| Mutual Automobile Insurance Co. v. Foster No. 2007 | | | | they need only show that (1) they are suffering |
| MAP 2003 (December 30, 2005) | | | | from an objectively verifiable physical injury, and (2) |
| Holding: An insurer may deny uninsured motorist | | | | the injury arose in the course of employment and |
| benefits to an insured claimant who fails to report | | | | was related thereto. Justice Saylor filed a concurring |
| the accident to the police or other governmental | | | | opinion, and Justice Newman filed a dissenting opinion. |
| authority as required by the policy and the Motor | | | | ►Supersedeas Fund Reimbursement |
| Vehicle Financial Responsibility Law, 75 Pa.C.S. | | | | ♦ Comm., Dept. of Labor & Industry v. |
| §§ 1701-1799.7. Justice Saylor filed a | | | | Workers' Compensation Appeal Board (Exel Logistics) |
| concurring opinion, concluding that regardless of the | | | | No. 37 WAP 2004 (December 28, 2005) |
| language of the MVFRL, a carrier may include a police | | | | Holding: An employer is not entitled to Supersedeas |
| notification provision in the terms of an auto | | | | Fund reimbursement for compensation and medical |
| insurance policy. Justice Baer filed a dissenting opinion, | | | | bills paid while a Petition for Forfeiture is pending |
| joined by Justice Castille, in which he characterized | | | | because the petition for forfeiture was pursuant to |
| the provision at issue as a "technical escape hatch by | | | | § 306(f.1)(8), and not § 413 or § 430 |
| which to deny coverage in the absence of prejudice." | | | | of the Act. Justice Newman filed a dissenting opinion, |
| Justice Nigro did not participate in the decision of the | | | | in which Justices Castille and Baer joined. |
| case. | | | | 1.4. NEW RULES OF CIVIL PROCEDURE |
| 1.2. CIVIL PROCEDURE | | | | ►Disclosure of Legal Malpractice Insurance |
| ► Service of Process | | | | Coverage |
| ♦ McCreesh v. City of Philadelphia No. 31 EAP | | | | ♦ Rule of Professional Conduct 1.4(c) |
| 2005 (December 28, 2005) | | | | Effective July 1, 2006, lawyers in private practice are |
| Holding: After an action has been commenced, a | | | | required to notify their clients if they do not have |
| plaintiff must provide notice of the action to the | | | | professional liability insurance of at least $100,000 per |
| defendant in order for the purpose of the statute of | | | | occurrence and $300,000 in the aggregate per year, |
| limitation to be fulfilled. A complaint should, therefore, | | | | subject to commercially reasonable deductibles. The |
| only be dismissed in those cases in which the plaintiff | | | | Rule also specifies the language of the required |
| has demonstrated an intent to stall the judicial | | | | disclosures, and mandates that attorneys maintain a |
| machinery or when plaintiff's failure to comply with | | | | record of the disclosures for six years after |
| the Rules of Civil Procedure has prejudiced the | | | | termination of the representation of a client. |
| defendant. Justice Newman filed a dissenting opinion. | | | | ►Consumer Credit Transactions |
| Justice Eakin also filed a dissenting opinion, joined by | | | | ♦ New Rules of Civil Procedure 1326 to 1331 |
| Justice Nigro. | | | | Effective February 1, 2006, the Court has |
| The Supreme Court has yet again revisited its | | | | promulgated Rules of Civil Procedure governing |
| decision in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976). | | | | proceedings to compel arbitration and to confirm an |
| In McCreesh, the Court now holds that a plaintiff | | | | arbitration award in a claim arising from a consumer |
| need not strictly comply with the Rules by | | | | credit transaction. |
| repeatedly reissuing a writ of summons; instead, the | | | | 2. SUPERIOR COURT OF PENNSYLVANIA |
| Court looks to the good faith efforts of a plaintiff to | | | | 2.1. ►Defamation - Conditional Privilege |
| effectuate service, including considering whether a | | | | ♦ Moore v. Cobb-Nettleton |
| defendant has actual notice of the litigation and is not | | | | 2005 PA Super 426 (December 21, 2005) Holding: A |
| prejudiced by the lack of strict compliance with the | | | | social worker, who makes professional disclosures |
| Rules of Civil Procedure. The facts here - in which | | | | required by Pennsylvania law, is entitled to a |
| plaintiff attempted to serve the writ by certified mail | | | | conditional privilege in a defamation lawsuit. |
| in clear violation of the Rules - are certain to | | | | 2.2. ►Learned Intermediary Doctrine |
| generate further litigation. The true food for thought | | | | ♦ Lineberger v. Wyeth |
| - and further litigation - appears in Justice Eakin's | | | | 2005 Westlaw 3547682 (Pa. Super., December 21, |
| dissent, in which he states: | | | | 2005) Holding: In a pharmaceutical failure to warn |
| The "majority has developed a new rule holding a trial | | | | case, the plaintiff must establish both a duty to warn |
| court may only dismiss a case where there is | | | | and a failure to warn. The plaintiff must also show |
| ineffective service in two distinct situations: (1) where | | | | that, had the defendant issued a proper warning to |
| the plaintiff's actions evidence an intent to stall the | | | | the physician (the learned intermediary), the learned |
