author: SPICER, P.J.,

text:
    Byank v. Ski Liberty

      C.P. of Adams County,
    no. 98-S-504.

      Richard Oare, for plaintiff.

      Hugh M. Emory, for defendants.
    January 14, 1999
   SPICER, P.J.,

Lisa S. Byank sues for injuries she claims to have sustained when 16 years of age. Included in her demand for damages are medical expenses paid either by her parents’ insurance carrier or by her parents. Her parents are not parties to this action. Defendant has moved for partial summary judgment, arguing that any claim for medical expenses incurred prior to plaintiff’s 18 th birthday is not recoverable by her.

The following facts are supported by the record: Plaintiff, who was born September 6, 1976, was injured in a skiing accident January 17, 1992. Plaintiff commenced suit January 13, 1995 by filing a writ of summons in the Court of Common Pleas of York County, Pennsylvania. The pleading relevant to the defendant’s motion is a second amended complaint, filed August 28, 1996. Plaintiff filed two affidavits November 17, 1998. In hers, she stated:

“(1) I was a dependent of my parent at the time of the accident and at the time I filed the complaint in the within action.
“(2) I was carried as an insured on my parents’ health insurance at the time of the accident and that health insurer paid all bills arising from the accident for which I am seeking reimbursement from the defendant in this claim.”

The other affidavit was that of Dr. Ronald R Byank, plaintiff’s father. Dr. Byank stated that plaintiff was his dependent and resided with him at the time of accident and when suit was filed. Paragraph 3 states, “At the time Lisa S. Byank was injured, she, as my daughter, was covered as a dependent insured by my health insurance policy.”

Venue was transferred from York County to this court April 1, 1998.

The standard that we must apply may be summarized as follows:

“Summary judgment is properly granted where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.C.P. 1035(b). ‘The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.’ Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Summary judgment may be entered only in those cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989).
‘'’'Pennsylvania State University v. County of Centre, 532 Pa. 142, [144-45,] 615 A.2d 303, 304 (1992).” Kapres v. Heller, 536 Pa. 551, 555, 640 A.2d 888, 890 (1994).

Further, under Pa.R.C.P. 1035.2, summary judgment is appropriate if a party fails to meet his or her burden of producing evidence of facts essential to a cause of action or defense which in a jury trial would require the issue to be submitted to a jury. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996).

Plaintiff argues that the collateral source rule applies. The rule can be summarized as follows:

(1) It is well settled law that a plaintiff in a personal injury suit seeking costs of medical services provided him or her as a result of a tort-feasor’s wrongdoing is entitled to recover the reasonable value of those services. Plaintiff may recover even though he or she expended nothing for those services. Kashner v. Geisinger Clinic, 432 Pa. Super. 361, 638 A.2d 980 (1994).
(2) Substantive tort law prevents a wrongdoer from taking advantage of the fortuitous existence of a collateral source of recovery or payment. Palmosina v. Laidlaw Transit Co. Inc., 445 Pa. Super. 121, 664 A.2d 1038 (1995).
(3) The principle behind the collateral source rule is that it is better for a wronged plaintiff to receive a potential windfall than for a tort-feasor to be relieved of responsibility for the wrong. Johnson v. Beane, 541 Pa. 449, 664 A.2d 96 (1995).

While these are powerful arguments against granting summary judgment, defendant points to an impressive line of cases that suggest that plaintiff is not entitled to maintain an action for medical expenses. Defendant reasonably argues that if plaintiff cannot properly assert and recover on a claim for medical expenses, policy reasons for the collateral source rule unravel and become irrelevant.

Plaintiff cites Restatement (Second) of Torts §920A, comment b, and 77 ALR 3d 416, Collateral Source Rule — Medical Insurance as further authority for her position that summary judgment is inappropriate. There is some logic to her argument that her position is comparable to that of a worker whose medical insurance is paid by an employer. However, several observations are in order: (1) medical benefits are an integral part of most employment packages, and it can be argued that it is the employee who actually pays premiums; see Panichelli v. Liberty Mutual Insurance Group, 543 Pa. 114, 118, 669 A.2d 930, 932 (1996), (2) unlike a parent, who has fulfilled duties of support by providing medical care, neither an employer nor an insurance carrier has the right to proceed directly against a tortfeasor, and (3) one of the cases cited in the ALR article supports defendant’s position. A federal district court held, in Miron v. APCO Corp. (1968, D.C. Wis.) 284 F. Supp. 664, that a mother could recover for medical expenses incurred on her child’s behalf, even though the expenses were paid by her second husband’s insurance. (pp. 429, 430.)

