Thursday, August 07, 2003

Duty To Defend Despite Murder Conviction
Bucks County Common Pleas Judge Charles B. Burr II ruled last month that a carrier must defend its insured against negligence claims stemming from the death of an infant in her care even though she was convicted of first-degree murder in the death. In Erie Insurance Exchange v. Muff, Judge Burr refused to adopt the inferred intent rule; i.e., the first-degree murder conviction inferred the intentional nature of her behavior, thus triggering the intentional tort exclusion in the homeowner's policy. Pennsylvania courts have previously only extended the inferred intent rule to cases involving sexual abuse of children or illegal sale of drugs.

Judge Burr apparently looked to the underlying criminal case, where the insured had also been found guilty of aggravated assault and child endangerment. According to Judge Burr, if the insured had been negligent in some respects then Erie had a duty to defend. And Judge Burr concluded that there were aspects of the criminal trial court's verdict from which negligent behavior could be found.

This case -- already on appeal -- is unique in that it involves the inferred intent rule. Nonetheless, it is similar to a long line of cases involving the "expected or intended" harm policy exclusion. From my own experience, even where there's pretty egregious, ostensibly intentional conduct, such policies are generally held ambiguous and, therefore, construed against the carrier. That's some solice for a plaintiff's lawyers until the matter reaches the Superior Court.

Tuesday, August 05, 2003

Two Pennsylvania Plaintiffs Firms On National Law Journal's Hot List
Last week's National Law Journal profiled a so-called "Hot 50" of plaintiff's law firms located around the country. The list includes Berger & Montage and Levin Fishbein, both located in Philadelphia. Congratulations! (Ed. note: I worked at Levin Fishbein). But are these really representative of the country's nearly 500,000 solo and small firm practitioners who practice PI work? Not really. Look at the National Law Journal's criteria: Law firms? The list excludes solo and small firms of two-five lawyers. Around the country? Not really. With few exceptions, the list basically covers only LA, NY and DC. I understand that there a few solo and small Pennsylvania PI practices that are "hot".

Monday, August 04, 2003

Legal Writing Update
My "Write Now" column on lexisONE this month concerns proofreading for solo and small firm lawyers. Check out how PI lawyers can make writing and editing easier and more efficient.
Roundup Of July Cases

Pennsylvania Superior Court Reports
No. 3404 EDA 2001.
Filed: July 30, 2003.
Brotech Corp. appealed from the trial court's order granting summary judgment in favor of Delmarva Chemicals. Reversed

Pennsylvania Superior Court Reports
No. 1024 MDA 2002
Filed: July 25, 2003
Travelers Insurance Company appealed from order compelling arbitration of the claims of Appellee Ryan Neuhard for underinsured motorist benefits. Reversed and remanded.

Pennsylvania Superior Court Reports
AMERICAN REHAB. v. AMICO, 2003 PA Super 273
NO. 2881 EDA 2002.
Filed: July 23, 2003.
Appellant, AMICO appealed from order granting summary judgment in favor of Appellee, American Rehab, in connection with American Rehab's claims for declaratory judgment in the amount of $16,849.28. Reversed.

Pennsylvania Commonwealth Reports
NORTH LEBANON TOWNSHIP v. W.C.A.B., 2749 C.D. 2002 (Pa.Commw. 7-18-2003)
No. 2749 C.D. 2002.
Filed: July 18, 2003.
North Lebanon Township appeals from an order of the Workers' Compensation Appeal Board that affirmed the decision of a Workers' Compensation Judge, which dismissed the fatal claim petition filed by Elaine Harbaugh, widow of decedent Calvin Harbaugh, against North Cornwall Township, but granted the claim petition against North Lebanon Township and awarded claimant death benefits of $561 per week. On appeal of North Lebanon, the Board modified the weekly death benefit to $286.11, but otherwise affirmed the WCJ.

Pennsylvania Superior Court Reports
WOOD v. E.I. DU PONT DE NEMOURS, 2003 PA Super 268
No. 1312 EDA 2001.
Filed: July 17, 2003.
Appellants, Jason and Holly Wood, appealed an order granting a Petition to Transfer Venue filed by Appellee E.I. du Pont de Nemours & Company. The order transferred venue from Philadelphia County to Bradford County. Affirmed.

Pennsylvania Commonwealth Reports
WESTINGHOUSE v. W.C.A.B. (KORACH), 2228 C.D. 2002 (Pa. Commw. 7-1-2003)
No. 2228 C.D. 2002.
Filed: July 1, 2003.
Westinghouse Electric Corporation/CBS (Employer) petitioned for review of an order of the Workers' Compensation Appeal Board affirming in part and reversing in part an earlier order. Affirmed.

Pennsylvania Superior Court Reports
CAMPAGNA v. ROGAN, 2003 PA Super 257
No. 564 MDA 2002.
Filed: July 10, 2003.
Appeal from a judgment entered in the Court of Common Pleas of Luzerne County following the jury's verdict in favor of Appellee Joseph Francis Rogan in a personal injury action resulting from a motor vehicle accident. On appeal, Appellant Nino Campagna contended the trial court should have ordered a new trial on the issue of damages since the jury's verdict finding Appellee was not a substantial factor in bringing about Appellant's injuries was against the weight of the evidence, and the trial court should have granted Appellant's request for a directed verdict and/or granted judgment notwithstanding the verdict (JNOV) in favor of Appellant on the issue of causation. Reversed and remanded.

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