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HomeMy WebLinkAbout97-00251 \ '" > "~-., -- . . .~ CJ -- ~I () , ,1 t"--. ~ ~ THOMAS E, HILSON. PIa inti ff #1f; IN THE COURT OF COMMON PLEAS OF CUMRFRLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAH V, BARBARA ANN SCOTT, Defendant No, 97-0251 CIVIL TERM PRETRIAL ,CONFERENCE At 0 pretrial conference held April 29, 1998. before Edgar B, Bayley, judge. present for the plaintiff was David L, Lutz. Esquire, and for defendant. Debra p, Fourlas, Esquire, This is an automobile occident case in which liability is contested, Estimoted time of trial. one and a half days, Plaintiff is a resident of Texas, He maintains that he has not received first party benefits. If that is true and there is liability in the present case, that liability would extend to all damages, If Plaintiff has received first party benefits. there is an issue raised in defendant's motion in limine to preclUde eVldence concerning such benefits, The issue has apparently been addressed by a decision of Judge Hoffer, supported by a written opinion dated January 16, 1998, in the case of H.OgJJn....'L._,liaitin.s.,J1otoL~ine.s at 94-5098, ui~___ Edgar B. Bayley, . David L, Lutz, Esquire For Plaintiff Debra p, Fourlas, Esquire For Defendant :prs >- "l >- c'; ". I~': i':: tu' -~ , .- ' - ., . ;. /.'. , .. I '- , (.-;r . , r.'l ",:, , -jr '- . ".. J 'J ',' I -.. ~ ..;. k C':) ~j <) en U THOMAS E. WILSON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BARBARA ANN SCOTT, Defendant NO, 97-251 Civil JURY TRIAL DEMANDED PLAINTIFF'S PRE-TRIAL MEMORANDUM I. Brief narrative statement of the case This litigation involves a motor vehicle accident. On May 3, 1995, Plaintiff, Thomas Wilson, was operating an F-150 Ford pick- up, traveling northbound on North Bedford Street, Carlisle, Cumberland County, Pennsylvania, At the same time, Defendant, Barbara Scott, operating a 1988 Cadillac Coupe DeVille southbound on North Bedford Street, turned left directly in front of Mr. Wilson's vehicle. II. List all tvpes and amounts of all damaqes claimed A. Non-economic damages. As a result of the accident, Mr. Wilson sustained a left shoulder injury and a left knee anterior cruciate ligament insufficiency. B. Economic damages. Mr. Wilson's present medical bills total $1,428.17, and the orthopedic surgeon has testified that his professional fee for anticipated surgery would be between $4,000 and $5,000. Mr. Wilson will also claim work loss and a loss of earning capacity. Mr. Wilson has earned a black belt in karate and had plans to continue 131S07/MTG 1 to teach karate, and he has found that he cannot continue to teach, Therefore, he is losing income with regard to his inability to teach karate in the past, as well as his plans for the future. III . List of names and addresses as witnesses. classifyinq witnesses of all persons who may be called them as liability or damaqe Attached as Exhibit A is Plaintiff's counsel's June 24, 1997, letter listing the liability witnesses and damage witnesses. IV. List of all exhibits which a party intends to use at trial Attached as Exhibit A is Plaintiff's counsel's June 24, 1997, letter listing the liability exhibits and damage exhibits. V. COpy of the written report or answer to written interroqatories consistent wi th Rule 4003.5 containinq opinion of expert witnesses A. Dr. John Ricks. Attached as Exhibit B is Dr. Ricks's July 8, 1997, medical report. B. Dr. Robert Hunnicutt. Attached as Exhibit C is Dr. Hunnicutt's September 10, 1997, orthopedic report. VI. Stipulation of the parties. if any None anticipated. 2 CERTIFICATE OF SERVICE I, Mary T. Geraets, an employee of the law firm of Angino & , Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFF'S PRE-TRIAL MEMORANDUM upon all counsel of record via postage prepaid first class United States mail addressed as follows: Harvey Freedenberg, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Dated: L/ -if I-q~ Ma ~ ::t 1JI =l )0 JOSEPH M, MELILLO TCIU\ n. HYMAN DAVIDL, urrz MICHAEL E. KOSIK PAMELA 0, SllUMAN RICHARD A, SADLOCK DAYlD S, WISNESKI NUOLl! C. OLSON ANGINO & ROVNER, P.C. MICIIAn. J. NAVrrSKY ~ , ".i.U'Dt'o!rr:: F v.pn"l: - LISTCD IN DAWN L. JENNINOS SOLgf lorl ~, IlRf:v:ntV- JOSEPH M. DORIA DUANE S DARRICK JAMES OtCINTI l' TIlE BEST LAWYERS -IN- A.\lERICA RICHARD C. ANGINO NEIL J, ROVNER June 24, 1997 Harvey Freedenberg, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Re: Wilson v. Scott Dear Harvey: The liability witnesses we plan to call at trial are as follows: 1. Plaintiff Tom Wilson 2. Defendant Scott, as if on cross-examination 3. Lesly Post 4. Police Officer Larry Kell 5. David Conrad 6. Karen Williams The damage witnesses we plan to call at trial are as follows: 1. plaintiff Tom Wilson 2. Lesly Post 3. A physician from Apple-A-Day 4. Dr. Robert Hunnicutt 5. Daron E. Allen - Executive Director of "The Health & Fitness Connection" 6. Lucy Hess - former employee at "The Health & Fitness Connection" 7. Keith Tindell - Rental Manager at Clarklift 8. Gary Gleghorn - Executive Vice President/General Manager at Clarklift 9. Tate Chesney - sparring partner 10. Mike Sherman - sparring partner 11. David Griffin - sparring partner E-jJ1,h>1 (j 4503 NORTH FROflT STREET. HARRISBURG, PA 17110.1708 (717) 238.8791 FAX (717) 238.5810 Harvey Freedenberg, Esquire Page 2 June 24, 1997 l I The liability exhibits we plan to introduce at trial are as follows: 1. Photographs of the accident scene 2. Diagram of the accident scene 3, Photographs depicting the damage to the Defendant's Cadillac The damage exhibits we plan to introduce at trial are as follows: 1, Admissible medical bills 2. Photographs of Mr. Wilson's karate awards, certificates, trophies, etc. 3, Knee brace 4. Relevant income tax returns Should you require further information and/or documentation in order to prepare your defense of this case, please contact me. Thank you. Very truly yours, ~ David L. Lutz I I I 'I I DLL:mtg CD I: CD ~ Page 2 t~ndern~s. and spasm of the left trapezeous muscle and the left sUpt'aspinatus muscle, as well as left rhomboids (all of these muscle gt'OUps are in th~ ll'ft uppe.' back and extend to the left postet'ior neck), Left knee showed positive tenderness and minimal sw~lling on examination. It however, had good range of motion and th~ sw~lling was not~d to be lateral to the pat~lla. There wer~ no interruptions of the skin int~grity and the pati~nt was noted to have a positive Lachman sign bilat~rally, This test looks for laxity of the anterior cruciate ligam~nt and if unilateral and confined to the injured kn~~, is a good indicatot' of a tot'n antet'ior cruciate ligament. HO~j~vet', in this cas~, Dt'. Pat'Vlls noted that it was bilaterally positiv~ which occasionally speaks to congenital looseness of th~ kne~s and thus would not be indicat ive of an acute in,ilwy, Dt', Pat'vus obtained xrays of the cervical spine, the l~ft shoulder, the left knee, and a chest xray, and obtained a urinalysis, I beli~ve you have th~ reports of th~ xrays, which reveal~d no bony pathology and only multiple foreign bodies in the right ant~rior chest wall which were historically not relat~d to this accid~nt. Dr. Parvus's impression was motor vehicl~ accid~nt with l~ft neck and left shoulder sprain and a contusion of the left kne~. H~ treated the pati~nt with a kne~ immobilizet' to protect the knee if th~ ligaments had be~n injured and with Motrin, an anti-inflammatory agent ~~ich