Posts Tagged ‘John P. Finnerty’

In Blood v. Old Guard, the Pennsylvania Supreme Court had to determine whether an auto insurance carrier must obtain a new UM/UIM “sign down” form from an insured each time the insured modifies the amount of his liability coverage. When presented with this same issue, the Pennsylvania Superior Court determined that the insurance company did have to obtain a new UM/UIM “sign down” form whenever the insured modified his liability coverage. In the absence of a new UM/UIM “sign down” form, the Superior Court held the amount of UM/UIM coverage available to the insured was equal to the amount of his modified liability limits. The Pennsylvania Supreme Court reversed the ruling of the Pennsylvania Superior Court, holding that an auto insurance carrier is not required to have the insured execute a new UM/UIM “sign down” form whenever the insured desires to change his liability limits under an existing policy.

In Blood, the insureds purchased an auto policy from Old Guard in 1986 with $500,000 in liabiilty coverage. At the time they purchased the coverage, the insureds elected reduced UM/UIM coverage in the amount of $35,000 (albeit with the stacking option). In June of 2000, the insureds decided to lower their liability limits from $500,000 to $300,000. To this end, they executed a “coverage selection form” indicating their desire for $300,000 in liability coverage. Although the “coverage selection form” included a choice to select an amount of UM/UIM coverage, the insured indicated no selections for UM/UIM.

The insured was injured in a motor vehicle accident in August of 2000. The insured asserted that his UIM coverage amounted to $900,000 ($300,000 stacked on three vehicles). The insured’s position was that his UIM coverage should equal the amount of his liability coverage because Old Guard did not obtain a new UM/UIM “sign down” form from his when he reduced his liability coverage to $300,000 in June of 2000. The Supreme Court rejected the insured’s position based on the plain language of 75 Pa.C.S.A. 1731 and 75 Pa.C.S.A. 1734. The Court held that these statutory provisions did not require Old Guard to re-comply with the mandates of these provisions regarding reduction in UM/UIM coverage each time an insured changed the amount of his liability coverage under an existing policy. In this regard, the Supreme Court stated:

“[T]he MVFRL does not provide any support for Appellee’s position that the [insureds'] change of liability coverage had an effect on the otherwise valid Section 1734 reduction. Appellee would have us import into our reading of the language of the relevant portions of the MVFRL his argument that the change here is a delivery or issuance of a policy. This Court is without authority to write new requirements into the MVFRL where the statutory language is without ambiguity.”

If you have any questions regarding your auto insurance policy, including the amount of your UM/UIM coverage, call DLP to schedule a free consultation.

John P. Finnerty, Esquire

In Brethren Mutual Insurance Company v. Cynthia McKernan, et al., the Superior Court of Pennsylvania ruled that an insurance company which provided home owner’s insurance to an insured was responsible to defend and provide coverage to a woman who fatally stabbed her boyfriend with respect to civil claims asserted by the boyfriend’s Estate against her. In addition, the Court held that the insurance company was responsible for satisfying a restitution award for funeral expenses ordered against the woman in the criminal proceedings against her arising out of the fatal stabbing.

Generally, intentional criminal acts will not be covered under a homerowner’s insurance policy. There is always an exclusion for such acts in homeowner’s insurance policies. However, in the McKernan case, the insured was not convicted of any intentional crimes as a result of the killing. Rather, she was convicted of reckless endangerment and simple assault by negligently causing bodily injury to another with a deadly weapon. The insured had grabbed a steak knife to defend herself from her abusive boyfriend. When she swung the knife intending to frighten her boyfriend away, she accidentally struck him in the chest and pierced his heart.

Because the insured’s actions were not intentional, the insured acknowledged that the insured’s conduct qualified as an occurrence under the policy language for which coverage was applicable. However, the the insurance company disputed whether it had an obligation to satisfy the restitution award of funeral expenses assessed against the insured by the judge in the criminal proceedings against her. The Court stated that the policy language did not limit claims to those made in the course of civil proceedings. The Court further held that a restitution award in a criminal proceeding qualifies as “damages” to which coverage is applicable under the policy.

As in any claim against an insurance company over coverage issues, the language of the policy will ultimately dictate the result. The Court’s decision in McKernan scrutinized the policy language in reaching its decision. McKernan is another decision from the Pennsylvania appellate courts in recent years which re-emphasizes a trend towards compelling insurance coverage for criminal conduct which results in serious injuries or death. The key component of these decisions is that coverage will only be found if the conduct was not intentional, although it can be criminal.

John P. Finnerty, Esquire

In a rare move, in Sackett v. Nationwide Mutual Insurance Company, the Pennsylvania Supreme Court has decided to re-consider its earlier ruling which held that each time an insured adds a new vehicle to an existing auto insurance policy, the insurance company must obtain from the insured a new waiver form which rejects stacked UM/UIM coverage. In the absence of a new waiver from which rejects stacked UM/UIM coverage each time an insured adds a new vehicle to an existing policy, the Supreme Court’s earlier ruling would result in the insured being deemed to have stacked UM/UIM coverage on their auto policy (even if the insured did not pay for such coverage). Legal observers were shocked by the Court’s decision to re-consider its original decision in Sackett as almost all decisions of the Supreme Court are final.

