Damages

Supreme Court To Interpret Whether Treble Damages Under UTPCPL Necessarily Constitute A Second Bite At The Apple (PA)

With the turn of the new year in a lawsuit entitled Dwyer v. Ameriprise Financial, et al. No.: 519 WDA 2021, on January 9, 2023, the Pennsylvania Supreme Court has agreed to consider whether a court may triple the damages awarded against a defendant in a consumer protection suit in which the plaintiff already won punitive damages and attorney fees. Dwyer remains a case to watch as Pennsylvania’s highest court determines whether the heightened damages available under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) constitutes an unlawful second bite at the apple. Specifically, Dwyer arises from a universal life insurance policy dispute in which Plaintiffs claim that in issuing their life insurance policy, Ameriprise Financial engaged in deceptive trade practices and made false misrepresentations you Plaintiffs about the terms / scope of their policy. As such, Plaintiffs commenced suit and the case was tried before a jury in the Philadelphia Court of Common Pleas. After establishing claims of negligent misrepresentation, fraudulent misrepresentation, violation of the UTPCPL, breach of fiduciary duty and negligent supervision, the jury returned a judgment subject to attorney’s fees and punitive damages totaling $244,172.57. The Pennsylvania Superior Court upheld the trial court’s denial of remedial treble damages under the UTPCPL, attorney’s fees, totaling $123,175.57, in addition to the jury’s award of punitive damages totaling $75,000. Importantly, the UTPCPL affords the trial court discretion to “award up to three times the actual damages sustained.”  73 P.S. § 201-9.2(a). However, the novel question of just how much discretion a Pennsylvania judge has in awarding UTPCPL tremble damages on top of punitive damages obtained under alternate causes of action will soon be clarified by the Pennsylvania Supreme Court per its January 9, 2023 Order granting Dwyer certiorari. Dwyer remains a Pennsylvania case to watch for defense attorneys and the risk management industry alike. Often, the approach one takes to manage its risk depends significantly on what is at stake. thanks to Kendall Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Appeals Court Remands Dispute Due to Unknown Facts Concerning Valuation of Damages (PA)

The Superior Court of Pennsylvania recently held that a property insurance dispute concerning “soft costs” following water damage must, in the absence of policy definitions, be resolved with the trial court delineating whether specific expenses fall into the category of “rental loss,” “extra expense,” “soft cost,” or another type of claim. In Post River Rd., LLC v. Aspen Specialty Ins. Co., the case involved a dispute between the developers of a New Jersey apartment complex and the insurer of that complex. The complex was damaged when a pipe burst and water flooded finished and unfinished units within the complex. The question before the court was whether certain “soft costs” were covered by the property insurance policy issued to cover the complex. The insurer paid approximately $250,000, on the basis that “soft costs” should be calculated within the line item designated “business costs.” The insureds, on the other hand, argued for an expansive reading of “soft costs” that would include a total of $1.5 million in mortgage interest, payroll, insurance, real estate taxes, and advertising expenses. The insured developers sued the insurer for breach of contract, seeking the difference between the $1.5 million demand and the $250,000 payment. The trial court held that that the definition of “soft costs” was not within the scope of the policy’s appraisal provision. The insured developers appealed, in part based on the argument that the trial court conflated their claims for “soft costs” with “extra expenses” that were not at issue in the lawsuit. On appeal, the Superior Court openly questioned why this litigation could provide any resolution as to the distinction between “soft costs” and “extra expenses” when the developers’ argument was anchored in the idea that “extra expenses” was “wholly unrelated” to the complaint. The Superior Court remanded the case to the Court of Common Pleas for determination of the proper value of “soft costs,” “lost rents,” and “extra expenses.” The Superior Court noted, importantly, that the trial court would be tasked with resolving “which expenses constitute a rental loss, ‘extra expense,’ ‘soft cost,’ or other type of claim.” Thanks to Jason Laicha for his contribution to this article.  Should you have questions, contact Matthew Care.  Read More

Sanctions Or A Slap-On-The-Wrist? (NY)