This judge’s review of case law leads him to conclude that Pennsylvania law comports with the Miron holding. Numerous cases state that a personal injury to a minor gives rise to two distinct causes of action, one of which is a parent’s claim for medical expenses. Simmns v. Parkette National Gymnastic Training Center, 670 F. Supp. 140 (E.D. Pa. 1987) (parent’s prospective release barred parent’s, but not child’s action); Stein v. Richardson, 302 Pa. Super. 124, 448 A.2d 558 (1982) (parents’ writ of summons did not commence action for child when child not included in caption; mere fact that Pa.R.C.P. 2228(b) requires joinder did not affect fact that actions were separate and distinct); Brower v. City of Philadelphia, 124 Pa. Commw. 586, 557 A.2d 48 (1989), alloc. denied, 525 Pa. 604, 575 A.2d 569 (1990) (although claim for medical expenses is a separate and distinct cause of action, parents could not recover for such expenses incurred after child attained majority).

The law is expressed in Hathi v. Krewstown Park Apartments, 385 Pa. Super. 613, 561 A.2d 1261 (1989), where parents sued for past and future medical expenses. Partial summary judgment was granted, the court holding that, because parents were over 18 at all relevant times and received no benefit from 42 Pa.C.S. §5533, their claim was barred by a two-year statute of limitation. In its discussion, Superior Court said:

“[Parents] contend that their tort claim is derivative of [son’s] claim. If he is entitled to sue, then they are.
“ ‘Under Pennsylvania law personal injury to a minor gives rise to two separate and distinct causes of action, one the parents’ claim for medical expenses and loss of the minor’s servicés during minority, the other the minor’s claim for pain and suffering and for losses after minority.’
“. . . Parents may pursue their claims, arising from tortuous injury of the child, even where the child’s claim is barred. ... If both the parent and the child have claims against a defendant for injury to the child, the parents may prevail while the child loses. . . . The claims of [parents] are not derivative of their son’s claims. Their claim may be barred while his is still assertable.” 385 Pa. Super, at 616, 561 A.2d at 1262. (citations omitted)

It would not be terribly surprising if a future appellate decision gives greater deference to the collateral source rale and changes the law in this area. This court is not an appellate court, and must follow the law as presently stated.

Defendant is entitled to partial summary judgment as a matter of law.

ORDER

And now, January 14, 1999, the motion for partial summary judgment as to claims for medical expenses incurred during plaintiff’s minority is granted. Summary judgment as to those claims is entered in favor of defendant and against plaintiff.


source: Caselaw Access Project

author: TURGEON, J.,

license: Public Domain

text:
    Storms v. O’Malley

      C.P. of Dauphin County,
    no. 1121 S 1996.

      Pamela G. Shuman, for plaintiff.

      Linda Porr Sweeney, for PIGA.

      Teresa Fichen Sachs, for CAT Fund.

      Kenneth J. Serafín, for Harrisburg Hospital.
    November 20, 1998
   TURGEON, J.,

Defendants Thomas O’Malley M.D. and Dorko, Adams & Janson Associates, along with the Pennsylvania Insurance Guaranty Association (PIGA) and the Medical Professional Liability Catastrophe Loss Fund (CAT Fund), have appealed from an August 31, 1998 order granting plaintiffs’ motion to compel settlement in the amount of $806,358. This opinion is written in support of that order pursuant to Rule of Appellate Procedure 1925(a). Pa.R.A.P. 1925, 42 Pa.C.S.

PROCEDURAL AND FACTUAL HISTORY

Plaintiffs Sean and Wendy Storms instituted this action in 1996, individually and on behalf of their minor daughter, Rachel Storms. They alleged Dr. Thomas O’Malley was negligent in delivering Rachel during her birth on July 13, 1994 at Harrisburg Hospital. As a result, Rachel incurred shoulder dystocia resulting in a palsied right arm. Dr. O’Malley and his medical group, Dorko, Adams & Janson Associates, had primary malpractice insurance coverage with Physicians Insurance Company (PIC). In October 1997, PIC tendered its $200,000 policy limits to plaintiffs. At that point, the CAT Fund assumed defense of the action because it was legally liable for any award above PIC’s insurance policy coverage.

On January 21, 1998, PIC was declared insolvent. Following a three-month stay of all proceedings, the case proceeded and PIGA assumed Dr. O’Malley’s defense. On May 15, 1998, PIGA’s counsel sent a form letter to plaintiffs’ counsel indicating PIGA would assert its statutory offset right from PIC’s $200,000 tender, deducting any amounts plaintiffs recovered from any other insurance source (such as health insurance coverage of medical bills). Counsel stated PIGA would seek an offset from any recovery obtained by plaintiffs “whether it be by verdict or settlement.” (Def. ex. 2.) Counsel further requested a list of all insurance claims made by the Storms for Rachel’s injury and indicated that if the information was not forthcoming, she would file interrogatories. In addition, she indicated PIGA would seek to amend its new matter to assert its offset right as an affirmative defense.

