IMMUNITY IN UM/UIM CASES UNDER
THE WORKER’S COMPENSATION ACT
A frequent issue in UM/UIM cases involving claimants injured in the course and scope of employment is the immunity, if any, available under the Workers Compensation Act, 77 P.S. §1, et seq. Specifically, a question exists as to whether a person injured in a motor vehicle accident as a result of the negligence of a co-employee may recover UM or UIM benefits. In Federal Kemper v. Wales, 633 A.2d 1212 (Pa. Super. 1993), the Superior Court first addressed that issue. In that case, the Superior Court held that the immunities conferred by the co-employee rule of the Worker’s Compensation Act did not create an uninsured motorist claim. Similarly, in Nationwide v. Chiao, 2006 WL 1785367 (3d Cir. 2006), the Third Circuit Court of Appeals held that there was no obligation to provide underinsured motorist coverage to an employee injured by the negligence of a co-employee driver. That case was successfully handled by Swartz Campbell attorneys.
Recently, two Courts of Common Pleas addressed these issues. In Erie Ins. Exch. v. Conley, 2010 WL 3455532 (Allegh. Cty. Ct. Com. Pl. 2010), Judge Hertzberg held that a claimant may not recover underinsured motorist benefits under his own personal automobile policy where he was injured in the course and scope of his employment because his claims are precluded by the exclusivity provisions of the Worker’s Compensation Act, 77 P.S. §481(a). The claimant, Conley, was injured while in the course and scope of his employment when a vehicle operated by his employer stuck him, causing serious personal injuries. Conley received worker’s compensation benefits. Thereafter, he made claim for the recovery of underinsured motorist benefits from his own automobile insurer, Erie. Erie denied benefits and instituted a declaratory judgment action asserting that Conley was not entitled to benefits by virtue of the exclusivity provision of the Worker’s Compensation Act. As noted, the Court held that Conley was ineligible to recover uninsured motorist benefits. In so holding, the Court reasoned that in order to recover underinsured motorist benefits, Conley must be “legally entitled to recover damages” from the owner or operator of an underinsured auto, and therefore, must be able to prove negligence against the party injuring him. However, because that party was the Conley’s employer, and his employer has immunity from suit, Conley is not legally entitled to recover damages from his employer.
Similarly, in Petrochka v. Nationwide Mut. Ins. Co., 2010 WL 3540125 (Lackaw. Cty. Ct. Com. Pl. 2010), Judge Nealon held that the plaintiff, Petrochko, could not recover underinsured motorist benefits from her own automobile insurer when she was injured by the negligence of a co-employee during the course and scope of her employment. Petrochko, while in the course and scope of her employment, sustained personal injuries when she was struck by a motor vehicle operated by a co-employee. The Court noted that the Worker’s Compensation Act provides immunity for the co-employee tortfeasor, and thus, Petrochko could not maintain suit directly against the tortfeasor. The Court further noted that in order to recover underinsured motorist benefits, Petrochko must be “legally entitled to recover” damages from the owner or operator of an underinsured motor vehicle. As Petrochko was not legally entitled to recover damages from a co-employee by virtue of the immunity afforded under 77 P.S. §72, she could not recover underinsured motorist benefits under her personal automobile insurance policy.
On October 7, 2010, Jeff McCarron and Josh Byrne of the Professional Liability Group of Swartz Campbell received a directed verdict entered in favor of their client following a two week trial in the Court of Common Pleas in Montgomery County. This complex case involving claims of indemnity, contribution, and legal malpractice arose out of an underlying abuse of process award of more than $1 million against the plaintiffs. The plaintiffs sought to assign blame to defendants for the abuse of process award, alleging that the abuse award was solely the result of defendants who had represented plaintiffs in a related copyright litigation.