also is an analgesic, and also with Skelaxin, a muscle relaxant. H~ asked th~ patient to return in five to seven (5-7) days for a r~-evaluation. The patient apparently had intended to follow-up with another physician and he took the xray films with him at th~ time of the patient's original visit, Mr. Wilson never returned for follow-up here and never return~d his Xt'ays to us. This is all of the information I have on Mr. Wilson. If you have any flwther questions, please don't hesitate to give me a call. Sincet'~ly yours, d4,o ~~:~o:' Ph. D. ~ III :E ~ c t: GI ~ w Ii ~ PAGE 1 Ltatlon < INS Art, 5,06-3 I,A,T.S, Insurance Database TX-ST-ANN Mode Page FOUND DOCUMENT Code, Art, 5,06-3 VERNON'S TEXAS STATUTES AND CODES ANNOTATED INSURANCE CODE CHAPTER FlVE--RATING AND POLICY FORMS SUBCHAPTER A, MOTOR VEHICLE OR AUTOMOBILE INSURANCE Copr. (C) West 1996, All rights reserved, Current through end of 1995 Reg, Sess, \It. 5.06-3. Personal Injury Protection Coverage (a) No automobile liability insurance policy, including insurance issued Jursuant to an assigned risk plan established under authority of Section 35 of :he Texas Motor Vehicle Safety-Responsibility Act, [FN1] covering liability lrising out of the ownership, maintenance, or use of any motor vehicle shall be ielivered or issued for delivery in this state unless personal injury Jrotection coverage is provided therein or supplemental thereto, The coverage required by this article shall not be applicable if any insured named in the Jolicy shall reject the coverage in writing; provided, unless the named Lnsured thereafter requests such coverage in writing, such coverage need not be ?rovided in or supplemental to a renewal policy if the named insured has rejected the coverage in connection with a policy previously issued to him by che same insurer or by an affiliated insurer, (b) "Personal injury protection" consists of provisions of a motor vehicle Liability policy which provide for payment to the named insured in the motor Jehicle liability policy and members of the insured's household, any authorized Jperator or passenger of the named insured's motor vehicle including a guest Jccupant, up to an amount of $2,500 for each such person for payment of all reasonable expenses arising from the accident and incurred within three years from the date thereof for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, ?rofessional nursing and funeral services, and in the case of an income ?roducer, payment of benefits for loss of income as the result of the lccident; and where the person injured in the accident was not an income or Nage producer at the time of the accident, payments of benefits must be made in reimbursement of necessary and reasonable expenses incurred for essential services ordinarily performed by the injured person for care and maintenance of the family or family household. The insurer providing loss of income benefits nay require, as a condition of receiving such benefits, that the insured person' furnish the insurer reasonable medical proof of his injury causing loss of ; income. The personal injury protection in this paragraph specified shall riot ~xceed $2,500 for all benefits, in the aggregate, for each person. (c) The benefits required by this Act shall be payable without regard to the fault or non-fault of the named insured or the recipient in causing or , =ontributing to the accident, and without regard to any collateral source of ~edical, hospital, or wage continuation benefits. An insurer paying benefits pursuant to this Act shall have no right of subrogation and no claim against any other person or insurer to recover any such benefits by reason of the alleged fault of such other person in causing or contributing to the accident. (d) All payments of benefits prescribed under this Act shall be made Copr. (C) West 1996 No claim to orig. U.S. govt. works Ej-hi'bJ- E 4 ~ ," , i . I I f 'I I i TX INS' Art. 5.06-3 TEXT PAGE 2 periodically as the claims therefor arise and within thirty (30) days after satisfactory proof thereof is received by the insurer subject to the following limitations: (1) The coverage described in this Act may prescribe a period of not less than six months after the date of accident within which the original proof of loss with respect to a claim for benefits must be presented to the insurer, (2) The coverage described in this Act may provide that in any instance where a lapse occurs in the period of total disability or in the medical treatment of an injured person who has received benefits under such coverage and such person subsequently claims additional benefits based upon an alleged recurrence of the injury for which the original claim for benefits was made, the insurer may require reasonable medical proof of such alleged recurrence; provided, that in no event shall the aggregate benefits payable to any person exceed the maximum limits prescribed in the policy, (3) In the event the insurer fails to pay such benefits when due, the person entitled to such benefits may bring an action in contract to recover the same; and, in the event the insurer is required to pay such benefits, the person entitled to such benefits shall be entitled to recover reasonable attorneys fees plus 12% penalty, plus interest thereon at the legal rate from the date such sums became overdue. (e) An insurer shall exclude benefits to any insured, or his personal representative, under a policy required by Section 1, when the insured's conduct contributed to the injury he sustained in any of the following ways: (1) Causing injury to himself intentionally, (2) While in the commission of a felony, or while seeking to elude lawful apprehension or arrest by a law enforcement official, (f) This article applies only to motor vehicle insurance policies subject to this subchapter and does not apply to other accident or health policies even though they promise indemnity against automobile-connected injuries. (g) Nothing contained in this Act shall affect the offering of medical payments coverage, disability benefits, and accidental death benefits, as presently prescribed by the State Board of Insurance; and nothing contained in this Act shall be construed to prevent an insurer from providing broader benefits than the minimum benefits enumerated in this Act subject to the rules and forms prescribed by the State Board of Insurance, (h) When any liability claim is made by any guest or passenger described in paragraph (b) hereof against the owner or operator of the motor vehicle in which he was riding or the owner's or operator's liability insurance carrier, the owner or operator of such motor vehicle or his liability insurance carrier shall be entitled to an offset, credit or deduction against any award made to · such guest or passenger in an amount of money equal to the amounts paid by the owner, operator or his automobile liability insurance carrier under "personal injury protection" as defined in this Act to such guests or passengers; provided, however, that nothing herein shall be construed to authorize a direct action against a liability insurance company if such right does not presently exist at law. Copr. (C) West 1996 No claim to orig. U.S. govt. works L. ~ 3 (tS) r 168 Sf? FEDERAL REPORTER, 2d SERIES 61.. pursue the matter further, The agent claimed that, In view of plaintiff's refusal to obey proper orders, the company's ac. tlon was entirely justltled, On February 27, 1nG2, an