Archive for the 'Truck Accidents' Category

Pennsylvania Supreme Court Accepts Household Exclusion Issue

Scott Cooper July 28th, 2010

Below is the Order granting the Petition for Allowance of Appeal in GEICO v. Ayers from late yesterday where the Supreme Court is going to decide the validity of the household exclusion when an insurance company insures all the vehicles owned by someone who pays for stacking. Therefore, even though the plurality Opinion in Erie v. Baker may have determined most of the issue with different companies involved in house there are still possible valid cases if you have the same company in the house for all vehicles and your client did not reject stacking. No briefing schedule or argument date yet. Judd Crosby represents Ayers and Billy Goodrich, Josh Geist, and I worked on the Amicus in the Superior Court for PAJ.

Scott B. Cooper

scooper@schmidtkramer.com

717-232-6300

July 27, 2010 Allocatur Granted Per Curiam

AND NOW, this 27th day of July, 2010 the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below.

Does the application of a household vehicle exclusion violate Section 1738 of the Motor Vehicle Financial Responsibility Law (“MVFRL”), where the same insurance company insures all vehicles owned by an insured, and where the exclusion denies inter-policy stacking to the insured who has paid for stacking and has not executed a stacking waiver?

Madame Justice Orie Melvin did not participate in the consideration or decision of this matter.

Popularity: 16% [?]

Pennsylvania Supreme Court Holds That 30 Day Reporting Requirement Of Phantom Vehicle Not Incorporated Into Notice To Insurance Company

Scott Cooper July 7th, 2010

Attached is the link to the majority opinion from July 6, 2010 in Vanderhoff v. Harleysville Insurance Company where the Pennsylvania Supreme Court holds that an insurance carrier is required to prove prejudice relative to the late reporting to the carrier of an accident involving an unidentified vehicle when such an accident was timely reported to law enforcement officials. The majority opinion by Justice Baer (joined by CJ Castille, Todd and McCaffery) decides that the case is controlled by its precedent in Brakeman v. Potomac Ins. Co., 371 A.2d 193 (Pa. 1977) where the Court held that to deny UM benefits an insurer must demonstrate prejudice resulting from the insured’s failure to provide notice and not by its more recent opinion in State Farm Ins. Co. v. Foster, 889 A.2d 78 (Pa. 2005) which involved the mandatory reporting to law enforcement within 30 days of an accident.

The Court observes that Section 1702 of the Motor Vehicle Financial Responsibility Law (MVFRL) sets forth and defines the requirements for reporting a phantom vehicle and they cannot be modified by the insurance contract. In this case the Superior Court erred when it held that the insurance company did not need to pay benefits when the claim was not reported until eight months after an accident when prejudice was not established. Therefore, since the accident was reported to law enforcement within 30 days, as required, the decision is reversed and the case remanded to the trial court to determine whether or not the insurance company can establish prejudice.

Justice Eakin (joined by Justice Saylor) dissents and would have affirmed because section 1702 does not contain a prejudice requirement.

http://www.pacourts.us/OpPosting/Supreme/out/J-43-2008mo.pdf

Scott B. Cooper

scooper@schmidtkramer.com

717-232-6300

Popularity: 21% [?]

Employee Standing Outside Another Vehicle Is “Occupant” Of Parked For UIM Coverage

Scott Cooper June 11th, 2010

In Merchants Mut. Ins. Co. v. Benchoff, 2010 WL 2245572 (W.D.Pa. May 10, 2010) (report and recommendation), adopted as opinion, 2010 WL 2196321 (W.D.Pa. June 1, 2010) (mem.) an employee was rendering aid to his step-daughter whose car got a flat tire when he was struck by a passing motorist after exiting his work van to speak with the tow truck operator. He was seriously injured and filed a claim for underinsured motorist (UIM) coverage on his employer’s policy.

The insurance company denied UIM benefits by arguing that he was not “occupying” the work vehicle when he was struck so he could not recover benefits. The District Court denied the insurance company argument and holds that the employee is considered an “occupant” of the work van and thereby entitled to UIM benefits under his employer’s auto policy.

