Tort Talk: Updates and Trends in Pennsylvania Civil Litigation Law

ARTICLE: A St. Patrick's Day Parade of Proverbs

2010-03-13T12:33:00.008-05:00

A St. PATRICK’S DAY PARADE OF PROVERBS

by

Daniel E. Cummins

With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”

A closed mouth—a wise head.

Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.

Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”

Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.

A good beginning is half the work.

Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.

In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.

With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.

The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.

If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.

Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.

When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.

It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.

Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.

What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.

As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”

Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless.

An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.

Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.

Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.

If you lie down with dogs, you’ll rise with fleas.

Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.

Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”

Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.

Never put off til tomorrow what you can do today.

As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.

In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.

If you dig a grave for others, you might fall into it yourself.

Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.

The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.

Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”

A light heart lives long.

As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.

Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.

The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”

Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.

As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.

Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Cognetti, Comerford, Cimini & Cummins (foleycognettilaw.com). Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.

This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

$95 Million Dollar Jury Verdict in Lehigh County Against the 'Angel of Death'

2010-03-13T11:56:00.006-05:00

On Friday, March 12, 2010, a Lehigh County jury of seven women and five men awarded $95 million to the decedents of eight people that serial killer Charles Cullen, the so-called "Angel of Death," allegedly murdered from 2000 to 2002 while working as a nurse at St. Luke's Hospital in Bethlehem, Pennsylvania. Plaintiffs' attorneys were Mark Altemose and Kelly Rambo.

According to an article by JD Malone in the Bethlehem Area News, the is the first civil judgment against Cullen, who has admitted to killing 29 people and attempting to kill 6 others by administering lethal doses of medication over 16 years at hospitals across the Lehigh Valley and western New Jersey.

Cullen did not participate in the civil trial. He currently is serving a life sentence in New Jersey. According to the article, Cullen has no assets to pay such a monumental verdict. In his criminal trials to date, he qualified for a public defender.

For more info on this case, click on this link to view JD Malone's article in the Bethlehem Area News: http://www.lehighvalleylive.com/bethlehem/index.ssf?/base/news-2/126837035246750.xml&coll=3.

Thanks to William Byrne, Esquire of Hoegen and Associates, located in Wilkes-Barre, PA, for bringing this article to my attention.

Bad Faith Claim Dismissed From First Party Benefits Suit in Monroe County

2010-03-11T13:35:00.008-05:00

In the recent first party case of O'Connor v. Erie Insurance Exchange, No. 8654 CV 2009 (Monroe Co. Feb. 9, 2010 Zulick, J.), Judge Zulick struck a bad faith claim against the carrier finding that, based upon the allegations of the Complaint, the Plaintiff's remedy was limited to those provided for under the provisions of the Motor Vehicle Financial Responsibility Law (MVFRL) pertaining to first party benefits.

The O'Connor case involved a Plaintiff who had been involved in three separate motor vehicle accidents (1995, 1998, and 2000) after all of which she alleged mental health injuries such as depression and a stress disorder.

At the time of each of these accidents, the Plaintiff was covered by an Erie policy that provided first party medical benefits of $100,000 for each accident. The Plaintiff eventually exhausted her medical benefits after the first accident as well as the second accident.

With regards to the third accident, Erie referred the Plaintiff for a psychological independent medical examination (IME) to determine whether the Plaintiff's ongoing treatment for mental health issues was caused by the 2000 accident or one of the previous accidents. Erie argued that it properly used an IME as opposed to the peer review process because the issue on the payment of the medical benefits was causation not the reasonableness of the treatment.

When that IME doctor concluded that the Plaintiff really never recovered from her mental health injuries from the first accident, Erie refused to pay further medical benefits for psychological treatment allegedly related to the third accident in 2000.

The Plaintiff responded by filing a lawsuit for breach of contract and bad faith under 42 Pa.C.S.A. 8371. Erie filed Preliminary Objections in the form of a demurrer to the bad faith claim.

Erie's basic argument was that the bad faith claim should be dismissed because the Plaintiff had a full and complete remedy available under 75 Pa.C.S.A. 1798 of the MVFRL which pertains to an "Unreasonable refusal to pay benefits." Under Section 1798, if it is determined that the carrier acted unreasonably in refusing to pay benefits, the carrier would be compelled to pay the medical expenses, any interest, and a reasonable attorneys fee to the injured party for having to fight the issue.

The Plaintiff apparently pursued a bad faith claim under Section 8371 in part because that statute provides for the additional remedies of additional interest, costs, and punitive damages.

In his opinion, Judge Zulick noted that the Pennsylvania Supreme Court has not yet addressed the issue of whether the MVFRL preempts Section 8371. After reviewing analogous precedent from other state and federal courts in Pennsylvania, Judge Zulick concluded that the Plaintiff's remedies were limited to that provided for in the MVFRL and not the bad faith statute.

Judge Zulick noted the case before him, involving the use of an IME, was slightly different from the issues in the previous precedent in that those prior decisions primarily involved the different peer review process.

Nevertheless, the judge came to the same result that the Plaintiff's remedies were limited to that provided in the specific provisions on the issue in the MVFRL pertaining to first party benefits.

The court emphasized that there were no allegations in the Complaint asserting that the carrier fraudulently corrupted the process by using a "shill" for its independent medical opinion. The suggestion by the court was that such an allegation may have been an allegation that took the case out of the scope of the MVFRL and into the ambit of the bad faith statute. As there were no such allegations, Judge Zulick dismissed the bad faith claim.

I send thanks to Erie's defense attorney Robert Panowicz, Esquire for bringing this case to my attention.

Anyone desiring a copy of O'Connor v. Erie Insurance Exchange may contact me at dancummins@comcast.net.

I note that Judge Zulick's decision is consistent with a prior decision issued by Judge Carmen Minora out of Lackawanna County in the case of Veltri v. Travelers Commercial Insurance Company, 08-CIVIL-8534 (Lacka. Co. September 2, 2009 Minora, J.) [I do not have a copy of this decision].

In Veltri, the Plaintiff’s vehicle was struck in a rear-end collision by a tractor trailer. The
Plaintiff’s first party motor vehicle insurance carrier was Travelers. Travelers initially paid first party medical and wage loss benefits and then referred the Plaintiff for an IME.

The first IME was favorable to the Plaintiff and, as such, Travelers was compelled to continue paying first party benefits.

Thereafter, Travelers requested a second IME with a new and different physician who issued an opinion that the Plaintiff’s allegedly ongoing conditions were no longer related to the subject accident. Based upon the second IME, Travelers ceased all first party benefits.

Travelers’ decision to terminate first party benefits led to the filing of a breach of contract and bad faith Complaint by the Plaintiff.

Travelers responded with Preliminary Objections to the bad faith count of the Complaint alleging that the general tenants of the bad faith statute at 42 Pa. C.S.A. §8371 are negated by the specific remedies of the MVFRL remedies found at 75 Pa. C.S.A. §1716 and §1798.

