedent experienced conscious pain and suffering before his death. Defendant filed a Motion in Limine to preclude Plaintiff’s expert from testifying that Decedent suffered conscious pain and suffering, which was denied. The jury returned a verdict for Plaintiff, awarding $2,475,000 in wrongful death damages and $3,833,000 in survival damages. Defendants appealed, arguing, inter alia, that the Trial Court erred in allowing Plaintiff’s expert to testify as to his assumptions regarding Decedent’s purported pain and suffering. Defendants further argued that the Trial Court erred in failing to vacate the Survival Act award when there was no evidence that Decedent was conscious and able to feel pain immediately preceding his death.
Holding
The Superior Court held that the Trial Court erred in allowing Plaintiff’s expert to testify that Decedent experienced pain and suffering prior to death, as that testimony was based on the expert’s personal opinion, and not based on scientific or medical authority. The Court further noted that Defendant was prejudiced by the admission of the expert’s testimony in this regard, as it was clear from the verdict that the jury awarded significant pain and suffering damages, although the evidence showed that the Decedent was conscious for only approximately 3 minutes during the cardiac arrest. The Court explained that damages for pain and suffering cannot be awarded for periods when Decedent was unconscious. Therefore, the Court vacated the survival award and ordered a new trial on damages in the survival claim only.
Questions about this case can be directed to Jillian Denicola at (570) 825-5653 or jdenicola@tthlaw.com.
Caruso-Long v. Reccek
Pennsylvania Superior Court
No. 3458 EDA 2019, 2020 Pa. Super. 276
Decided: November 25, 2020
Superior Court finds that ongoing damage/injury caused by overhanging trees is a continuing nuisance for statute of limitations purposes, as opposed to a permanent nuisance.
Background
Plaintiffs Elaine Caruso-Long and Eric Long appealed, pro se, from the Trial Court’s entry of summary judgment in favor of Defendant Reccek, Executor of the estate of Dolores McFarland. In 2003, Plaintiffs purchased a home with a yard abutting property owned by James and Delores McFarland. The McFarland’s side of the property line contained a row of mature trees, initially only eight to ten feet high and not overgrown. Plaintiffs claim that over time, the trees grew to over 55 feet and began to cause damage to their property in a variety of ways. The trees’ roots were approaching the foundation of their home and had already caused damage to their paved patio. Falling needles and branches had damaged their garden and above ground pool. Furthermore, a falling branch in 2016 struck Plaintiff Elaine. Plaintiffs admitted they noticed the tree branches encroaching on their property as early as 2009.
Plaintiffs filed suit in July 2018, asserting claims for trespass, nuisance, and negligence against Reccek, and breach of contract against the HOA. On Motions, The Trial Court dismissed the negligence claims against Reccek and the breach of contract claims against the HOA. Thereafter, Reccek filed a Motion for summary judgment asserting that Plaintiffs’ remaining nuisance and trespass claims are barred by the statute of limitations, which Reccek argued began to run in 2009, when Plaintiffs first noticed that the trees were encroaching on their property. The Trial Court granted Reccek’s Motion. On appeal, Plaintiffs argued that the trees at issue constituted a continuing trespass and nuisance. They further argued that the Trial Court failed to consider that the trees have caused, and will continue to cause, “multiple, separate, recurrent, and unpredictable incidents” of damage to their property.
Holding
The Superior Court noted that actions for permanent trespass and/or nuisance are subject to a two-year statute of limitations. However, in the case of a continuing trespass and/or nuisance, the aggrieved party can maintain a succession of actions based on the continuing infractions or the aggravation of the original offense. The Court concluded that, unless the trees are removed, the branches and roots will continue to grow and are likely to cause repeated damage to Plaintiffs’ property. As such, the Plaintiffs’ causes of action for trespass and nuisance were continuing. The Order of the Trial Court was reversed and remanded for further proceedings.
Questions about this case can be directed to Doug Keil at (412) 926-1428 or dkeil@tthlaw.com.
DC CASE SUMMARY
Zurich Am. Ins. Co. v. UIP Cos.
United States District Court for the District of Columbia
2021 U.S. Dist. LEXIS 28115
Decided: February 16, 2021
The D.C. Federal Court finds that an insurer properly denied coverage due to the insured’s failure to timely report a claim under a claims made policy.
Background
UIP Companies LLC and its principles were sued by a stockholder for breach of fiduciary duty in 2018. The stockholder alleged in a February 15, 2018, demand letter that she was prevented from viewing UIP’s financial affairs and barred from representation on the Board. The lawsuit allegedly implicated two insurance policies issued by Zurich American Insurance Company. They provided coverage on a claims made and reported basis. They covered claims first made against the insureds during the policy period, and expressly made timely notice a condition for the coverage.
