Liability

Statutes of Limitation

       

BI, PD.

Bodily Injury

Personal injury actions must be filed within two (2) years of the date that the injury occurred, including medical malpractice and products liability claims. 42 Pa.C.S.A. 5524(2). Pennsylvania has a "discovery rule," which may, in limited cases, extend the time for filing a personal injury action. Under the discovery rule, the statute of limitations will begin to run at the time the plaintiff knows, or should have known, that he or she was injured and that the injury was caused by another's conduct. Messina v. Bonner, 813 F.Supp. 346 (E.D. Pa. 1993);  Brunea v. Gustin, 775 F.Supp. 844 (W.D. Pa.1991); Gallagher v. Upper Darby Twp., 539 A.2d 463 (1988).

Property Damage.

The statute of limitations on a property damage claim is also two years. 42 Pa.C.S.A. 5524(3).

Add breach or oral/written contract for cargo losses?

1. The statute of limitations on a breach of a written contract is generally four (4) years. 42 Pa.C.S.A. § 5525(a)(8). However actions based upon written contracts under seal must be brought within twenty (20) years. 42 Pa.C.S.A. § 5529.
2. The statute of limitations on a breach of an oral contract is 4 years. 42 Pa. C.S.A. § 5525(a)(3).

Negligent Entrustment, Hiring, Retention, Supervision

Negligent Entrustment

Restatement (Second) of Torts §308 addresses negligence associated with permitting unqualified or incompetent persons to use things, and has been adopted and applied in Pennsylvania. Wittrien v. Burkholder, 965 A.2d 1229, 1232 (Pa. Super. 2009). The Restatement (Second) of Torts § 308 defines negligent entrustment as follows:

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Restatement (Second) of Torts § 308 (1965). See also Restatement (Second) of Torts § 317 (1965) (duty of master to control conduct of servant); and Restatement (Second) of Torts § 316 (1965) (duty of parent to control conduct of child).

Negligent Hiring

To recover under a negligent hiring theory under Pennsylvania law the plaintiff must show that the employer knew or should have known of the propensity of the employee to cause harm and that such employment created a situation in where a third party could be harmed. M.S. ex rel. Hall v. Susquehanna Township S.D., 43 F.Supp 3d 412, 432 (M.D. Pa. 2014) (citing Coath v. Jones, 419 A.2d 1249, 1250 (1980)). Negligent hiring claims provide a potential remedy to injured third parties who might otherwise be foreclosed from recovery because the employee’s wrongful acts are likely to be outside the scope of employment or not in furtherance of the master's business. Heller v. Patwil Homes, Inc., 713 A.2d 105 (Pa. Super. 1998).

Negligent Retention

Pennsylvania has adopted the Restatement (Second) of Torts §317 as guidance in evaluating negligent retention claims. Schofield v. Univ. of Pa., 894 F.Supp. 194, 196 (E.D. Pa. 1995)(citing Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 421 (1968)). Restatement (Second) of Torts § 317 provides:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of harm to them if:

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should have reason to know of the necessity and opportunity for exercising such control.

Schofield, supra 894 F.Supp. at 196 (quoting Restatement (Second) of Torts § 317). An employer may be subject to liability under Restatement (Second) of Torts § 317 by retaining employees who the employer knew or should have known to be reasonably foreseeable to conduct themselves in a manner dangerous to others. One of the essential elements which must be proven in a negligent retention claim is that a more thorough investigation by the employer would have revealed that the employee had a history of harassing conduct. Sabo v. Lifequest, Inc., 1996 WL 583169, *4 (E.D. Pa. 1996)(citing Dempsey, supra 246 A.2d at 423).

Negligent Supervision

To recover for negligent supervision, a plaintiff must prove a loss resulted from: “(1) a failure to exercise ordinary care to prevent an intentional harm by an employee acting outside the scope of the his employment, (2) that is committed on the employer's premises, (3) when the employer knows or has reason to know of the necessity and ability to control the employee.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 487-488 (3rd Cir. 2013)(citing Dempsey, supra 246 A.2d at 420; Heller, supra 713 A.2d at 107-108). A plaintiff bringing a negligent supervision claim must satisfy two separate foreseeability requirements: (1) the employer may be liable for negligence only if the employer knew or should have known of the necessity for exercising control of its employee; and (2) the harm that the improperly supervised employee caused to the plaintiff must also have been reasonably foreseeable. Belmont, supra 708 F.3d at 491. The determination of whether a person was acting within the scope of his employment is typically a question for the jury. Costa v. Roxborough Memorial Hospital, 708 A.2d 490, 493 (Pa. Super. 1998). Where the employee commits an act which includes the use of excessive force that is so dangerous as to be totally without responsibility or reason, the employer is not responsible as a matter of law. Id. Further, Pennsylvania courts have held that an assault committed by an employee for personal reasons or in an outrageous manner is not actuated by an intent to perform the business of the employer and, as such, is not within the scope of employment. Id.