Judge Minora denied the Travelers’ Preliminary Objections and rejected the contention that the rules of statutory construction mandate that the punitive provisions for the nonpayment of first party benefits found under the MVFRL negate or trump the general bad faith statute.

Consistent with Judge Zulick's recent decision noted above, the courtin Veltri essentially ruled that where, as here, the Complaint specifically alleges culpable misconduct both within and beyond the coverage of the specific statutes of the MVFRL, then the general bad faith statute at §8371 may additionally apply as well.

Thus, it all comes down to properly pleading separate causes of action in the Complaint. Where that is not done, a dismissal of certain claims may be secured by the carrier.

Cell Phone Use While Driving: Bringing Attention to Inattentive Drivers

2010-03-07T10:25:00.007-05:00

The following article of mine recently appeared in the February 22, 2010 Pennsylvania Law Weekly.

Hang Up and Drive

Lawmakers and courts tackle the hazards of cellular phone use by drivers

Daniel E. Cummins
The Legal Intelligencer
February 22, 2010

A text message exchange between two drivers:

HI. HOW R U?
U R FUNNY! LOL! TSDMC!…OMG!! JUST IN ACDNT!! GR8!…UFB....IM OK…G2G….B4N…CYAL8R. WILL CALL U. BFF

[Translation at end of article].

There has been a great deal of attention paid to the hot topic of cell phone use and texting while driving, particularly among younger drivers. Whether all this talk results in any changes in the law on the topic remains to be seen.

FYI

"For your information," the U.S. Department of Transportation on Jan. 26 banned commercial truck drivers and bus drivers from texting while driving. Under the ban, commercial truck and bus drivers who text while driving may be subject to civil or criminal penalties and fines up to $2,750.

On the same day, the state House of Representatives approved legislation by a vote of 189 to 6 that bans the use of hand-held cell phones and texting devices by all motorists while driving. House Bill 2070 also amends Title 75 by making texting by junior drivers — ages 16 to 18 — a primary offense.

The bill makes violating the ban a primary offense in Pennsylvania, meaning that a driver could be pulled over by law enforcement for committing that offense alone. A lesser alternative being considered is making the violations a secondary offense, under which an officer could only enforce the law if the driver was first pulled over for another traffic violation.

The primary offense, as it currently stands in the proposed bill, would carry a $50 fine along with supplemental costs. The fine would be increased to $100 and supplemental costs if the violation occurred in a school zone, an active work zone, a highway safety corridor or in an emergency response zone.

HB 2070 will now move on to the state Senate for consideration. The Senate is likewise reviewing its own proposed legislation focused on younger drivers that would lengthen the time a new driver would have to practice before testing for a driver's license, limiting the number of teens in one vehicle and making the failure to wear a seat belt a primary offense for youths under age 18.

According to a Jan. 31 Scranton Times article by Robert Swift, the paper's Harrisburg bureau chief, the challenge for the legislators will be to merge the amendments dealing with teen drivers with the provisions pertaining to distracted drivers into one acceptable bill that would be approved by the Legislature and signed into law by the governor. Whether or not this can be accomplished remains to be seen.

QQ

"Quick Question:" Should a motor vehicle accident plaintiff be allowed to pursue punitive damages on a claim that the defendant driver was on a cell phone or texting at the time of the accident?

The topic of cell phone use by motorists also came up in a Jan. 14, opinion and order in the case of Linehan v. Jaludi. In that case, Judge Gregory H. Chelak of the Pike County Court of Common Pleas addressed the issue of whether a plaintiff may pursue a claim for punitive damages on the basis that the defendant was talking on cell phone allegedly to the point of distraction at the time of a car accident.

The plaintiff in Linehan was a police officer whose police vehicle was stopped on the side of the road with the flashing lights activated. Another vehicle was stopped in front of the plaintiff's police car. The defendant, while driving and allegedly talking on her cell phone, allegedly drifted off the roadway and crashed into the police car while the plaintiff police officer was inside of the car, allegedly resulting in injuries to the plaintiff.

The plaintiff police officer later filed a negligence complaint in which a punitive damages claim was asserted, in part, on the basis of the defendant using a cell phone at the time of the accident. The defendant filed preliminary objections.

Chelak sustained the defendant's preliminary objections and granted the motion to strike the claim for punitive damages. It was held that the allegations of the complaint — that the defendant was so distracted by her cell phone conversation that she crashed into the plaintiff's police car with its flashing lights — were insufficient, in and of themselves, to support the punitive damages claim at this initial posture of the case.

However, citing the U.S. District Court for the Eastern District of Pennsylvania case Pennington v. King as offering support for a punitive damages claim based upon a driver being distracted by cell phone use, the Pike County court noted that, if discovery turned out to confirm the cell phone use and distraction, by way of cell phone records or otherwise, the plaintiff would have the right to seek to amend the complaint in an effort to support the possibility of restating the punitive damages claim pursuant to Rule 1033. It remains to be seen if this issue will develop any further in that case.

S2S

"Sorry to say," but it does not appear that legislative or judicial action will have any significant, positive impact on driver behavior in terms of texting or cell phone use. Around the same time the above action was being taken by the Pennsylvania Legislature and courts on the issue of drivers distracted by hand-held communication devices, the Highway Loss Data Institute coincidentally released a new study Jan. 29 on the topic.

According to a Jan. 30 article by Joelle Tesser of The Associated Press, the study finds that state laws banning the use of hand-held devices to make a call or send text-message while driving have not resulted in fewer crashes.

Yet, other studies by the Highway Loss Data Institute, which is affiliated with the insurance industry and the Insurance Institute for Highway Safety, make it clear that driving while texting or using a cell phone is dangerous. One separate study, issued a few years ago by a group of University of Utah psychologists in the June 29, 2006 issue of Human Factors: The Journal of the Human Factors and Ergonomics Society, has gone so far as to find that using a cell phone while driving may be as dangerous as driving under the influence of alcohol.

According to the AP article, one suggested explanation for the failure of the ban on hand-held devices to decrease the number of accidents in states that currently have a ban (California, New York, Connecticut, and the District of Columbia), is that the ban on the use of hand-held devices may have had the opposite effect of actually increasing such dangerous conduct by drivers.

With these findings that government intervention on the issue of distracted drivers and bans on hand-held devices may not have any effect, or may even have a detrimental effect, other commentators, like well-known Philadelphia lawyer-pundit Michael Smerconish, have cautioned against governmental intervention. The fear is the creation of a "slippery slope logic" for banning or punishing cell phone use may easily be extended to bans or punishment related to distractions caused by eating, using a GPS, scanning the radio, adjusting the heat, putting on makeup, or other commonplace attention-grabbers. Smerconish joins the call for alternative solutions to the problem.