Plaintiffs’ counsel promptly responded that the offset issue was irrelevant since plaintiffs had the right to PIC’s $200,000 limits whether PIGA paid the whole amount or whether Dr. O’Malley paid for any gaps in coverage created by PIGA’s offsets. She stated the plaintiffs objected to discovery of any collateral insurance sources and concluded her clients “are not willing to accept limitations in Dr. O’Malley’s coverage . . . .” Plaintiffs’ counsel believed the PIGA Act did not protect the insured from being liable for the full amount of any judgment or settlement. Further, they considered that Act possibly invalid since a PIGA attorney asserting PIGA’s offset right had a conflict of interest with the insured. (N.T. 57-58, 89, 91, 102-103.)

On June 10, 1998, PIGA’s attorney, on behalf of Dr. O’Malley and his medical group, filed an amended answer with new matter asserting PIGA’s right to offset. On June 19, 1998, plaintiffs filed a motion to strike the proposed amendment for the reasons articulated above. The case was set for trial the week of June 22, 1998. The Friday before, June 19, 1998, PIGA’s attorney met with a CAT Fund attorney and the CAT Fund’s structured settlement consultant in an attempt to formulate a settlement offer. During the meeting, they contacted plaintiffs’ counsel to ascertain the total medical bills paid by other insurance. (N.T. 12, 15-16, 19,125-26.) According to plaintiffs’ counsel, they were not advised the inquiry was intended to be used to calculate PIGA’s offset. Instead, they assumed PIGA and the CAT Fund needed the medical bill summary to evaluate the case for settlement purposes. (N.T. 68, 122-23.)

On June 23, 1998, counsel for plaintiffs, PIGA and Harrisburg Hospital, met in my judicial chambers for a pretrial conference to discuss settlement. Prior to these discussions, the CAT Fund had delegated its authority to conduct settlement negotiations on its behalf to PIGA’s attorney. (N.T. 6.) Thus, at the June 23, 1998 discussions, PIGA’s counsel represented not only PIGA on behalf of Dr. O’Malley and his group, but also the CAT Fund. Extensive settlement negotiations occurred for several hours. The parties finally reached a settlement in the fixed amount of $806,358, with Dr. O’Malley and his group tendering $801,358 and Harrisburg Hospital $5,000. (N.T. 8-9, 25-26, 36, 47, 51, 94, 96, 98, 120-21, 123.) The basic settlement was structured for plaintiffs to receive a $413,731 lump sum payment and the balance of $392,697 to purchase a bonded annuity, with details of the annuity’s payment terms to be worked out. (N.T. 26.) The settlement consultant faxed several structured settlement proposals to chambers and during numerous telephone conversations, the numbers were revised to adjust the terms of payments at different times and different amounts during Rachel Storms’ adult life. No issue regarding an offset for paid medical bills was raised during any of these negotiations or the structure revisions. The settlement amount of approximately $806,000 was clear. The only issues to be resolved were terms of payment.

The settlement consultant worked out the details of the structure the next day. The parties arrived at the following structure: Of Dr. O’Malley’s $801,358, $200,000 cash was to be paid by PIGA and $601,358 by the CAT Fund. The CAT Fund’s contribution toward settlement included $208,731 cash and $392,627 for the annuity purchase. The settlement consultant testified his figures assumed a $200,000 tender from PIGA with no offsets. He was never told by PIGA’s attorney (acting on behalf of both PIGA and the CAT Fund) to deduct any amount from PIGA’s maximum liability in formulating the structure. (N.T. 25-28.) He testified that in order to make the agreed lump sum payment of $413,731, it was understood that the settlement would cost $806,358. (N.T. 28.) On June 24, 1998, plaintiffs’ counsel faxed a copy of these settlement terms to PIGA’s counsel, also representing the CAT Fund. (Pit. ex. 5.)

On July 2, 1998, plaintiffs filed a petition seeking court approval of the minor’s settlement, a copy of which was mailed to PIGA’s counsel. (N.T. 129.) On July 15, 1998, I entered an order approving the settlement based upon the terms reached on or about June 23, 1998. Up to this point, there had been no objections to the settlement terms by any party or their insurers.

On July 31, 1998, PIGA’s counsel sent a full and final release to plaintiffs, as well as a cover letter indicating PIGA’s intent to pay only $175,835 “representing the policy limits [$200,000] minus the statutory offset.” Additionally, the proposed release included language requiring plaintiffs to request a sealing of the settlement documents and to “take whatever steps are necessary to assure that such document(s) are not accessible or disclosed to anyone.” These release terms were not discussed during settlement negotiations nor were they part of the settlement terms relayed verbally to the court on June 23, 1998, the date settlement was reached, nor were they included in the settlement formally approved July 15, 1998.