Scott Cooper
scooper@schmidtkramer.com
717-232-6300

Popularity: 23% [?]

New York woman in fair condition following Saturday crash on Interstate 81 in Lebanon County

Scott Cooper May 24th, 2010

By CHRIS A. COUROGEN, The Patriot-News
May 24, 2010, 6:09AM
A Liverpool, N.Y. woman remains at Penn State Milton S. Hershey Medical Center, where she was taken Saturday morning after the car she was riding in was struck by a tractor trailer on Interstate 81 in Lebanon County.

State police said Laura E. Lankenau, 20, was a passenger in the back seat of a 2005 Honda Element driven by Deena K. Lankenau, 51, also of Liverpool, N.Y., when it went into a spin, then rolled after being struck around 4:30 a.m. by a truck driven by Patrick K. Boles, 39, of New York, N.Y.. Police said Boles’ truck was moving from the center lane into the right lane of the highway, south of the Interstate 81-Interstate 78 split.

Deena Lankenau and a front seat passenger, Douglass J. Lankenau, 62, also of Liverpool, N.Y., both of whom were wearing seat belts, suffered minor injuries to their hands and heads. Laura Lankenau, who was not wearing a seat belt, is in fair condition, a hospital spokesman said this morning.

© 2010 PennLive.com. All rights reserved.

Popularity: 21% [?]

Pennsylvania Superior Court Holds Third Party Is Not Bound By Underinsured Motorist Proceeding Award

Scott Cooper May 17th, 2010

Attached is the link to the Pennsylvania Superior Court opinion from May 14, 2010 in Catroppa v. Carlton. The Superior Court decision by Judge Bender reverses the trial court and holds that a third party is not bound by an underinsured motorist (“UIM”) arbitration award and not collaterally estopped from challenging the amount of the Plaintiff’s damages when the plaintiff received a UIM arbitration award for the same accident and the insurance company in the UIM proceeding is the same as the one insuring the third party.

This case involves a motor vehicle accident which occurred on September 10, 2004. Carlton was injured and filed a third party case against Catroppa in the Court of Common Pleas of Beaver County. Catroppa had bodily injury liability coverage of $50,000. Carlton had personal UIM coverage of $50,000 and pursued the UIM claim at the same time as the third party claim in separate proceedings. The UIM arbitration took place before the trial of the third party case and resulted in an award for Carlton in the amount of $100,000. Carlton then filed a Motion for Summary Judgment in the third party case and argued that since Catroppa had the same insurance company (State Farm) as the Defendant in the trial court case, she was collaterally estopped from relitigating the damages since the parties already stipulated to liability. Catroppa appealed.

The Superior Court reverses and finds that since the party against whom the claim of collateral estoppel is asserted (Catroppa) was not a party or in privity with a party in the prior case she cannot be bound by the UIM award. Catroppa was not a party to the UIM proceedings Carlton. Therefore, she is not able to impose the damage award by estoppel in the third party case even though the same insurance company State Farm insured both Carlton the defendant Catroppa in the third party case and the plaintiff Carlton in the UIM case. The case is remanded for the trial of the damages.

http://www.pacourts.us/OpPosting/Superior/out/A04013_10.pdf

Scott B. Cooper

scooper@schmidtkramer.com

717-232-6300

Popularity: 19% [?]

2 truck drivers killed in 5-vehicle Pennsylvania crash

Scott Cooper May 11th, 2010

By The Associated Press
May 10, 2010, 11:53PM
ALUM BANK — Authorities in western Pennsylvania say two tractor-trailer drivers died in a crash that also involved three cars.

State police in Bedford County say the crash happened just before 6:30 a.m. Monday on Route 56 in West St. Clair Township near the Somerset County line.

Investigators said one of the tractor-trailers slammed into one of the cars as the two eastbound vehicles were trying to negotiate a curve. The tractor-trailer then hit a westbound tractor-trailer and then struck the other two cars. Police said the names of the truck drivers have not been released. Two of the car drivers also had moderate injuries.

Officials said one of the trucks was hauling ice cream and the other was transporting refrigerators.

