This article of mine was recently published in The Pennsylvania Law Weekly and is republished here with permission:
By Daniel E. Cummins | January 30, 2020
|Daniel E. Cummins, Esq.
The Pennsylvania Supreme Court’s penchant for rewriting Pennsylvania law in the place of the legislature’s duty to do so has advanced so far to the point that even Justice David Wecht has strongly cautioned his counterparts in his increasingly frequent dissenting opinions that the majority’s “freewheeling and unwarranted invocation of ‘public policy,’” particularly in motor vehicle accident cases, “risks an appearance of jurisprudence that is arbitrary, unprincipled and ultimately illegitimate.” See Sayles v. Allstate, No. 58 MAP 2018 (Pa. Nov. 20, 2019).
Indeed, a new era of plaintiff-favorable jurisprudence is emerging in Pennsylvania that will alter how many important aspects of automobile accident claims will be handled in the future.
The year started off the Pennsylvania Supreme Court’s earthquake of a decision in the case of Gallagher v. Geico, 201 A.3d 131 (Pa. Jan. 23, 2019), in which the court shook up the motor vehicle accident litigation world and held that the household exclusion contained in a Geico policy violated the MVFRL because it served as a “de facto waiver” of stacked coverage. In a stunning example of its judicial activism in favor of plaintiffs causes, the court noted that its decision in Gallagher not only applied to that case, but should also be read to eradicate the household exclusion across the board.
Over the course of the year, the scope of the Gallagher decision was expanded further by other federal and state courts in Pennsylvania. Just recently, in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. Nov. 19, 2019), the Pennsylvania Superior Court ruled that the Pennsylvania Supreme Court decision in Gallagher should be read to apply retroactively. This decision is important to the plaintiffs bar as it confirms that the already filed class action lawsuit, in which plaintiffs have asserted that they have been wrongfully denied coverage by the application of the household exclusion in prior claims, may proceed forward.
The plaintiffs bar scored yet another victory at the Pennsylvania Supreme Court level with in Sayles. The Sayles case involved the long-standing practice of automobile insurance companies periodically requesting its insureds to attend a medical exam in first party (PIP) medical benefits claims as required by the terms of the insurance policy.
The court, relying in part on alleged public policy concerns, accepted the plaintiffs’ argument in Sayles that such policy terms requiring insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is titled “mental or physical examination of a person.”
The Pennsylvania Supreme Court, rejected the current practice of PIP insurers requesting its insureds to attend a medical examinations as per the provisions of the insurance policy agreed to by the parties and ruled that insurers must, instead, file a motion with a trial court judge and demonstrate good cause to support the request for the exam. Under this ruling, it will now be a trial court judge who will select the medical examiner and who will also set the parameters of the exam.
In light of the Sayles decision, motor vehicle accident litigators and trial court judges can unfortunately now expect a flood of motions followed by petty litigation over the selection of an appropriate doctor and the parameters of the exam. Unfortunately, in its haste to effectuate this change in the law, the Supreme Court in Sayles failed to provide trial court judges with any guidance on how to decide these more specific issues.
Over the past year, the Pennsylvania Supreme Court did rule in favor of an auto accident law defense position put forth in at least the case of Safe Auto Insurance v. Oriental-Guillermo, 26 MAP 2018 (Pa. Aug. 20, 2019). In this case, the Supreme Court affirmed the Superior Court’s decision upholding the validity of Safe Auto’s unlisted resident driver exclusion.
Under this exclusion, Safe Auto excluded from coverage under its policy those individuals who resided with the Safe Auto insured, but who was not related to the insured and who were not listed on the Safe Auto policy as additional drivers.
The Supreme Court agreed that this insurance contract provision was not ambiguous, did not violate Pennsylvania’s Motor Vehicle Financial Responsibility Law, and did not violate Pennsylvania’s public policy.
Another notable appellate decision under Pennsylvania’s Motor Vehicle Financial Responsibility Law was the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019).
In Farese, the Superior Court addressed the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions found under Act 6, 75 Pa.C.S.A. Section 1797, of the MVFRL.
In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million, of which $900,000 was an award for future medical expenses. The defendant had objected at trial to the plaintiff being permitted to argue to the jury the total amount of alleged future medical expenses anticipated as a result of the accident, as opposed to the plaintiff being limited to only asserting an Act 6 reduced amount of such expenses.
On appeal, the court in Farese held, in what appears to be the first appellate decision of its kind, that future medical expenses need not be reduced in accordance with Act 6 before being presented to the jury at trial.
As such, in motor vehicle accident cases, plaintiffs will now be allowed to put into evidence the full amount of future medical expenses their experts claim that the plaintiff will allegedly incur if they continue to treat after the litigation is concluded or settled, as opposed to the reduced amounts. This decision did not alter the rule under Act 6 requiring that past medical expenses be reduced.