On August 4, 1998, plaintiffs filed their motion to compel compliance with the court-approved settlement. On August 14,1998, defendant O’Malley and his group filed a petition to seal the record and close the hearing on the motion to compel. Hearings were held on August 25, 27 and 28, 1998. On August 31, 1998, I issued an order denying the motion to seal the record and granting the motion to compel settlement. I ordered PIGA to pay $173,835 cash by September 1,1998 which was the amount of its $200,000 maximum obligation minus the disputed $26,165 offset for Blue Cross/Blue Shield collateral insurance. The CAT Fund and/or PIGA were ordered to remit the balance, $234,896, by December 31, 1998. This figure represented the $208,731 the CAT Fund was to pay in cash under the structured settlement, plus the amount of the disputed offset figure, which one of the parties was responsible to pay and which would be the subject of future litigation. I denied PIGA’s request to deduct the statutory offset since it was not part of the settlement agreement. In addition, the CAT Fund was directed to provide plaintiffs with a full and final release by August 31, 1998, excluding the confidentiality clause.

LEGAL DISCUSSION

PIGA is a creation of the Pennsylvania Property and Casualty Insurance Guaranty Act which consists of an association of independent property and casualty insurers whose purpose is to provide payment of covered claims in the stead of an insolvent insurer. 40 P.S. §991.1801 et seq. PIGA is obligated to pay covered claims existing prior to the insurer’s insolvency. 40 P.S. §991.1803(b)(l)(i). “The only limitation placed upon an injured party is that [PIGA’s] own limitations of liability apply rather than those of the insolvent insurer. Thus, by clear and unambiguous terms of the statute, PIGA is deemed to be an insurer and is placed in the stead of the insolvent insurer, with all of that insurer’s rights, duties, and obligations.” Donegal Mutual Insurance Co. v. Long, 528 Pa. 295, 300-301, 597 A.2d 1124, 1127 (1991) (footnotes omitted); see also, Matusz v. Safeguard Mutual Insurance Co., 340 Pa. Super. 116,119,489 A.2d 868,870 (1985) (PIGA “steps into the shoes of the insolvent insurer but only to the extent of their obligations on ‘covered claims . . .’ ”).

The offset provision asserted by PIGA is as follows:

“Non-duplication of recovery
“(a) Any person having a claim under an insurance policy shall be required to exhaust his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first-party or third-party claim, and shall include, without limitation, accident and health insurance, workers’ compensation, Blue Cross and Blue Shield and all other coverages except for policies on an insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under other insurance.” 40 P.S. §991.1817. (emphasis added)

The CAT Fund, created by the Health Care Services Malpractice Act, is a Commonwealth agency providing professional liability insurance coverage for health care providers beyond the provider’s basic coverage limits. 40 P.S. §1301.701(d). The CAT Fund was created for the express purpose of paying awards, judgments and settlements for losses or damages, as a consequence of professional liability claims brought against participating health care providers. 40 P.S. §1301.701(d). Its obligation is limited to amounts that exceed the health care provider’s basic coverage insurance, up to its maximum statutory limits. 40 P.S. §1301.701(d).

The parties have raised numerous issues in their statements of matters on appeal, summarized as follows: (1) the court erred in finding a settlement agreement existed, which did not require that PIGA’s statutory offset apply; (2) the court erred in implicitly holding that PIGA could waive its right to assert the mandatory offset provision; (3) the court erred in finding the matter settled without requiring a confidentiality agreement nor a sealing of the record; and (4) the CAT Fund did not have a meaningful opportunity to participate in the settlement and the court’s approval thereof.

Settlement Terms — Enforceability Without the Statutory Offset

The parties argue the court erred in finding a settlement agreement existed, without the offset provision applying, since there was no meeting of the minds on this important point. PIGA and the CAT Fund alternatively argue that, if this was not error, the court should have enforced the settlement only if the $26,165 offset was deducted from PIGA’s obligation and the release contained language subjecting plaintiffs’ recovery to offset, as required by law. The CAT Fund also argues the settlement agreement cannot be enforced since it contains language indicating it may be liable to plaintiffs for the amount of PIGA’s statutory offset. The CAT Fund argues this renders the settlement unenforceable since it cannot be liable for any “drop down” coverage.

There exists a strong judicial policy in favor of voluntary settlement of lawsuits, primarily to expedite transference of money into the complainant’s hands and also, secondarily, to reduce the expense and burden of litigation on the courts. Sociedad Commercializadora v. Quizada, 434 Pa. Super. 48, 55-56, 641 A.2d 1193, 1197 (1993). The enforceability of settlement agreements is determined according to contract law principles. Century Inn Inc. v. Century Inn Realty Inc., 358 Pa. Super. 53, 58, 516 A.2d 765, 767 (1986). A settlement will be enforced if all the material terms of the bargain are agreed upon. McDonnell v. Ford Motor Company, 434 Pa. Super. 439, 445, 643 A.2d 1102, 1105 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994).

