Jim and Carrie Carroll at Carroll and Carroll, P.C. represent the injured people of Pennsylvania and New York in Bradford, Sullivan, Tioga, Susquehanna, and Chemung counties in personal injury, premises liability, slip and fall, automobile accident and workers’ compensation cases Jim and Carrie Carroll at Carroll and Carroll, P.C. represent the injured people of Pennsylvania and New York in Bradford, Sullivan, Tioga, Susquehanna, and Chemung counties in personal injury, premises liability, slip and fall, automobile accident and workers’ compensation cases
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Personal Injury

    11/19/2008
    James R. Carroll, Jr., Esquire
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    Superior Court Holds that Restitution Is Not Covered By Insurance

    The Pennsylvania Superior Court, on November 18, 2008, issued a decision in Brethren Mutual Insurance Company v. McKernan where the court holds that an insured may not seek reimbursement from his insurer for a criminal restitution award resulting from criminal prosecution.

    The court notes that to allow this would run counter to the public policy of restitution which is to help the convict rehabilitate by impressing upon him in some degree the scope of the damages inflicted by his criminal conduct. The court makes sure to note that the decision should "not in any way be interpreted as affecting the law regarding insurance coverage available in civil actions based upon conduct which creates civil as well as criminal responsibility."

    The court also writes in footnote 12 that, as a corollary, as part of the sentencing scheme the defendant can be directed to make a payment for restitution even though the victim has already been paid through a civil settlement or when the victim receives compensation from the victim's insurer for the loss sustained.

    Thanks to Scott Cooper, Esquire for this information.
    Labels: case law, pennsylvania superior court

Vehicle and Automobile Accidents

10/21/2008
James R. Carroll, Jr., Esquire
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Court Denies Unopposed Motion to Dismiss in Lawsuit Arising out of Uninsured Motorist Claim

The Federal Court for the Middle District of Pennsylvania denied an unopposed Motion to Dismiss on October 16, 2008 in Derocher v. Zurich American Insurance Company.  This case arises out of a breach of contract and bad faith lawsuit filed after the Plaintiff Derocher was awarded $600,000 in an uninsured motorist proceeding. 

The Plaintiff was driving her employers vehicle when the car accident occurred and the other driver was ultimately uninsured.  Her employer's vehicle had $1 million of uninsured motorist coverage (UM).  The plaintiff made a demand for settlement of $375,000 and a counter-offer by the insurance company was made of $150,000.  The award by the arbitrators was $600,000 and the Plaintiff filed suit against the insurance company after it refused to pay the award when the Plaintiff would not sign a full release.

The insurance company filed a Motion to Dismiss which was actually unopposed and the Court decision still denies the Motion to Dismiss.  The Court finds that the allegations in the complaint are sufficient to state "a plausible claim and presents a reasonable expectation that discovery will reveal evidence of an insurance contract between the Plaintiff and Defendant" on both the breach of contract and bad faith claims.  Thus, even though the Plaintiffs may not prevail on the ultimate claim their is a proper basis to proceed and the Motions to Dismiss are denied.

See the following links on more information about uninsured and underinsured motorist coverage here and here and here and here. 

Thanks to Attorney Scott Cooper for this information.
Labels: arbitration automobile accident, case law, federal court, middle district of pennsylvania,, uninsurance, work related auto accident,
10/13/2008
James R. Carroll, Jr., Esquire
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Superior Court Holds Cab Driver Not Entitled To Underinsured Motorist Coverage

Attached is the link to the Pennsylvania Superior Court decision on October 10, 2008 in Nationwide Assurance Company v. Easley where the Superior Court affirms the trial court decision in Allegheny County which upheld 2 exclusions as they applied to preclude a cab driver from obtaining underinsured motorist coverage (UIM) on his personal policy for an accident which occured while he was driving a cab.

Calvin Easley(Easley) was injured while operating a Yellow Cab Taxi in Pittsubrgh.  He paid a lease fee for use of the taxi during a 24 hour period and had no choice over the taxi he received. He did not have a paying customer in the cab when he was injured by a third party in a car accident. He was driving home and was intending to return the cab the next day.

After settling the third party claim and then, since the taxi company did not provide UIM coverage, he made a claim on his personal policy for UIM coverage but was denied based upon 2 exclusions which denied him coverage for accidents occuring in a vehicle avaliable for his "regular use" and also for vehicles "used to carry persons or property for a charge".

The Superior Court decision by Judge Popovich finds that the fact Easley did not have a passenger with him at the time the accident occured does not render the "use for hire" exclusion invalid nor did the fact that he operated different taxis render the "regular used" vehicle exclusion invalid. The Superior Court affirms the trial court decision and upholds both exclusions.

