Key Decisions in 2017

Every year the appellate courts address new cases that “fill in” missing “pieces” of the law.   

Let’s have a look at some 2017 developments.


Elements of Claim For “Bad Faith” Against an Insurance Company

“Bad faith” is when an insurance company denies a claim for a frivolous reason or without investigating it fully.  This comes into play when you have insurance for medical treatment, but the insurance carrier refused to pay, for example.

This also comes into play when you are injured in a motor vehicle accident, the other driver does not have any liability coverage, and you therefore need to make a claim on your own insurance company for underinsured motorist coverage (UIM) or uninsured motorist coverage (UM).  There, your insurance carrier has a duty to timely respond to your claim and act in good faith in terms of addressing the claim (paying it or denying it for good reason).

The operative statute in Pennsylvania is:   42 Pa.C.S.A. Section 8371.

In Rancosky v. Washington National Insurance, No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court finally enacted a test to ascertain “bad faith.”  The court adopted the two-part test such that a plaintiff must offer clear and convincing evidence that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier acted at least recklessly. The court clarified that the plaintiff need not prove a motive.


Dead Men Tell No Tales – But Can You Testify Against Them?   

Pennsylvania has something called the “dead man’s rule,” or the “dead man’s act,” which is a rule of evidence.  It provides that, when one party to a dispute dies, the other party cannot take advantage of the death by offering testimony on a subject to which the deceased party could have testified.  The dead man’s rule is waived, however, if, prior to death, the deceased party had asked question of the other party about the incident or accident at issue, or if the decedent’s estate asked the same kind of questions.

The Pennsylvania Superior Court clarified the Dead Man’s Statute at 42 Pa. C.S.A. 5930.

In Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.), the court held that only certain kinds of requests for information such as “interrogatories and depositions” can constitute waiver.

There, the court found that Dead Man’s Statute was not waived by the defendant’s participation in informal discovery (asking of questions absent formalities) when, for example, no formal depositions or Interrogatories were completed.


The Police Said You’re At Fault For the Accident — So What?    

Sometimes, following a car accident, a police officer will arrive the scene,  and put in his accident report an opinion about who was at fault, even though the officer failed to observe the crash.

In the above case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.), the superior court re-affirmed the idea that a police officer who failed to see an accident cannot testify as to who was at fault.  That said, a police officer who has training in accident reconstruction can given an opinion about how an accident happened, which was not before the court in Davis, however.


Evidence of Intoxication to Prove Fault 

Pennsylvania courts look very skeptically at evidence of one’s blood alcohol level, alone, without more evidence, because it can be used to improperly impeach a party who may have only had a drink or two without impairing his judgment or ability.

One can easily see why a party would want to offer such evidence. Let’s say you are in a car accident where you claim you had the green light, but the opposing party is blaming you, saying he had the green light.  Wouldn’t it be great to pull out his receipt from his dinner (just prior to the accident) and show the jury he had a couple drinks, and let him explain whether those drinks impaired his ability? All you would need is a juror who loathes the idea of anyone drinking any amount of alcohol — regardless of whether the other driver’s ability had been impaired — and you would be on your way to a possible verdict in your favor.

The Courts say:  slow down, jackrabbit.

Evidence of alcohol consumption casts a negative light, even if the amount of alcohol was insignificant and relative to that party’s body size or tolerance for alcohol. Courts, therefore, tend to restrict evidence of drinking or blood alcohol content (BAC), alone, absent some additional corroborating evidence of impairment, such as slurred speech, or driving erratically prior to a collision.

In Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the exclusive province of the trial judge, who may apply the general rules of admissibility found in the Pennsylvania Rules of Evidence 401 through 403.  In sum, the trial court must make an evaluation of whether the evidence determines a party’s unfitness to act reasonably given the supposed intoxication.


You Texted and Caused An Accident.  Time For Punishment.  Whooo-Pish!        

In a civil case, one usually cannot recover for “punitive damages.”  Pennsylvania does not allow a person to recover punitive damages for ordinary negligence, for example, such as running a red light, or driving too fast, unless the defendant’s conduct is “outrageous” and in reckless disregard of a high probability of harm, like going 90 mph on a road posted at 30 mph, for example.

But what about if the Defendant was texting?  Can his texting support an award for punitive damages?

Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas issued a detailed opinion in this matter in Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017, McFadden, J.).  There, the court overruled preliminary objections to a claim for punitive damages against a driver who had been texting (allegedly) when he rear-ended the Plaintiff (allegedly – we are lawyers, come on!  We were born saying “allegedly,” even before “moma” or “da da.”).

The above denial of objections to the claim for punitive damage does not mean the issue will go to trial. Rather, it just means the claim for punitive damages survived preliminary objection.  The defense may raise the issue again later prior to trial via a motion for summary judgment, but in the interim, the claim for punitive damages will remain a part of the case and factor into settlement purposes, potentially.



Limited Tort

Our law firm handles a great deal of limited tort claims.  If one fails to elect “full tort” coverage for motor vehicle insurance, she is usually bound by limited tort, which limits one’s ability to sue for pain and suffering.  Click here for more information.

We work very aggressively to find exceptions to limited tort to allow a party injured in any kind of motor vehicle accident to recover the most money possible.  We explore every statutory exception, plus the general “catch all” exception to limited tort if you have  a “serious impairment of a body function.”

In a case (not handled by our law firm), Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. 2017), the Pennsylvania Superior Court affirmed a trial court’s decision that an injured party’s insomnia fail to meet the threshold for a “serious impairment of a body function.”



Each year, our Pittsburgh trial lawyers keep a close eye on developments in the law, particularly in the area of evidence, as that determines what evidence a jury can see in any civil case, such areas of: injury law / claims against insurance companies, commercial litigation (business disputes), non-compete litigation, construction law, and breach of contract matters.  There is also a great article about these the update (and more) by Daniel E. Cummins in the Legal Intelligencer


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