Summer Quarterly 2003
PENNSYLVANIA SUPERIOR COURT AFFIRMS ORDER ENFORCING UNINSURED MOTORIST SETTLEMENT
Moustakidis v. Nationwide Mutual Insurance Company – After a May 2, 1996 accident, the plaintiff presented an uninsured motorist ("UM") claim to Nationwide, his insurance carrier. On December 15, 1996, after negotiations which included three meetings with the claims representative, plaintiff settled his UM claim for $3,127.00 and signed a release. Eighteen months later, plaintiff retained counsel to pursue a claim for additional UM benefits. One month later, plaintiff retained another attorney for the same purpose. Both counsel were advised that the UM claim had been settled and a release signed.
Almost four years after the accident, plaintiff filed a Petition to Compel Arbitration. In response, Nationwide filed an answer alleging, among other things, that the UM claim had been settled. Plaintiff filed Preliminary Objections to this response but took no further action until Nationwide filed a Petition to Enforce the Settlement on February 25, 2002. At the hearing on this petition, plaintiff testified that he could neither read nor write English, and that the settlement had been procured by fraud as he had been advised that the settlement related to wage loss payments and not UM benefits. The Nationwide claim representative testified that he fully explained the settlement to plaintiff, gave him an opportunity to have the release reviewed by plaintiff's wife who could read and write English, and clearly told him that the release discharged any further UM claims. The claim representative also testified that plaintiff was advised that he could later pursue a claim for wage loss benefits.
Plaintiff argued that the issue of the enforceability of the settlement was for the arbitrators and not for the court to decide. The trial court rejected this argument, holding that the arbitration provision of the policy did not encompass a settled claim which the insured subsequently decided was insufficient. The trial court held that absent fraud, misrepresentation, accident or mutual mistake, voluntary settlements are enforceable under general contract law principles and therefore granted Nationwide's Petition to Enforce Settlement and dismissed the plaintiff's Petition to Compel Arbitration.
On appeal, the Pennsylvania Superior Court affirmed in a memorandum opinion. The court noted that the issues raised by the plaintiff boiled down to (1) whether the trial court erred in concluding that the dispute did not fall within the policy's arbitration provision; and,(2) whether the trial court erred in finding that the parties entered into a valid settlement agreement. The Superior Court affirmed the lower court's holding on both issues and cited with approval the trial court's opinion holding that a settled UM claim is not a dispute which is subject to the arbitration provision of the policy. A motion to convert this opinion from a memorandum (non-precedential) to a published opinion has been filed.
For further information, please contact John F. Lewis, Esquire.
Telephone: (610) 272-4900.
JURY TRIAL - PRODUCTS LIABILITY - DEFENSE VERDICT
Giorgio v. John Doe Company – Plaintiff alleged that she was injured when a jar of pasta sauce broke in her hand at a supermarket on August 27, 2000. She contended that after she picked up the jar with her right hand, it "exploded like a bomb." The glass from the jar cut her left wrist, knees and legs, and she required five stitches on the inner aspect of her right knee to close a laceration.
Plaintiff reached a settlement with the supermarket prior to filing suit. She then brought suit against the pasta sauce manufacturer in the Berks County Court of Common Pleas, alleging strict liability, negligence (res ipsa loquitur), breach of warranty, and breach of warranty for a particular use.
At her deposition, the plaintiff testified that she missed one week from work as a result of the incident and could not exercise for approximately three weeks. She also claimed to have a piece of glass lodged in her left wrist which her physician said could not be removed. There was a small scar on the inner aspect of her right knee and a few scratches on her leg which she claimed were a result of the incident.
The matter was arbitrated in January of 2003 and the plaintiff proceeded only on the negligence claim. The arbitration panel found in her favor and awarded $17,500.00. The manufacturer appealed.
At trial in April of 2003, the plaintiff did not present any expert medical or liability testimony. Nonetheless, defendant's motion for non-suit on the strict liability, negligence and breach of warranty claims was denied. A non-suit was granted on the claim for breach of warranty for a particular use.
Defendant presented a quality assurance manager who testified as to the cooking and bottling procedures involved in the production of pasta sauce. It was explained that all jars of pasta sauce are vacuum sealed which would remove oxygen from the jar, thereby preventing the growth of organisms which could produce gas and increase pressure in the jar. The jury deliberated for only 30 minutes before returning a verdict in favor of defendant.
For further information, please contact Kevin M. Blake, Esquire.
Telephone: (610) 272-2602.
