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2006 Issues

No Coverage for Breach of Contract Claims for Faulty Workmanship

Construction litigation over breach of contract claims for faulty workmanship, construction defects, and construction negligence resulting in property damage captured the Pennsylvania Supreme Court’s attention in Kvaerner v. Commercial Union, et al. In a decision that will be critical to both insurance carriers and the construction industry, the Supreme Court held that construction defect breach of contract claims for faulty workmanship do not establish the requisite allegations of either an occurrence or an accident necessary to trigger insurance coverage under a typical commercial general insurance policy that is intended to insure for property damage caused by accidents.


Arbitration Appeals

Effective July 1, 2006, an important amendment to the Pennsylvania Rules of Civil Procedure will impact on de novo trials following appeals from civil arbitrations. A long-standing arbitration practice, codified under the Pennsylvania Rules of Civil Procedure, permitted parties to introduce documentary evidence without the necessity of formal authentication of the documents at civil arbitrations. With arbitrations limited to a maximum recoverable award of $50,000, the intent of this procedural relaxation of the formal rules of evidence, permitted parties, particularly in personal injury cases, to submit medical records and reports without necessitating expensive expert trial depositions.


Expert Bias

If you have ever rolled your eyes as your expert medical witness is cross-examined by Plaintiff’s/Claimant’s counsel during depositions in personal injury or workers’ compensation cases as to how much “forensic” income your witness generates, either weekly, monthly, or yearly from examinations (IMEs) and depositions, then you should be aware of the limitations placed on this type of cross-examination by the Pennsylvania Supreme Court in its recent ruling in Cooper v. Schoffstall.


Delay Damages Disallowed for Breach of Contract

The Pennsylvania Supreme Court recently ruled in Touloumes v. E.S.C. Inc., decided on June 19, 2005, that delay damages under Pennsylvania Rule of Civil Procedure No. 238 are not recoverable in breach of contract actions involving property damage losses.


Premises Liability Case Note

A recent slip and fall trial demonstrates the persuasive power of visual evidence. A suburban county jury recently entered a defense verdict against a 46 year old divorced municipal water authority meter reader who was suing a homebuilder for slip and fall injuries. The Plaintiff had fallen on the basement steps of a newly-built house that was two weeks away from settlement with the homebuyer.


Darkening the Long Shadow of Lamp v. Heyman

For almost as long as most of us have been practicing, the Supreme Court’s 1976 ruling in Lamp v. Heyman has withstood innumerable procedural and appellate challenges. Its oft-cited principle remains firm: plaintiffs tolling the statute of limitations with the filing of a Writ of Summons need to exercise a “good faith” effort to perfect service of process on the defendant(s) to avoid the potential, and often real, procedural abuse associated with a party intentionally, or for that matter negligently, failing to advise the defendant of the action in an attempt, real or other, to prevent the defendant from being able to engage in an active and thorough investigation of the claim, and to raise appropriate and timely defenses in response thereto.


UM/UIM Arbitration

A long-held and policy-driven precept requiring mandatory arbitration of uninsured (UM) and underinsured (UIM) claims between policyholders and insurance carriers has now been abrogated under the Pennsylvania Supreme Court’s December 30, 2005 Opinion, holding that the Pennsylvania Insurance Department lacked the requisite statutory authority to require mandatory arbitrations of all UM and UIM claims.


Tort Reform Update

Tort reform legislation is again re-surfacing in a legislative challenge to the antiquated and draconian rule of joint and several liability. The challenge to joint and several liability, a common law precept shifting financial responsibility among multiple defendants, is once again under review in a bill pending before the Pennsylvania Senate. The bill is Senate Bill No. 435.


Delay Damages

The Superior Court’s recent opinion in LaRue v. McQuire, 885A. 2d 549 (Pa. Super. 2005), illustrates an interesting interplay of first impression between Rule 238, relating to delay damages, and Rule 1311.1, which permits parties to stipulate to a limit or ceilings of $15,000.00 in recoverable damages.