examiner for the UnllA!d Stllles Coast GUlll'd found plaintiff aullty of negligence In steering the 5.5, "Export Aide," and suspended his seaman's documents on probation, This ruling was reversed by the Acting Commandant on December 16, 1963, on the limited ground that plaintiff "could not steer properly, at any time, even after considerable practice" and there. fore could not be charged with negll. gence. Meanwhile, plaintiff, because of the company's failure to rehire him and the union's failure to prosecute his grlev. ance, had tiled Ii series of charKes with the National Labor Relations Board against the union and the company. In each Instance the Regional Director and the General Counsel of the Board, tlnd. Ing no basis for plaintiff's claim that he was the object of dlxcrlmlnatory treat. ment, refused to issue a complaint. On August 21,1964, plaintiff Instituted the present suit. Defendant" moved to dismiss the action under Fed.R.Civ.P. 12(b) (G) and for aummary judgment under Fed.R.Clv.P. 56, Judge Bonsai aranted the motion for summary judg. ment, ruling that the papers which had been submitted to him demonstrated that "plaintiff was not discharged without cause," that "the Union did not act in bad faith in refusing to process his grlev. ance for wrongful discharge,':' and that "plaintiff's charges of conspiracy and fraud are conclusory · . ." We agree with the district judge that the papers In this case demonstrate, pur- suant to Fed.R.Clv.P. 5G(c), "that there Is no genuine Issue as to any material fact and that the [defendants are] en- titled to a judgment as a matter of law." We have also considered plaintiff's pro- cedural objections and find them to be without merit as grounds for reversing the district court. The judgment below ,Is therefore affinned. 8. In.ur.n~. Mexlca surance co. Mexican II liability Cl place In Me 4. Insurant Prol'!: Insurance trolled by : SEGUROS TEPEYAC, S. A" CmfPANIA MEXICANA de SEGUROS GEN. ERALES, Appellant, v, Maynard BOSTRO~I and Jam.. L. JernlglU1, Appelleea. No. 21187, United States Court of Appeals Fifth Circuit. June 16, 1965, G. Insuran. Provl with civil ognlzed tI benetlclar: 8. Insurar. Polic: to insuret by Insure See . for at ~.ftnlll 7. Insural Uridt stating II Insurer u tlnal jud, permit dl ant agah recoveree IIshes the than Ind tlon aga; ley or Ie' against i- 8. InSUla) Und, law, poll payable , suffered ( proved a' Icy, 'rath, plaintiff, , against i. thlrd.pal' . polley. 9. AcUon In d. um appl' elgn na' should : JUF Action by Injured claimant against automobile liability Insurer for damages over polley limits for alleged breach of duty to defend or settle. The United States District Court for the Northern District of Texas, Leo Brewster, J., 225 F.Supp. 222, rendered judgment for plaintiff, and the defendant appealed. The Court of Appeals, Wisdom, Circuit Judge, held that under Texas law, in- jured claimant had no standing to sue liability Insurer for excess over policy limits, for insurer's alleged breach of duo ty to defend or .ettle, where insured had not paid all or part of judgment for eX- cess, and thus himself had no .tandlng to sue. Judgment affirmed as to face amount of policy and reversed as to excess. I I ~ 1. Insurnnce 4=>514.2, 514.3 Under Texas law, Insurer must ex- ercise ordinary care to protect insured to amount of polley limits, and if it breaches that duty, Insured has cause of action against Insurer for total amount of claimant's judgment against him, In. cluding amount In excess or policy lim- It. f2;.Jnourance 4=>5114.3(1), 812.1(51 1..:1 Under Tex". law, llnblllty policy In- ures to benefit of Injured persons, as well as to benefit of insured, and injured person who obtains tlnal judgment aKulnst Insured may sue Insurer to en- force pal'ment of judgment without caus. I Ing execution to be Issued against In- F sured. E'J-- h dJd ; . _~~~~>':':t ~. ' '< ""':,", :",:,-, '~~. :~~~~::?: ':.~' ":~"~,;,~~"~~'i-',ri::S:,::3;:=:S~~1~ , A" CO~rPAN1A ,ooos aEN, lellan!, and J&m.. L. -ollce.. .. , 01 Appeals .Ill, 1r.5. doimont a~alnst iI'cr for domalle. ,lIcged breach of de. The United 'or the Northern Brew.ter, J., 225 I judgment for !ndant appealed. Wisdom, Circuit " Texa. law, in- standing to sue <cess over policy ~ed breach of du- :here Insured had judgment for ex- had no standing w\ to face amount I" to excess. l3 insurer must ex- 1 protect In.ured limits. and if It ured haa cause of for tIltal amount " against him, In- :,'s of policy 11m. . 612.1(5) Ii,blllty policy In- iured persons, as <ured, and injured final judgment ue Insurer to en- ',cnt wllhout caus- ..ued Dllaln.t In- SEGIJROS TEPEYAO, S, A" OOMl'ANlA MEXIOANA v, BOSTROM elle AI 311 ....2d 168 (t~) broad discretion In stale wllh civil law background. ' I I , I I ! ! I I 8, Insurance <:=>147(1) Mexican law conlrols mennlnll of In- surance contract execuled In Mexico wllh Mexican Insurer, for anticipated public liability coverage for accidents taking place In Mexico. 4, Insurance ct:>1~2.1(1) Provision of Mexican law llovernlnll Insurance must be read Into policy con- trolled by Mexican law. G, Insurance e=>~94.3(1) Provision of Mexican law, consl.lent wilh civil law llenernlly, spcclfically rec- ognized thallnjurcd pnrly I. Ihlrd,pnrty beneficiary of insurance conlract. 169 I O. IJUurance e=>812(2) Polley which requires Ihal damages to Insured must be fixed before payment by Insurer Is "indemnllY policy'" Su publlcotJoD "'orlll azu] Phr4lu for other Julllclol cOMtructloDI aDd definition.. 7, Insurance e=>812(2), 612.1(2) Under Texas law, "no action" clause, staUnll Ihat no action should lie agaln.t In.urer until damages are deter,lI'ined by final judgment or agreemenl.ljoes not permit direct nctlon by Ihlrd-party claim- ant against iusurer before judgment Is recovered against Insured, but estab- IIshe. that policy Is lIabillly policy ralher than Indemnity policy, and penn its ac. tlon a~aln.t I""urer, for nmount of pol. Icy or less, as soon as Ihere Is judgment allalnstlnsured] 8. IJUurance e=>812(2), 8aU(1) Under Texas law as well as Mexican law, policy providing that indemnities payable should be effected once damage suffered or caused by vehicle has been proved and adjusted was Iiabilily pol- Icy, ralher than Indemnity policy, and plaintiff, who had recovered judgment against Insured, had standing to sue as third-party beneficiary for amount of policy. 9, Acllon e=>17 In delerminlng whether law of for- um applies where applicable law of for- eign nation i. not shown, trial judge ahould have discretion, and upedally J47 '-IlS-U \'t o 10. Statutes e=>290 Texas law was properly applied to determine Ilablllly under Mexican policy, in Texas federal court case, to exlent that con lent of Mexican law was appll- cable lout not proved. 11, Torn C:>2 For purpo.e. or determlnlnlllort lIa- blllly for personal Injuries, law of place where Injury occurred usually governs, 12. In.urance <:=>814,3 For purpose. of delermlnlng Insur. er's lIabllily to insured for negligence In failing to sellle within policy IImlls, place of accident Is Irrelevant and does not delermlne whelher forehm law or law or forum should control. IS, Negligence e=>103V, Torls e=>2 Texas courts usually look to law of place where wrongful act or neglect took place. 