JURY TRIAL - AUTOMOBILE LIABILITY - DEMAND - $90,000.00, VERDICT - $5,200.00
Martin v. Schlenker - On January 8, 1997, a low speed automobile accident occurred on East Market Street in York, Pennsylvania when the plaintiff and defendant each attempted to merge on Interstate 83. Photographs of the plaintiff's vehicle showed extremely minor damage to the rear, and the vehicle was never repaired. In fact, six years later when the matter proceeded to trial, the plaintiff was still driving the vehicle.
Immediately after the accident, the plaintiff treated with her family physician on three occasions. She then switched providers and underwent 14 months of chiropractic treatment. She also began treatment with an orthopedic facility in York. She was initially seen by a physiatrist and then referred to an orthopedic surgeon. In May of 1999, the surgeon prepared a report indicating that Ms. Martin had sustained a herniated cervical disc at C5-6 as a result of the accident and that future discectomy and fusion surgery would be necessary. Plaintiff was seen by the surgeon five times. Her last visit was in May of 2003, approximately three days before the surgeon's videotaped trial deposition.
Plaintiff, who had not missed any time from work, alleged that she could not play volleyball, dance, kayak or perform certain household activities due to daily neck and arm pain. She sought to recover out-of-pocket medical expenses, future medical expenses, lost wages and disfigurement relating to the surgery together with past, present, and future pain and suffering.
Defense counsel submitted plaintiff's MRI films to a neuroradiologist for review. Although the neuroradiologist agreed that the films showed a herniation at C5-6 along with degenerative changes at two other levels, it was his opinion that it would be impossible to attribute those findings to the January 1997 accident. Given the plaintiff's age, 49 years at the time the films were taken, the doctor opined that the pathology could have been at least 25 years old.
At trial, defense counsel argued to the jury that plaintiff's medical expert was biased based upon his testimony under cross-examination that he testified approximately 50 times per year for the plaintiff's attorney's firm at the rate of $2,000.00 per hour. Furthermore, attorneys had referred 10 to 15 patients per month to the surgeon after he moved to York in 1991.
Through cross-examination, defense counsel demonstrated that the surgeon's physical findings (reflex testing, neurologic testing, etc.) were all normal, which would be inconsistent with the diagnosis of cervical radiculopathy. This testimony was coupled with evidence that there were no complaints of neck or arm pain to the family physician during any of the 28 visits plaintiff made to that facility between November of 1997 and the time of trial.
Most telling however, was the surgeon's admission that it was possible certain portions of the plaintiff's treatment were solely for litigation purposes. The records reflected that the plaintiff seemed to return for treatment coincident with important stages of the litigation - right after her deposition, after the surgeon's records were subpoenaed, and three days before the surgeon's videotaped deposition. There were gaps as long as 20 months between some of these visits.
After a two day jury trial before the Honorable Sheryl Ann Dorney of the York County Court of Common Pleas, the jury found in favor of the plaintiff, awarding her $5,200.00 – the amount of her past medical bills. No award was made for pain and suffering. Plaintiff's attorney moved to have the jury's verdict as to pain and suffering set aside with a new trial to be held. That motion is pending.
Plaintiff's attorney – Timothy L. Salvatore, Esquire
Defense attorney– Kevin M. Blake, Esquire
Plaintiff's expert– Steven J. Triantafyllou, M.D.
Defense expert – Andrew H. Shaer, M.D.
For further information, please contact Kevin M. Blake, Esquire.
Telephone: (717) 393-4400
ALLEGED MISCARRIAGE, EMOTIONAL DISTRESS, SOFT TISSUE INJURIES - SETTLEMENT
Reynolds v. Bannon - Plaintiff was involved in a rear-end motor vehicle collision as a passenger on January 30, 2001. She filed suit against the driver of the car alleging, among other claims, that she was forced to undergo a therapeutic abortion several days after the accident and was continuing to suffer depression and emotional distress as a result. Medical records from her treating doctors showed that she went to the emergency room the evening following the accident but had no pregnancy-related claims at that time. Plaintiff admitted that her symptoms of cramping, bleeding and spotting did not begin until the following morning but these were so severe, and she was so concerned about the health of the fetus, that she made a decision to have an abortion and did so at Planned Parenthood two days later.
The father was said to be a man who happened to be a paraplegic and the driver of the car involved in the accident. He gave a statement to the insured's insurance company shortly after the accident, and said he knew nothing about the miscarriage. In fact, he was unaware that plaintiff was pregnant and said the two were "not that close". When he was deposed, however, the driver said that he misled the insurance adjuster deliberately because he felt this was "none of her business". He was indeed aware of the pregnancy and was looking forward to the happy event despite the fact that the parents had no homes of their own, lived separately, were unemployed, and had dated others in the interim.