Under Pennsylvania law, “if the parties orally agree to all the terms of a contract between them and mutually expect the imminent drafting of a written contract re-fleeting their previous understanding, the oral contract may be enforceable.” Kazanjian v. New England Petroleum Corporation, 332 Pa. Super. 1, 7, 480 A.2d 1153, 1157 (1984). See also, Compu Forms Control v. Altus Group, 393 Pa. Super. 294, 301, 574 A.2d 618, 622 (1990) (quoting Johnston v. Johnston, 346 Pa. Super. 427, 431, 499 A.2d 1074, 1076-77 (1985) (“If parties agree upon essential terms and intend them to be binding, ‘a contract is formed even though they intend to adopt a formal document with additional terms at a later date.’ ”). The parties’ intent is a question of fact to be determined by the fact-finder. Johnston supra.

It is abundantly clear defendant O’Malley and his group, acting through counsel, agreed to pay plaintiffs, in final settlement of this matter, a sum certain of $801,358. Not only did plaintiffs’ attorneys so testify, but so .too did the CAT Fund’s attorney examiner, its settlement consultant as well as defendant Harrisburg Hospital’s attorney. (N.T. 8-9, 25-26, 36, 47, 51, 94, 96, 98, 120-21, 123.) (Pit. ex. 6.) This was also the court’s understating at the June 23, 1998 pretrial settlement conference.

PIGA’s attorney, on behalf of all interested parties (other than Harrisburg Hospital), including both PIGA and the CAT Fund, agreed to a settlement with a current cash value of $801,358. The fact counsel may have assumed, during the pleading stages and at the beginning of negotiations, that the statutory offset would be deducted from PIGA’s obligation is now irrelevant since counsel subsequently obligated both PIGA and the CAT Fund to the settlement amount of $801,358. Thus, plaintiffs are entitled to that amount regardless of which defendant entity ultimately pays (PIGA, the CAT Fund or the individual defendants). Simply stated, there were no discussions whatsoever during negotiations between the parties that PIGA intended to take an offset against the agreed upon settlement figures. The CAT Fund’s own independent settlement consultant was never told to base his calculations on any other figure. The fact PIGA’s counsel had raised the offset issue prior to settlement negotiations when she was solely representing PIGA (and defendants to the extent of PIGA’s obligation), does not limit the current obligation of either or both PIGA and the CAT Fund, since she represented both during final settlement negotiations. Accordingly, a binding settlement agreement with a current cash value of $806,358 was reached.

Nevertheless, the defendants, PIGA and the CAT Fund argue such a settlement cannot be enforced because it violates the law. PIGA argues that its offset right is statutorily mandated, thus it can be liable at most for $173,835 ($200,000-$26,165). The CAT Fund argues it can be statutorily liable only for any settlement amount above $200,000 ($801,358-$200,000) and that it cannot, under the law, drop down and cover the gap caused by PIGA’s offset. See Pennsylvania Osteopathic Medical Association v. Foster, 134 Pa. Commw. 368, 579 A.2d 989 (1990), appeal denied, 525 Pa. 500, 582 A.2d 319 (1990). See also, Judge v. Allentown and Sacred Heart Hospital Center, 78 Pa. Commw. 373, 467 A.2d 899 (1983), rev’d on other grounds, 506 Pa. 636, 487 A.2d 817 (1985) (as a Commonwealth agency, it must act within the limits of the statute which created it). Indeed, “an agreement which violates a statutory provision, ‘or which cannot be effectively performed without violating [a] statute, is illegal, unenforceable and void ab initio.’ ” Watrel v. Commonwealth, Department of Education, 88 Pa. Commw. 1, 5, 488 A.2d 378, 381 (1985), aff’d, 513 Pa. 61, 518 A.2d 1158 (1986) (quoting Gramby v. Cobb, 282 Pa. Super. 183, 188, 422 A.2d 889, 892 (1980)). Thus, if it is determined PIGA’s offset must apply against any settlement, then enforcement of the parties’ settlement requires adding the offset amount to the CAT Fund’s liability. This would give effect to all the interested parties’ intent, including PIGA’s and the CAT Fund’s, that plaintiffs receive settlement with a cash value of $806,358. Such a result would not require the CAT Fund to provide “drop down” coverage. Otherwise, PIGA remains liable for its full $200,000 settlement obligation.

Waiver of Offset Provision

The parties argue the court erred in implicitly holding that PIGA could and did waive its right to assert the mandatory offset provision. As set forth above, if PIGA can legally waive its offset right, it remains liable for $200,000. If not, settlement must be enforced by charging the CAT Fund with any amount lost due to the offset.