In 2019, the Pennsylvania Superior Court provided its latest pronouncement on the admissibility of intoxication evidence in motor vehicle accident cases. In Livingston v. Greyhound Lines, No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.), the Superior Court reiterated the rule of law that evidence of alcohol or drug consumption by a person involved in an accident is admissible only where there is evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.
The Superior Court noted that even an admission by the tortfeasor of admitted alcohol or drug use is subject to being excluded from evidence where the plaintiff fails to present evidence of chemical testing sufficient to show intoxication, or where the Plaintiff fails to present any other evidence of impairment.
It has been over a decade since the Koken decision was handed down and there is still no body of appellate decisions to provide guidance to the trial courts and the bar on how to handle the variety of issues that arise from the pleadings stage to trial in motor vehicle accident cases involving both a tortfeasor defendant and an insurance company co-defendant. The lack of appellate decisions may be due, in large part, to the fact that most of these cases are being resolved through ADR proceedings at the trial level.
A continuing trend to watch in post-Koken matters is whether the trial courts will allow these types of cases that are heading to trial to proceed as a single trial of all claims, or will instead bifurcate these cases into separate trials, with one the trial proceeding against the tortfeasor and a separate trial with a separate jury proceeding against the insurance company providing the UIM benefits. The primary rationale in favor of bifurcation is that the third-party tortfeasor defendant would be protected from having to sit before the jury with an insurance company as a co-defendant and face the inherent prejudice created by such a scenario.
In the absence of any concrete appellate guidance, the trial courts continue to struggle with this issue so much so that the answer to whether any given case will be bifurcated may depend upon in which county court the case is pending, and possibly even which county court judge is deciding the issue.
In one example of a bifurcation decision from the past year, Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor defendant’s motion to bifurcate the trial of third-party negligence claims from the breach of contract and bad-faith claims asserted against the UIM carrier the post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019).
A listing of some of the various county court decisions on this issue and other notable post-Koken issues can always be freely accessed on the post-Koken scorecard on the Tort Talk blog, which can be found at www.TortTalk.com.
It has been long held under Pennsylvania law that punitive damages may only be pursued in motor vehicle accident cases involving outrageous facts. In Pennsylvania auto accident cases, punitive damages claims have largely been limited to cases involving DUI drivers, tractor trailer drivers, and, at times, to cases involving drivers who were using a cellphone at the time of an accident. For a recent decision of note in this regard from last year, see Santiago v. Yates, No. 2018-CV-4504 (C.P. Lacka. Co. Feb. 14, 2019 Nealon, J.).
There has recently developed two lines of decisions in Pennsylvania on whether allegations of recklessness should be stricken from complaints filed in ordinary motor vehicle accident cases. One line of Pennsylvania trial courts have ruled that, if there are not sufficient facts pleaded in the complaint to establish the outrageous conduct to support a punitive damages claim, then the allegations of recklessness should be stricken by way of preliminary objections.
The second line of cases, as evidenced in the decision in Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Aug. 15, 2019 Gibbons, J.), hold that averments of recklessness are allegations pertaining to the state of mind of a defendant that, under the Rules of Civil Procedure, are permitted to be pleaded in a more liberal fashion. Courts ruling in this fashion will typically deny preliminary objections in this regard but also rule that the issue can be revisited at the summary judgment stage.
How a given court will rule on these types of preliminary objections will depend upon in which county the case is pending and how the judges in that county have ruled in the past.
The plaintiffs bar has been arguing, in part, that the application of the regular use exclusion also violates the statutory mandates requiring that the carrier secure executed forms for the rejection of stacked UM/UIM coverage from its insureds. Another argument has been made under the same public policy references that have proved successful with the Supreme Court in the past.
The defense bar rebuffed these arguments in the case of Barnhart v. Travelers, No. 2:19-CV-00523-MJH (W.D. Pa. Oct. 28, 2019 Horan, J.). Yet, in the case of Rush v. Erie Insurance Exchange, No. C-48-CV-2019-1979 (C.P. Northampt. Co. Oct. 1, 2019 Baratta, J.), the court accepted the plaintiff’s argument and denied a motion for judgment on the pleadings filed by the carrier with respect to a regular use exclusion.
It is anticipated that the plaintiffs bar may try to push either of these cases (and any other plaintiffs’ causes) up the appellate ladder to secure their desired ruling from the liberal and judicially activist Pennsylvania Supreme Court. It is anticipated that the plaintiffs bar will rely upon public policy arguments given that there are decades of precedent already on the books upholding the regular use exclusion. It remains to be seen in this regard whether the battered and beaten down doctrine of stare decisis will make a comeback or not.
Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters.