Bock's Tops - Fall 2016

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Plaintiff Needs Medical Evidence to Recover for Intentional Infliction of Emotion Distress

In the matter Gray v. Huntzinger and Central Parking Systems, Inc., 2016 Pa. Super. 194, plaintiff brought suit against his former employer and supervisor following an alleged altercation. Plaintiff sued for assault, battery, and intentional infliction of emotional distress (IIED). Gray alleged that he and Huntzinger made physical contact during the confrontation, and that the incident caused a flare-up of his Crohn’s disease. Plaintiff did not present medical evidence, and the jury awarded plaintiff $67,500, including $50,000 in punitive damages.

Appellants argue that in order to recover for intentional infliction of emotional distress, plaintiff must present medical testimony. The Superior Court agreed and reversed.

In Pennsylvania, to recover for IIED, the existence of the alleged emotional distress must be supported by competent medical evidence. This is based on the premise that IIED is outrageous conduct, but that IIED provides no clear definition of the prohibited conduct. The definition of outrageousness is subjective and nebulous, and objective proof of an injury is required.

Plaintiff asserted that the fact he was physically impacted by Huntzinger relieves him of the need to present expert testimony. However, plaintiff relied on cases addressing physical contact in negligent infliction of emotional distress cases, not intentional infliction cases.

PA Supreme Court Holds that Federal Arbitration Act Preempts Consolidation of Wrongful Death and Survival Actions

The Pennsylvania Supreme Court addressed the issue of whether the Federal Arbitration Act requires the bifurcation of wrongful death and survival actions in the matter Taylor v. Extendicare, 2016 Pa. LEXIS 2166.

Anna Marie Taylor executed an arbitration agreement with Extendicare requiring the arbitration of claims arising from her stay at the Extendicare nursing facility. Following her death, her sons brought wrongful death claims on behalf of themselves and survival claims on behalf of their mother’s estate against Extendicare. Defendant moved to bifurcate the actions to compel arbitration of the survival claim pursuant to the arbitration agreement and the Federal Arbitration Act. The trial court denied defendant’s motion based on Pa.R.C.P. 213(e), which requires the consolidation of wrongful death and survival claims, and the Superior Court affirmed.

Extendicare initially sought to compel the arbitration of both claims. In the interim, the Superior Court in a separate matter (Pisano v. Extendicare) held that an arbitration agreement signed only by a decedent did not bind the decedent’s wrongful death beneficiaries. Thereafter, Extendicare requested that the Taylors’ causes of action be bifurcated (leaving the wrongful death to be determined judicially).

The Pennsylvania Supreme Court granted review on whether the Superior Court’s decision violated the FAA requirement that arbitration agreements shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract. The Court also examined whether the Rule 213(e) consolidation requirement violates the FAA.

The Court’s analysis began at the U.S. Constitution’s Supremacy Clause in Article VI, which has been interpreted to state that federal law is paramount, and state laws that conflict with federal law are without effect. The Court wrote, “The FAA is in tension with Rule 213(e). It is neither exaggeration nor hyperbole to characterize the rise of arbitration over the last century as revolutionizing the rule of law and access to justice.” 

The only exception to a state’s obligation to enforce an arbitration agreement is provided by the savings clause, which permits the application of generally applicable state contract law defenses such as fraud, duress, or unconscionability. Although the compulsory joinder mandate of Rule 213(e) could bar the bifurcation if it qualified as an applicable contract defense, it is not a defense, but instead a procedural mechanism. Rule 213 does not fall within the savings clause.

The Court further held that it is bound by the U.S. Supreme Court’s directive to favor enforcement over efficiency regarding FAA-related matters. Per the directive, bifurcation and piecemeal litigation is the tribute that must be paid to Congressional intent. Consequently, the Court reversed the Superior Court.

Justice Donohue (joined by Justice Todd) dissented, notably writing, “To my knowledge, the United States Supreme Court has never concluded that the FAA is powerful enough to deprive a state court plaintiff of the substantive right to bring a statutory cause of action, nor would it.” Justice Donohue further wrote that even if Rule 213(e) is preempted, the Wrongful Death Act’s consolidation requirement would remain intact in the face of Section 8301.

Insurer Properly Denied Coverage Premised on Assault and Battery Exclusion

In QBE Ins. Corp. v. Walters, 2016 Pa. Super. 205, Walters was a patron at QBE’s insured’s bar, Jazzland in Steelton, Pennsylvania. After exiting the bar, Walters was confronted by a third-party patron who ultimately shot Walters in the stomach and arm.

Walters sued Jazzland alleging that the bar was aware that patrons brought firearms to the bar, that the bar was in a high crime area, and that the bar had undertaken security precautions to ensure the safety of its customers. Walters alleged that the bar was negligent in allowing the shooter to enter and exit the bar while armed, in failing to ensure Walters’ safety, and that the bar failed to properly employ, train, and supervise its employees.