In Castillo v. Charles (2022 NY Slip Op 06103), an action to recover damages for personal injuries, the Appellate Division Second Department, department modified the lower courts order striking the plaintiff’s pleadings, as it was “too drastic of a remedy”  (see Turiano v. Schwaber, 180 AD3d 950, 952; see also Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 211). Here, plaintiff violated court multiple court orders including those directing her to appear for a continued deposition. Plaintiff also failed to disclose photographs referenced in her first deposition, and failed to provide authorizations to obtain records from certain medical providers. The court agreed that the record supports an inference of willful and contumacious behavior, striking the pleading, in this instance, was too drastic of a remedy. The court modified the lower courts order,  granting defendant’s motion only to the extent of precluding plaintiff from using the undisclosed photographs at trial, directing plaintiff to provide medical authorizations demanded by defendants and directing plaintiff’s counsel to personally pay $3,000 as a sanction to defendant. Sanctions are intended to reinforce the notion that all parties must “play by the rules”. This decision hands out a slap-on-the-wrist as a penalty for plaintiff, while ignoring the fact that failing to disclose evidence could be detrimental to opposing counsel’s ability to make or defend their case. Thanks to Kara Nelson for her contribution to this article.  Should you have any questions, please contact Heather Aquino.Read More

Soft Tissue Injuries Lead To Significant Verdict

On October 20, 2022, a federal jury in the United States District Court for the Eastern District of Pennsylvania awarded plaintiff, Kerry Ponder (“Plaintiff”) $1,800.000 for personal soft tissue, sprain / strain injuries arising from a motor vehicle collision where Plaintiff was driving on behalf of his employer. Though the at-fault driver had insurance coverage of up to $50,000, this did not cover the extend of damages claimed which included a $231,667 worker’s compensation lien and past / present work loss reflecting his annual salary of $50,000 prior to the accident. As such, Plaintiff initiated the instant lawsuit against Charter Oak Fire Insurance Company (“Charter Oak”) entitled Ponder v. Charter Oak Fire Insurance Company, No. 20-5037; 50:20-cv-05037 (2020), seeking UIM benefits from his employer’s $1,000,000 insurance policy to make up the difference. At trial, liability, overall, was not at issue, rather damages were disputed. After a two-day jury trial and subsequent two-hour deliberation, the million-dollar verdict was issued in favor of Plaintiff. Judge Jeffery Schmehl then molded the verdict to $958,000.000, reflecting the $50,000 third-party settlement, before the final judgment was issued. We suspect the issue of damages is likely to be disputed on appeal by Charter Oak. Ponder acts as a reminder to risk management and defense professionals alike that soft tissue injuries which may initially seem nominal can, in fact, lead to a six-figure payout where damages are supported. Moreover, it remains difficult to ever fully predict the results of a jury trial. Thanks to Kendal Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Expert Report On Blood Alcohol Content (BAC) Does Not Prove Intoxication In Dram Shop Case (NY)

In Stanley v. Kelly, 2022 NY Slip Op 04847 (4^th Dept. 2022), the decedent, Michael Stanley, died while operating a snowmobile lent to him by defendant Thomas Kelly, after they were all drinking at the Boonville Hotel. The autopsy concluded Stanley had a blood alcohol level (BAC) of .16% and his intoxication led to his accidental death. The decedent’s next of kin sued Thomas Kelly for negligent entrustment of the snowmobile to the decedent, and sued the hotel under the Dram Shop Act. On a negligent entrustment cause of action, “[t]he owner or possessor of a dangerous instrument is under a duty to entrust it to a responsible person whose use does not create an unreasonable risk of harm to others”. Further, “[t]he tort of negligent entrustment is based on the degree of knowledge the supplier of [the vehicle] has or should have concerning the entrustee’s propensity to use the chattel in an improper or dangerous fashion.” Under a Dram Shop claim, a business can be found negligent if it is proven they sold, served or provided alcohol to a person who is knowingly and/or visibly intoxicated at the time of service. At the depositions, witnesses, including Kelly, unanimously testified they did not observe Stanley to be intoxicated or unable to operate the snowmobile. Defendants moved for summary judgment arguing that they could not be held liable under the Negligent Entrustment claim and Dram Shop claim. Plaintiff’s opposition included an expert affidavit testifying that the decedent’s .16% BAC proves he would be visibly intoxicated. The trial court granted both motions and dismissed all claims. The Appellate Court denied plaintiff’s appeal to overturn the trial court’s decision, concluding Kelly did not have any special knowledge that Stanley was intoxicated. Moreover, it is firmly established case law that “an intoxicated person should not generally be permitted to benefit from his or her own intoxication” (Shultes v. Carr, 127 A.D.2d 916, 917 [3d Dept 1987]; see also Parslow v. Leake, 117 AD3d 55, 66 [4th Dept 2014]; Dodge v Victory Mkts., 199 AD2d 917, 919 [3d Dept 1993]), courts have held that the intoxicated driver of a car, or one suing on his or her behalf, may not recover on a theory of negligent entrustment (see Shultes, 127 AD2d at 917; see also Luczak v. Town of Colonie, 233 AD2d 691, 692 [3d Dept 1996]; 1A NY PJI3d 2:28 at 351 [2022]). The Appellate Court also determined the Dram Shop claim against the Hotel was properly dismissed because of the unanimous testimony that Stanley was not observably intoxicated. “[P]roof of a high [BAC] alone . . . generally does not establish” that a person actually appeared visibly intoxicated and, therefore, “a high [BAC] in the person served may not provide a sound basis for drawing inferences about the individual’s appearance or demeanor” (Romano v. Stanley, 90 N.Y.2d 444, 450-451 [1997]; see McGilveary v. Baron, 4 A.D.3d 844, 845 [4th Dept 2004]). This case follows precedent that a person cannot pursue damages for injuries sustained while he/she was intoxicated and operating a vehicle that was provided to him/her by a third-party. It also shows that an expert’s scientific conclusion on intoxication does not outweigh the testimony of witnesses who did not observe the person to be visibly intoxicated at the time of service. Thanks to Raymond Gonzalez for his assistance on this post.  Should you have any questions, please do not hesitate to contact Tom Bracken.Read More