14. IJUurance <P814.3 Texas law applied to delermlne Mex- Ican Insurer'a liability for failure 10 set- tle within policy limits, where claimant's offer to scltle was made to insured In Texas, claimant's suit was filed In Texa. against Texas defendant, Insurer'. ai- le~ed ml.conduct In fRillng to inltlale und brlnlC ubout .cWcment and failure to defend suit look place in Texas, in- surer was qualified to do business in Texas, and Texas had Inlereslln prolect- Ing Its citizens from breach of Insurer's duty 10 Insured Texan. 18. Insurance <P814.2 I In.urer'. duty to sellle I'Ul1S only to In.ured, 10. aarnlshment e=>40, 42 Under Texas law, insured's claim against Insurer for fallure to sellle is continllent and unliquidated 'cho.e In ac- tion as to excess of judgment over policy limit, and not subject to garnishment.' 17. aamlshment <:=>37, 40 .... Texas law will not permit garnish- ment of unliquidated claim or of any chose In action,' I c ~ , , ". . ,. ., ...~:~~!!~~~!~~t!!fri:~!~lt~r~~]!~~~?~t~~J;!~}tlWt;igz~~~f~it~t.~~:~~,,4i~tj ,] , ~ ;j f l 6: I, 170 3(7 FEDERAL REPORTER, 2d BERIES 18, Credltol'l' Sult <1::>8(4) Garnishment <1::>40 Under Texas law, action by victim, who had recovered personal Injury judg. ment against Insured, against In.urer ior damages ior !allure to settle within pol. Icy limits could not be maintained as creditor's bill or garnishment, since un- liquidated claim or cho.e In action Is not lubject to gsrnlahment. 19. Insurance <l::>8U.ll(l) Claimed privity between Insured and victim, who had recovered personal In- Jury judRment against Insured, did not, under Texas law, give victim standing to sue Insurer ior damages ior alleged breach of duty to aettle within policy limits. 20. Insurance <1::>89..3(2) In absence of atatutory provisions or required forum policies, Injured per- son generally stands In shoes of Insured. and his rl~ht, 1I~lIln.t In,urcr IIr. no greater and no less than tho,e of In- sured. 21. Insuranee """8lum Under Texas low, Insured's right to recovery from liability or Indemnity In- surer for failure to settle Is treated as right to reimbursement, and Insured may not recover iram Insurer unless Insured has first eatlafied Judgment against him- leli. 22, Insurance """81Um, 81U3 Under Texas law, neither Insured nor claimant has etanding to sue ior breach oi Insurer's duty to defend and lettle until Insured hns paid aome amount on excess Judgment; Insurer Is then lia- ble only to extent of Insure<j;s payments. 23, Insurance """812(3) Indemnity policy would not meet ex- press requirements of Texas financlal responsibility law. Vernon's Ann.Tex. Clv.St. art. 6701h. 1. O. A. Rto1"l!rI Furnlturo CO. Y. Amorlcan Jn1lemalt)' Co., TOI.Comm.App.lO'l9. 15 S.W.2~ 1544: ChonCfY .. N... Am.t.... dim Caauolty Co., T..,CI..Ap~.I000. 830 8.\\'.2d 163. error ref. D. r. .,; 32 Tn. Jur.2~ I (.I8. I 49B. S.. FI~.lIty '" Cuualtr Co. of New '!or!l ,. RabbI C5 U. ht.urane. e-o~14.ll(I), 814.13 Under Texas law, Injured claimant had no standing to aue liability Insurer for excess over policy limits, for Insurer's alleged breach of duty to defend or set- tle, where Insured had not paid all or part of Judgment for excess, and thus hlm.elf had no standing to aue. the In.ure" the Insurel claimant's lng the nr limit. II< alleged I)', tied for t Jured clai against It, Insured i, on the Je Insurer. Is ",heth standing the amou the pollc: lowed th, the iull : lng that t ed JudgIT $270,000. the juds: policy 1117 \ William M. Brown, Brown, Herman, Scott &. Young, Fort Worth, Tex., for appellant, Cantey, Hanger, Gooch, Cra- ven. &. Scarborough, Fort Worth, Tex" of counsel. John Alan Appleman, Urbana, III., Al- bert H. Manus, Jr" Freeport, III., Joe Spurlock, Fort Worth, Tex., Stanley S. Crook., Dallas, Tex'., Jean Appleman, Ur- bana, 111., for appellees, Jerome Sneed, Jr., Austin, Tex" for Amerlcon Mut. Ins. Alliance, amicus cu- rine. Keith F. Kelly, Kelly, Morris, Walker &. Maynard, Fort Worth, Tex" ior the National As.oclatlon oi Independent In- surers, amicus curiae. Julietta Jarvis, Chlilon Br)'an, Hous- ton, Tex" for Aseguradora Reforma, S. A., Cia. General De Seguros, and others, amici curiae, Bryan &. Patton, Houston, Tex" of counsel. Before BROWN and WISDOM, Cir- cuit Judges, and ESTES, District Judge. t ~ In No Bostrom and J er: pleasu re car. A: Jernlga" once wit panla ~ (defend; ration I' The pol: tomobllc risks wi The ma, dolla.. f thousan' one 8cci Mexican with n I Jernlgnr aaleep Ir talned 0 Bon caul ',' perman' ~. 227. ....,. WISDOM, Circuit Judge: [I] This ca~e presents a new twist In the Texas Stowers doctrine, When an Injured penon claims damages against an insured tort.ieunr ior an Injury covered under a liability policy, the Texas Stow- ers doctrine requires the Insurer to ex- ercise ordinary care to protect the In- sured to the amount oi the policy lim- Its.' If the Insu,rer breaches that duty, Clr, 1n~n. 207 F ,2,1 413, R"o Ilnher' E. noetun. Llllh11lt,. Inllunlllco nnl' UUllunMI. hlllty tor Settlement. OT IInr..L.Re,'. 1130 (19~1: I\rODlt'f, The Prfunt StntuI of th. Sto.'eu Doctrine ID TIIG., 1 80. Tu:.W. 10i (1OM) I D)"o, In,ufo,', LI.- ~ . hlllt,. IJmlt.. " I.:, BEOUROS TEPEYAO, S. A" OOMPANIA MEXIOANA v, BOSTROM 171 Clle II 367 }o',2d lUS (I~) , MUS njured claimant liability Insurer its, for Insurer'a o defend or aet- not paid all or 'x cess, and thus ~n sue. the Insured has 0 COUse of action against the Insurer for the total amount of the claimant's Judgment against him, Includ. Ing the amount In excess of the policy limit. Here, the policy was for $5,000; allegedly, the claim might have been set. tied for that amount; Instead, the In- Jured claimant recovered a Judgment against the Insured for $270,000. The Insured Is Insolvent, has paid nothing on the judgment, and did not sue the Insurer. The question this case presents Is whether the Injured claimant has atandlng to sue the liability insurer for the amount of the Judgment In excess of the policy limit. The dlstrfct court al- lowed the claimant to sue the Insurer for the full $270,000 and, aCter a jury find- Ing that the Insurer WaR negligent. grant- ed judgment In favur of the pllllntlff for $270,000. 225 F,Supp. 222. We reverse the judgment as to the excess over the policy limit. 3rown, Herman, Vorth, Tex" for {er, Gooch, Cra- Jrt Worth, Tex" Urbana, III., AI- rceport, III" Joe Tex.. Stanley S. Il Appleman, Ur- lustin, Tex., for ;:1nce, amicus cu- , Morris, Walker :ll. Tex., for the Independent In- I. In November 1958 three young men, Bostrom (plaintiff - appellee), Sullivan, and Jernigan (intervenor) went on a pleasure trip to Mexico In Jernigan's car. After they crossed Into Mexico, Jernigan took out public liability Insur- ance with Seguros Tepeyac. S,A., Com. panla Mexicana de Seguros Generales (defendant-nppellnnt), a Mexican corpo- ration licensed to do business in Texas, The policy was a three.day "Speclnl Au- tomobile Policy for Tourists" covering risks within the Republic of Mexico only. The maximum coverage was five thousand dollars for each person Injured, with ten thousand dollars the total eoverage for one accident. The aecond day of their Mexican holiday. Jernlgnn's ear eolllded with a bus. Sullivan was driving with Jernigan's permission, and Bostrom was asleep In the back aeat. Bostrom "sus- tained about as serious Injuries as a per- son eould endure and live": he fs now a pennanent quadriplegic. 