Nationwide had requested re-argument and re-consideration of the Supreme Court’s earlier ruling because of the hardship it imposes on insurance companies. The Supreme Court will most likely decide the case before the end of the year. In the meantime, the Pennsylvania Legislature should re-examine the Pennsylvania Financial Responsibility Motor Vehicle Law (75 Pa.C.S.A. 1701 et seq.) and possibly vote to amend the Law to eliminate any ambiguity regarding this issue.

John P. Finnerty, Esquire

On October 11, 2007, in Ash v. Continental Insurance Company, No. 35 WAP 2005, the Pennsylvania Supreme Court ruled that the statute of limitations governing all Bad Faith Claims brought pursuant to 42 Pa.C.S.A. 8371 is two years. The Court based this decision on its determination that a bad faith claim is a statutorily created tort claim as opposed to a contract claim which arises out of a breach of a duty imposed by mutual consensus. The held that the duty imposed by 42 Pa.C.S.A. 8371 is one imposed by law as a matter of social policy. In this regard, the Court rejected Plaintiff’s argument that a six year statute of limitation period which generally governs breach of contract actions should apply.

John P. Finnerty, Esquire

In Pennsylvania, there is a two (2) year statute of limitations regarding personal injury lawsuits.  This means that if an individual was injured due to the negligence or carelessness of another, if the injured person desires to pursue a claim to recover damages against the negligent party, the injured person must file suit within two (2) years of when his injuries occurred.  However, under certain limited circumstances, an injured person may not know he suffered an injury until several years after the conduct which caused the injury occurred.  An example would be if a doctor left a sponge inside the person during an operation and the patient did not develop any problems as a result of the sponge until several years after the operation.  

When an injured person is not aware that he was injured or what caused his injuries until after the expiration of the two (2) year statute of limitations period, under very limited circumstances, Pennsylvania Courts apply the Discovery Rule to extend the statute of limitations period.  The Discovery Rule extends the statute of limitations period to afford an injured person additional time to file a claim against the party responsible for causing his injuries.  The Discovery Rule requires that the injured party file his claim against the responsible party within two (2) years of (1) when he should have known he was injured,  and (2) when he should have known who was responsible for causing his injuries.    

Pennsylvania Court are very reluctant to apply the Discovery Rule.  As such, it is recognized in only very limited circumstances.   For example, in Coleman v. Wyeth Pharmaceuticals, a recent case from the Philadelphia Court of Common Pleas, the Court ruled the discovery rule does not apply to a products liability claim where the connection between the defendant’s medication and breast cancer had been discussed in the press while plaintiff was on the medication.  Plaintiff had been diagnosed with breast cancer in October 2000.  However, she did not file suit until June 2004 against the drug manufacturer who made the drug she claimed caused her breast cancer.  Plaintiff asserted she only learned of the connection between the drug and the cancer through a recent publication on the subject and for this reason, the statute of limitation should be tolled by the discovery rule.  The Court disagreed, stating widespread information on the connection had been published throughout the 1990s and plaintiff should have ascertained this connection well within the two-year statute of limitations.

If you were involved in an accident in which you suffered injuries, you need to be aware that any claim you wish to pursue for damages against the responsible party must generally be filed within two (2) years.  The Discovery Rule has very limited applicability and Pennsylvania Court will only extend/toll the statute of limitations period under very limited circumstances.  If you have been injured as a result of the negligent conduct of another, you should contact an attorney to discuss your rights as soon as possible after the accident.  You may contact DLP to schedule a free consultation regarding your claim at any time.

John P. Finnerty, Esquire      

Are there too many Senators and State Representatives in Harrisburg?  Two State Representatives from the Pittsburgh area apparently believe there are.  Representative Mark Mustio and Representative Matthew Smith have drafted a bill which seeks to reduce the number of Senators from 50 to 40 and reduce the number of State Representatives from 203 to 161.  A similar bill was also recently introduced in the Senate by Senator John Pippy.

Currently, Pennsylvania’s Senators and State Representative represent fewer constituents per legislator than legislators New York, Michigan and California.  Each House member now represents about 60,000 Pennsylvania residents and each Senator about 248,000.  If the bills pass, the numbers would increase to 310,000 per each Senator and 77,000 for each House member.

Assuming the bills pass in the current legislative session (2007-2008), they would need to pass again in the following legislative session (2009-10).  If the bills pass twice in the legislature, the issue would then need to be put on the ballot for approval directly by Pennsylvania voters.  Thus, no reduction in the number of Senators or State Representatives can occur for at least two more years.