What if Course and Scope is Admitted?

1. Where agency and course and scope of employment are admitted, evidence of negligent hiring, supervision, monitoring and control is immaterial, irrelevant and highly prejudicial and such claims are routinely dismissed. Holben v. Midwest Emery Freight System, 525 F. Supp. 1224 (W.D. Pa. 1981).
2. Any liability on the part of an employer for its independent negligence necessarily requires causal negligence on the part of the employee because if the employee was not negligent, then any independent negligence by the employer cannot have proximately caused the plaintiff’s damages. Christiansen v. Silfies, 667 A.2d 396, 400 (Pa. Super. 1995).
3. Pennsylvania Federal courts apply the rule generally followed in Pennsylvania State courts and dismiss independent negligence claims for negligent supervision and entrustment against trucking companies, contingent upon the employers not contesting its vicarious liability for the conduct of its employee at the time of trial. See Fortunato v. May, 2009 WL 703393, *5 (W.D. Pa. March 16, 2009); Allen v. Fletcher, 2009 WL 154276, *5 (M.D. Pa. June 2, 2009).
4. Where the employment relationship of a truck driver is admitted and there is no viable claim for punitive damages, evidence relating to negligent hiring, supervision, and entrustment serves no purpose other than to prejudice the jury. Holben v. Midwest Emery Freight System, 525 F.Supp. 1224, 1225 (W.D. Pa. 1981).

Course and Scope of Employment

Respondeat Superior

An employer is vicariously liable for the wrongful act of an employee for acts committed during the course and within the scope of his employment. Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 39 (Pa. Super. 2000)(citing Fitzgerald v. McCutcheon, 410 A.2d 1270 (1979)). An employee’s conduct is considered within the scope of employment for vicarious liability purposes if the conduct is of the kind and nature that the employee is employed to perform, the conduct occurs substantially with the authorized time and space limits, the conduct is motivated, at least in part, by a purpose to serve the employer, and, if force is used, such use of force is not unexpected by the employer. Costa, supra, 708 A.2d at 493 (citing Fitzgerald, supra, 410 A.2d at 1272 and Restatement (Second) of Agency, § 228). Liability on behalf of the employer may even extend to intentional or criminal acts of the employee, however, if the action is outrageous or done for a personal reason, it will not be considered as having been performed within the scope of employment. Brezenski, supra 755 A.2d at 40.

To determine whether a person is an independent contractor or an employee, the basic inquiry is whether the alleged employee is subject to the employer’s control or right to control his actions and conduct in the performance of the duties and services for which he was engaged. Wilson v. IESI, N.Y. Corp., 444 F.Supp.2d 298, 313 (M.D. Pa. 2006).

Although the right to control the manner in which work is to be performed is the touchstone of the inquiry, other factors that are relevant to determining whether a person was an employee or an independent contractor include: whether the person has responsibility for the results only, the terms of the agreement between the parties, the nature of the work to be performed, the skill required for performance, whether the person employed is engaged in a distinct occupation or business, what party supplied the tools, whether payment is by time or by the job, whether the work is part of the regular business of the employer, and the right to terminate employment at any time. Id., (citing Hammermill Paper Co. v. Rust Engineering Co., 243 A.2d 389, 392 (1968).

The presence of a company’s name on a commercial vehicle raises the rebuttable presumption that the same company is the owner of the vehicle and that the driver is the agent or servant of the company, is operating the vehicle for the company’s business, and is acting within the scope of his employment. Caldwell v. Wilson Freight Forwarding Company, 322 F.Supp. 43, 45 (W.D. Pa. 1971). The presumption alone is enough to take the case to the jury “unless the evidence to the contrary is clear, positive, credible, uncontradicted and so indisputable in weight and amount it must be set aside as a matter of law.” Hartig v. American Ice Co., 137 A. 867, 869 (1927). If evidence is introduced which makes it clear that the operator of the vehicle was not operating the vehicle while in the scope of his employment or performing business for the vehicle owner, the presumption is lost. Kunkel v. Vogt, 47 A.2d 195 (Pa. 1946). If the testimony concerning scope of employment is conflicting, then the issue is to be resolved by the jury. Lindenmuth v. Steffy, 98 A.2d 242 (Pa. Super. 1953).