225 F.Supp. at 227. on Bryan, Hous- lora Reforma, S. .U1'05, and others, Patton, Houston, WISDOM, Cir- ;, District Judge, Jffe: ,'nts a new twist .ctrlne. When an :meges against an nn Injury covered ti:c Texas Stow- II\.' inl'urer to ex. ) prou,ct the In. f the policy 11m- ~nrhes that duty, Reo Robe't E. 11"0 l'Intl RUflonll. IInrv.L.R...1130 'rrlll'nt Slahll of III TC'IOI, 1 So. r... lnluror', lJ4. bUhy tor JutJ,lmcntlt Rxceclllnlt Polle)' LlmltJ, sa Tn.L.Rov. 233 (1000): Noto, The Insured notified the Insurer of the accident on the day It occurred. The fn- surer made an Investigation and, within eight days, settled with the bus company for damages to the bus and with Jernigan for damages to his automobile. At that time the company had no knowledge thst Bostrom Intended to assert a claim agalllolt Jernigan, and no reason to nego- tiate with Bostrom If, as the company contend., the polley doe. not cover the claim of a guest.passenger. Seguros Tepeyac state. that no one was ever aware that Bostrom had asserted a claim until June of 1960, nineteen month. after the accident, when Bostrom'. attorney In- formed Jernigan that Bostrom was about to file suit agaln.t Jernigan. August 26, 1959, Bostrom's f.ther wrote the Com- pnny for. photo-copy of the "insurance file" relating to Jernigan. He wrote again September 20 and December 1 asking for a eopy of the In.urance pol- ley. The Company replied to these Jet- ters, wanting to know hi. Interest In the matter, and sent copies of documents from It. file but did not send 'a copy of the policy until Bostrom's attorney wrote June 30, 1960, askinII' for a copy. The copy of the polley forwarded to Bostrom's attorney Is the one-page polley .ued on In this ease. The dl.trlct eourt found that there Was no evidence to aub- .tantlnte the Insurer's contention that the policy delivered to Jernigan had an addi- tional pnge excluding liability for In- juries to third peraons riding as guest passengers. , Short'y before flllng ault on July 12, 1960, Bostrom made an oral offer to Sulll-. van and Jernigan to settle his elalm' agaln.t them for $5.000. They r~jected It for lack of fund., Both the fnsured and the e!almant refrained from men- tioning the offer of settlement to the In- aurer, and the Company asserts that It had no knowledge of the exlatence of the offer until after Bostrom reeovered judll'- ment for 64 tlmea the amount of the of-, fered settlement. " , . .,' .... 'l~":.~. ., 41 Tcx.r~ncv: M~ 11003);, Note, '18'.\'.' ',: B.W.Wou,. 1~7 (1004). '. lMm. ~~;:'-.i=l;.o/' "''''m.'1i;;;:~~~FJ;t~''''--'W'''"'~ ,"'-'""=~,=<~ -'-~ --, "" _~.d~_.'>""'''''''''$'''''', 'do""""''''.'_W''''"~ ,"_~,-..-,,_,,~~JI!i""""'~~ '\il\~'i""'~ ".rp"~" ,_<,,,,""_"'=",,-cr~,~,,,,_d__,' !!.1~~[f~~~~~:;;~'":~~~:c;~1~'j~j~':':~~~;~~~~:t~~~~~f~~~,,:~;i:t=~;=-~i:~"o~' T~;::~ic\1T~~~':~r~;~~~'._ "',~: II 172 sn FEDERAL REPORTER, 2d SERIES August 2, 1960, Jernlgnn advised Se. guros Tepeyac of Bostrom's suit and called upon It to defend the action. A number of letters passed between Jernl. gan and Seguros Tepeyac before the suit wae tried, the Insurer consistently deny. Ing liability to a guest passenger and reo fusing to defend the caee. . February 12, 1962, the plaintiff recovered a judgment for $270,000 against Jernigan and Sulll. van after a trial, without a jury, before Judge Sarah T. Hughes In the Dallas Division of the Northern District of Texas. Execution on the judgment was reo turned tlu!la bona. Bostrom then brought this action against Seguros Tepeyac. On submission of special Issues, the jury found that the insurer wus negligent "In not Initiating and attempting to bring about a settlement" of Bostrom'a claim "within the $5,000 limit of the public liability pallcy In question.... February 12, 1962, the district court granted judg. ment for $270,000, and overruled the de- fendant's motions for judgment and for judgment n. o. v. June 24, 1964, while this case was on appeal, Jernigan assigned to Bostrom his claim against Seguros Tepeyac. He then filed with this Court a petition asking that he be permlttcd to Intervene. We allowed the petition preliminarily. The Intervention asks that the Insurer dls. charge Bostrom's judgment against Jer. nlgan. Bostrom, however, does not rely on the assignment. In the district court he aued In his own right as Ii third party beneficiary of the Insurance contract. On appeal, his attarney now contends that Bostrom, as a judgment creditor, is cn. tilled to reach funds of the insurer to the amount of his judgment. .. II. In a Stowers aituatlon the "petlllon asserts, In effect, two causes of action, onp. for the aums contracted to be paid and one (jtl tort) for the excess of the 2. 10 Stower. the bc,lIcence conll,tet.! of reJtctlDI DD offer to .~ttle within tho pollcr limit.. In tho ID.t:lDt cuc, the dl.trlet court relied on the Uyl.... thot judgment nbove those sums," Illghway In.. Undel'wrlter. v. Lufkin-Beaumont Motor Coach e., Inc" Tex,Clv,App,1948, 215 S.W,2d 904. Here, for example, Bostrom has a $5,000 suit, aoundlng In contract as a third party beneficiary, and a $265,000 au It, aounding In tort, based on the defendant's negligence. We ahall discuss, firat, the plaintlff'a atllnding to aue In contract. llArt. grsnt, direct who ~ ary 0 ment "In c right be tr: unles estab tion tam I' whor direc proc. In the the rei seems that t~. is IImi' [6,7 the on' panya lions [, lndem: be elf' ..:aused and ad )Ie rib., clause as soar hide" The a: la estr judgm au red. riot "' causee If the age "t, paymo have; pare l Culbel" 727; ; policy' ,.thlrd [- Insure:' , Icy In '~:'No A as lIa~ Such [2J This Court held in Ohio Casualty Ins. Co. v. Beckwith, 6 Clr. 1934,74 F.2d 76, that a liability Insurance policy la a contract for the benefit of a third person, entitling an Injured claimant to sue the insurer to enforce payment of his judgment. Slmllarly, in Seaton v. Pickens, 1935, 126 Tex. 271, 87 S.W.2d 709, 711, 106 A.L.R. 612, the Texas Suo preme Court declared that "[tJhe policy . . . Inures to the benefit of such Injured persons, as well a. to the benefit of the assured"; accordingly, "the in. jured person, after obtaining final judg. ment against the insured, may sue the In. surer to enforce payment of the judgment without causing execullon to be Issued against the in.ured." This strong dictum In Seaton v. Pickens is supported by other Texa. cases. See Womack v, Allstate Ins. Co" 1956, 156 Tex. 467, 296 S.W.2d 233; Commercial Standard Ins. Co. v. Ebner, 1950, 149 Tex, 28, 228 S.W.2d 507. [3-5J Here the contract was executed In Mexico; the insurer was a Mexican company; the parties anticipated public lIablllty coverage for accidents taking pluce ill Mexico. In these circumstances, the triul judge properly found that Mexi. can luw controls the meaning of the con. tract. Article 147 of the Mexican law governing insurance therefore must be read Into the policy. This article, consls. tent with the clvlllaw generally, speclfi. cally recognizes that the Injured party Is 8 third party beneficiary of the Insurance contract. ~ . the clut)' to IcttlO Imt,lIu tbe dut)" to nCloUnte.1t Chnnce1 v. Xcw Amster. ~.m CM, Co" Tex.Clv.App,lOOO, 336 S.\\". 2d 'j(}3, 7G-1, error rd. n. r. e. l :'", . .'~ ~I." I ."' . .J' ~;:;~":".:'"~i~i~i;;'~t~~$,~~'~':'~'~:":: q ~~~:""~". .,~i\l;~~~ , ~ .."..->;: 0;:-./...",........,"'. '" I?;:.. ;;;g' ~~ SEOUROS TEPEYAO, S. A" OOMPANIA MEXIOANA v. BOSTROM 173 CIt.1lI3tl.'