A mandatory settlement conference took place in Philadelphia and the settlement master was of the opinion that, if plaintiffs were believable, the case had a value in excess of $100,000.00. He recommended $80,000.00 as a settlement value. Defendant offered $10,000.00 in recognition of the plaintiff's treatment for soft tissue injuries following the accident. Plaintiff's demand was $200,000.00.
In preparing for trial, defense counsel contacted Planned Parenthood to determine if all of the records subpoenaed had actually been submitted. It was learned that Planned Parenthood had computer entries which were not provided and, on review of the entries, it was learned that plaintiff had called Planned Parenthood to make an appointment for an abortion procedure on January 30, the day of the accident and the day before she allegedly had symptoms of trauma to the pregnancy. When confronted with this information, plaintiff agreed to accept the $10,000.00 offered previously and the case was resolved.
For further information, please contact May Ann Hanna, Esquire.
Telephone: (215) 665-3350
PRODUCTS LIABILITY - CASE DISMISSED BASED UPON SPOLIATION OF EVIDENCE
Lobbatto v. John Doe Company – Plaintiff filed suit in the Superior Court of New Jersey Camden County-Special Civil Part alleging that he cut his finger on the lid of a can of soup. Plaintiff did not retain either the can or the lid, nor did he have the can examined by an expert prior to its disposal. During a hearing before Judge Supnick., defense counsel argued that plaintiff's complaint should be dismissed due to spoliation of evidence. Defense counsel also contended that plaintiff could not prove a defect existed in the can without expert testimony. Judge Supnick agreed and dismissed plaintiff's case.
For further information, please contact Beth A. Carter, Esquire.
Telephone: (215) 665-3311
PREMISES LIABILITY - SLIP AND FALL ON LIQUID - SUMMARY JUDGMENT GRANTED
Maykish v. ABC Corp.- Plaintiff filed suit for injuries he allegedly sustained on October 31, 1999 as a result of slipping on the floor inside a shopping club. Plaintiff was walking with his daughter when he slipped on a liquid on the floor while pushing his cart down the aisle. Upon encountering the liquid, his right foot went out from under him and his right knee hit the cart, allegedly causing significant injury. Plaintiff saw a light green liquid on the floor where he slipped which he described as the size of a "softball." He saw no broken glass in the area and nothing to indicate where the liquid had originated.
Employees of defendant testified at deposition that the floor in the warehouse is concrete and is cleaned every morning by the maintenance department before the store opens. A floor walk of the aisles is also conducted every hour. The floor walk checklist had no entries indicating a liquid or other substance was found on the floor of any of the aisles.
A motion for summary judgment was filed with the court of Common Pleas in Montgomery County, Pennsylvania arguing that the shopping club had neither actual or constructive notice of the substance on the floor. The motion contended that the plaintiff had produced no evidence indicating: the length of time that the liquid was on the floor; that the liquid had been tracked to or from the immediate area, or that anyone had previously encountered the liquid. Opposition to the motion included an affidavit from the plaintiff that the substance was thick and had started to harden. Based on the affidavit, plaintiff asserted that there was a factual question for the jury as to how long the liquid had been present and whether defendant knew or should have known of its existence. Despite the claim that a fact question existed, the court granted summary judgment.
For further information, please contact Daniel C. Moraglia, Esquire
Telephone: (215) 665-3366
Bennett, Bricklin & Saltzburg LLP is pleased to announce that Lawrence Berger has joined the firm. Larry graduated from the Delaware School of Law of Widener University in 1983. From 1984 to 1999, he practiced with the law firm of Harris & Silverman, staff counsel for ACE Insurance Companies. Thereafter, Larry was affiliated with the Lancaster law firm, Porr & Devine. Wanting a practice closer to his home outside of Philadelphia, Larry has brought his twenty years of experience to BB&S. He will work primarily in our Norristown office with John Lewis and Kevin Blake. Larry can be reached at (610) 272-4900 or by e-mail at firstname.lastname@example.org.
The firm is also pleased to announce that Edward Bradley has become associated with the firm. Ed graduated from the Widener University School of Law in 1994. After graduation, he joined the Philadelphia District Attorney's Office where he was assigned to the Major Crimes Unit for two of his three years as a prosecutor. In 1997, he became associated with the law firm of Britt, Hankins, Schaible & Moughan where he concentrated his practice on special investigation unit matters. Ed will practice in the Philadelphia office. He can be reached at (215) 665-3343 or by e-mail at email@example.com.