Release

Defendants allege the court erred in concluding a confidentiality provision in the releases and a sealing of the record were not part of the settlement. They argue the court should not have ordered the production of a release without terms concerning confidentiality or the requirement of sealing. As previously stated, the settlement reached June 23, 1998 and formally approved July 15, 1998, did not include confidentiality, nor was that a term ever discussed during settlement negotiations.

In Kazanjian, supra, the Superior Court held an oral agreement to settle was binding even though, among other items, releases had not been reduced to writing. In support, the court quoted the Third Circuit, as follows:

“The settlement agreement which was entered into by duly authorized counsel expressed the intention to settle the case for the agreed amount and was valid and binding despite the absence of any writing or formality. . . . The tender of a release did not reopen the agreement or make its execution a condition to the settlement itself Kazanjian, 332 Pa. Super, at 9, 480 A.2d at 1157-58 (quoting Good v. Pennsylvania Railroad Co., 384 F.2d 989, 990 (3d Cir. 1967)). (emphasis added) (citations omitted)

Furthermore, an agreement to seal the record could not have been an essential term of the settlement agreement because it involved a minor. All minors’ settlements require court approval and, thus, they are all public records subject to the public’s right to access under both the First Amendment and common law. Hutchison v. Luddy, 398 Pa. Super. 505, 514, 581 A.2d 578, 582 (1990), rev’d on other grounds, 527 Pa. 525, 594 A.2d 307 (1991). See Pa.R.C.P. 2039. Court approval is never pro forma but requires an analysis of factors under both the First Amendment and common-law tests.

In addition, it was not error for this court to have refused to seal the record under the facts presented. Under the First Amendment analysis, only if the party seeking to seal the record can meet a heavy burden of showing “good cause” may the record be ordered sealed. Hutchison at 514, 581 A.2d at 582 (quoting Publicker Industries Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)). “Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity.” Publicker at 1071 (3d Cir. 1984). (emphasis added) “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning,” do not support a good cause showing. Cipollone v. Liggett Group Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487 (1987). Defendants’ allegations of harm fall far short of meeting their burden. In their petition to seal, defendants asserted that the nature and amount of settlement, if publicly known, could expose the minor to real or potential undue harm, danger and/or harassment. In addition, they stated there is a strong public and private interest in encouraging future amicable settlements. Neither basis for sealing defines how a serious injury will be incurred by the defendants. Instead, they broadly cite to possible injuries to the minor and to all potential settlements involving a minor. See Streett Estate v. General Motors Corp., 17 D.&C.4th 37 (York C.P. 1992).

In order to overcome the presumption of public access under a common-law analysis, the party seeking record closure must prevail under the balancing test set forth in Bank of America National and Savings Association v. Hotel Rittenhouse Associates, 800 F.2d 339, 344 (3d Cir. 1986). Hutchison at 514, 581 A.2d at 582. Under this test, defendants have the burden to show that the “interest in secrecy outweighs the presumption” which is accomplished by weighing the factors in favor of access and those against it. Id. (quoting Bank of America at 344). The party seeking closure “bears the burden of establishing that closure is appropriate under the circumstances.” Hutchison at 513, 581 A.2d at 582 (citing Katz v. Katz, 356 Pa. Super. 461, 466, 514 A.2d 1374, 1379 (1986)). Defendants argue it is in the interest of the child and her development that the record be kept secret and that when weighed against the fact there is no compelling governmental interest to seal the record, secrecy must prevail. We disagree. Plaintiffs, while remaining neutral on the petition to seal, respond that whether or not settlement information comes to public light is of little concern to them since they no longer reside in the area. Accordingly, the alleged secrecy interest evaporates. Thus, defendants have fallen far short of their burden showing secrecy outweighs the public access presumption. See Streett Estate, supra.

Accordingly, there is never a presumption, let alone an assumption or guarantee that a settlement reached with a minor will be kept confidential and the records sealed. Because there was no guarantee of confidentiality and a sealed record, there can be no court error in refusing to require confidentiality and a sealed record as a condition of settlement in this case.

CAT Fund’s Participation

The CAT Fund argues its procedural due process rights, as well as civil procedural rules, were violated when the court failed to allow defendants or their counsel an opportunity to participate fully in settlement negotiations and also by approving the minor’s compromise without giving defendants or defense counsel a meaningful opportunity to oppose the issue and be heard regarding the offset issue.

Clearly, the CAT Fund fully participated in settlement negotiations. According to the CAT Fund’s attorney examiner, the CAT Fund delegated its authority to conduct settlement negotiations to PIGA’s attorney. (N.T. 6.) PIGA’s attorney, in turn, kept the CAT Fund’s attorney examiner apprised of negotiations and ultimately informed her a settlement amount had been reached. (N.T. 6.) Furthermore, PIGA’s counsel kept in contact with the CAT Fund’s structured settlement consultant during settlement negotiations and thereafter.