REAL ESTATE EXCEPTION TO SOVEREIGN IMMUNITY
In Thornton v. Philadelphia Housing Authority, No 2276 C.D. 2008 (Pa. Cmwlth. September 23, 2010), the Commonwealth Court addressed whether the real estate exception to sovereign immunity, 42 Pa.C.S. §8522(b)(4), applied in connection with a fatal fire occurring at a residential apartment building owned by the Pennsylvania Housing Authority. Specifically, the Commonwealth Court focused on whether the allegations that (1) there was an absence of a fully functional fire detection and protection system; (2) there were no fire walls; and (3) there was old plaster and drop ceilings fell within any of the enumerated exceptions to sovereign immunity. The Court held that it was not necessary that the defective condition caused the fire, but instead, whether the defect in the real estate itself caused the decedent’s harm. Therefore, a question of material fact existed as to whether the defects were a cause of the decedent’s death.
LUZERNE COUNTY UNINSURED MOTORIST CLAIM
Swartz Campbell LLC represents the defendant in the case of Vanderhoff v. Harleysville Mutual Insurance Company. Recently, the developments in that matter were reported in the Times Leader in Wilkes-Barre. In that case, the claimant did not report the phantom vehicle accident until eight months later. The Court of Common Pleas of Luzerne County found that the insurer was not prejudiced by the late notice. An appeal has been filed to the Superior Court. Click here for the Times Leader newspaper article:
WORK PRODUCT MAY BE DISCOVERABLE
In Pennsylvania, communications between an attorney and a testifying expert have been protected from discovery by opposing counsel by virtue of the attorney work product privilege. Pa.R.C.P. 4003.3 prohibits the disclosure of the mental impressions of a party’s attorney. However, in Barrick v. Holy Spirit Hospital, 2010 Pa. Super. 170; __ A.2d __ (Pa. Super. September 16, 2010), the Superior Court held that “attorney work-product must yield to the disclosure of the basis of a testifying expert’s opinion.” Barrick, 201 Pa. Super 170 at p. 12. In that case, the Superior Court addressed the conflict between Pa.R.C.P. 4003.3, which prohibits the disclosure of the mental impressions of a party representative, and Pa.R.C.P. 4003.5, which provides for the disclosure of the substance of facts and opinions underlying an expert’s conclusions. There, the defendant sought disclosure of written communications between counsel for the plaintiff and the expert designated to testify at trial on behalf of the plaintiff. The defendant argued that Pa.R.C.P. 4003.5 permits the disclosure of the substance of facts and opinions underlying an expert’s conclusions. The plaintiff argued that written communications between counsel for the plaintiff and an expert retained to testify on behalf of the plaintiff is protected by the attorney work product privilege set forth at Pa.R.C.P. 4003.3. The Court reasoned that the attorney work-product privilege is not sacrosanct, particularly where it has become relevant to an issue in the pending action.” Id. The Court further reasoned that the defendant was entitled to test the weight and veracity of the expert opinion; and further, to discover the influence that counsel for the plaintiff had with respect to the opinion of the expert. Thus, a party is “entitled to discover information which would enable them to ascertain whether [the expert’s] opinions are his own or whether he merely intended to parrot what he was told by counsel.” Id. at 13.
ADMISSIBILITY OF CONDUCT IN PRODUCT LIABILITY CASES
Generally, in a product liability case, the plaintiff must prove both that the product was defective and that the defect was the cause of the plaintiff’s injuries. Often times, however, the injured plaintiff was using a product in a manner other than specifically indicated or intended by the manufacturer. Therefore, a question exists as to whether the injured plaintiff’s conduct is a cause of their injury. In REOTT v. ASIA Trend, Inc., 2010 Pa. Super. 176 (Pa. Super. September 21, 2010), the Superior Court discussed the issue of when evidence of a plaintiff’s conduct is admissible. In Reott, the plaintiff bought a hunting tree stand. While installing the tree stand, the plaintiff hugged the tree, raised himself up on his toes and came down gently on his heels to take any remaining slack out of the locking strap. However, the locking strap broke and the plaintiff fell to the ground crushing his vertebrae. This maneuver, which the plaintiff stated he had done hundreds of times, was not part of the recommended instructions from the manufacturer. After the plaintiff’s case in chief, the defendants introduced a video regarding the installation of the tree stand and the instruction manual. No witnesses were called to testify. The plaintiff, thereafter, moved for a directed verdict. The defendant argued that this maneuver raised a question as to whether the plaintiff’s conduct was highly reckless. The trial court refused to grant a directed verdict as to causation. On appeal, the Superior Court held that a defendant may introduce evidence of a plaintiff’s conduct in three distinct circumstances – (1) to prove that the conduct constituted a voluntary assumption of the risk; (2) a misuse of the product; and/or (3) highly reckless behavior. With respect to the affirmative defense for highly reckless behavior, the Superior Court held that the defendant must provide that “(1) the plaintiff ‘knew or had reason to know of facts which created a high degree of risk of physical harm to himself or that he deliberately proceeded to act, or failed to act, in conscious disregard of the risk,’ and (2) the plaintiff’s conduct was the sole or superseding cause of the injury.” In applying the facts adduced at trial to the defense for highly reckless behavior, the Superior Court held that the evidence introduced at trial was insufficient as a matter of law to support the defense of highly reckless behavior. Therefore, the plaintiff was entitled to a directed verdict as to causation.