As Smerconish pointed out in his Jan. 31 article in The Philadelphia Inquirer, there is a push by the U.S. Department of Transportation upon the wireless industry for the creation of technology whereby these devices are somehow disabled from use while a person is driving. Smerconish also favors the development of these possible technological advances towards the creation of a hands-free device that is somehow safe for use while driving.

FWIW

"For what it's worth," there has been much recent discussion on this issue in Pennsylvania, but to date, no concrete changes. Whether any of these proposed changes would result in any change in driver behavior in any event remains questionable. For now, it's best to steer clear from these distracted drivers for your own safety.

Translation of text message:

Hi. How are you?
You are funny! Laugh out loud! Tears streaming down my cheeks!....Oh my God! Just got into an accident! Great! Un "freaking" believable! I am okay. Got to go. Bye for now. See you later. I will call you. Best Friends Forever. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.

This article originally appeared in the February 22, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(c) 2010 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

PennDOT Continues to Enjoy the Protection of Pennsylvania Courts

2010-03-07T09:53:00.007-05:00

Two recent cases, one out of the Commonwealth Court and one out of the Berks County Court of Common Pleas, confirm that the Pennsylvania Department of Transportation (PennDOT) continues to enjoy the protection of the court in liability claims arising out of motor vehicle accidents.

In Stein v. Pennsylvania Turnpike Commission, 2010 WL 521156 (Pa. Cmwlth. Feb. 16, 2010 Leavitt, J.), the Commonwealth Court held that the Commonwealth was immune from suit arising out of an accident during which a guiderail end treatment folded back and impaled the driver, causing fatal injuries. The Commonwealth Court affirmed the trial court's judgment in favor of the Pennsylvania Turnpike Commission.

Plaintiff argued that a claim based on the negligent design of the guardrail in question fit within the real estate exception to the Sovereign Immunity Act.

The Stein court rejected this argument noting that, in Dean v. Department of Transportation, 751 A.2d 1130 (Pa. 2000), the Pennsylvania Supreme Court stated that "[a]bsent legislative directive, however, we conclude that the real estate exception does not apply to the failure to install a guardrail."

The Stein court also noted that in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2008) the Commonwealth Court held that the commonwealth was immune "from suit regarding the design and maintenance of [a] guardrail." The Stein court held that nothing in this case or plaintiff's arguments convinced it to change that holding.

Accordingly, the Commonwealth Court affirmed the trial court entry of judgment in favor of the Pennsylvania Turnpike Commission.

The Stein v. Pennsylvania Turnpike Commission opinion can be viewed online at
http://www.aopc.org/OpPosting/Cwealth/out/1964CD08_2-16-10.pdf.

Judgment was also entered in favor of the Commonwealth defendant in a recent Berks County case stemming from an accident involving a telephone pole.

In Mayer v. Verizon-Pennsylvania, PICS Case No. 10-1270 (C.P. Berks Jan.22, 2010 Lash, J.), the Berks County Court of Common Pleas held that the Pennsylvania Department of Transportation (PennDOT) enjoyed immunity from a suit raising a claim that its plan for highway utility pole placement was deficient.

In this case, the Plaintiff's decedent lost control on a snowy road of her car and struck a wooden utility pole. Plaintiff sued Verizon-Pennsylvania alleging that the utility pole was negligently placed and managed. Verizon joined PennDOT, alleging that PennDOT analyzed utility pole placement and advised utilities on whether the poles were placed in acceptable locations. Utilities were required to obtain PennDOT approval for pole placement. Thus, Verizon claimed any negligence must be attributed to PennDOT.

The Mayer court rejected Verizon's cross-claim and ruled that such claims did not fall within any of the exceptions to the Sovereign Immunity Act. The "highway exception," in particular, only applies to the breach of a duty to properly design, construct and maintain the paved portions of highways and the berm or shoulder, and does not include the remainder of the right-of-way within PennDOT's control.

The court in Mayer therefore found that the law excluded any claims against PennDOT based on theories that PennDOT allegedly owed duties pertaining to maintaining "clear zones" of safety for drivers on that right-of-way.

With these rulings, the Berks County Court of Common Pleas followed the general rule of no liability for PennDOT and granted summary judgment in favor of PennDOT.

A copy of the Mayer case can be secured for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service (1-800-276-7427) and giving the above noted PICS Case Number.

Source: Case Digests in 3/8/10 Pennsylvania Law Weekly

Tort Talk Reaches Another Milestone - 250 Email Subscribers!

2010-03-05T12:26:00.004-05:00

I now have 250 subscribers to Tort Talk!!

Thanks to everyone who has signed up and stayed on. I hope you continue to find this blog informative and maybe even interesting.

As always, if I can help out anyone in any way on any matters you may have, please do not hesitate to contact me at dancummins@comcast.net.

Thanks again.

Phildelphia County Post-Koken Decision Reconsidered and Reaffirmed

2010-03-03T17:57:00.004-05:00

I recently reported on a post-Koken decision that had been handed down in Philadelphia County in the case of Zerggen v. Rietman and Nationwide Insurance, No. 0906 of 1752 June Term 2009 (Phila. Co. Jan. 20, 2010 McInerney, J.). On the first time around, Judge Patricia McInerney sustained the preliminary objections filed by the tortfeasor and ordered the case transferred to Chester County on a venue argument and also severed the third-party case from the underinsured motorist claim against Nationwide.

That prior decision was by Order only, without any Opinion. The Plaintiff in Zerggen filed a Motion for Reconsideration. The court vacated its original decision and the parties awaited the Court's reconsideration of the matter

Then on March 3, 2010, Judge McInerney issued her reconsideration Order. In this Order, the Judge ruled upon Defendant Reitman's preliminary objections to the Plaintiff's fourth Amended Complaint.

The Court now ruled that the preliminary objection asserting improper venue was overruled.

The Philadelphia County Court also ruled that the preliminary objection by the tortfeasor defendant on misjoinder of a cause of action was overruled "without prejudice to the Defendants making a motion to sever to be decided by the trial judge or filing a petition pursuant to Pa.R.Civ.P. 1006 (d); otherwise, the Defedants and the causes of action shall remained joined...."

Anyone desiring a copy of this recent Order (without any Opinion) may contact me at dancummins@comcast.net.

Defense counsel for the tortfeasor is Ronald Marrero Esq. and counsel for Nationwide is Victor M. Verbeke, Esq. I thank Attorney Verbeke for keeping me advised on the progress of this case.

I note that the Zerggen Philadelphia County case was initially in favor of a severance of the claims and was thereby in conflict with the previous Philadelphia County cases I have seen of Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied) and Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied). [I do not have copies of those opinions on hand.]

With this new decision denying severance, the Zerggen case is now consistent with the previously noted Philadelphia County cases on this issue.

The hope remains that a trial court judge somewhere along the line will hopefully grant permission for this issue to go up on an interlocutory appeal to the Superior Court so that members of the bar, as well as the trial court judges, can secure some appellate guidance on how to handle this issue.