New York Court Permits Disclosure Of Social Media Activity In Personal Injury Lawsuit

Millions of Americans document their lives and activities on social media sites such as Facebook, Instagram and TikTok. When a person becomes injured in an accident and files a personal injury lawsuit, should defendants be permitted access to plaintiff’s social media?

In Gentile v. Ogden, the New York Appellate Division, Second Department, recently addressed this question in a case involving a car accident. Plaintiff in that case alleged that she suffered serious neck, back and shoulder injuries that prevented her from performing her daily living activities. In light of such claims, defendants moved to compel the disclosure of all relevant social media activity from all of plaintiff’s social media accounts for a period of three years before the accident. The Supreme Court granted the motion and plaintiff appealed.

The Second Department recognized that CPLR §3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof. It further observed that in order to receive such disclosure, a party need only show that the items sought are reasonably calculated to provide relevant information, not that the items actually exist. In rejecting plaintiff’s arguments and affirming the Supreme Court, the Second Department found that the defendants demonstrated that the plaintiff’s social media accounts were reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life.

The Gentile decision confirms that a personal injury plaintiff’s social media activity is fair game in discovery where his or her physical condition is at issue and the request is tailored to seek information relevant to their damages claims.

Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.

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No Duty to Defend: Insurer Need Not Defend Insured Against Unjust Enrichment Claim (NY)

The Southern District of New York reaffirmed that New York liability insurance policies that provide coverage for bodily injury and property damage of the insured against a third-party generally do not afford coverage to the insured against unjust enrichment claims.

In Godfrey v. Executive Risk Indemnity Inc., the Court rejected Plaintiffs’ motion for a declaratory judgment that would require defendant insurance company to defend and indemnify Plaintiffs against an unjust enrichment claim made by a third-party in an underlying action. There, a third-party contractor renovated Plaintiffs’ New York City home where faulty water sprinklers went off, damaging a substantial portion of the apartment, requiring further renovation. The unforeseen renovation spiked up the final cost of the remodel. After Plaintiffs refused to pay the additional cost of the renovation, the third-party contractor sued the Plaintiffs alleging unjust enrichment in attempt to collect the remaining balance.

The Southern District of New York granted Defendant-insurer’s motion for summary judgment, concluding that New York Insurance policies regarding Personal Liability Coverage only covers damages for personal injury and property damage, not claims against the insured of unjust enrichment or breach of contract by a third-party. Despite the allegation of unjust enrichment being directly related to property damage that occurred in the Plaintiffs’ home, the Court emphasized that such relation does not establish an allegation of property damage in and of itself. Thus, because the Insurance Policy does not provide coverage against unjust enrichment claims, the Insurance Company has no duty to defend or indemnify Plaintiffs, its insured, in such suits.

This ruling highlights the duties and non-duties insurers have to their insured based on both the individual insurance policy and New York’s general insurance law. Additionally, merely because an action is related to damages that would be covered by the policy does not necessarily mean the insured may reasonably expect the policy to cover that action.