OVERRULING PRIOR PRECEDENT
Overruling a prior decision is not something that the Pennsylvania Supreme Court does often. When overruling a prior decision, there are several factors that the Court takes into consideration, including, whether to apply the decision prospectively or retroactively. In Freed v. Geisinger Medical Center, No. 77 MAP 2007 (Pa. September 29, 2010), the Supreme Court discussed what factors are considered when it, sua sponte, overrules a prior decision. In that case, the Supreme Court held that “an otherwise competent and properly qualified nurse is not prohibited by the Professional Nursing Law, 63 P.S. §§211, et seq. from giving expert testimony at trial regarding medical causation.” Freed at 2. In so holding, the Court overruled, sua sponte, its prior decision in Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997). The Court further held that its decision applied retroactively to the parties in the instant case, and accordingly, on remand, the trial court should assess the competency of the plaintiff’s witness, a registered nurse. Geisinger filed a petition for reargument claiming that the Court in overruling Flanagan and applying its decision retroactively denied Geisinger its due process rights of notice and an opportunity to be heard. The Court granted reargument and noted that prior to overruling decisional law, sua sponte, the interests of the parties are served by allowing the participants an opportunity to present argument. The Court further noted that there are several concerns that support sua sponte reconsideration and overruling of prior cases. Primarily, parties are unlikely to ask for reconsideration of controlling precedent. Additionally, parties are generally focused on the application of precedent to their case and may not be aware of the impact or implication of the same precedent in other cases. Moreover, there is no absolute jurisprudential bar to the Supreme Court’s sua sponte reconsideration of precedent. Accordingly, in the present case, the Court determined that it was necessary to sua sponte overrule Flanagan. The Court also noted that there are two primary considerations with respect to the retroactive application of a rule of law, “(1) whether the holding involves an interpretation of a statute or some other source of law; and (2) whether the issue is substantive or procedural.” In Freed, the Court noted that since it was dealing with a procedural ruling, the ability of an expert to testify, its decision could be applied retroactively.
COMMONALITY IN CLASS ACTIONS
In order to establish a class action, the party seeking class certification must demonstrate that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative is typical of the class; (4) the class representative will fairly and adequately protect the interest of the class; and (5) a class action is a fair and efficient method for adjudication. Pa.R.C.P. 1702. In Basile v. H&R Block, Inc., 2010 Pa. Super. 184 (Pa. Super. October 7, 2010), the plaintiffs brought suit against H&R Block for a breach of fiduciary duty claiming that the plaintiffs were misled into believing that the Rapid Refund program provided the class members with an expedited refund as opposed to a short term loan. The trial court decertified the class reasoning that because the claim of breach of fiduciary duty requires the plaintiff to demonstrate that they were not on equal terms with H&R Block, the commonality requirement could not be met, as it was possible that some clients were on equal terms with H&R Block. However, the Superior Court reversed and held that the class plaintiffs could use evidence of internal documents and deposition testimony from the defendant to prove that the members of the class, as a whole, did not deal on equal terms with H&R Block.