For more details on the county-by-county handling of this issue by the trial courts, please click on the Post-Koken Scorecard down on the right hand column of this blog.

Recent Cases of Note Highlighted on Pennsylvania Defense Institute Website

2010-03-02T22:34:00.006-05:00

The following case was recently highlighted on the Pennsylvania Defense Institute website (http://www.padefense.org/). More details on these cases, as provided by Matt Keris, Esquire from the Moosic, PA office of Marshall, Dennehey, Warner, Colemen and Goggin, can be reviewed by visiting that website and clicking on "Case Summaries."

Bowman v. Sunoco, Inc., 986 A.2d 883 (Pa. Super. 2009) (Opinion by Stephens, J.)

The Plaintiff in Bowman raised a negligence claim for injuries she sustained while working as a private security guard on Sunoco property. As a term of her employment, she signed a third party release pertaining to any and all claims she may have against any customer of her employer.

In a case of first impression, the Superior Court ruled that there was no public policy violation in enforcing the release because the release did not affect the employee's workers' compensation rights. In other words, the court ruled that there was "nothing unconscionable about releasing claims against customers for injuries [sustained by the employee] that are already covered by workers' compensation law." Plaintiff's claims were therefore dismissed.

Bad Faith Claim Severed From Post-Koken Lawsuit in Bucks County

2010-03-02T22:28:00.003-05:00

On February 16, 2010 Judge Clyde W. Waite of the Bucks County Court of Common Pleas sustained the Preliminary Objections of the UIM carrier requesting that the bad faith claim be severed from the third party claims and the UIM claim all filed under one caption in the case of Hartman v. Schofield and Progressive Insurance Company, 2009 - Civil - 11956 (Bucks Co. Feb. 16, 2010 Waite, J.). The Judge offered this decision in an Order without an Opinion.

Anyone desiring a copy of opinion may contact me at dancummins@comcast.net.

I thank Robert Dapper, Esquire of the Pittsburgh law firm of Dapper, Baldasare, Benson, Behling & Kane for bringing this case to my attention.

Update on Luzerne County Judicial System Scandal

2010-03-02T09:30:00.009-05:00

I offer the following link to an article updating the Luzerne County Judicial System Scandal:

The Times Leader:

http://www.timesleader.com/news/Ex-judges_launch_their_attack_03-02-2010.html

Deposition of UIM Claims Rep in a Post-Koken Case

2010-03-01T14:38:00.004-05:00

In a case that is already getting much play on the listserve for the Plaintiff's bar, trial court Judge William Amesbury recently issued a February 1, 2010 Order allowing for a limited deposition of a UIM claims representative in the post-Koken case of Paulewicz v. Fronczkewicz, Bryan, and State Farm, 10655-CIVIL-2009 (Luz. Co. Feb. 1, 2010, Amesbury, J.).

In Paulewicz, the Plaintiff brought negligence claims against the third party tortfeasor owner and driver, as well as a an underinsured motorist claim against State Farm under one caption. There was no bad faith claim at issue as any such allegations were stipulated out of the case by the parties for the time being.

When Plaintiff's counsel noted a desire to depose the UIM claims representative, the UIM carrier filed a Motion for a Protective Order to preclude the same.

On February 1, 2010, Judge Amesbury issued an Order denying the Motion and allowing for the deposition of the claims rep to go forward. However, the Judge specifically noted that the Plaintiffs were "precluded from deposing" the UIM claims adjuster "as to his mental impressions, conclusions, or opinions respecting the value or merit of the claim, defenses to the claim, or respecting the strategy or tactics in defense of claims by State Farm...."

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

United States Supreme Court Adopts Headquarters Test for Diversity Jurisdiction

2010-02-26T06:32:00.005-05:00

In its 9-0 decision issued earlier this week on February 23, 2010 in the case of Hertz Corp. v. Friend, the United States Supreme Court addressed the confusion among state courts regarding the appropriate standard to establish a corporate or company defendant's place of business in a diversity case. The Court ruled that a company should be considered a citizen of a state where its “nerve center” is located.

Justice Stephen G. Breyer wrote that "In practice it should normally be the place where the corporation maintains its headquarters."

It is anticipated by legal commentators that the “nerve center” test will be used to establish diversity jurisdiction, allowing more lawsuits to be tried in federal rather than state courts. Thus, it is expected that this decision will serve to hamper forum shopping efforts by plaintiffs.

In this case, the Court rejected arguments by Hertz employees in a wage-and-hour suit that Hertz’s principal place of business was in California, where more of its business activities take place, even though its headquarters is in New Jersey.

In his opinion, Breyer noted that there will still be cases that are difficult to under the “nerve center” test for diversity jurisdiction. “For example, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet,” he wrote. “That said, our test nonetheless points courts in a single direction, towards the center of overall direction, control, and coordination.”

The opinion (PDF) of Hertz Corp. v. Friend can be viewed by clicking this link:
http://www.supremecourtus.gov/opinions/09pdf/08-1107.pdf.

Source: Debra Cassens Weiss, ABA Journal Law News Now (Feb. 26, 2010) http://www.abajournal.com/weekly/article/supreme_court_adopts_headquarters_test_hampering_forum-shopping_plaintiffs (citing Reuters and The Wall Street Journal).

Amicus Brief on Expert Discovery Issue Posted on JDSupra.com

2010-02-25T12:04:00.004-05:00

I recently noted here that, at the request of the Pennsylvania Defense Institute, I authored an amicus curiae brief on behalf of a defendant in the case of Barrick v. Holy Spirit Hospital which is now up before the Pennsylvania Superior Court.

The appeal involves the expert discovery issue of whether a plaintiff's treating doctor/medical expert witness for trial should be required to produce letters and e-mails the doctor received from the plaintiff's attorney dealing, in part, with how the expert should frame his opinion.

The amicus brief has been filed of record with the Superior Court and we await an argument date. If you are interested and wish to review the brief, you may scroll down the right hand column of this blog and click on "Barrick v. Holy Spirit Hospital" in the JDSupra.com box.

Any questions or comments you can click on "comments" at the bottom of this post or contact me at dancummins@comcast.net.

Tort Talk Is Now Available on Amazon Kindle

2010-02-24T10:41:00.006-05:00

As you may recall, Tort Talk was recently picked up by Newstex to be syndicated out to their subscribers through Lexis and other sites. I was just advised that Newstex, with Amazon Kindle, is extending Tort Talk into other new technologies, such as e-book reading devices. I was informed that Tort Talk is now available on the Kindle store.

How do Blogs work on the Kindle? Unlike reading blogs on your computer, Kindle blogs are downloaded onto Kindle so you can read them even when you're not wirelessly connected. And unlike RSS readers which often only provide headlines, blogs on Kindle give you full text content and images.

Now any Kindle-owning readers of Tort Talk can subscribe to the blog on the Kindle and take it wherever they go.