Thanks to Scott Cooper, Esquire for providing this information.


Labels: appeal, automobile accident, case law, insurance, pennsylvania superior court, uim, Underinsurance
8/28/2008
James R. Carroll, Jr., Esquire
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Court Holds No Underinsured Motorist Coverage Under Antique/Classic Car Policy Unless Actually Occupying It

On August 26, 2008, the United States District Court for the Eastern District of Pennsylvania (Sanchez, J.) granted Foremost Insurance Group's Motion for Summary Judgment in Benner v. Foremost Insurance Group.  This case involved the tragic death of a girl, Benner, who was killed while occupying her friend's vehicle.  An underinsured motorist claim ("UIM") was pursued on a family member's Antique and Classic Auto insurance Policy and the insurance company denied the claim because it said that under the terms of the policy Benner had to be "actually occupying" the antique/classic vehicle at the time of the accident to qualify for UIM coverage. 

Benner's Estate argued that under Quinney v. American Modern Home Insurance Company, 145 F.Supp.2d 603 (M.D. Pa. 2001) she was entitled to coverage as a family member/insured and did not need to be occupying the vehicle to qualify for coverage.  However, the District Court observes that the policy language in Quinney is not the same as the language in Benner's policy.  In Quinney the policy language stated that the coverage was provided to an insured/family member without the actual occupying requirement but in the Benner policy the family member/insured had to be occupying.  Thus, since she was not occupying the antique/classic vehicle at the time of the accident, the Estate could not recover. 
 
Thanks to Scott B. Cooper, Esquire who provided this information.

Labels: automobile accident, case law, federal court, insurance, uim Underinsurance,
7/31/2008
James R. Carroll, Jr., Esquire
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Court Holds Police Officer Injured Outside His Cruiser Is A Protected Person

On July 28, 2008, Judge Joyner in the United States District Court for the Eastern District of Pennsylvania Granted the Insured's Motion for Summary Judgment in St. Paul Fire & Marine Insurance Co. v. Rhein.  Judge Joyner holds that Rhein was occupying his police vehicle at the time he was injured while conducting a routine traffic stop. 

In Rhein, the officer was injured in the course and scope of his employment.  He pulled over a speeding vehicle, stopped behind the car with his emergency lights on and exited his cruiser to conduct the stop.  At some point during the exchange of information the other driver's car began to roll backward and Rhein's hand became wedged inside the car door causing his injuries.  He settled the third party case with the other drivers insurance company and then sought underinsured motorist coverage form the Township insurer which denied coverage arguing that Rhein was not a "protected person" under the policy because he was not "occupying" the cruiser at the time of the accident.  

Applying the four (4) part "occupancy" test from the Pennsylvania Supreme Court decision in Utica Mutual Insurance Co. v. Contrisciane, 473 A.3d 1005 (Pa. 1984) the Court holds that Rhein was "occupying" the cruiser at the time of the accident.  One of the main issue to the four part test was whether Rhein was "vehicle oriented".  The court relies upon Property and Casualty Insurance Co. of Hartford v. Caperilla, 2004 WL 1551739 (E.D. Pa. July 9, 2004) where another officer was injure din a similar manner.    Thus, he is a covered and protected person and entitled to the underinsured motorist coverage.

Thanks to Attorney Scott Cooper for this information.


Labels: automobile accident, case law, insurance, pedestrian accident, Underinsurance, work injury
7/16/2008
James R. Carroll, Jr., Esquire
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Insured Not Allowed UM/UIM Benefits for Accidents Caused By Co-employee

On July 15, 2008 the District Court for the Western District of Pennsylvania (Lancaster, J.) held in Shaw v. State Farm Insurance Company that an insured is not allowed to recover UM/UIM benefits under his insurance policy with State Farm for injuries sustained during the course and scope of his employment due to the negligence of a co-worker.  Shaw was injured in a work related accident when the garbage truck he was riding in was negligently driven by a co-worker.  He sought and received workers compensation benefits and did not sue his employer or co-worker due to immunity under the Workers Compensation Act.  He then sought UM/UIM benefits from State Farm which denied the claim by arguing that the benefits were not "legally entitled" and thus Shaw could not recover. 
The Court relies mainly upon a not precedential Third Circuit case in Nationwide Mut Ins Co v. Chiao, 186 Fed.Appx. 181 (3d Cir. 2006) and grants State Farm's Motion for Summary Judgment.  However, there is no mention or reference to the state trial court decision from Adams County in Brumbaugh v. Erie Insurance Exchange in 2006 where Judge Walker in Franklin County held that an insured was entitled to UM/UIM coverage in the same factual situation.

Labels: automobile accident, case law, federal court, Underinsurance, work injury

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