Six months following the stockholder lawsuit, UIP first gave notice to Zurich of its dispute with the stockholder by forwarding copies of the complaints. Following an investigation of UIP’s Claim, Zurich denied coverage for two reasons. First, Zurich contended that the February 15, 2018 demand letter constituted a claim under the 2017 Policy period, and that UIP was required to timely notify Zurich within 90 days of that claim. Second, Zurich alleged that UIP failed to provide timely notice under the 2018 Policy because it did not give notice as soon as practicable after it learned of the lawsuit. Zurich filed an action against UIP seeking a declaration that no coverage is available for any of the underlying lawsuits and after discovery, moved for summary judgment.
Holding
The US District Court for the District of Columbia entered summary judgment in favor or Zurich. The Court rejected UIP’s claim under the 2017 Policy and the 2018 Policy. Additionally, the Court found that, under D.C. law, Zurich is not required to demonstrate that it was prejudiced by any untimely notice in order for it to deny coverage.
Regarding the 2017 Policy, the Court rejected UIP’s argument that a claim does not arise unless it threatens to seek court-ordered relief, because it found that the policy defined a “Claim” to include “a written demand against any Insured for monetary damages or non-monetary or injunctive relief.” Since the February 15, 2018 demand included a demand for monetary damages, UIP was required to report it to gain coverage. Regarding the 2018 Policy, the Court held that UIP’s notice was untimely, because UIP did not give Zurich notice of the lawsuits as soon as practicable. The Court determined that as soon as practicable meant within a reasonable time in view of all the facts and circumstances of each particular case, and is a question of law that can be determined by the Court. After analyzing three factors from prior D.C. case law, the Court found that that no reasonable jury could find that UIP gave Zurich notice of stockholder lawsuits as soon as was practicable, and Zurich is not obligated to provide coverage to UIP for those lawsuits under the 2018 Policy.
Questions about this case can be directed to Nicholas Schaufelberger at (202) 945-9502 or nschaufelberger@tthlaw.com.
VA CASE SUMMARY
AlBritton v. Commonwealth
Virginia Supreme Court
No. 191030
Decided: February 4, 2021
Virginia Supreme Court reverses grant of summary judgment in slip and fall lawsuit filed by an inmate that fell down a concrete staircase at state penitentiary.
Background
Devinche AlBritton, an inmate, sued the Commonwealth of Virginia alleging he was injured after falling down a set of concrete stairs negligently maintained by the Department of Corrections. While housed in a cell on the ground floor of the prison, he walked up the staircase to shower on an upper floor, and allegedly fell down the stairs after showering because several steps were missing concrete edge pieces and rubber stripping. The Commonwealth filed a motion for summary judgment on the grounds that no reasonable factfinder could find the DOC had been negligent, and alternatively, that the evidence conclusively demonstrated AlBritton was contributorily negligent.
The Commonwealth agreed some steps had missing edge pieces, but disputed this contributed to the incident, as there were no protrusions on the stairs that could have caused AlBritton to slip, trip, or fall. The Commonwealth also contended that AlBritton was contributorily negligent, because prison rules prohibited him from showering on an upper tier, and because AlBritton was carrying his shower bag loosely next to his legs while walking down the stairs. AlBritton, in an affidavit, claimed that no rule or policy forbade him from showering on an upper tier, and that the shower bag was not “hanging near his legs” while he walked down the stairs. The Circuit Court granted the Motion for summary judgment. AlBritton appealed contending that issues of primary negligence and contributory negligence presented material facts genuinely in dispute and that summary judgment was not appropriate.
Holding
The Supreme Court reversed the entry of summary judgment. It determined the presence or absence of protrusions, although potentially relevant, was not dispositive of the issue of primary negligence. The Supreme Court also rejected the assertion that missing edge pieces and absence of anti-slip treads did not make the staircase potentially hazardous. Accordingly, AlBritton had alleged sufficient facts to withstand summary judgment. As to contributory negligence, the Supreme Court found that a factual dispute existed as to whether prison rules prohibited inmates from showering on a floor they did not live on. A factual dispute also existed regarding whether AlBritton’s method for carrying his shower bag caused or contributed to his injury, and that the circuit court was “plainly wrong” to enter summary judgment on this basis. The case was reversed and remanded for further proceedings.
Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or nphillips@tthlaw.com.