Claims Rep Pet Peeves

2010-02-22T17:33:00.010-05:00

The following article of mine was accepted for publication by Claims magazine and was published yesterday (2/22/10) as part of the online publication or web magazine. I republish it here, with the permission of the publisher Summit Business Media, for your reading enjoyment.

In the alternative, you can check this article out, as well as a variety of other insurance-themed articles, at http://www.claimsmag.com/. This particular article can be found under "Web Exclusives":

CLAIMS REP PET PEEVES

by

Daniel E. Cummins

Every profession generates its own perpetual annoyances that cause frustration day in and day out. Claims is no exception, as there are pet peeves caused by fellow claim professionals, claim management, attorneys, or even from dealing directly with insureds and claimants.

I recently floated this topic on the discussion boards of several insurance or claim groups to which I belong on LinkedIn.com (http://www.linkedin.com/in/danielcummins). I requested feedback about what irked people the most in claims. What follows is a cross-section of the responses I received in this unscientific study, along with suggested solutions to lessen the frequency that these annoyances occur. Let’s see if any strike a nerve with you.

Surprises

A frequently mentioned pet peeve of claim professionals was being hit with surprises. Claim representatives, under the pressure of management, obviously do not appreciate being notified of a court hearing or a pre-trial settlement conference the day before it is scheduled to happen, particularly when the court previously sent out the date weeks or months before.

As noted by one claim rep, claim managers do not want any surprises from their claim staff. For example, management does not want to learn that a reserve should have been raised substantially a year ago, or that extraordinary settlement authority is needed by next day.

Possible Solution: Stay on top of your calendar — and your defense counsel — to keep you apprised.

Silence from Plaintiff’s Counsel

Another continually recurring annoyance for claim representatives is the situation whereby plaintiff’s counsel sends a letter of representation for an injured party and then falls as silent and unresponsive as a hippo laying in the summer sun at the zoo. The claim representative is then left with an open file in an increasingly growing list of open files, with no opportunity to work to evaluate and close the file out. This is frustrating, to say the least.

Possible Solution: Keep reaching out to plaintiff’s attorney. Dangle a carrot if you can; eventually they will come around because you have what they are looking for — namely, money.

Disorganized Case Presentations

According to the replies to this inquiry on the various discussion boards, perhaps just as bad as the non-responsive plaintiff’s attorney is the disorganized and/or unreasonable attorney. Claim representatives loathe the receipt of a pile of unorganized documents that are not broken out in to separate exhibits and placed in chronological order, with the duplicate copies removed from the pile.

Claim professionals also note that plaintiff’s attorneys often inexplicably fail to provide current photos or, at times, any photos for claims where scarring or disfigurement is alleged. Evaluating a scar that you’ve never seen is obviously problematic.

It is also frustrating for claim representatives to receive records only from the date of the accident forward, as opposed to complete medical files, particularly when it is evident that the claimant has a related prior medical history.

Possible Solution: Politely indicate to plaintiff’s counsel that it would be very helpful and appreciated if, next time, he could submit a streamlined demand package broken down into exhibits, and with duplicates removed. Maybe, one by one, the attorneys will learn, and you will have to deal with this pet peeve less frequently.

Ignorant Defense Counsel

Many claim professionals responded on the discussion boards by lamenting that their own insurance defense counsel often talked down to them instead of to them. Some also complained that defense counsel was often reluctant to hear out the claim representative’s opinions about the file, and that counsel even took umbrage, at times, with the claim representative offering instructions about how to proceed with the case or settlement negotiations.

Other pet peeves with defense counsel included a delay in timely status reports about the file and not receiving other reports as promised. Failure of defense counsel to return phone calls was another oft-repeated complaint.

Some claim professionals complained about the apparent inability of defense counsel to answer simple questions about the value of a claim or the cost to defend through the end of the matter. One particularly irked claim professional vented about “defense lawyers who call you up, yak for 45 minutes about non-urgent items and then close by saying, ‘I'll put this in a letter to you.’”

Possible solution: Have a frank discussion with defense counsel at the start of each claim, politely reminding him about how you would like certain things to be handled.

Difficult Insureds or Unrepresented Claimants

Another common lamentation by claim representatives concerns the penchant of insurers to absorb losses rather than refer fraudulent claims and claimants to the carrier’s Special Investigation Unit (SIU). This claim rep would rather fight and let SIU handle such claims to conclusion where the elements of fraud are clearly displayed within the content of the submissions made by the claimant and his counsel.

Some claim reps expressed beefs about the shoddy treatment they sometimes receive from difficult insureds or unrepresented claimants. One pet peeve noted was insureds who demand immediate responses from the claim reps on their terms. For instance, for a homeowners’ claim requiring an inspection, the homeowner reports that he’ll be home from work at 5:30 p.m. Well, the family should finish eating dinner by 6:30 p.m., so can the adjuster simply arrive between 7 and 7:30 p.m.?

Not surprisingly, claim professionals do not feel kindly towards insureds or claimants who call and swear at them. They are also not too fond of those who threaten to call the claim representative’s boss, insurance commissioner, or whomever else, provided that the claim rep does not comply with whatever request instantly.

Possible Solution: Bite your tongue. You can’t win here.

Fellow Professionals

One claim rep pointed to the pet peeve of insurance agents calling at the request of insureds and asking why the claim was not being paid, without the agent having first read the applicable policy language. Another claim professional said his biggest pet peeve is opposing claim reps. Many seem burned out; many lack any personal touch. Equally frustrating are opposing claim reps who take an unreasonable settlement position in a matter involving multiple defendants and defending carriers.

Possible Solution: Remember the adage, “what goes around, comes around.” Treat fellow claim professionals reasonably, and that good karma will hopefully, eventually, come back to you.

While these pet peeves may never be eradicated, perhaps an active acknowledgment of them by all of the parties involved can jumpstart the process of neutralizing irritating and frustrating situations. By addressing a pet peeve as it occurs, claim professionals can potentially minimize the frequency at which these recurring annoyances happen. In the end, the claims profession as a whole will benefit.

Daniel E. Cummins, Esq., is an insurance defense/coverage attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins (http://www.foleycognettilaw.com/). His blog, Tort Talk, provides updates about Pennsylvania civil litigation and insurance law issues (http://www.torttalk.com/).

New Trial Court Decision Sustaining Venue Clause in UM Policy

2010-02-19T14:47:00.005-05:00

A few days ago, the Lackawanna County Court of Common Pleas handed down a decision upholding a venue clause in a UM policy issued by Erie Insurance Exchange in the case of Kichline v. Erie Ins. Exchange, 2009 CIV 3052 (Lacka. Co. Feb. 16, 2010 Thomson, S.J).

Visiting Senior Judge Harold A. Thomson, Jr., my old boss from my law clerking days in Pike County, was faced with Erie Insurance's Preliminary Objections to a breach of contract and bad faith suit filed against Erie filed in Lackawanna County.

