Litigation

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.

Read More

Too Many Auto Accidents Stop Causation Chain (NY)

In Smith v. Gray, 2022 WL 1418973 (2d Cir. 2022), the Second Circuit Court of Appeals affirmed a judgment of the United States District Court for the Eastern District of New York, and the Court found that a physician’s expert report needs to be specific and undisputed if a defendant puts forth persuasive evidence that the plaintiff’s injury is related to a preexisting condition in order for a plaintiff to recover under New York’s “No Fault Insurance Law.”

In Smith, the plaintiff admitted that he had been involved in multiple vehicular accidents, prior to the accident at issue, as well as one subsequent accident.  The District Court granted Defendant’s motion for summary judgment, holding that Plaintiff had failed to raise a genuine issue of material fact as to whether the accident at issue proximately caused Plaintiff’s present injuries.

Under New York’s “No Fault Insurance Law,” a plaintiff cannot recover non-economic damages from a motor vehicle accident unless he sustains a serious injury.  A serious injury includes a personal injury which results in significant limitation of use of a body function or system.

Here, the defendant made a prima facie showing that Plaintiff’s injury was not caused by the accident at issue.  Defendant’s expert opined that there was no evidence of trauma from the alleged incident and that any injuries present on an MRI were likely of long-standing duration consistent with age-related conditions.  Upon this showing, the burden shifted to the Plaintiff to raise a genuine issue of fact as to causation, which Plaintiff failed to explicitly do. Plaintiff’s expert report merely stated that Plaintiff’s “injuries to both his cervical and left shoulder were causally related to the accident [at issue].”  This speculative expert conclusion was held to be insufficient to show causation exists between an incident and alleged injuries, given the many accidents at issue here.  Additionally, to support causation, an expert report must explain its causality conclusion or rebut the notion that Plaintiff’s injuries were due to a pre-existing condition.  This case reveals that targeted litigation tactics and focusing a motion on the same can yield successful results.

Thanks to Paige Baldwin on her contribution to this article.  Should you have any questions, please contact Matthew Care.Read More

Common Owners Get Hit With Joint Liability (PA)

In a recent case from the Eastern District of PA, Snyder v. Hunt, the court granted plaintiff’s appeal for a directed verdict after finding plaintiff established a prima facie case of premises liability against common landowners. Evidence provided multiple owners of a driveway extending between two rows of houses and enjoyed an easement over the driveway in common with other abutting owners, would all be jointly and severally liable in the absence of an agreement to the contrary.  Thus, all were responsible for the maintenance and repair of that portion of the driveway abutting or located on his/her land. Mscisz v. Russell, 487A.2d 839 (Pa. Super. 1984).

The plaintiff in the case tripped and fell while crossing a common driveway at an apartment complex owned by the defendants. The subsequent case was based on a negligence claim alleging that the owners have a duty to maintain the sidewalk and they breached the duty, The defect was a hole in the pavement. The driveway was a common driveway owned by several different parties and the city, and all the defendants filed cross-motions for indemnification and contribution against each other. On remand, the court held that the trial court should direct verdicts against all defendants. Additionally, because the plaintiff was not contributorily negligent, the Fair Share Act, did not shield the defendants from common law joint and several liability.

This case is a good reminder to counsel to examine all cross claims against potential third parties, as well as the plaintiff if contributorily negligent.

Thanks to Kevin Riley for his contribution to this post.  Should you have any questions, please contact Tom Bracken.

Read More

An Arbitrator’s Award In Excess Of Policy Limit Constitutes Grounds For Vacatur (NY)

New York Appellate Court holds once an insurer has paid the full monetary limits set forth in its insurance policy, the insurer’s duties to the policyholder under the policy cease. Accordingly, where an arbitrator’s award directs payment in excess of the monetary limit of a policy of insurance, the Appellate Division, First Department has held that the award is subject to vacatur.