The road reopened Monday evening, but officials said it will be closed again at 9 a.m. Tuesday.

© 2010 PennLive.com. All rights reserved.

Popularity: 13% [?]

Pennsylvania Supreme Court Holds That Absent Subrogation Disability Benefits Are Not Capable Of Being Plead Proven and Recovered in UIM

Scott Cooper May 3rd, 2010

Attached is the majority opinion from the Pennsylvania Supreme Court April 28, 2010 in Tannenbaum v. Nationwide Insurance Company where the Supreme Court (Saylor, Castille CJ, Eakin) holds (Todd and Baer dissent and McCaffery not participating) that benefits derived from personal disability policies are considered benefits part of “any program, group contract or other arrangement” under Sections 1720 and 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”). Therefore, absent a subrogation or reimbursement obligation the insured could not collect and plead, prove and recover these benefits in his underinsured motorist proceeding.

The Superior Court had reversed the trial court and held that “personal policies resorted to are both separate from UIM, or UM, coverage, are paid for exclusively by the claimant either directly, or through payroll deductions which result in lower wages, payments received from these coverages do not duplicate benefits under the insurance company argued that disability benefits paid by UNUM were not to be set-off from the underinsured motorist recovery.” The trial court decision from Bucks County is now affirmed.

The majority decision by Justice Saylor focuses on the plain language of Section 1722 of the MVFRL and the fact that it refers to “any” as a “program, group contract or other arrangement”. Therefore, the personal disability plans would be considered within the scope of Sections 1720 and 1722. Then the Court reviews its prior precedent and notes that all of the previous cases regarding the issue are focusing on “first party” coverages under Section 1714 and 1719 and not Sections 1720 and 1722. Therefore it differentiates the disability plan payments under Section 1720 and 1722 where they are sought in underinsured motorist proceedings as opposed to first party benefits. Therefore it finds that the Panichelli v. Liberty Mut. Ins. Group, 669 A.2d 930 (Pa. 1996) lines of cases are not disturbed. The dissent by Justice Todd also would be of interest to read.

http://www.pacourts.us/OpPosting/Supreme/out/J-62-2008mo.pdf

Scott B. Cooper

scooper@schmidtkramer.com

717-232-6300

Popularity: 63% [?]

Fatal crashes raise flares for safety

Scott Cooper January 22nd, 2010

CUMBERLAND COUNTY TRAFFIC
Fatal crashes raise flares for safety
Pedestrians’ deaths and Cumberland County’s high yearly rate of accidents bring calls for officials to make its roads safer for walkers.
Friday, January 22, 2010
ANN FOSTER
Michael A. Clifford Jr. held his cell phone to his ear, talking to his girlfriend as he walked along Trindle Road early Tuesday.

It was after midnight and unseasonably warm.

As he trudged for more than half a mile on a dark stretch outside of Mechanicsburg, where homes sit back from the road and most businesses close after 5 p.m., his girlfriend’s voice likely was the only sound that broke the silence.

Until the car came, seemingly out of nowhere.

“He was on his cell phone with his girlfriend and his girlfriend heard the screeching of tires,” Clifford’s father, Michael Clifford Sr., said Wednesday.

The connection cut off. She tried to call back. No one picked up, the elder Clifford said.

Police told him and his wife, Misty, that their 21-year-old son probably never saw the car coming and that the driver probably never saw their son.

The crash that killed Michael Clifford Jr. occurred in Hampden Twp., Cumberland County’s most crash-prone municipality. He became the second pedestrian killed in the county in an eight-day stretch.

A Patriot-News review of crash statistics found that the deaths, both just weeks into 2010, are bringing the county close to its average 2.4 pedestrian fatalities a year between 2004 and 2008.

Clifford died of head trauma at the scene. Police said he wore dark clothes and was hit in the center of the road. They said the driver, who wasn’t speeding, stopped and tried to revive him after the crash.

“Out of all the crazy things my son has done, this is not what would have occurred to me that would have happened,” Clifford’s father said.

‘The speed limit is too fast’

Stanley Barnhart’s family didn’t think they’d lose him in a crash, either.