.2dll08(IO~) lihway lumont p.1948, cample, Ifni In ry. and , baled 'e Ihlll Ifni to "Art. 147. Liability Insurance iranls the right to the Indemnity dlreclly to the dama~ed third person, who Ihall be conlldel'ed al beneRcl. ary at the Inlurance tr~m the mo. ment at lhe lOIS, "In case at death at the laller, his rliht to the in.surance amount Ihall be transmitted by way at luccesslon, unless the law or lhe contract which establish tor the assured the obllga. tlon to indemnity, apeclRes the tamlly members at the deceased to whom the Indemnity must be paid dlreclly without the need at estate proceedings," (Empho.ls aupplled.) In the second paragraph at A rlicle 147, the reterence to "the Insurance amount" seems to indicate, as well as It should, that the quasi.contract with the claimant Is limited to the policy limit. [6,7J The only algnitlcant clause In ilte one.page policy provides: "The Com. pany airees that within the terms, excep. tlons and Genernl Conditions hereot, the Indemnities payable to the Insured shall be effected once the damaoe suffered or caused by the vehicle has becn proved and adjusted." Although this clause de. acribes the payment as "indemnllies", the clause states that the Insurer must pay as aoon as the "damage causcd bv the ve. hicle" has been proved and adjusted, The amount at damage to third persons Is established at the very latest when a Judgment Is rendered aialnst the In. aured. Satlatactlon at the judgment Is not necessary to establish the damages caused by the vehicle to third peraons. IC the policy had provided that the dam. age "to the in.sured" must be tlxed betore payment by the Insurer, the policy would have been an Indemnity policy. Com. pare Universal Automobl!e Ins. Co. v. Culberson, 1935, 126 Tex. 282, 86 S.W.2d 727 j Seaton v. Pickens. Instead, the policy provides that the "damage to the third person" mU8t be tlxed betore the insurer la liable. The dause In the pol. Icy In this case /s aimllar to the typical "No Action" clauses at policies construed aa liability policies by the Texas coum. Such clauses usually atate, "No action asualty 14 F.2d 11Iey fa I third lant to lent at lton v, S.W.2d cas Suo I policy It auch beneRt lhe In. I judi' the In. 19ment issued dictum yother ~lIstate S.W.2d Co. v. S.W.2d cecuted lexican public taking itanCe!, I Mexi. he con. an law lUSt be consls. apecltl. 'arty la :urance :7 10 ater. S.1\'. ~ i ahall lie agalnat the Company until the amount at the damages tor Which the assured ia liable by reason at any loss covered by this policy Is deteMllincd either by a Rnal judgment against the Assured, or bV agreement between the Assured and the plaintiff with the writ. ten consent at the Company." These clautes do not permit a direct action b) a third party claimant against the In. eurer before judiment II recovered against the Insured, but they establish that the policies are liability pollcle' rather than Indemnity policies, and pel mlt an action agalnat the Insurer, tor the amount at the policy or less, as 800r n. thore I. judKment nKllln.t the In.ured See Lander v. Jordan, Tex.Clv.App,1933 59 S.W.2d 959; American Indemnity Co v, Martin, Tex.Com,App.1935, 126 Tex. 73, 84 S.W.2d 697; Cuellar v, Moore, Tex,Clv.App.1932, 55 S,W.2d 244; ct. Gult Ins. Co. v. Vala, Tex.Clv.App.1962, 361 S.W.2d 904, 908; Langdeau v. Pill. man, Tex.Civ.App.19GO. 337 S.W.2d 343. Courts at other states have held that similar policies are liability policies rath. er than Indemnity policies, Rogers v. Youngs, 1931, 256 Mich. 213, 239 N.W. 511 j Capelle v. United Statel Fidelity & Guaranty Co" 1922, 80 N.H, 481. 120 A. 556; Trandum v. Trnndum, 1932, 187 Minn. 327, 245 N.W. 380. /fsi The ditl'erence between the poll. ~nvolved in those cases and the pol. Icy In thla case emphasizes that the Se. guros Tepeyae policy Is a liability pol. icy. The usual liability policy provides that the damage must be tlxed "by a judg. t ment". The Tepeyac polley merely says that the dnma~e must be "provee( or ad. Justed". "Adjustment" Implies bn ex. trajudIclal means at establishing the dam. age; damage may be "proved" Judicially or extrajUdicially by Intonnal proot at loss, ' ,. We hold theretore that the polley was a liability polley and that under Texas law as well as Mexican law the plalntltl'. , had atandlnS'. as the third party benetl: clary to the contraet,', to aue tor the' amountoflhe policy. ,:. .:.. " , ' , -, t X. Spttlempnt, Defendant has offel'ed $20,000 in full settlement of all claims. Plaintiff has refused to reduce his demand below $50,000. Respectfully submitted, McNEES, WALLACE & NURICK ( BY , 17108-1166 Attorneys for Defendant April 23, 1998 - 3 - t r CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first Of Counsel for--Defendant class mail, postage prepaid, upon the following: David L. Lutz, Esquire ANGINa & ROVNER, P,C, 4503 North Front Street Harrisburg, PA 17110 April 23, 1998 , 4 - 11/07/~6 IZ:~7 U~7ZUJ566Z THE ROY AGner Ii!I DOl/DOl TBX ROY A~~CY, INC, 701 E. Vlano Parkway Suite 115 Plallo, TX 75074-6751 (972) 423-1010 (972) 423-5662 Fax. ....~~tMILB r.~ BIrR~ TO: ANGINa ~ ROVNBR, P,C, ATTN: DAVID L. Ltn'Z FAX NUMBER: 1-717-238-5610 TOTAL NUMBER OF PAGES (Including Cover): 1 DATE: November 7, 1996 FROM: C.J, ROY, CIC SUBJEc:r: OUR INSURED: CLARKLIFT OF FORT WORTH, mc. YOUR CLIENT: TOM WILSON ACCIDENT OF: 5-3-95 IF YOU DO NOT RECEIVE ALL PAGES, PLEASE CALL (972) 423-1010, COMMENTS: GOOD AFTERNOON HIt. LUTZ I THIS FAX IS IN RESPONSE TO YOUR LETTER OF Oc:rOBER 9, 1996, CLl\RXLIFT DID ELEc:r TO WAIVE COVERAGE FOR PERSONAL INJURY PROTECTION, MEDICAL PAYMENTS AND UNINSURED/UNDERINSURED MOTORIST COVERAGE ON THEIR BUSINllSS Al11'OMOBILE POLICY DURING TIlE TIME OF TIlE ABOVE REFE1UiNCED ACCIDENT FOR THE COMMERCIAL VEHICLES mSURED THERE UNDER, THESE COVERAGE'S J\RE NOT MANDATORY IN TllXAS. I TROST THIS ANSWERS YOUR QUESTION AND WILL AI.LOW YOU TO PURSUE PAYMENT OF YOUR CLIENT'S MEDICAL BI~ FROM THE PARTY nlAT WAS AT FAULT IN THIS MATl'ER. C.J. ROY, V.P., CIC TIME SENT: 12:43 PM CST J applied New Jersey law, which precluded stacking and limited the recovery 10 SI5,OOO, finding Ihat New Jersey had a policy interest in the isslle superior to Ihat of Pennsylvania. Both Crawford and Capll/o involved circumstances where (JI/~I' (JI/C il/sl/rl'r wus involved in the euse. Thus, there wus no need to balunee the competing interest of Pennsylvuniu policy with the public policies of other states, because Pennsylvuniu hud no policy interest in either case. Further, neither euse involved a subrogution claim. The seminal case concerning conflict of luws analysis is Griffith 1'. United Airlil/I's, 416 . I , Pa. 1,203 A.2d 796 (1964). See A~l'ers 1'. COII/II/I'rcia/ UI/iol/ Assl/r. Cas., 506 Pu. 492, 485 A.2d < ! I i '1 1113 (1984); Byard F. Brogal/. II/C. I'. WCAB. (Morrissey), 161 Pa. Cmwllh. 453, 637 A.2d 689 (1994); AI/toll/ohi/e Ul/dl'nI'ritl'rs, II/C. I'. Eric II/s. Grol/p, 30 Pa. D. & C.3d 152 (C.P. Eric 1983). Under Griffith and the other euses ciled above, a Pennsylvania court must apply the law of the jurisdiction which has the most significant relationship with the parties and the occurrence. Among the facts to be considcred ure the domiciles of the purties,2 the location of the occurrence, and the location which is the cenler of the parties' relationship. AI/toll/ohi/I' Undl'nvritl'rs at 155 (citing Griffith). The state which hus the most interest in the problem, including government interests, and which is most intimately concemed wilh the outcome, is the forum whose law should apply. Byard F. Brogal/ at 459-60, 637 A.2d ut 692. Further, "[t]he Griffith test is not one of merely 'counting contacts.' A decision on a choice of law must ulso be made with reference to the policies underlying the differences in the law." Ail/Oil/obi/I' UI/dl'nvritl'rs at 155. 