Comparative or Contributory Negligence

The Pennsylvania Comparative Negligence Act permits a plaintiff to recover when the plaintiff’s own negligence is not greater than the causal negligence of the defendant. That is, recovery for the plaintiff is allowable so long as a plaintiff's negligence is not greater than 50%. When the percentage of negligence attributable to the plaintiff is 50% or less, the amount recovered is calculated by reducing the total damages, as determined by the finder of fact, in proportion to the negligence of the plaintiff. See 42 Pa.C.S.A. § 7102(a) (West 2011); see also Rekun v. Pelaez, 976 A.2d 578, 580 (Pa. Super. 2009). The ultimate recovery is reduced by the plaintiff's percentage of negligence.

Pursuant to 42 Pa.C.S.A. § 7102, where there are multiple liable parties, liability is several and not joint. In these instances, the court enters judgment against each defendant separately for the individual percentage that the defendant is liable. Each defendant then must pay that percentage of the damages. 42 Pa.C.S.A. § 7102 (a.1). There are five exceptions where joint and several liability is retained:

(1)intentional misrepresentations, (2) intentional torts, (3) where the defendant has been held liable of not less than 60% of the total liability apportioned to all parties, (4) releases of hazardous substances, and (5) a civil action for violation of a specific section of the Liquor Code. 42 Pa.C.S.A. § 7102(a.1)(3).

Sudden Emergency Defense?

Pennsylvania recognizes the “sudden emergency” doctrine as a defense to a negligence action where a driver suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately. Elder v. Orluck, 483 A.2d 474, 481 (Pa. Super. 1984), aff’d, 515 A.2d 517 (Pa. 1986). The sudden emergency doctrine “applies only to moving instrumentalities thrust into a driver’s path of travel.” Id., at 482. In addition to dense fog, the following situations have been held to constitute sudden emergencies: “a dust cloud, a moving object, a sudden blocking of the road, the sudden swerving of other vehicles or . . . blinding lights.” Dickens v. Barnhart, 711 A.2d 513, 517 (Pa. Super. 1998)(quoting Unangst v. Whitehouse, 344 A.2d 695, 699 (Pa. Super. 1975)).

Contribution or Implied Indemnity from Third-Parties

Pennsylvania law permits indemnification, even for the indemnitee’s own negligence, as long as the agreement to indemnify is “clear and unequivocal.” See Kiewit E. Co., Inc. v. L & R Constr. Co., Inc., 44 F.3d 1194, 1199 (3rd Cir. 1995). There is no presumption that the indemnitor intended to assume responsibility for the indemnitee’s own negligence, unless the contract puts it beyond doubt. See Bush v. Chi. & NW Transp. Corp., 522 F. Supp. 585, 587 (E.D. Pa. 1981) (quoting Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 171 A.2d 185, 188 (Pa. 1961)). The requirement that the agreement to indemnify be clearly expressed is even greater when the indemnitee drafts the contract. Id.

Exclusivity of Workers Compensation

In order to establish a right to compensation, the following elements must be present: 1) an employment relationship during which 2) an injury arises 3) in the course of employment 4) and is related to the employment. See 77 P.S. § 411(1). Section 481 of the Pennsylvania Workers Compensation Act expressly provides that the liability of the employer to employees is exclusive under the Act. 77 P.S. § 481; see also English v. Lehigh Cnty. Auth., 428 A.2d 1343, 1347 (Pa. Super. 1981). Where a workers’ compensation judge finds a compensable injury under the Act, a tort suit against the employer will be dismissed based upon the exclusive remedy provisions of the Act. Dunn v. United Ins. Co. of Am., 482 A.2d 1055, 1057 (Pa. Super. 1984). An exception to the general rule of immunity exists when the employer fails to maintain workers’ compensation insurance coverage, in which case the injured employee has the option to sue in tort law or pursue a workers’ compensation claim. See 77 P.S. § 501(d).

Seat Belt and Helmet Use

Pennsylvania state courts have held evidence which demonstrates that a motorist was not wearing a seatbelt at the time of an accident to be inadmissible. 75 Pa.C.S.A. §4581(e); Gaudio v. Ford Motor Co., 976 A.2d 524, 535-536 (Pa. Super. 2009). The Pennsylvania Vehicle Code prohibits the non-use of a seat belt to be introduced at trial and states, "[i]n no event . . . shall failure to use [a safety seat belt] system be admissible as evidence in the trial of any civil action." 75 Pa.C.S.A. § 4581(e).

