Posts Tagged ‘pennsylvania supreme court’

Question?  What is Limited Tort in Pennsylvania?

Limited Tort or Full Tort?  That is the question.  Unfortunately, it is one of the most common questions after a motor vehicle accident and many people do not know the answer until they are sitting in the conference room of one of the DLP offices.  Quite simply, Limited Tort means limited protection for you and your family.  Full Tort means fulls protection.  With Full Tort, you can collect compensatory damages for any and all injuries.  With Limited Tort, you may be limited to collecting only Economic Damages from a negligent third party after a motor vehicle accident.  This means that you may have given up your right to seek compensation for non-economic damages such as: pain and suffering, loss of life’s pleasures, humiliation and embarrassment.  You have to jump through an extra hoop of proving a “serious impairment of a body function” before you can be compensated for the non-economic damages noted above.    

The Pennsylvania Supreme Court defined “serious impairment of a body function”  in Washington v. Baxter.  The seroius impairment of a body function threshold contains two inquiries: 1) What body function, if any, was impaired because of injuries sustained in the motor vehicle accident?, 2) Was the impairment of the body function serious? The focus of these questions is not on the injury itself but on how the injuries affected a particular function.  Proving these extra questions can be very challenging in court.  Hence, simply selecting Full Tort avoids this exercise and keeps you, your family and friends properly protected. 

The lawyers at DLP are ready to serve you after a motor vehicle, motor cylce,  tractor trailer or work related injury.  Simply call 

 (570) C-A-L-L-D-L-P!    Remember Injury? Call DLP.

Question?  Can a nurse testify as an expert witness in a Medical Malpractice case in Pennsylvania?

This was the exact question posed to the Pennsylvania Supreme Court in the case of  Freed v. Geisinger Medical Center (Pa. Sept. 2010).  At trial, a nurse had testified regarding the cause of a medical condition.  The Pennsylvania Supreme Court of Pennsylvania upheld this testimony but stated that the nurse must be competent and properly qualified.  The court reiterated that the standard for qualifiaction of an expert witness in Pennsylvania is a liberal one.  

If you have been injured by a medical error, contact the lawyers of DLP.  With over 30 years of experience in the Medical Malpractice field, DLP is ready and able to answer all of your medical malpractice questions.  Remember INJURY? (570) C-A-L-L-D-L-P!

The Pennsylvania Commonwealth Court recently issued a decision in a case involving an Impairment Rating Evalaution (IRE) that was not requested within the statutory time frame, i.e. within 60 days of the claimant’s receipt of 104 weeks of temporary total disability (TTD) wage loss benefits. This issue had previously been discussed by the Pennsylvania Supreme Court in the case of Gardner v. WCAB (Genesis Health Ventures). In Gardner, the Court held that an employer may request a claimant to submit to an IRE more than 60 days after the date the claimant comes into possession of 104 weeks of TTD benefits. Gardner also held that to modify the claimant’s benefit status from total to partial, the employer must seek a change in status via “the traditional administrative process”. Since the Gardner decision was issued in 2005, the question has been “what is meant by the traditional administrative process”?
In Diehl v. IA Construction, the Commomwealth Court addressed this issue. THe Court ruled that the defendant’s actions in securing an IRE under 50% (in the Diehl case, 28%), filing a Petition to Modify Benefit Status, and the presentation of the IRE findings into evidence was sufficient to meet the defendant’s burden of proof. Accordingly, the Diehl Court modified the claimant’s benefits status from total to partial and wage loss benefit entitlement was capped at 500 weeks.

In Knechtel v. W.C.A.B. (Marriott Corporation), 934 A.2d 697 (Pa. 2007) the Pennsylvania Supreme Court affirmed an earlier order issued by the Commonwealth Court regarding the issue of whether an injured worker’s health care provider may attend and observe a medical examination scheduled by the defendant employer. Jusice Baer, in his concurring opinion, noted that the Pa. state legislature intended to allow the claimant’s health care provider “a first-hand view of the examination process, through attendance and observation”, but also noted that the legislature did not intend to permit the treating health care provider to engage in any active conduct which might disturb the examining physician and the examination process. Justice Baer went on to state that nothing in the Court’s affirmance of the Commonwealth Court’s opinion, “limiting a healthcare provider to attending and observing an employer’s physician’s examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam”. Justice Baer also indicated that a workers’ compensation judge “retains the discretion to grant a claimant’s reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer’s physician’s ability to conduct an examination”.