The case arose out of an accident that occurred in Northampton County during which the pedestrian Plaintiff was struck by an uninsured driver. At the time of the accident the Plaintiff was a resident relative insured under his parent's Erie policy. The parents lived in Northamptom County.

Erie raised coverage issues and refused to participate in arbitration proceedings. The Plaintiff's Lackawanna County attorney filed the breach of contract and bad faith action in Lackawanna County. The Plaintiff's theory on venue was essentially that Erie did business in Lackawanna County and could therefore be sued in that county on the claims presented.

Judge Thomson rejected the Plaintiff's venue argument and sustained the carrier's Preliminary Objections. The court was influenced by the fact that the accident occurred in Northampton County, the insureds resided in Northampton County at the time of the accident, and the Erie policy language provided a forum selection clause that mandated that any dispute as to coverage was to be decided in the county where the named insured resided at the time of the accident.

It is noted that this result of this case is similar to that of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 WL 3720649, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly) in which the Superior Court upheld the UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident. The O'Hara decision was not cited in Kichline v. Erie Ins.

Anyone desiring a copy of the Kichline v. Erie Ins. decision may contact me at dancummins@comcast.net.

I thank Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee for bringing this case to my attention.

New Westlaw Citation For Trial Court Opinion on Expert Discovery

2010-02-16T15:18:00.002-05:00

Here's the new Westlaw citation for the case of Barrick v. Holy Spirit Hospital, 2009 WL 5841789 (Cumberland Co. 2009 Hess, J.). In this case, the trial court ruled that a plaintiff's treating doctor, who also turns out to be the identified expert for trial for the plaintiff, must turn over correspondence the expert received from the plaintiff's attorney, particularly where, as in this case, the plaintiff's attorney discussed in his letters the strategy on the formulation of the expert's opinion.

This case has been appealed to the Superior Court by the Plaintiff and is currently in the briefing phase. I am in the process of drafting the amicus brief on behalf of the Pennsylvania Defense Institute. I will post a link to the brief once it is filed if anyone is interested. In the meantime, please contact me at dancummins@comcast.net should you wish to view a copy of the trial court's opinion.

Thanks to James Beck of the Philadelphia office the Dechert LLP law firm for securing the Westlaw citation.

Judge Greenaway Appointment to the Third Circuit Court of Appeals Confirmed

2010-02-16T08:03:00.003-05:00

On Tuesday, February 15, 2010, the United States Senate unanimously confirmed New Jersey Federal District Court Judge Joseph Greenaway Jr.'s appointment to the United States Third Circuit Court of Appeals.

The vote on the nomination of Pennsylvania Federal Middle District Court Judge Thomas I. Vanaskie is still pending.

In Honor of Lincoln's Birthday...

2010-02-11T15:00:00.003-05:00

In honor of President Abraham Lincoln's Birthday, I provide this reprint of an article of mine that appeared in the Pennsylvania Law Weekly a few years back:

Lincoln Logs of Wisdom

A Presidents' Day review of practical advice from one of our greatest lawyer-presidents

By Daniel E. Cummins
Special to the Law Weekly

On President's Day – Feb. 19 this year – we will honor the memory and accomplishments of one of our greatest presidents, Abraham Lincoln. While the myth and legend of this great president has expanded through history, it cannot be forgotten that he began his career as a country lawyer in Illinois.

Over the course of his career as an attorney and during his rise as a politician, Lincoln was famous for his wit and simple, yet compelling, way with words. He uttered many famous quotes, some of which are noted below, that can serve as excellent advice even for today's lawyers practicing nearly 150 years after his untimely death.

Whatever you are, be a good one.

Despite the current negative public perception of lawyers, the practice of law remains one of the noblest of professions. Continuing efforts of all attorneys to do the best they can for their clients and their community not only results in personal fulfillment but also advances the profession as a whole.

Good lawyers are not only strong advocates on behalf of their individual clients but may also serve as pillars of the community through volunteer work and pro bono work. Striving to volunteer one's time in this respect to the community is not only a part of being a good lawyer but also serves to foster a positive view of the profession as a whole.

It should also be kept in mind that we are not just lawyers. We may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts. An effort to be good in all aspects of life results not only in a sense of accomplishment but also makes for a more fulfilling existence. So the next time you find a heads up penny, in addition to the prospect of good luck, think, "Whatever you are, be a good one."

Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.

As lawyers, our reputations precede us. Having a character made up of integrity, honesty, or punctuality may cast a shadow just as long and deep as the negative shadow cast by one having an opposite character that is exhibited through a lack of integrity or through dilatory and vexatious conduct. There can be no question that one's reputation will set the stage as to how they are dealt with and viewed by others.

In picking up new files and before dealing with an opponent, one's first thought usually turns to the reputation of that other attorney. Many times, if the reputation is not known, it will be sought out by inquiring of others or doing other research in an effort to prepare for handling a file with that opposing counsel. Similarly, in dealings with judges, the "shadow" created by an attorney's reputation will reach the courtroom long before the attorney even stands before the bench on the issue presented.

It is often said that a lawyer's word is his bond. This is more than a cliché, it is a principle, a truth, and should be honored as such. Thoroughness in preparation and presentation along with punctuality and courteousness are also important aspects of creating a positive reputation. Adherence to these qualities will only enhance one's reputation within the bar and allow for better representation of the client.

Accordingly, it is important to constantly remember that every action may help to expand, or alter, our reputations. Consistent with Lincoln's analogy, when a tree is chopped down, it leaves little or no shadow. As hard as it is to develop a strong, favorable reputation, all it takes is one misstep to diminish, or even totally destroy, that reputation.

Give me six hours to chop down a tree and I will spend the first four sharpening the axe.

There is no better lawyer than a fully prepared lawyer. Judges and fellow counsel appreciate nothing more than the prepared lawyer who can streamline and thoroughly, yet concisely, present the client's position. Clients are better served by lawyers who take the time to become fully acquainted with the facts, the law, and the rules of civil procedure before completing whatever legal task lies ahead.

Whether it be the simple presentation of a discovery motion or the participation in a lengthy trial, the more time spent in preparation, the better the finished product will be. Additionally, developing a reputation as a well-prepared attorney will earn you the respect of your colleagues, may add to your credibility and will consequently strengthen whatever position you are advocating on behalf of your client.

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

Being in a profession that is adversarial by nature, we often approach issues with a fight in mind as opposed to efforts to reach an amicable resolution. With these words, Lincoln stressed that the role of a lawyer as a counselor is just as important, if not more important, than his or her role as a litigator.

Part of being a good lawyer is persuading clients to put emotions aside. Compromise is much more difficult when egos are involved and when attorneys take on emotional trappings of the client. Efforts at an objective evaluation of the pros and cons of any position will always serve the goal of reaching an amicable resolution of any dispute.