In Allstate Fire And Casualty Insurance Company v. Branch Medical P.C., 2022 WL 1163074 (1^st Dep’t 2022), Petitioner-Respondent Allstate Fire & Casualty Insurance Company (“Allstate”) issued a policy of insurance to an insured that included a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 policy limit for Optional Basic Economic Loss coverage. (the “Policy”). Subsequently, the insured received medical treatment from Respondent-Appellant Branch Medical, P.C. (“Branch Medical”). As such, Branch Medical sought to recoup fees from Allstate and the two parties submitted to arbitration. At the conclusion of the arbitration, the master arbitrator’s award directed payment to Branch Medical in excess of the monetary limit of the Policy. Consequently, Allstate petitioned to have the arbitrator’s award vacated, whereas Branch Medical submitted a cross-motion to confirm the arbitrator’s award. Ultimately, the Civil Court vacated the master arbitrator’s award and denied respondent’s cross-motion, resulting in Branch Medical filing an appeal with the First Department.

Upon review of the appeal, the First Department held the arbitrator’s award directing payment in excess of the monetary limit of the Policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award. In essence, Allstate’s submissions of evidence—including the testimony of Allstate’s claims adjustor, policy declarations page, and ledgers listing the dates any claims were received and paid—were deemed sufficient to establish the Policy had been exhausted by payments of no-fault benefits to other health care providers and lost wages to the assignor before Allstate was obligated to pay the claim at issue. Although Branch Medical attempted to assert new arguments throughout the appellate process, the Court noted that it would not consider different theories or new questions that were not presented to the Civil Court. Ultimately, the First Department upheld the Civil Court’s Order that granted the petition of Allstate to vacate the master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award.

Thanks to Drew Fryhoff for his contribution to this post.  Should you have any questions, please feel free to contact Tom Bracken.

Read More

Be Careful With That “Reply All” Button . . . First Department Finds That A Series Of Emails Can Constitute An Enforceable Settlement Agreement

In Matter of Philadelphia Ins. Indem. Co. v. Kendall, 197 A.D.3d 75 (1st Dep’t 2021), the First Department found that an email exchange constituted a valid settlement agreement.

In Kendall, the parties had presented their cases to an arbitrator. After the arbitration, but before the arbitrator rendered his decision, the parties settled the case for $400,000. The arbitrator then informed the parties that he awarded $975,000 to the respondent, who then refused to execute the settlement agreement for $400,000. The petitioner requested that the court enforce the settlement agreement for $400,000.

Ultimately, the court upheld the agreement for $400,000. The court found that the email exchange constituted a valid offer and acceptance. The court disagreed with the respondent’s claim that there was an issue of authentication because the email lacked a formal signature. The court found that informal email signatures have become common practice, and paper or written correspondence is subject to the same pitfalls of inauthenticity such as forgery. Further, the emails in Kendall demonstrated not only valid offer and acceptance, but clearly stated the material terms of the settlement, and indicated a mutual assent to be bound. The court cautioned, however, that each case should be decided on a fact specific basis. Its ruling was not a bright-line rule whereby all email exchanges could be considered valid settlement agreements.

Thanks to John Lang for his contribution to this post. Should you wish to discuss, please feel free to contact Tom Bracken.

Read More

Attorney Who Failed To Pay Uncooperative Experts Found To Have Breached Contract (NY)

Recently, in the Supreme Court, New York County case Tiago v. Trachtman plaintiffs, both psychologists retained to be expert witnesses by the defendant, were awarded summary judgment as to liability under the breach of contract claims only and successful in severing and dismissing the defendant’s counterclaims. Contemporaneously, the Court denied the defendant’s cross-motion for summary judgment. The underlying action in which the plaintiffs were retained experts was a Southern District of Florida class action lawsuit, filed by the defendant, involving claims of special needs children and their family members arising out of alleged injuries the class members suffered during a severe winter storm while aboard a cruise line at sea. The passengers were confined to their cabins between 12 and 13 hours.