John P. Finnerty, Esquire

In Borough of Heidelberg v. W.C.A.B. (Selva), the Pennsylvania Supreme Court upheld an injured EMT’s right to collect workers’ compensation benefits.  The case is significant because the EMT was injured while working as a volunteer.  The Court noted that it is the intention of the Workers’ Compensation Act that members of a volunteer fire department or fire company are deemed employees and that when they are injured in the line of duty, they are entitled to workers’ compensation benefits even if they are paid no wages for compensation by the municipality for their services.

The next question then is what amount of workers’ compensation benefits are they entitled to as they have no historical wages to base their benefits upon.  The Pennsylvania Supreme Court in Borough of Heidelberg ruled that injured volunteer fire and ambulance company workers are entitled to wage loss benefits based on the statewide average weekly wage for purposes of computing their compensation.  The Court further held that such injured volunteers are entitled to receive workers compensation benefits regardless of whether the injured volunteer has any other employment at the time he/she is injured.

If you or someone you know suffers a work-related injury which causes a disability, including an injury suffered while volunteering for a fire company, call the DLP team of Pennsylvania Personal Injury Attorneys for a free consultation regarding your right to workers’ compensation benefits.

John P. Finnerty, Esquire

Medicare has adopted a new policy whereby it will no longer pay hospital costs incurred by patients due to medical errors.  The policy is designed to force hospitals to take responsibility for their own mistakes.  The policy also obviously seeks to reduce the amount Medicare pays out in the form of medical bill payments.  However, Medicare’s new policy may ultimately result in patients who are victims of medical error being victimized twice in that the hospitals will now seek payment directly from the patients when Medicare denies payment for their medical treatment.  In circumstances where a hospital requires pre-treatment authorization of payment, Medicare’s new policy may also result in patients who are the victims of medical error being denied treatment required to remedy the medical error.

Medicare’s new policy excludes from coverage the extra costs of treating preventable errors, injuries and infections that occur in hospitals.  Among the conditions that will be affected are pressure ulcers and bedsores, injuries caused by falls, and infections resulting from the prolonged use of catheters in blood vessels or the bladder. In addition, Medicare’s new policy will deny payment for treatment of “serious preventable events” like leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.

If you were the victim of a medical error caused by a hospital or doctor, call the DLP team of Pennsylvania Personal Injury Attorneys for a free evaluation of your right to compensation, including your right to payment for medical treatment caused by the medical error.

John P. Finnerty, Esquire

Does your homeowner’s insurance policy cover damages caused by flooding?  You should be aware of the answer to this question before a potential disaster strikes.  Don’t end up like so many of the victims of Hurricane Katrina who are faced with the disastrous problem of not having any insurance coverage to reimburse them for the damages they suffered to their homes and personal belongings.

In New Orleans, much of the damage was caused by the levees failing, not directly from the rain and wind of the Hurricane.  Several lawsuits were filed on behalf of victims of the levee flooding against their homeowner’s insurance companies.  Unfortunately, a Federal Court in Louisiana has ruled the insurance companies do not have to pay any claims because the policies provide a clear exemption of coverage for damages caused by flooding.  The victims will be appealing this decision.

If you reside in an area which could be flooded if a dam or a levee fails, your damages will only be covered if you have flood insurance.  Check your insurance policy for this coverage before a tragedy occurs.  Contact your insurance agent to confirm you have it and/or to obtain this coverage if you do not currently have it.

If you have any questions regarding your insurance policies or coverages, contact the DLP of Pennsylvania Personal Injury Attorneys for a free consultation.

John P. Finnerty, Esq.

The Pennsylvania Legislature is considering amending the Recreational Use of Land and Water Act to provide more liability protection for landowners. The Act has provided liability protection to landowners who allow recreational use (i.e., hunting, fishing, swimming and hiking) on their unimproved property to the public without a fee for decades.  The Act currently provides as follows:

Except as specifically recognized or provided in section 6 of this act, an owner of land   owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

There are exceptions to the Act whereby a landowner can still be held responsible for malicious and wanton conduct.  The push to amend the Act began after a recent lawsuit resulted in a finding that the owner of a Lehigh County orchard was found partially liable for injuries suffered by a woman struck by a stray bullet from the gun of a hunter who was hunting on the orchard farmer’s property.  The legislature felt compelled to amend the Act to provide more protection to landowners so landowners would not restrict access to hunting on their property.

Separate versions of the amendment to the Act passed both the Senate and the House earlier this year.  DLP will continue to monitor this issue when the Legislature reconsiders the amendment later this year.  If the amendment passes, it will afford more protection to landowners.  Hopefully, any such amendment will not severly limit the rights of innocent victims to make a claim for damages against the party responsible for causing their injuries.

If you have any questions regarding the Recreational Use of Land and Water Act, contact one of the attorneys at DLP for a free consultation.

John P. Finnerty, Esquire