There is no analogous Pennsylvania statute governing the admissibility of a motorcyclist's failure to wear a helmet, nor have Pennsylvania courts determined whether evidence of the non-use of a helmet is admissible at trial. The Pennsylvania statute concerning inadmissibility of the failure to use a seat belt is of no assistance in predicting how a Pennsylvania court would rule on the failure to wear a motorcycle helmet. However 75 Pa.C.S.A. § 3510(c) prohibits the failure to use a pedacycle helmet to be considered or admissible at trial. 75 Pa.C.S.A. § 3510(c). Motorcycle helmet usage in Pennsylvania is not mandatory for persons 21 years of age or older who have been licensed to operate a motorcycle for two years, or who have completed a motorcycle rider safety course, pursuant to 75 Pa.C.S.A. § 3525(d). Based upon the repeal of the mandatory motorcycle helmet law, and the inadmissibility of non-usage of bicycle helmets, it is predicted that Pennsylvania courts would likely also find the failure to wear a motorcycle helmet to be inadmissible at trial.

Spoliation

1. Spoliation of evidence has been defined as the failure to preserve evidence or significant alteration of evidence for pending or future litigation. Pyeritz v. Com. of Pa., 32 A.3d 687, 692 (2011).
2. The doctrine of spoliation of evidence was devised to prevent a party from deriving a benefit from its own destruction or withholding of evidence. King v. Pittsburgh Water and Sewer Authority, 139 A.3d 336, 345 (Pa. Commw. 2016). The doctrine of spoliation attempts to compensate those whose legal rights are impaired by the destruction of evidence by creating an adverse inference against the party responsible for the destruction. Duquesne Light Co. v. Woodland Hills School District, 700 A.2d 1038, 1050 (Pa. Commw. 1997). The spoliation doctrine permits a jury to infer that the “spoiled” evidence would have been unfavorable to the party that spoliated the evidence. Id. (citing Mchugh v. McHugh, 40 A. 410 (1898)). Where evidence has been destroyed, the proper and advisable course of action is to refer the spoliation issue to a jury with accompanying instructions. Id.
3. Determining the fault of the party who altered or destroyed evidence requires consideration of the extent of the offending party’s responsibility to preserve relevant evidence and the presence or absence of bad faith. Creazzo v. Medtronic, Inc., 903 A.2d 24, 29 (Pa. Super. 2006). a. A duty or responsibility to preserve evidence is established when the party knows that litigation is pending or likely, and it is foreseeable that failing to preserve the evidence would be prejudicial to the other party. Id.
4. Whether and how to sanction a party for spoliation of evidence is within the discretion of the court. Eichman v. McKeon, 824 A.2d 305, 312-314 (Pa. Super. 2003); King v. Pittsburgh Water and Sewer Authority, 139 A.3d 336, 345 (Pa. Commw. 2016).
1. Determination of the appropriate sanction requires the court to consider the following three factors: (1) the degree of fault of the party who alters or destroys the evidence; (2) the prejudice suffered by the opposing party; and (3) whether a lesser sanction that will protect the rights of the opposing party and deter future similar conduct. Schroeder v. Commonwealth Department of Transportation, 710 A.2d 23, 27 (1998) (adopting the test from Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3rd Cir. 1994)).
2. Courts should generally select the least severe sanction based upon the degree of fault and the resulting prejudice to the other party. Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1273 (Pa. Super. 2001), aff’d, 811 A.2d 565 (Pa. 2002). When fault and prejudice are not severe, dismissal is an inappropriate sanction for spoliation of evidence. Id.
5. Duty to Preserve Evidence Absent a Specific Demand a. In the absence of a contract, a statutory duty, or express agreement between the parties to preserve evidence, there can be no claim for spoliation of evidence. Rhoads v. Pottsville Hospital, 1996 WL 932109 (CCP Schuylkill Cty, 1996).
6. Pennsylvania courts apply spoliation principals to electronically stored information (ESI) to determine that the routine deletion of text messages from a smart phone did not justify spoliation sanctions. PTSI, Inc. v. Haley, 71 A.3d 304, 317 (Pa. Super. 2013).

Damages

Caps?