He was 83, but he was not feeble, his daughter, Amy Scott, said Wednesday.

So when Barnhart and his wife, Regina, 68, traveled through Pennsylvania this month and stopped in Middlesex Twp., the couple opted to walk from their hotel to the only nearby restaurant.

It was just minutes after the sun set when the Barnharts stepped onto U.S. Route 11, their path lit by the glow from lights in the Middlesex Diner parking lot.

They didn’t make it to the other side. The driver of the car that hit them didn’t see them until it was too late. Stanley Barnhart died at the hospital. Regina was hospitalized and is trying to heal.

Scott, speaking from the family’s home in Owego, N.Y., said the crash should not have happened.

“The speed limit is too fast there, and they need a crosswalk there because that’s where people from the hotel walk across to go to the restaurant,” she said.

There are signs prohibiting crossing, but they aren’t posted where walkers between the hotel and restaurant can see them, Scott said.

The deaths speak for themselves.

Breakdowns for 2009 crash statistics aren’t ready, but the totals are in.

Hampden, with its crowded network of roads, had 293 crashes last year, more than any other Cumberland County municipality, Pennsylvania Department of Transportation officials said.

Silver Spring Twp., which is between Hampden and Middlesex, had the second-highest number of crashes at 213. Middlesex, where Barnhart was hit, ranked seventh in 2009.

Walkers apply pressure

Crash statistics change little from year to year, said Steve Chizmar, a PennDOT spokesman.

Yet there appears to be new pressure on officials to make roads safer for walkers.

Advocates for walker equity on roads blasted a Silver Spring developer’s request to omit crosswalks from plans to improve two busy intersections on state Route 114. The developer’s argument — backed by Silver Spring officials — was that crosswalks could lull walkers into a false sense of security, since there are no sidewalks on either side of that road.

Yet state crash data show walkers are killed more often in areas without traffic-control devices.

Many municipalities have begun requiring sidewalks with every new development — even if they aren’t connected to other sidewalks.

Coincidentally, Silver Spring has recently agreed to meet with experts who will suggest ways to make roads safer.

The meeting was suggested by PennDOT in 2007, after Silver Spring made the list of the top 100 crash-prone municipalities in 2006. Each year since, PennDOT has offered 12 of those towns help through a federally funded program.

“We go in and look at [potential] low-cost safety improvements. This is strictly voluntary,” said Louis Ferretti, a PennDOT transportation planning specialist.

Engineers study crash patterns then suggest simple fixes such as moving stop signs and repainting road lines. PennDOT checks in after six months to see if improvements were made.

There were several significant risk factors in the crashes that killed two people on Cumberland County roads this year.

Clifford and Barnhart crossed state highways, after dark, at stretches between intersections and in areas without traffic controls.

More than two-thirds of pedestrian deaths in Pennsylvania in 2008 occurred when a male walker tried to cross a state highway between intersections. More than half occurred after dark, and most victims were 75 or older.

Alcohol is involved in many crashes but it’s unknown if it played a part in the deaths of Clifford and Barnhart. Results from toxicology screening, routinely conducted in sudden deaths, aren’t available yet. Neither driver has been charged.

Yet while investigations might close some gaps about the nights Clifford and Barnhart died, their families said they will be left wondering how they could have been prevented.

“But what is the answer? We’ve got to share the roads with pedestrians. It has to be safe,” Michael Clifford Sr. said.

©2010 Patriot-News
© 2010 PennLive.com All Rights Reserved.

Popularity: 28% [?]

Third Circuit Affirms District Court Holding That Estate’s Underinsured Motorist Claim Is Barred Due To State Of Maine Damages Cap

Scott Cooper January 6th, 2010

David Willett (Willett) was killed in the car accident in Maine. At the time of the accident he resided in Pennsylvania with his mother and was insured under her Allstate policy which provided for $100,000 in underinsured motorist (UIM) benefits unstacked. The third party had a total amount of coverage (liability and umbrella) of $1,250,000. Pursuant to Maine law the Estate received only the statutory cap of $400,000 for non-economic damages and the total award, with the additional expenses, was $454,249. The Estate pursued the UIM claim in Pennsylvania against Allstate and was providing a full credit for the full $1,250,000.