2 Notably, 40 P.S. * 1009.IIO(c)(2), a section of the No-Faull Luw which provided that in a conflict of laws, the law of the victim's domicile would upply, hus been repealed and has not been replaced by a comparable provision in the current Finaneiul Responsibility Law. -4- mude in their respective states. See /lolI/e II/s. C(J. ut 665. In weighing competing interests of two states on subrogation issues, however, Pennsylvunia courts huve given preference to the policies of Pennsylvunia luw over the competing policies of other states. Sec. e.g., A~l'I'rs at 498- 99,485 A.2d ut1116-17 (applying Pennsylvuniu ruther than Illinois law on subrogation issue); Byard F. Brogi/I/ ut 459-60, 637 A.2d at 691-92 (applying Pennsylvania rather than West Virginia luw on subrogution issue); Ail/oil/obi/I' UI/derwritl'rs at 155-56 (applying Pennsylvania rather than New York law on subrogution issue): In fact, the preference given to Pennsylvaniu policy concerns is general and not limited to subrogution issues. Cf /lOll/I' II/s. Co. at 665-66 (predicting that, allhough fucts of case were such that hypothetieully a court could choose to apply the law of either state, "most Pennsylvunia stute courts would eonelude thut Pennsylvania hus the more relevant und significant relutionships, contacts und interests, and therefore, Pennsylvaniu substuntive luw should control"). Moreover, where the interests of a Pennsylvuniu insurer arc involved, the Pennbylvania Supreme Court, in unulyzing a conflict oflaws under Griffith, hus stated: "In addition we view 4 Davish v. Gidley, 4 17 Pu. Super. 145, 611 A.2d 1307 (1992), in which the Superior Court applied New Jersey luw ruther thun Pennsylvunia law in a subrogution case, is distinguishuble. In Davish, the plaintiff could have chosen to receive workers' compensution benefits in either stute, und the court found that by choosing to collect the greater benefits available in New Jersey, he had made his own choice ofluw und was therefore precluded from urguing thut Pennsylvuniu law ought to upply to deny subrogution rights to the insurer. Moreover, it is notable thut Dlll'ish, like the cuses cited by Pluintifrs counsel in the instant case, did not involve a subrogution cluim between two insurers. Rather, the plaintiff, after collecting workers' compensation benefits in New Jersey, filed a tort uction uguinst a third-purty tort feasor but resisted the workers' compensation insurer's cluim of subrogation rights aguinst his potential recovery in the tort action. Thus, like the cuses cited by Plaintiffs counsel in the instant case, DCl\'ish did not involve any Pennsylvaniu public policy interest competing with that of another stute. -6- ~ r - CERTIFICATE OF SERVICE The undersigned hereby certifies that on this dute a true and correct copy of the foregoing pleading was served personully upon Duvid L. Lutz, Esquire, by hunding the copy to him at the Pre-Trial Conference in the above action. / --1 (. (' Debra P. Fourlas ., .. / ", Of Counsel for Defendant Dated: April~, 1998 "~L GERALD W. HOGAN and CHARLENE HOGAN, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION. LAW WATKINS MOTOR LINES, INC., JACK JORDAN and KENNETH ALLEN ROW, Defendants 94-5098 CIVIL TERMS IN RE: DEFENDANTS' MOTION FOR JUDGMENT N.O.V. BEFORE HOFFER, P.J. ORDER OF COURT AND NOW, January 16,1998, pursuant to the opinion filed this date, and after careful consideration of the parties' briefs, Defendants' Motion for Judgment N.O.V. Is denied. By the Court, Delano M. Lantz, Esquire McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108.1166 For the Plaintiffs Thomas J. Williams, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 For the Defendants GERALD W. HOGAN and CHARLENE HOGAN, . Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION. LAW WATKINS MOTOR LINES, INC., JACK JORDAN and KENNETH ALLEN ROW, Defendants 94.5098 CIVIL TERMS IN RE: DEFENDANTS' MOTION FOR JUDGMENT N.O.V. BEFORE HOFFER, P.J. OPINION HOFFER, P.J.: This case Involves Defendants' Motion for Judgment N.O.V. The facts are as follows: Plaintiffs and Defendants were Involved in an automobile accident In Cumberland County on May 2, 1994. Defendants admitted liability and a Jury trial was held to determine the extent of Defendants' liability. The jury returned a verdict In favor of the Plaintiffs for $280,000. From this amount, $35,000 was awarded to the Plaintiffs for past medical expenses. . Defendants have filed a Motion for Judgment N.O.V. claiming that Plaintiffs are precluded from past medical expenses by Pennsylvania's Motor Vehicle Responsibility Law, 75 Pa. C.S.A. Section 1722. However, Plaintiff argues that this section does not apply to hIm because Hogan was not a Pennsylvania resident, his car was not registered in PennsylvanIa, and Hogan was not eligible $ f 94-5098 CIVIL TERM to receive benefits under Pennsylvania law. We now deny Defendants' motion, DISCUSSION There are several relevant sections under the Pennsylvania Motor Vehicle Code which apply to this case. 75 Pa. C.S.A. Secllon 1722 states: In any action for damages against a tortfeasor...a person who Is eligible to receive benefits under the coverages set forth In this subchapter, or workers' compensation, or any program, group contract or other arrangement for payment of benefits as defined In secllon 1719 shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers' compensation, or any program, group contract or other arrangement for payment of benefits as defined In secllon 1719. 75 Pa. C.S.A. Section 1722 (1996). Benefits set forth In this subchapter are found In Section 1711: . An Insurer Issuing or delivering liability Insurance policies. covering any motor vehicle of this type required to be registered under this title...registered and operated In this Commonwealth, shall Include coverage providing a medical benefit In the amount of $5000.' 75 Pa. C.S.A. .Sectlon 1711 (1996). Plaintiff Is a resident of Texas. Texas law Is In direct conflict with Pe'nnsylvanla law because Texas provides medical benefits of $2500 for personal InJury protection coverage on a flrst.party basis without regard to fault. The insurer paying such benefits has no right of subrogation. Beyond this provision there are no other limitations under Texas law with regard to the recovery of medical 2 , ~ f r 94-5098 CIVIL TERM benefits. Tex, Ins. Code Ann. Section 5.06.3. Based upon the above statutes and the following case law, the Court finds that Pennsylvania law does not apply to this case. The Pennsylvania Superior Court has found that the benefits In Section 1711 apply only to those cars registered and operated In Pennsylvania. pugh v. Govt. Employees Ins. Co., 552 A.2d 708 (1989). In Pugh, the plaintiff was Involved In an auto~oblle accident In Pennsylvania; however, he was a resident of Maryland and his motor vehicle was registered In Maryland. At the time of the accident, Maryland law required minimum benefit coverage of $2500 for medical bills while Section 1711 required minimum medical coverage of $10,000. Plaintiff claimed that because the accident took place in Pennsylvania, the Pennsylvania Motor Vehicle Financial Responsibility Law applied and he should receive $10,000. Pugh, 552 A.2d 708-09. The Superior Court said that Section 1711 has 'two requirements for determining an Insured's entitlement to recover first party benefits: (1) the Insured vehicle must be a vehicle of the type required to be registered and . (2) the insured vehicle must actually be registered In the Commonwealth.' Pugh, 552 A.2d 709-10. See also Boone v. Stonewall Ins. Co., 382 Pa. Super. 