With few exceptions, Pennsylvania does not place caps on compensatory damages for personal injury or death cases. One exception is for lawsuits against Commonwealth parties, where “damages arising from the same cause of action… shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in the aggregate.” 42 Pa.C.S.A. § 8528. Additionally, damages from lawsuits against local parties, such as school districts, are limited to $500,000 in the aggregate. 42 Pa.C.S.A. § 8553.

Absent intentional misconduct, punitive damages in medical malpractice cases are capped at 200% of the compensatory damages awarded. 40 P.S. § 1303.505(d). Moreover, 25% of any punitive damages awarded must be paid to Pennsylvania’s Medical Care Availability and Reduction of Error Fund. 40 P.S. § 1303.505(e).

Joint & Several Liability

To be subject to joint tortfeasor liability under the Pennsylvania Uniform Contribution Among Tortfeasors Act, parties must act together in committing wrongdoings, or their acts, if independent of each other, must unite in causing a single injury. 42 Pa.C.S.A. § 8322 (West 1976) et seq.; Allen Organ Co. v. Galanti Organ Builders, Inc., 798 F. Supp. 1162, 1171 (E.D. Pa. 1992).

The Uniform Contribution Among Tortfeasors Act is applied to determine the rights to contribution between the strict liability defendants and the negligence defendants as a group, while the Comparative Negligence Act controls the rights of the negligent defendants. Capuano v. Echo Bicycle Co., 1982 WL 263, *5 (CCP Northampton Cty). A negligent tortfeasor and a strictly liable tortfeasor are “joint tortfeasors,” subject to contribution, where each had the opportunity to guard against each other’s conduct and prevent the plaintiff’s injuries and each of the tortfeasor’s acts combined to produce the plaintiff’s injuries. Rabatin v. Columbus Lines, Inc., 790 F.2d 22, 25 (3rd Cir. 1986).

Standard of Proof Required for Compensatory Damages

Pennsylvania requires evidence of damages to be reasonably precise so the jury is provided with an adequate framework upon which to base its verdict. Nakles v. Union Real Estate Co. of Pittsburgh, 204 A.2d 50, 52 (1964). In a bodily injury lawsuit, the Pennsylvania Standard Jury Instructions provide, “[i]f you find that the defendant is liable to the plaintiff, you must then find an amount of money damages you believe will fairly and adequately compensate the plaintiff for all the physical and financial injury [he] [she] has sustained as a result of the occurrence. The amount you award today much compensate the plaintiff completely for damage[s] sustained in the past, as well as damage[s] the plaintiff will sustain in the future.” Pa. SSJI (Civ) 7.00. A plaintiff may recover for past and future medical expense, past and future loss of earnings and lost earning capacity, as well as past and future noneconomic loss, including (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. Pa. SSJI (Civ) 7.20, 7.30, 7.40, 7.110, 7.130.

Collateral Source (Meds billed v. paid)

Only medical expenses that are actually incurred, or are reasonably probable to be incurred in the future, are recoverable. Moorhead v. Crozer Chester Medical Center, 765 A.2d 786, 789 (2001)(abrogated on other grounds by Northbrook Live Ins. Co. v. Com., 949 A.2d 333 (2008)).

Hedonic Damages

Damages for the loss of value of life, or the loss of enjoyment of life are only available to living plaintiffs. Willinger v. Mercy Catholic Medical Center, Etc., 393 A.2d 1188, 1191 (1978). In Pennsylvania, hedonic damages are a component of pain and suffering.

Life Care Plans

See Standard of Proof Required for Compensatory Damages, § IIC, supra. Life care plans are a method of introducing evidence of future medical expenses, future loss of earnings and future noneconomic loss. Pa. SSJI (Civ) 7.0, 7.20, 7.30, 7.40, 7.110, 7.130. Life care plans are generally introduced at trial through the use of life care planning experts and actuarial experts. Reges v. Nallathambi, 2013 WL 11253408 (Pa. Super. 2013)(non-precedential decision).

Wrongful Death Standing and Damages

Wrongful death actions are intended to compensate the spouse, children or parents of the decedent for pecuniary losses sustained as a result of the death, and to compensate for the present value of services the deceased would have provided to the family. 42 Pa. C.S.A. § 8301(b). A wrongful death action must be brought by the personal representative of the deceased’s estate and the action is filed on behalf of the beneficiaries, which are limited to the spouse and children or parents of the deceased. Recoverable damages include medical, funeral and estate administration expenses, and a portion of the decedent’s earnings that the beneficiaries would have received had the decedent lived and compensation for loss of services. 42 Pa. C.S.A. § 8301(c).