Plaintiffs prepared reports for 14 of the class action members and delivered those reports to the defendant who refused to pay. Subsequently, the defendant demanded the plaintiff appear for depositions in the Florida action. However, the plaintiffs decided they did not want to sit for multiple depositions when still owed thousands of dollars. The defendant then subpoenaed the plaintiffs who claim they had to hire counsel to respond to the subpoenas. Plaintiffs argued that the defendant did not deny that he did not pay them.

In opposition and in support of his own cross-motion for summary judgment, defendant argued that the plaintiffs committed an anticipatory breach of contract of the expert retainer agreements by suddenly imposing time and schedule limitations relative to the tasks requested. With one plaintiff able to work Friday mornings and early afternoons and the other on Saturdays, Defendant claimed such limitations were additional terms separate from the retainer agreement, thus, constituting anticipatory breach of contract and him not having to pay.

Analyzing the facts under various theories of contract law, the Court summarized that although the defendant was likely displeased with the plaintiffs for working on certain days and refusing to show for depositions, he could have attempted to cancel the contract with the plaintiffs when he learned about their time constraints but did not. Instead, he let them continue to work on the case, and it was not clear whether the limitations resulted in the plaintiffs failing to do anything under the contract. Notwithstanding that the defendant may have had sanctions imposed upon him in the Florida action and had to retain a new expert, such did not relieve him of having to pay the plaintiffs for the work performed. If the defendant had problems with the Florida case, missed deadlines, or did not communicate effectively with the plaintiffs, not paying the plaintiffs was not supported by the facts or the law.

This case illustrates, beyond affirming that contract is king and attorneys having to pay retained experts for work performed, that a handling attorney, when it comes to Court deadlines or directives, cannot shift culpability for delays to experts working on the case. It is paramount for the attorney to know their experts, communicate all expectations with them effectively at the outset of the relationship, and to monitor the progress making timely adjustments if necessary.

Please contact John Diffley with any questions.

Read More

Hope And Speculation Is Insufficient To Defeat Pre-Discovery Summary Judgment Motion (NY)

In Mauro v. City of New York, the Second Department recently addressed whether the defendants’ pre-discovery motions for summary judgment were premature. Plaintiffs in that case were involved in a motor vehicle accident when they came in contact with “an opening in the roadway caused by a missing manhole cover.” Defendants Keyspan Corporation and National Grid USA moved for summary judgment, introducing evidence to show that they were not the proper parties.

In reversing the Supreme Court’s denial of the motions, the Appellate Division held that plaintiffs’ contention that the motion was premature is without merit. “A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant.” The court further held that “the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.”

The Mauro case serves as a reminder that mere “hope or speculation” will not be enough to defeat a pre-discovery summary judgment motion, and that defendants should consider making such motions in appropriate cases.

Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.

Read More

PA Appellate Court Finds that You’re “At Work” While on Your Commute

In Bark v. Sooner Steel LLC, the Pennsylvania Commonwealth Court held that a worker was acting within the course and scope of his employment while commuting home from work. The court emphasized that whether someone is acting within the course and scope of his or her employment is a fact specific inquiry.

In Bark, the claimant suffered severe injuries in a motor vehicle accident that occurred while he was returning home from work. Before the accident, the claimant, Mr. Bark, and his employer had agreed that he would be paid for the time he worked, as well as the commute. There was, however, no written contract. After the incident, Mr. Bark sought workers’ compensation benefits. The workers’ compensation board denied the claim, finding that the claimant was not acting within the scope of his employment when the incident occurred.

Under Pennsylvania law, commuting to and from work is not considered to be within the course and scope of one’s employment (commonly referred to as the “coming and going” rule). There are limited exceptions though. The exceptions are: (1) the employment contract includes transportation to and/or from work; (2) the claimant has no fixed place of work; (3) the claimant is on a “special assignment or mission” for the employer; or (4) special circumstances are such that the claimant was furthering the business of the employer. Each case is extremely fact intensive.