It is also often said that the sign of a good settlement or resolution is that both parties are not entirely happy with the result but the case is still nevertheless finally resolved. As Lincoln stressed, there is plenty of business to go around as we move from one file to the next and so litigation should not be sought out simply for the sake of litigation.

Am I not destroying my enemies when I make friends of them?

Similar to Michael Corleone's later advice in The Godfather, Part II, "Keep your friends close, but your enemies closer," Lincoln long ago recommended similar action to defuse one's opponents. Lincoln's advice goes a step further and advocates reaching out to one's enemies in an effort to appease them. Lincoln followed this advice when he famously filled his Cabinet seats with his political enemies. By doing so, he kept such enemies close and neutralized them by honoring them with prestigious positions of importance within the control of his administration.

In today's practice of law, we are routinely faced with adversarial attorneys we much rather not have to deal with. As difficult as it may be, perhaps it is better method of handling all adversaries by not retaliating in frustration but, wherever possible, greeting such opponents with appeasement or consideration.

Regardless of the shoddy treatment you may be receiving from an adversary, respond as you would wish to be treated. Routinely grant extensions or continuances when requested so long as it is not to the detriment of your client. Voluntarily disclose discovery that such opponents may be entitled to without the necessity of formal discovery requests or motions practice. Promptly return phone calls.

By acting in a non-confrontational manner towards vexatious opponents, it becomes more and more difficult for such adversaries to continue to respond or litigate in a negative fashion. Additionally, if certain issues eventually come to a head and require court intervention, the court would look more favorably upon your efforts towards an amicable resolution of the issue when compared to the petty and negative conduct of your opponent.

Better to remain silent and be thought a fool than to speak out and remove all doubt.

At CLE seminars, we often hear judges on the panel spend their presentations expressing the virtues of brevity and giving examples of less than exemplary arguments or presentations presented by attorneys in court.

Overburdened judges and bored jurors appreciate concise arguments grounded in common sense and ideals of fairness. The old school of thought of reiterating your argument three times in an effort to engrain your position upon the minds of the jurors no longer seems valid in this day and age of the rapid fire receipt and retention of information. Jurors, who are much more intelligent than they are usually given credit for, may become frustrated and develop a negative view towards you and, consequently, your client if you bore them with an unnecessarily repetitive presentation.

Being brief and concise can go a long way in having an impact and leaving a lasting impression upon others. No better example of this can be cited than Lincoln's own brief, concise, yet powerful, Gettysburg Address. Lincoln used less than 300 words delivered in just over two minutes in what has become known as one of the most compelling speeches in American history.

And in the end it's not the years in your life that count. It's the life in your years.

Despite being overburdened with attempting to reunite a country divided by civil war and bloodshed, Lincoln remained close to his wife, doted on his children, and otherwise attempted to live his life to the fullest.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives. A balance between work and life outside of work should be sought and encouraged. Focusing one's energy entirely on work may cause one to burn out or become disillusioned with the practice. It will also likely result in significant regret at the end of one's life when looking back at all the missed opportunities to enjoy life outside of work with our family and our friends.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends, enjoying recreational activities or hobbies, or by developing whatever your potential may be will only serve to add life to your years. Such a well-rounded lifestyle may also result in one becoming a more productive and effective attorney.

President Abraham Lincoln has been rightfully revered as a great orator and a figure who personifies honesty, integrity, and freedom. What better way is there to honor his memory than by recalling the above-noted ideals he pursued and attempting to incorporate them into our everyday lives in a continuing effort to improve the world around us. In this regard, as stressed by Lincoln himself, "Leave nothing for tomorrow which can be done today." •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins (http://www.foleycognettilaw.com/). For more background information on Attorney Cummins, see his online profile at http://www.avvo.com/attorneys/18503-pa-daniel-cummins-610885.html.

This article is reprinted here, with permission, from the January 29, 2007 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Governor Rendell Announces Two More Appointments to Fill Vacancies on Luzerne County Court of Common Pleas

2010-02-09T23:28:00.004-05:00

Governor Rendell has nominated Lewis Wood Wetzel, Esquire of Dallas and Joseph Van Jura, Esquire of Kingston to fill the open judgeships on the Luzerne County Court of Common Pleas. It is hoped that these nominees will be whisked through the nomination process quickly so they can assist with the backlog in the court system.

According to the website of his law firm, Wetzel, Caverly, Shea, Phillips, and Rodgers , Attorney Wetzel is a 1968 graduate of the Dickinson School of Law and has specialized in Real Estate Law, Business Litigation, Probate, Estate Planning, Wills, Trusts. See http://www.wcsprlaw.com/bios.html.

According to Martindale-Hubbell, Attorney Van Jura graduated from the University of Notre Dame Law School and entered the practice of law in 1972. His legal specialties are listed as covering Litigation; Insurance Defense; Personal Injury; Torts; Real Estate; Education Law; Zoning, Planning and Land Use.

According to a February 9, 2010 article by Dave Janoski in the Citizens Voice, Attorney Wetzel and Attorney Van Jura will fill vacancies created by the corruption-related resignation of former judge Michael T. Toole and the election defeat of former judge Peter Paul Olszewski Jr.

The article also noted that Wetzel and Van Jura would serve through 2011, at which point voters will choose two judges to serve 10-year terms.

Janoski also wrote that the addition of Wetzel and Van Jura to the short-handed county bench would leave the county with nine of its 10 judicial slots filled. Last year, the state Supreme Court halted an election to fill the 10th seat on the bench, left vacant after it removed former judge Ann Lokuta from office in December 2008. Lokuta, who was accused of mistreating court employees and attorneys, is still in the process of seeking reinstatement.

Just In Time For Valentine's Day...

2010-02-09T20:20:00.008-05:00

Just in time for Valentine's Day, here's a reprint of my recent article from the Pennsylvania Law Weekly:

Spread A Little Love:

Being pleasant and considerate is part of being a professional

By Daniel E.Cummins
Special to the Law Weekly
DanCummins@comcast.net

The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.
With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:

Express Appreciation to Your Staff

Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?

Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."

Return Phone Calls

It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.

Show Interest in Others

See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.
Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.

Be Considerate About Technology

Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?

Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.

Smile

In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.

Grant Professional Courtesies

Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.

Show Gratitude to Your Spouse

Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."

Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?

Take Care of Yourself

Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.

Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins (http://www.foleycognettilaw.com/). For more background information on Attorney Cummins, see his online profile at http://www.avvo.com/attorneys/18503-pa-daniel-cummins-610885.html.

This article originally appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

Another Recent Post-Koken Decision

2010-02-09T14:30:00.009-05:00

A recent post-Koken decision has been handed down in Philadelphia County in the case of Zerggen v. Rietman and Nationwide Insurance, No. 0906 of 1752 June Term 2009 (Phila. Co. Jan. 20, 2010 McInerney, J.). Judge Patricia McInerney sustained the preliminary objections filed by the tortfeasor and transferred the case to Chester County on a venue argument and also severed the third-party case from the underinsured motorist claim against Nationwide.