Punitive Damages

Recoverable? If so, standard for it?

In Pennsylvania, punitive damages are recoverable only where a party’s conduct was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of others. Lesoon v. Metro. Life Ins. Co., 898 A.2d 620, 634 (Pa. Super. 2006) (citing Ruffing v. 84 Lumber Co., 600 A.2d 545, 551 (Pa. Super. 1991)); see also SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 704 (1991). The determination of whether conduct satisfies the standard for punitive damages is within the discretion of the fact-finder and will not be disturbed on appeal absent abuse of discretion. Leeson, supra. Punitive damages claims arise out of the underlying cause of action, therefore, absent a viable cause of action, an independent claim for punitive damages cannot stand. Kirkbride v. Lisbon, 555 A.2d 800, 802 (1989). A reasonable relationship must exist between the nature of the cause of action underlying the compensatory award and the decision to grant punitive damages. Id.

Caps?

There is no set formula in Pennsylvania for calculating punitive damages. Dillow v. Myers, 916 A.2d 698, 702 (Pa. Super. 2007). There is no cap on punitive damage awards other than in medical malpractice cases. 40 P.S. § 1303.505(d). “Under Pennsylvania law, the size of a punitive damages award must be reasonably related to the State's interest in punishing and deterring the particular behavior of the defendant and not the product of arbitrariness or unfettered discretion.’” Hollock v. Erie Ins. Exch., 842 A.2d 409, 419 (Pa. Super. 2004) (quoting Shiner v. Moriarty, 706 A.2d 1228, 1241 (Pa. Super. 1998)). Absent intentional misconduct, punitive damages in medical malpractice cases are capped at 200% of the compensatory damages awarded. 40 P.S. § 1303.505(d). Moreover, 25% of any punitive damages awarded must be paid to Pennsylvania’s Medical Care Availability and Reduction of Error Fund. 40 P.S. § 1303.505(e).

Insurable?

In Pennsylvania, claims for punitive damages against a tortfeasor who is personally guilty of outrageous and wanton misconduct are excluded from insurance coverage as a matter of law. Butterfield v. Giuntoli, 670 A.2d 646, 654 (Pa. Super. 1995); Esmond v. Liscio, 224 A.2d 793, 799 (Pa. Super. 1966). Pennsylvania public policy does not preclude indemnification for punitive damages where the insured is vicariously liable. Butterfield, supra.

Offers of Judgment

Pennsylvania does not have an offer of judgment statute, although such a statute has been proposed. However, the Pennsylvania Rules of Civil Procedure provide that, if a defendant makes an offer of settlement prior to trial which is not accepted, and the trial verdict is not more than 125% of the offer, then delay damages are discontinued from the date of the offer. Pa.R.Civ.P. 238.

F.R.Civ.P. 68 provides that an offer of judgment may be extended at any time more than 14 days prior to trial. F.R.Civ.P. 68(a). If the offer of judgment is not accepted and a judgment after trial is not more favorable than the offer, the plaintiff must pay the defendant’s costs which were incurred after making the offer. F.R.Civ.P. 68(d).

Biomechanics

Biomechanical testimony can be used to prove the force of an impact in an accident, and how that force may have affected the person claiming injury. As with other experts in Pennsylvania, a biomechanical expert needs to be qualified as an expert prior to offering an opinion. Biomechanical experts are generally not permitted to testify as to a person’s injuries. In addition, biomechanical experts generally cannot testify as to causation for injuries, unless the biomechanical expert also is a medical doctor. Whether testimony on this issue will be permitted may depend on the particular county in Pennsylvania where the case is venued. See Hollock v. Erie Ins. Exch., 2002 WL 1265695 (CCP Luzerne Cty, 2002).

Must policy limits be disclosed pre-suit?

Pennsylvania does not require insurance policy limits to be disclosed prior to the filing of a lawsuit.

May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules.

A plaintiff who registers a motor vehicle within the Commonwealth of Pennsylvania, but fails to maintain the required insurance coverage cannot recover first party benefits. 75 Pa.C.S.A. § 1714. An uninsured plaintiff will be bound as if he or she selected the limited tort option and, therefore, will only be able to recover economic damages by establishing fault, and can only recover for pain and suffering or other non-economic damages where the injuries meet the statutory definition of serious injury. Corbin v. Khosla, 42 A.3d 254 (2012). Serious injury is defined as an injury resulting in death, serious impairment of body function or permanent serious disfigurement. Washington v. Baxter, 719 A.2d 733 (1998).