Thanks to Alexa Schimp for her contribution to this article.  Should you have any questions, please contact Heather Aquino.Read More

Change To New York’s Wrongful Death Statute Awaits Its Fate

With the passing of the Grieving Families Act by the New York State Senate and Assembly on June 7, 2022, the proposed legislation currently awaits its fate before Gov. Kathy Hochul. This legislation, if signed into law, would change the state’s 175-year-old wrongful death statute by permitting the families of wrongful death victims to recover compensation for emotional anguish. While the current New York wrongful death statute limits recovery in such cases to a decedent’s close family members, e.g., a spouse or child, and for pecuniary loss only, the pending legislation would expand the scope of recovery to allow for emotional damages including grief or anguish and loss of affection and companionship. It would also expand family members who could sue under the statute to include spouses, domestic partners, children, grandchildren, great-grandchildren, parents, grandparents, stepparents, and siblings. The law would also extend the time permitted to bring a wrongful death action from two years to three-and-a-half years.

Such a change in the law would significantly increase liability insurance premiums for both public and private entities throughout the state. According to an actuarial analysis by Milliman, Inc., if the bill becomes law, medical professional liability costs would increase by nearly 40%, automobile and general liability insurance by as much as $2.2 billion, and annual premiums for residents and businesses across the board would increase 12.6%. Given the economic uncertainty presently looming in conjunction with an inflation rate not seen in forty years at more than 9%, such costs may wreak havoc on an already tenuous economic situation.

Please contact John Diffley with any questions.

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Pro Se Litigants Must Play By The Rules (PA)

Although pro se litigants in Pennsylvania are regularly given a generous amount of slack as it concerns the formalities of litigation, they are still bound by the rules of the road. This sentiment is embodied in the recent ruling by the Court of Common Pleas of Monroe County, in the case American Express v. Robert Hirsh. American Express brought a breach of contract action against Robert Hirsh to recover damages for an unpaid balance due on his credit card account. In an attempt to answer the complaint, pro se defendant Robert Hirsh submitted a hand-written document which stated “I am pleading not guilty to these charges. Thank you.” American Express then filed a Motion for Judgement on the Pleading, claiming Hirsh’s answer was a “general denial” to the claims asserted in the complaint, and as such, acts as an admission to the facts contained in the complaint. The court agreed, and ruled in favor of American Express, citing Pennsylvania law that “general denials effectively manifest admission to the facts averred in a complaint.”

The takeaway here is short and sweet: always seek out the assistance of a capable attorney to handle your legal needs. In this case, even the assistance of an incapable attorney would have avoided the poor outcome for Robert Hirsh.

Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions.

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Doesn’t Take Much to Get Decent Bucks for Aggravation (NY)

Oftentimes we see a plaintiff complaining that harm recently suffered caused exacerbation or aggravation of a prior existing, symptomatic or asymptomatic, condition. Questions relating to the impact of such claims on past and future pain and suffering are left to a jury to decide. Given the subjective nature of such damages, as accustomed, we look to precedent for guidance and enlightenment on what reasonable compensation is. From a Supreme Court, Suffolk County case, the exposure to insurers in such situations and the opinions of the defendants’ experts stand out.

In Iacono v. Martinez, the plaintiff was driving westbound on the Long Island Expressway. Due to police activity, she was forced to stop in the right lane. While she was stopped, the defendant struck the rear panel of her car. With no damage to the defendant’s vehicle and only a partial imprint of the defendant’s license plate on the plaintiff’s vehicle, both parties agreed that the collision produced only a mild impact.

At the scene of the accident, the plaintiff made no complaints of pain and did not seek any medical attention until thirteen days after the accident. The plaintiff claimed to have sustained a neck injury and that the instant accident aggravated a previously dormant condition necessitating cervical fusion surgery at the C5-6 level. The dormant condition related to cervical fusion at C6-7 level and disc herniation at the C5-6 level from a previous automobile accident.

The plaintiff contended she had not treated with any doctors for cervical pain relating to the prior accident for twenty months preceding the accident at issue in this case. The subjective claims made by her included disruption to sleep, having to spend the majority of days in bed, and taking pain medication for life. With these, she sought recovery of damages for her past and future pain and suffering. The defendants’ own neurologist opined that, if what the plaintiff was saying was accurate, then the instant accident aggravated her prior dormant condition. Given this framework, the matter settled on the cusp of jury selection for $900,000 of a $1,100,000 policy.

Essentially, a huge settlement for what one would argue was a relatively minor accident with a plaintiff who had pre-existing conditions.  However, this settlement, and similar past verdicts, make future verdicts of this magnitude sustainable on appeal.

Thanks to John Diffley for his contribution to this post.  Please email Georgia Coats with any questions.

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