The decision is by Order only, without any Opinion. Anyone wishing to receive a copy of the Order from Zerggen may contact me at dancummins@comcast.net.

The Plaintiff in Zerggen has filed a Motion for Reconsideration. Perhaps an Opinion will be forthcoming from the court thereafter.

Defense counsel for the tortfeasor is Ronald Marrero Esq. and counsel for Nationwide is Victor M. Verbeke, Esq.

I note that the above Philadelphia County case in favor of a severance of the claims is in conflict with the previous Philadelphia County cases I have seen of Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied) and Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied). [I do not have copies of those opinions on hand.]

Thus, in addition to some conflicting decisions from different counties around the Commonwealth on the consolidation (19 decisions) vs. severance (5 decisions) issue, there is now a split of the authority from within the Philadelphia County Court of Common Pleas. All the more reason for some trial court judge to hopefully grant permission for this issue to go up on an interlocutory appeal to the Superior Court so that members of the bar, as well as the trial court judges, can secure some appellate guidance on how to handle this issue.

For more details on the county-by-county handling of this issue by the trial courts, please click on the Post-Koken Scorecard down on the right hand column of this blog.

I thank Attorney Verbeke for bringing the Zerggen case to my attention.

HMOs Exempt From Bad Faith Lawsuits

2010-02-06T11:28:00.006-05:00

The Superior Court recently affirmed a trial court decision that a Plaintiff was unable to assert a Section 8371 bad faith claim against a defendant HMO because the Health Maintenance Organization Act exempts HMOs from the bad faith statute. Nordi v. Keystone Health Plan West, Inc., 2010 WL 204103 (Pa. Super. Jan. 22, 2010 Cleland, J.). The Plaintiff's lawsuit against the HMO arose out of a denial of the Plaintiff's request for continued physical therapy treatments.

This case may also be viewed at http://www.aopc.org/OpPosting/Superior/out/A23044_09.pdf.

Source: Pennsylvania Law Weekly "Case Digests" (2/1/10).

Split Decision by Pennsylvania Supreme Court on Attorney-Client Privilege Issue

2010-02-03T23:30:00.013-05:00

Recently, on January 29, 2010, the Pennsylvania issued a 2-2 per curiam split decision in the attorney-client privilege case of Nationwide Mut. Ins. Co. v. Fleming, 2010 WL 336171, No. 32 WAP 2007 (Pa. 2010). Only four Justices took part in the decision because Justices Debra M. Todd and Seamus McCaffery had to recuse themselves, having sat in on the same case when they were previously on the Superior Court. The Court was also down a Justice at the time this case was considered because of a retirement.

Justices J. Michael Eakin and Max Baer voted to affirm the Superior Court's decision and Justices Saylor and Chief Justice Castille voted to reverse. Under the rules of the Court, the 2-2 split means that the Superior Court decision was affirmed.

Basically, the case involved a lawsuit brought by Nationwide against a group of former insurance agents who allegedly provided confidential information on policyholders to competitors of Nationwide. The agents countersued under a claims of bad faith and improper efforts by the carrier to drive the agents out of business.

In the underlying action, the agents wanted to compel the production of a document drafted by Nationwide's attorney and provided to the client, which document outlined the attorneys' assessment of the potential liability of the agents and also discussed strategy for the lawsuit against the agents. This document was identified as Document 529 in the Opinion. The document also contained the attorneys' assessment that the suit against the agents was not likely to succeed, but that the primary purpose of pursuing such a suit was to send a message to other agents.

Although Nationwide refused to produce the above document, it did voluntarily produce other documents authored by the attorneys, identified as Documents 314 and 395. These produced documents portrayed Nationwide's case against the agents in a more favorable light.

The trial court in this case found that Nationwide waived any asserted privilege with respect to Document 529 by voluntarily producing Documents 314 and 395, given that all of the documents essentially dealt with the same topic.

The Superior Court had affirmed on the alternative grounds that the privilege only protects confidential communications from a client to an attorney in connection to the providing of legal services. That is, the Superior Court decision appears to stand for the proposition that the attorney-client privilege only applies to information given to the attorney by the client and not the other way around. As stated, the split decision of the Supreme Court leaves this as the law of the land.

The Supreme Court Opinion in reversal, written by Justice Saylor and joined in by Chief Justice Castille, criticized the Superior Court's ruling, finding that attorney advice and information from clients are "often inextricably intermixed." These Justices felt that the Superior Court rule presents "'inordinate practical difficulties' that make the rule administratively and judicially unworkable." The Opinion in reversal would have recommended erring on the side of caution and apply to the attorney-client privilege to all communications between an attorney and client.

According to a February 2, 2010 article by Gina Passarella of The Legal Intelligencer entitled "Justices Can't Agree on Attorney-Client Privilege Dispute," the Pennsylvania Supreme Court may get another chance to review this case, presumably with a full panel of Justices, in the case of Gillard v. AIG. A petition for allocatur on that case is currently pending before the Court.

To view the Nationwide v. Fleming Opinions and Order, click on these links:

Per curiam Order: http://www.aopc.org/OpPosting/Supreme/out/J-27-2008pco.pdf

Opinion in Affirmance: http://www.aopc.org/OpPosting/Supreme/out/J-27-2008oisa.pdf

Opinion in Reversal: http://www.aopc.org/OpPosting/Supreme/out/J-27-2008oisr.pdf

Thanks to Attorney Matt Keris of the Moosic, PA office of Marshall, Dennehey for bringing this decision to my attention.

Recent Bad Faith Decision From Superior Court

2010-02-02T18:34:00.006-05:00

Recently, on December 28, 2009, the Pennsylvania Superior Court affirmed summary judgment in favor of Progressive Insurance Company in the bad faith case of Johnson v. Progressive, 2009 WL 5066780, 2009 Pa.Super. 255 (Pa.Super. 2009 Bowes, J.).

According to Judge Bowes' Opinion, the UIM policy limits of $100,000 were demanded by the Claimant. After discovery, an offer of $30,000 was extended. Eventually, an arbitrator awarded the Claimant $75,000.00.

The Opinion also noted that the carrier conducted a reasonable investigation into this claim in which the extent of damages was disputed between the parties. No misrepresentations by the carrier were found and it was indicated that the carrier moved the matter along to the arbitration in a prompt fashion.

The court also rejected the Plaintiff's claim that the carrier's settlement offer was too low, especially when compared with the award that was eventually entered. It was found that there was sufficient evidence to support the differences of opinion on the value of the case presented.

As such, the Superior Court affirmed the trial court's entry of summary judgment in favor of the carrier after finding that there were no genuine issues of material fact with respect to the finding that the carrier had not displayed any evidence of bad faith in the handling of this claim.

In addition to the Westlaw citation above, this case can also be viewed at http://www.superior.court.state.pa.us/opin.htm.