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

The Pennsylvania Supreme Court recently presided over oral argument on an appeal of a Superior Court decision that denied an estate’s claim for $1.15 million in UM/UIM coverage. The decedent in the case was a corporate executive who was killed while operating a company vehicle. The argument set for by counsel for the executive’s estate in Everhart v. PMA Insurance Group challenged the Pennsylvania General Assembly’s adoption of amendments to the state automobile insurance law 17 years ago. Those amendments require policyholders to provide waivers rejecting stacked UM/UIM coverage. The estate in the Everhart case argues that this action by the Assembly invalidates case law barring such coverage under corporate policies.

In a ruling highly favorable to injured plaintiffs, in Sackett v. Nationwide Mutual Ins. Co., PICS Case No. 07-0594 (April 17, 2007), the Pennsylvania Supreme Court held that an insurance company is required to obtain a new executed waiver of stacking from from a named insured every time the named insured adds a vehicle to an existing auto insurance policy.  An insurance company’s failure to obtain a new executed waiver of stacking form signed by a named insured will result in the insured being deemed to have stacked UM/UIM coverage.  The policy will be deemed to provide stacked UM/UIM coverage even though the insured never paid for such coverage because the insured must be given an opportunity to waive stacked coverage. 

If you have been injured in a motor vehicle accident and have a question regarding the amount of UM/UIM coverage on your policy, contact DLP team of Pennsylvania Personal Injury Attorneys for a free consultation.

John P. Finnerty, Esquire  

The Pennsylvania Supreme Court has ruled that an offer of a job to an injured worker who moved out of state for family reasons is insufficient grounds to suspend her workers’ compensation benefits. In Motor Coils Mfg. v. WCAB (Bish), (decided December 27,2006) the Court affirmed the prior decision of the Commonwealth Court denying an employer’s suspension petition for failure to accept a job offer at the employer’s Pennsylvania plant.
In Bish, the claimant suffered a work injury in July of 1997. After surgery, she returned to work with her employer at a modified position in June of 1998. In the summer of 2000, the employer laid off 126 employees including the claimant and her husband. Claimant’s wage loss benefits were reinstated effective the date of the layoff.
In November of 2000, claimant’s husband accepted a job offer in Oklahoma. Claimant relocated to Oklahoma with her husband. She sought employment but was unable to locate any jobs within her capabilities. In March of 2001, the employer offered claimant the modified job she was performing when she was laid of. The position was at the Pennsylvania plant where the claimant had worked. Claimant refused the job offer as she was living in Oklahoma. The employer filed a petition to suspend wage loss benefits alleging the claimant, Mrs. Bish, did not act in good faith when she refused the job offer.
The Commonwelth Court and the Pa. Supreme Court disagreed noting that the claimant’s actions in relocating to Oklahoma were in good faith. The Court specifically stated that the job in Pennsylvania was not actually available to the claimant as it was not within reach of her current residence.

Thomas P. Cummings, Esq.

The Holiday Season is a joyous time to celebrate with family and to reconnect with old friends.  Many times, as hosts, we greet our friends and family with rich foods, beer and wine.  Make sure that you remain conscious and observant at your holiday festivities regarding the amount of alcohol that your guests are consuming.  Here are a few tips to make you a better host:

1. Always serve food at your celebrations instead of just alcohol;
2. Have an adult pour your guests= drinks so that someone is observing the appearance and actions of your friends
3. Use smaller glasses to serve alcoholic drinks;
4. Remind your guests that Pennsylvania=s level of intoxication is now .08.
5. Stop serving alcohol an hour or two prior to the ending of the celebration.

By following the above recommendations you may very well avert your family and friends from confronting a DUI investigation or even worse, an accident.

When it comes to minors drinking at your holiday celebrations, you must be even more cognizant of their actions and the law.  In Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, the Pennsylvania Supreme Court held that a Social Host could be liable for the injuries sustained by others on account of a minor consuming alcohol at a social event.  The court reconfirmed the public policy that minors are incompetent to handle alcohol.  There is an affirmative duty upon adults not to serve minors alcohol at social functions.

So, enjoy this blessed holiday season but know the law as it pertains to you, your guests and alcohol.

Respectfully Submitted,

Brian G. Price, Esquire