Case Summaries

Case Notes from Richard E. Freeburn, Esquire, “The Lawyers Lawyer”.

The content on this web page is provided primarily for other lawyers. It is intended to assist other attorneys in keeping current with the latest developments in the law, in regards to personal injury, workers’ compensation and litigation issues. Every week, attorney Dick Freeburn reviews a case summary for his local Bar Association, that you can find here.

At Freeburn Hamilton, we welcome referrals.


 

A Confessed Judgment Filed After The Statute Of Limitations Will Be Stricken

April 18th, 2018

In Driscoll v. Arena, 2018 WL 823202, (Pa. Super., 2/12/18), the Superior Court affirmed the lower court’s order striking a confessed judgment because it was filed after the applicable statute of limitations.

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An Auto Insurance Carrier Is Required To Obtain A Signed Written Waiver Of Stacking When A Policy Holder Increases Their Limit Of UM/UIM Benefits

April 10th, 2018

In Barnard v. Travelers, E.D. Pa, Feb. 5, 2018, the Federal Court for the Eastern District of Pennsylvania held that a carrier is required to obtain a signed written waiver of stacked uninsured motorist, (“UM”), or underinsured motorist , (“UIM”), benefits when a policy holder increases their limit of such benefits. 

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State Police Officer Was Immune From Suit For Intentional Torts Committed In The Course Of His Employment

March 5th, 2018

In Justice v. Lombardo, 2017 WL 5329370, (Pa. Cmwlth. Ct., 11/14/17), the Pennsylvania Commonwealth Court held that a State Police Officer had sovereign immunity from intentional tort claims brought by a motorist who sued for assault and battery, invasion of privacy, intentional infliction of emotional distress, false arrest, false imprisonment, and abuse of process arising from a traffic stop where the trooper handcuffed the motorist to get her off a busy highway when her vehicle was being towed.

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Workers’ Compensation Death Benefits Widows And Widowers Who Were Separated At The Time Of Death Requires A Showing Of Dependency

February 26th, 2018

In Grimm v. WCAB, Pa. Cmwlth. Ct., WL 280380, (1/4/18), claimant separated from his wife 18 months before she suffered a fatal work-related heart attack.  The record showed that decedent provided health insurance for claimant through her employer. 

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The Superior Court Reviews The Standards For Defamation Per Se And Defamation By Implication

February 15th, 2018

In Menkowitz v. Peerless Publ’n, Inc., 2017 WL 6397649, the Superior Court granted a judgment n.o.v. to defendant newspaper with regard to plaintiff’s claims for defamation per se, and defamation by implication. 

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Driving For Uber After Losing One’s Regular Employment Does Not Disqualify Them For UC Benefits

February 8th, 2018

In Lowman v. Unemployment Compensation Board of Review, 2018 WL 521866, (January 24, 2018), the Commonwealth Court held that a person who applied for unemployment compensation, (UC), benefits did not disqualify themselves for UC benefits by becoming an Uber driver while waiting for a determination on his application for UC benefits.

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The Employer’s Burden Of Proof With Respect To Petitions To Modify Benefits Based On A Labor Market Survey Is Clarified

January 29th, 2018

In Smith v. W.C.A.B., 2018 WL 296840 (January 5, 2018), the Commonwealth Court clarified the employer’s burden of proof with respect to petitions to modify benefits based on a labor market survey. 

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The PA Supreme Court Holds That The Statute Of Limitations In An Uninsured Motorist Action Begins On The Date That A Breach Of Contract Occurred

December 4th, 2017

In Erie Insurance v. Bristol, 2017 WL 5617628, (Pa., November 22, 2017), the Pennsylvania Supreme Court held that the four year statute of limitation In an uninsured motorist claim did not begin on the date that the insured learned that the adverse driver was uninsured, but rather, on the date that the uninsured motorist carrier allegedly breached a contractual duty, which in this case was either the insurer’s denial of coverage or refusal to arbitrate.

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The Two Year Statute Of Limitation For Wrongful Death Or Survival Commences On Date Of Death Under The MCARE Act

November 30th, 2017

In Dubose v. Quinlan, 2017 WL 5616235, (Pa., Nov. 22, 2017), the Pennsylvania Supreme Court affirmed the decision of the trial court and the Pennsylvania Superior Court, both of which had held that the statute of limitations for medical professional liability in the form of wrongful death or survival action is two years, commencing on the date of decedent’s death, as opposed to two years commencing on the date that the victim ascertained, or in the exercise of due diligence should have ascertained the fact of a cause of action. 