In addition, although the CAT Fund did not respond to the plaintiffs’ July 2, 1998 petition to approve the minor’s settlement prior to my signing it on July 15, 1998, they have since raised all the issues they could have then raised in its opposition to plaintiffs’ motion to compel compliance with the settlement agreement and hearings were held thereon. Thus, its arguments have been fully considered.

Accordingly, plaintiffs’ motion to compel settlement, in the amount of $806,358, was granted by order of August 31, 1998.

      . The motion was never ruled upon since a settlement was reached.

      . Both plaintiffs’ attorney and Harrisburg Hospital’s attorney testified that PIGA’s attorney never raised the offset issue during the June 23, 1998 settlement negotiations. (N.T. 34, 46, 51, 117.) Nor was this issue raised in my presence. In addition, the structured settlement consultant testified he was never told to offset any amount from PIGA’s maximum liability ($200,000) in finalizing the structure. (N.T. 25-28.)

      . Insurance Company Law of 1921, enacted by Act of December 12, 1994, P.L. 1005, no. 137, §1, as amended by Act of December 21,1995, no. 79, §15, effective February 19,1996,40 P.S. §991.1801 et seq.

      . Act of October 15, 1975, P.L. 390, no. Ill, §101, as amended by Act of November 26,1996,P.L.776,no. 135, §10,40 P.S. §1301.101 et seq.

      . The CAT Fund’s limit on liability was $1,000,000 per occurrence for calendar years 1996 and earlier, $900,000 per occurrence for calendar years 1997 through 1998, $800,000 per occurrence for calendar years 1999 through 2000 and $700,000 for the calendar year 2001 and thereafter.


text:
    State Farm Fire and Casualty Co. v. Craley

      C.P. of Berks County,
    no. 97-9019, 97-8741.

      Teresa Ficken Sachs, for plaintiff.

      Dawn A. Segal, for plaintiff Prudential Property and Casualty Ins. Co.

      Daniel E.P. Bausher, for defendants.
    December 22, 1998
   STALLONE,/.,

These two declaratory judgment actions arise out of a dispute over whether the plaintiffs, State Farm Fire and Casualty Company and Prudential Property and Casualty Insurance Company, are obligated to provide uninsured motorist benefits coverage to the defendants, Randall P. Craley, in his capacity as administrator of the estate of Jayneann M. Craley and as parent and natural guardian of Keith P. Craley, Gloria M. Craley and Lawrence W. Craley, under separate automobile insurance policies issued by the plaintiffs to the defendants.

Having agreed that there are no factual issues which are in dispute, the parties have stipulated to the following findings of fact without the need for taking any testimony. Therefore, this court need only determine the applicable law pursuant to Pa.R.C.P. 1038.1.

FINDINGS OF FACT

(1) On July 12, 1993, the decedent, Jayneann Craley, was killed when the 1988 GMC Jimmy S15 Sport Wagon which she was driving, and in which her mother-in-law, Mrs. Gloria M. Craley, and her minor son, Keith P. Craley, were passengers, collided with another vehicle being driven by Terry J. McFadden, who was uninsured.

(2) Mrs. Craley and Keith also sustained multiple injuries as a result of the collision.

(3) At the time of this incident, Jayneann and her husband, Randall P. Craley, Keith, and Mrs. Craley, and Mr. Lawrence W. Craley, her father-in-law, all lived together in the same household at 106 Dogwood Drive, Narvon, Pennsylvania.

(4) The Sport Wagon was registered in Jayneann’s name and was insured under a policy issued by State Farm, no. S56-1104-CI7-38A.

(5) Jayneann was the regular operator of the Sport Wagon.

(6) At the time of this incident, Randall owned a 1986 Mazda pickup truck which was not involved in the collision and was insured under a separate insurance policy issued by State Farm, no. S56-1103-C17-38.

(7) At the time of this incident, Mr. and Mrs. Craley owned a 1990 Dodge Caravan which was likewise not involved in the collision and was insured under a policy issued by Prudential, no. 282A-670586.

(8) Jayneann’s Sport Wagon was not listed as an insured vehicle on either Randall’s State Farm policy or on Mr. and Mrs. Craley’s Prudential policy.

(9) Neither Jayneann nor Keith were identified as “named insureds” or “listed operators” of the 1990 Dodge Caravan under Mr. and Mrs. Craley’s Prudential policy.

(10) Mrs. Craley was neither a “named insured” nor a “listed operator” of the Sport Wagon which was insured under Jayneann’s State Farm policy.

(11) Each of the two State Farm policies provides for uninsured motorist benefits coverage in the maximum amount of $15,000 per person and $30,000 per accident.