| judicial machinery, or (2) where the plaintiff's failure to | | | | intermediary would have altered his or her behavior, |
| comply with the Rules of Civil Procedure has actually | | | | i.e., would not have prescribed the drug, and the |
| prejudiced the defendant. . . .The majority goes so | | | | injury would have been avoided. |
| far as to suggest that without prejudice, actual | | | | This is an unpublished opinion, although counsel for |
| notice itself, much less proper service, may be | | | | Wyeth has stated that he will request that the Court |
| unnecessary." | | | | publish the opinion. |
| 1.3. WORKERS' COMPENSATION | | | | 3. COMMONWEALTH COURT OF PENNSYLVANIA |
| ►Impairment Rating Evaluations (IREs) | | | | 3.1. ►Workers' Compensation - Hepatitis C |
| ♦ Gardner v. Workers' Compensation Appeal | | | | ♦ City of Philadelphia v. Workers' |
| Board No. 14 EAP 2004 (December 28, 2005) | | | | Compensation Appeal Board (Sites) No. 1410 C.D. |
| Holding: An employer/workers' compensation carrier | | | | 2005 (December 21, 2005) |
| must request that a workers' compensation claimant | | | | Holding: Hepatitis C may be deemed an occupational |
| submit to an Impairment Rating Evaluation within | | | | disease even if the condition was not specifically |
| sixty (60) days from the date that the claimant | | | | identified as an occupational disease until after the |
| receives, or comes into possession of 104 weeks of | | | | claimant's diagnosis. |
| total disability benefits in order to obtain the | | | | 3.2. ►Workers' Compensation - Suspension |
| automatic relief under 77 P.S. § 511.2(2). If an | | | | Bad Faith |
| employer fails to request an IRE within this time | | | | ♦ Virgo v. Workers' Compensation Appeal |
| period, it may still request an IRE at a later date | | | | Board (County of Lehigh-Cedarbrook) No. 1167 C.D. |
| pursuant to 77 P.S. § 511.2(6), but must utilize | | | | 2005 (December 22, 2005) |
| the traditional administrative process in order to | | | | Holding: An employer is entitled to a suspension of |
| modify a claimant's disability status. Justice Nigro filed | | | | benefits when an employee is discharged from |
| a concurring opinion, and Justice Newman filed a | | | | employment because of "bad faith" in carrying out |
| dissenting opinion. | | | | her job responsibilities. This is a classic example of |
| Workers' compensation practitioners who had been | | | | bad facts making bad law (at least for workers' |
| awaiting the decision in Gardner now know that an | | | | compensation claimants). One of the most common |
| employer/insurer can request an IRE up to two times | | | | questions raised by injured workers is what happens |
| within any twelve-month period. The only limitation on | | | | if they return to work at light duty and are then |
| an employer's right to an IRE is that the employer | | | | fired because of allegedly unsatisfactory job |
| cannot avail itself of the automatic relief under the | | | | performance. This case answers the questions, |
| Act if the exam is not requested within 60 days of | | | | holding that workers' compensation benefits may be |
| the employee's receipt of 104 weeks of benefits. In | | | | suspended under those circumstances. Of course, in |
| reality, this means that a workers' compensation | | | | this case, the employee did not have a "clean" |
| carrier is now able to reduce virtually every claimant | | | | record, and it was easy for the Court to uphold the |
| to partial disability status at any time after the | | | | suspension. What happens, however, when the |
| claimant has received two years of benefits. | | | | unsatisfactory performance occurs only after the |
| Although a claimant can try to defend against a | | | | employee is at light duty and, as employees |
| modification petition based upon an IRE, the fact that | | | | frequently claim, their firing is a pretext because the |
| literally no claimant can meet the statute's | | | | employer only wants them to work at full duty? |
| requirement that he or she have a 50 percent | | | | Time will tell. |
| impairment means that any defenses will, at best, | | | | SUPERIOR COURT OF NEW JERSEY, APPELLATE |
| delay the inevitable. | | | | DIVISION OPINION |
| ►Physical Versus Mental Injuries | | | | ► Doe v. XYC Corp. |
| ♦ Panyko v. Workers' Compensation Appeal | | | | No. A-2909-04T2 (December 27, 2005) |
| Board No. 37 WAP 2004 (December 28, 2005) | | | | Holding: An employer on notice that one of its |
| Holding: A claimant who suffers a purely physical | | | | employees is using a workplace computer to access |
| injury, such as a heart attack, because of a psychic | | | | pornography, possibly child pornography, has a duty |
| reaction to a working condition, is not required to | | | | to investigate the employee's activities and to take |
| establish that the working condition was abnormal. | | | | prompt and effective action to stop the unauthorized |
| Thus, claimants allegedly suffering from physical | | | | activity, lest it result in harm to innocent third parties. |
| injuries are not required to show that their injuries | | | | No privacy interest of the employee stands in the |
| are the result of abnormal working conditions. Rather, | | | | way of the duty on the part of the employer. |