Ultimately, the Pennsylvania Commonwealth Court (an appellate tribunal), found that Mr. Bark was acting within the course and scope of his employment when the incident occurred. The court relied on the “humanitarian nature” of the Act. Further, it found that “course of employment” should be broadly construed when the employee is a traveling employee—as Mr. Bark was. Similarly, “course of employment” is broadly construed when there is no fixed place of work. Ultimately, the court determined that Mr. Bark suffered his injuries when while in the “course and scope” of his employment.

Thanks to John Lang for his contribution to this article. Should you wish to discuss, please feel free to contact Tom Bracken.

Read More

All Risk Insurance Policy Does Not Cover Restaurant From Covid Loss (PA)

In a recent case from the Eastern District of PA, Humans & Res., LLC v. Firstline Nat’l Ins Co., the court granted the defendant’s summary judgment against the plaintiff who sought coverage under an all-risk property policy. Finding that COVID-19 related loss did not fall under an all-risk property policy and did not give rise to the expectation that it would.  The plaintiff in the case owned a BYOB restaurant. The Pennsylvania Governor instituted a stay-at-home order in response to the COVID-19 pandemic. The large establishment was limited to takeout and delivery. In response the plaintiff owner chose not to provide take out and delivery options. The plaintiff argued that since the chose not to offer carryout or delivery, the orders caused the restaurant to lose revenue and suffer business income losses.

The plaintiff filed a declaratory judgment that the business losses it incurred due to the closure orders were covered under the policy. The court found in favor of the defendant finding that the Insurance policy does not cover the losses caused by COVID-19. The plaintiff then cross moved on the grounds that they believed the “all risk policy included coverage for business losses suffered in the event of a business interruption.” The defendant moved to dismiss the claims based on the policy did not extent to pandemic-related closure. Additionally, the policyholder specifically did not request coverage for global pandemic related closure. The court further explained that all-risk policies do not create an objectively reasonable expectation of coverage of all losses, especially where the policy’s coverage is limited by exclusions.

This case is a good example of how a policy language can dictate the outcome even in an all-risk policy. Although mostly related to COVID-19 damages an all-risk policy will still be confined to a general coverage area with limits.

Thanks to Kevin Riley for his contribution to this post.  Should you have any questions, please feel free to contact Tom Bracken.

Read More

What Is The Deal With These Legal Bills? (NY)

Jerry Seinfeld was just involved in a trademark lawsuit stemming from his Netflix series, “Comedians in Cars Getting Coffee,” which is pretty funny, and I’m sure Jerry would concede, a fairly transparent excuse for Jerry to hang out with his comic buddies and drive around in fancy cars.   I mean, that’s basically the title of the show.   Not a bad day’s work.

Seinfeld’s lawsuit a former writer and director, whose claims against Seinfeld were dismissed on procedural grounds.

The ensuing litigation — and reason for this post – stems from Seinfeld’s attorneys charging him roughly $973,000 in defense fees over the copyright lawsuit.   (Clearly, Seinfeld does not have a billing auditor vetting the legal bills.)  Last week, a federal judge in the Southern District of New York reduced the fees from $973,000 to $29,000, and referred the defense costs as “staggering” in a 21-page decision.   The fact that a busy judge in the SDNY saw fit to spend 21 pages lambasting these attorneys for such exorbitant fees suggests that this decision should act as a deterrent to such practices in the future.  The Court provides a thorough recitation of the reasons for the deductions, both in terms of the hourly rates, but more so, the unreasonable time spent.  For example, 120 hours researching a motion to dismiss, plus another 130 hours revising that motion after an amended complaint.  If only Seinfeld’s attorney’s name were “Newman” — then this litigation would make more sense!

Please email Brian Gibbons with any questions about this post.

Read More