104, 554 A.2d 968 (1989). In the case at bar, Pennsylvania law Is not applicable. None of the vehicles Involved In the accident were registered in Pennsylvania, therefore Section 1711 3 THOMAS E. WILSON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. '1"7- .:H/ ~(i -rt;_ BARBARA ANN SCOTT, Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Thomas Wilson, is adult individual who resides in Fort Worth, Tarrant County, Texas. 2. Defendant Barbara Scott is an adult individual who resides at 438 North West Street, P.O. Box 835, Carlisle, Cumberland County, Pennsylvania. 3. The facts and occurrences hereinafter related took place on or about May 3, 1995 at approximately 4: 30 p. m. where North Bedford Street and North East Street merge, in Carlisle, Cumberland County, Pennsylvania. 4. At that time and place, Plaintiff Tom Wilson was operating a 1990 Ford F-150 pick-up truck in a northerly direction on North East Street. 5. At that same time, Defendant Barbara Scott was operating a 1988 Cadillac De Ville in a southerly direction on North Bedford Street. 6. Defendant Scott attempted to make a left turn from North Bedford Street directly in front of Mr. Wilson's vehicle, causing a motor vehicle accident. 1 7. The foregoing accident and all of the injurif's and damages set forth hereinafter sustained by Plaintiff Thomas Wilson are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendant Barbara Scott operated her motor vehicle as follows: a. failure to yield the right-of-way to Mr. Wilson's vehicle; b. failure to keep alert and maintain a proper watch for the presence of other motor vehicles on the highway; c. failure to travel at a safe speed; d. failure to keep a proper watch for traffic on the highway; e. failure to keep proper and adequate control over her vehicle; and f. driving her vehicle upon the highway in a manner endangering persons and property and in a reckless manner with careless disregard to the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 8. Plaintiff Thomas Wilson sustained painful and severe injuries which include but are not limited to pain and associated disability in the anterolateral and posterolateral aspects of the left shoulder and anterior insufficiency of the left knee including internal derangement, pain in the posterolateral hamstring area, left hip joint, left elbow, fibular collateral ligament and medial joint. Plaintiff Thomas Wilson, he was forced to incur liability for 9. By reason of the aforesaid injuries sustained by medical treatment, medications, and similar miscellaneous expenses 2 in an effort to restore himself to health, and claim is made therefor. 10. Because of the nature of his injuries, Plaintiff Thomas Wilson has been advised and, therefore, avers that he may be forced to incur similar expenses in the future, and claim is made therefor. 11. As a result of the aforementioned injuries, plaintiff Thomas Wilson has undergone and in the future may undergo physical and mental suffering, inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 12. As a result of the aforesaid injuries, Plaintiff Thomas Wilson has been and in the future may be subject to humiliation and embarrassment, and claim is made therefor. 13. As a result of the aforementioned injuries, Plaintiff Thomas Wilson has sustained work loss, loss of opportunity and a permanent diminution of his earning power and capacity, and claim is made therefor. 14. As a result of the aforesaid injuries, Plaintiff Thomas Wilson has sustained uncompensated work loss, and claim is made therefor. 15. Plaintiff Thomas Wilson continues to be plagued by persistent pain and limitation and, therefore, avers that his injuries may be of a permanent nature, causing residual problems for the remainder of his lifetime, and claim is made therefor. !, 3 WHEREFORE, Plaintiff Thomas Wilson demands judgment against ! r , Defendant Barbara Scot t in an amount in excess of Twenty- fi ve Thousand Dollars ($25,000.00) exclusive of interest and costs and " in excess of any jurisdictional amount requiring compulsory arbitration. ANGINO & ROVNER, P.C. Date: /-/~-q1 j:t~~ I.D. #35956 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs 4 .._~ '.'""" . ._~, .... ~ DECLARATION ;0 I, Thomas E, Wilson, Plaintiff, have read the foregoing COMPLAINT and do hereby declare and affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, , information and belief, I understand that this Verification is made subject to the penalties of 28 U,S,C. 51746, relating to unsworn falsification to authorities. $- ;1,QG \ d~lSf :?f~ WITNESS: Date: 1?' CJ ~ .....J -::> :J .~ L.~ ~- el' 11" - ;' c:~ .- UJ( , l..1\ . \'-' 1_' . , r'-' < . U' ) '" <:' '" < . !;") ...... C . ~ , :'-j ~'J \. . ~ ~ - " r- L_ ,,' ". ) p ~ ~ ~ "<\ "" f'.-"'" ~ .. "(, rt\ ~6 \ ""' .;::,. ~ r-- "=l- ~ ~ I THOMAS E. WILSON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. q '7 -0151 l\'VI. \ BARBARA ANN SCOTT, Defendant JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE , I, Harvey Freedenberg, Esquire, am authorized and do hereby accept service of the enclosed Complaint on behalf of the Defendant, Barbara Ann Scott. .- j ~- Ha Date: 'III jet-; l05290/MTG t i ,. (n III V: , .' f" , < '" r.. l' " _.1, U. I , I r-.. '. 0.... U VERIFICATION Subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities, I hereby certify that I am the Defendant named in the foregoing Answer to Complaint. I further certify that the admissions and denials set forth in the foregoing Answer are true and correct to the best of my information and belief. . l ( ~ ft:. QH'A-<~ .)-. < --'~-~ a a Ann Scott ..- Dated: - 2 - t !. -, v> Il' C:-' I , l , f " ,. ,< Il- I 'J . '.. ,. .'.~ \.... ,:-,' PRAECIPE FOR UST~C CASE FOR TRJ.-\L (~lust be rypewrillCn ~nd submitted in duplicate) TO THE PROTHONOTARY. OF CL'~IBERLA."'D COI':"'ITY P!Ule ~t ~e (ollowlnl c:ue: I.C~e~ one) (X) for ll:RY 1,111 at I!le ne~l :e:m oj ::vU cour:. ( ) (or uUl WIthOut S jury. C.-\PTlON OF CASE (enU:e ~plion must ~e ll2led In ru)l) (check one) ( ) .wumplll Thanas E. Wilson ( Tmpeu ( X) T...peu (Mow Vehic!e) ( ) (olher) (l'IIUltiIt') .,. The trial list will be called on Aoril 21. 1998 and Trials cOllllllence on May 18, 1998 Pretrials will be held on April 29, 1998 (Briefs are due 5 days before pre- trials. ) (The party listing this case for trial shall provide forthwith a copy of the p'raecipe to all counsel, p~suan: to Iocal Rule 214-1.) Barbara Ann Scott (Defendant) VI. ~o. 97-251 CivU 19_ Indicate Ihe attorney ..ho ..ill tl)' .:ase for the psrty ..ho 111el this pmclpe: David L. Lutz, Esquire indicate uial counsel (or otber plrlles if known: Harvey Freedenberq, Esquire This ~ iJ rndy rorlri:l1. ~ SIIr.ed: )-'.) ~j P'lnt Same: David L. Lutz, Esquire Dill: 3-12-98 Al:crnf~' rOf: Plaintiff ~ r \ lo ") THOMAS E. WILSON, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW BARBARA ANN SCOTT, Defendant NO. 97-251 Civil JURY TRIAL DEMANDED PRAECIPE To the Prothonotary: Please mark the above-captioned action settled, satisfied, and discontinued. ANGINO & ROVNER, P.C. Date: c; -Iy....qy D~~~" 1.0. #35956 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff cc Harvey Freedenberg, Esquire l05291/MTG