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Employer Required To Compensate Employees For Breaks Of Short Duration

November 13th, 2017

In Secretary United States Department of Labor v. American Future Systems, Inc., 873 F.3d 420 (10/13/2017), the Third Circuit held that the employer’s flexible time policy was subject to the Fair Labor Standards Act, (“FLSA”), that the Department of Labor’s interpretation of FLSA as requiring compensation for rest periods of short duration was subject to the highest level of deference, and that the District Court did not abuse its discretion in awarding liquidated damages

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Regularly Used Non-Owned Vehicle Exclusion Upheld

November 3rd, 2017

In Reeves v. Travelers, 2017 WL 4930900, (E.D. Pa., 10/31/17), the Eastern District Court upheld the “regularly used, non-owned vehicle” exclusion contained in Traveler’s automobile insurance policy.

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The Pennsylvania Superior Court Revisits The Standards For Nursing Home Negligence, Vicarious Liability, And Punitive Damage Claims

November 3rd, 2017

In Breslin v. Mountain View Nursing Home, Inc., 2017 WL 4296241, (September 28, 2017), the Pennsylvania Superior Court reversed the trial court’s order dismissing the Plaintiff’s amended complaint seeking negligence and punitive damages. 

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Evidence of an Insurer’s Motive of Self-Interest or Ill Will is Not Required in an Insurance Bad Faith Action

September 28th, 2017

In Rancosky v. Washington National Insurance Company, No. 28 WAP 2016, (September 28, 2017), the Pennsylvania Supreme Court considered for the first time the elements of a bad faith insurance claim brought pursuant to the Pennsylvania bad faith statute, 42 Pa.C.S. Section 8371. 

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The Pennsylvania Superior Court Revisits The Standards For Nursing Home Negligence, Vicarious Liability, And Punitive Damage Claims

September 28th, 2017

In Breslin v. Mountain View Nursing Home, Inc., 2017 WL 4296241, (September 28, 2017), the Pennsylvania Superior Court reversed the trial court’s order dismissing the Plaintiff’s amended complaint seeking negligence and punitive damages. 

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Pennsylvania Supreme Court Refuses to Accept Appeal from Superior Court’s Reversal of Trial Court’s Grant of Summary Judgement for Defendant Under Tincher Standard in Products Liability Case

September 25th, 2017

On September 25, 2017, the Pennsylvania Supreme court denied an application for allowance of appeal from the decision of the Pennsylvania Superior Court in High v. Pennsy Supply, Inc.,154 A.3d 341 (1/13/17), which reversed the decision of the Dauphin County Court of Common Pleas, which granted summary judgement for Defendant in this products liability case. 

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Third Circuit Affirms Summary Judgement in Favor of Football Coach and School District for Traumatic Brain Injury Based on The State of the Law at the Time of the Injury

September 21st, 2017

In Mann v. Palmerton Area School District, 2017 WL 4172055, (9/21/17), the Third Circuit affirmed the District Court’s grant of summary judgment in favor of a high school football coach and school district.

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WARNING! CHECK YOUR INSURANCE POLICY!

September 18th, 2017

The case is Safe Auto Insurance Company v. Oriental-Guillermo, 2017 W.L. 4124219, Opinion by Dubow, J., joined by Solano, J.  Dissenting opinion by Ford Elliott, P.J.E. On September 18, 2017, the Pennsylvania Superior Court held that an insurance carrier can exclude “Permissive Driver Coverage” if the permitted driver is not related to the policy holder, is living with the policy holder, and is not specifically listed on the policy.

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No Case Where Generally Slippery Conditions Prevail Without Hills and Ridges.

September 14th, 2017

In Neifert v. Speedway, LLC, 2017 WL 4052264, (Pa. Super. 9/14/17), the Superior Court affirmed the grant of summary judgment by the Berks County Court of Common Pleas.  (Berks CCP, 15-3929).  In this case, Plaintiff slipped and fell on ice in the parking lot of the Speedway gas station on December 7, 2012.  Small patches of black ice were found near where Plaintiff fell from a light misty precipitation.

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The Language in a Workers’ Comp C&R Agreement Determines the Scope of Release.

September 11th, 2017

In Zuber v. Boscov’s, 2017 WL 3974513 (3rd Cir. 9/11/17), the Third Circuit held that the language of the release contained in a workers’ compensation Compromise and Release (C&R) agreement, did not bar the employee from suing his employer under FMLA and Pennsylvania common law employee rights theories.

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Employer is responsible for all medical expenses related to the acknowledged injury in a C&R agreement.

September 1st, 2017

In Haslam v. WCAB, 2017 WL 3798517, (Pa. Cmwlth. Ct., 9/1/17), the Commonwealth Court reversed the WCAB which had concluded that Employer was NOT required to pay for treatment of claimant’s RRS/CRPS condition after claimant entered into a Compromise and Release (“C&R”) Agreement which described Claimant’s injury on a standardized Labor & Industry form as “[v]arious injuries and bodily parts including but not necessarily limited to fractured

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