On December 31, 2009, the United States Court of Appeals affirmed the District Court of Pennsylvania decision in Willett v. Allstate Insurance Company, NO. 09-1853 (3d Cir. Dec. 31, 2009) (Not Precedential). Judge O’Neill in the Eastern District of Pennsylvania initially granted Allstate Insurance Company’s Motion for Summary Judgment in Willett and the Estate appealed.

The Third Circuit holds that Allstate is not required to make any UIM payment because the application of the statutory cap in Maine precludes the UIM claim. Therefore, the Estate of not “legally entitled” to UIM coverage. The court follows the reasoning of the District Court and finds that the Pennsylvania Supreme Court decision in Cipolla v. Shaposka, 267 A.2d 854 (Pa. 1970) is controlling and on point. The court also distinguishes the Willett situation from the Pennsylvania Supreme Court decision in Kmonk-Sullivan v. State Farm Mutual Auto. Ins. Co., 788 A.2d 955 (Pa. 2001) because the Kmonk case (1) involved Pennsylvania accidents and not one from another state, (2) no party argued another state law was applicable, (3) there was no choice of law issue in Kmonk and (4) the Court in Kmonk did not cite, discuss or overrule Cipolla.

Thus, the Estate NOT “legally entitled” to recover UIM benefits and thus, no UIM monies are to be paid.

Scott B. Cooper

scooper@schmidtkramer.com

717-232-6300

Popularity: 42% [?]

PENNSYLVANIA SUPERIOR COURT DECIDES MEDICAL MALPRACTICE CLAIM CAN PROCEED DESPITE CERTIFICATE OF MERIT PROBLEM

Scott Cooper December 16th, 2009

Below is the link to a Pennsylvania Superior Court decision in Aranda v. Amrick, — A.2d — (Pa. Super. December 3, 2009), where the Superior Court reversed a decision by the Monroe County Court of Common Pleas which had dimissed a medical malpractice claim. The Superior Court decision allows a patient to continue their claim against a doctor.

A judgment of non pros means the patient in a medical malpractice lawsuit is unable to pursue their claim against a doctor. The patient has a procedural duty to file a certificate of merit (“COM”) after filing suit, according to Pennsylvania Rule of Civil Procedure 1042.3. A certificate of merit states that the attorney for the patient has had the case reviewed by a medical professional and that there is a possibility the treatment the patient received was below the standard of care, and that the treatment increased the risk of harm to the patient. Here, the patient did not file a COM within the time allowed, and the doctor filed for judgment non pros. Realizing their mistake, the patient filed a motion to open or strike the non pros judgment, but the trial court denied the motion.

This Court reviewed the decision for an abuse of discretion, and stated, judgment for non pros can be opened when a petition is timely filed, there is a reasonable explanation or legitimate excuse for the inactivity or delay, and there is a meritorious cause of action. The Superior Court referred back to a case in which the patient’s attorney had retained an expert, completed a COM, and thought his support staff had filed it – when in reality it was never filed. That 2008 case was allowed to continue. Sabo v. Worrall, 959 A.2d 347 (Pa. Super. 2008).

In Aranda, the attorney, again had the COM within the sixty day period as required, and filed fourteen out of fifteen certificates of merit. The Superior Court found this very similar to the facts in Sabo. Since the facts alleged in the Complaint were a prima facia showing of negligence, and because the COM had been obtained and simply not filed, this case was found to be meritorious. The Superior Court allowed judgment non pros to be opened and the case to continue.

A Harrisburg injury attorney at SCHMIDT KRAMER can discuss your medical malpractice case to determine if you have a claim, whether the injury occurred in central Pennsylvania, Philadelphia, or Pittsburgh.

http://www.pacourts.us/OpPosting/Superior/out/A24038_09.pdf

Submitted by Joe Chapman, Esquire, SCHMIDT KRAMER PC.

Popularity: 29% [?]

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