QBE filed a declaratory judgment action believing that coverage was excluded based upon an “assault and battery” exclusion in the policy. The trial court entered summary judgment in favor of QBE. The issue presented to the Superior Court is whether QBE is obligated to defend and indemnify the bar pursuant to the assault and battery exclusion because the claims in the complaint, which are limited to claims of negligence, allege direct causation of the alleged injuries and do not fall within the exclusion.

When an insured who has been sued requests coverage under an insurance policy, the insurer is required to accept all of the allegations contained in the complaint as true. Generally, exclusionary clauses are strictly construed against the insurer and in favor of the insured.

Insureds argue that the allegations leveled against the bar fall within the policy’s general liability coverage and are not subject to the assault and battery exclusion. However, the policy contains a comprehensive and expansive definition of “assault and battery,” including an insured’s failure to prevent or suppress an assault or battery. Moreover, the exclusion explicitly encompasses negligent employment and supervision. Essentially, the policy places negligent conduct contributing to an assault and battery into the exclusion.

The Court found that the allegations presented in the underlying complaint fall within the scope of the “assault and battery” exclusion, and thus, there is no duty to defend or indemnify. The trial court’s decision was affirmed.

Summary Judgment Reversed in Slip and Fall Case

In an unpublished opinion in Hitchner v. Bartell, 2016 Pa. Super. Unpub. LEXIS 3870, the Superior Court reversed summary judgment in a slip and fall matter.

Hitchner was a home health nurse who provided services to Bartell. Hitchner fell down Bartell’s front steps of the house, and claimed that although the steps were moist, the fall was a result of the steps being in a dilapidated and dangerous condition. The trial court granted summary judgment in favor of Bartell.

The Superior Court found that there was sufficient evidence in the record from which a jury could reasonably have inferred that the dilapidated condition of the steps cause the fall and injury. Specifically, Bartell admitted in her deposition that the steps were worn, uneven, broken, and “messed up.” Accordingly, the trial court erred in concluding that there was insufficient evidence of causation.

The trial court had also held that the condition of the steps was open and obvious and familiar to plaintiff, and that defendant did not owe a duty to her under those circumstances. In this case, Hitchner’s employment required her to access Bartell’s home to perform her duties. The steps were the only means to access the residence. Bartell should have anticipated that the dangerous condition could cause physical harm to Hitchner, especially since Hitchner would have no choice but to make use of them. Therefore, Bartell may be held liable to Hitchner despite the open and obvious condition of the steps.

Triathlete’s Waiver Limited Widow to Wrongful Death Negligence Case

Derek Valentino registered for the 2010 Philadelphia Insurance Triathlon Sprint by paying a fee, completing a registration form, and executing a waiver and release form. Mr. Valentino never completed the swimming portion, and his body was retrieved from the Schuylkill River the following day.

Decedent’s widow filed suit against Philadelphia Triathlon, LLC, who filed preliminary objections, which resulted in the trial court’s striking all references to outrageous acts, gross negligence, recklessness, and punitive damages due to legal insufficiency. Ultimately, the trial court granted defendant’s motion for summary judgment.

As reported in the February 2016 edition of Bock’s Tops, in December 2015 in Valentino v. Philadelphia Triathlon, LLC, 2015 Pa. Super. 273, a three-judge panel of the Superior Court agreed with the trial court that the allegations in the complaint averred nothing more than ordinary negligence. Two of the three members of the panel did find in favor of decedent’s widow, however, in ruling that a wrongful death cause of action could be maintained despite the liability waiver executed by the decedent. The panel concluded that the wrongful death action belongs to the statutory claimants, and not the decedent (similarly to the nursing home arbitration cases where the courts have enforced the arbitration provisions for the survival actions, but denied the provisions for the wrongful death actions).

Both parties requested reargument en banc, and the Superior Court categorically affirmed the summary judgment against plaintiff. Per the Court, Pennsylvania law distinguishes a wrongful death claimant’s non-derivative right to bring an action from her derivative right to recover damages based upon a defendant’s tortious conduct. This distinction allowed defendant to assert the express, contractual assumption of risk based upon a valid liability waiver, even where the claimant did not sign the liability waiver. Since there was no dispute that the liability waiver constituted an express assumption of the risk by the decedent, then defendant owed no legal duty to the decedent, and therefore cannot be found negligent.

It is worth noting that Judge Ford Elliott, who wrote the opinion for the panel in 2015, wrote a dissenting opinion en banc (which dissent was joined by Judges Panella and Lazarus), in which she maintained that the decedent’s release did not bind his beneficiaries.

If you have any questions about these cases or how The Dispute Resolution Institute may be of help to you with regard to a potential ADR, please feel free to call us (215.656.4374), visit us online (www.adrdri.com) or email us.

Thank you,

Harris T. Bock, Esq. [email protected]    

Michael L. Galbraith, Esq. [email protected]

Judge Richard B. Klein (Ret). [email protected]                                         

Judge A. Michael Snyder (Ret). [email protected]

Judge Sandra Mazer Moss (Ret.) [email protected]