(12) Each of the two State Farm policies contains the following “waiver” signed by Jayneann and Randall entitled “Rejection of stacked uninsured motorist benefits,” indicating that each of them had waived the right to “stack” uninsured motorist benefits coverage otherwise available under each State Farm policy onto the other’s State Farm policy:

“By signing this waiver, I am rejecting stacked limits of uninsured motorist coverage under the policy for myself and members of my household under which the limits of coverage available would be the sum of limits for each motor vehicle insured under the policy. Instead the limits of coverage that I am purchasing shall be reduced to the limits stated in the policy. I knowingly and voluntarily reject the stacked limits of coverage. I understand that my premium will be reduced if I reject this coverage.”

(13) Both Jayneann and Randall received a reduction in the premiums which each of them paid to State Farm for each policy in exchange for their waivers of their right to stack uninsured motorist benefits coverage.

(14) Each State Farm policy also contains the following “household exclusion” clause:

“There Is No Coverage For Bodily Injury To An Insured Under Coverage U-3:
“(1) While Occupying A Motor Vehicle Owned By You, Your Spouse Or Any Relative If It Is Not Insured For This Coverage Under This Policy; . . . .”

(15) The term “relative,” as set forth in this “household exclusion” clause, is defined in each State Farm policy as a “person related to you or your spouse by blood, marriage or adoption who lives with you.”

(16) The Prudential policy provided for uninsured motorist benefits coverage in the maximum amount of $100,000 per person and $300,000 per accident.

(17) Part 4 of the Prudential policy defines the scope of the available uninsured motorist benefits coverage as follows:

“If you have this coverage (see the declarations), we will pay up to our limit of liability for bodily injury that is covered under this part when an insured (whether or not occupying a car) is struck by an uninsured vehicle

(18) The term “insured” is defined in the Prudential policy, for purposes of uninsured motorist benefits coverage, as follows:

“The named insured and a resident relative using the insured car or a substitute car;
“The named insured and a resident relative while using a non-owned car; or
“The named insured and resident relative if hit by an insured motor vehicle while a pedestrian.”

(19) Part 4 of the Prudential policy contains the following “family car exclusion” clause:

“We will not pay for bodily injury to you or a household resident using a non-owned car not insured under this part, regularly used by you or a household resident.”

(20) A “non-owned car,” as that term is used in this “family car exclusion” clause, is defined in the Prudential policy as:

“A car which is not owned by, registered in the name of or furnished or available for the regular or frequent use of you or a household resident.”

(21) The term “household resident,” as that term is used in this “family car exclusion” clause, is defined in the Prudential policy as:

“Someone who lives in your household. A household resident includes a resident relative.”

(22) A “resident relative,” as that term is used in this “family car exclusion” clause, is defined in the Prudential policy as:

“Someone who lives in your household and is related to you [the insured] by blood, marriage, adoption or is a ward or foster child.”

(23) Following the July 12,1993, collision, the estate of Jayneann M. Craley, Keith and Mrs. Craley filed claims for uninsured motorist benefits under Jayneann’s State Farm policy, no. S56-1104-C17-38A, under Randall’s State Farm policy, no. S56-1103-C17-38, and under Mr. and Mrs. Craley’s Prudential policy, no. 282A-670586.

(24) Both Keith and Mrs. Craley’s claims were based on their status as “resident relatives” living in the same household.

(25) While State Farm paid the policy limits of $30,000 in uninsured motorist benefits available under Jayneann’s State Farm policy, no. S56-1104-C17-38A, it denied coverage under Randall’s State Farm policy, no. S56-1103-C17-38, to Jayneann’s estate, Keith and Mrs. Craley, on the basis of Randall’s waiver of his right to stack uninsured motorist benefits coverage and the “household exclusion” clause set forth herein at finding of fact no. 14.

(26) Prudential denied the claim for uninsured motorist benefits made by Jayneann’s estate, Keith and Mrs. Craley under the Prudential policy, no. 282A-670586, on the basis of the “family car exclusion” clause set forth herein at finding of fact no. 21.

(27) The value of the wrongful death/survival claim by Jayneann’s estate exceeds all possible combined uninsured motorist benefits coverage limits under both the State Farm and the Prudential policies.

(28) The value of Mrs. Craley’s claim for her personal injuries exceeds all possible combined uninsured motorist benefits coverage limits under both the State Farm and the Prudential policies.

(29) The value of Keith’s claim for his personal injuries is $40,000.

DISCUSSION

The three questions of law before this court for decision are: (1) whether we should enforce the “stacking waiver” executed by Randall under his State Farm policy, (2) whether we should enforce the “household exclusion” clause contained in Randall’s State Farm policy and (3) whether we should enforce the “family car exclusion” clause contained in Mr. and Mrs. Craley’s Prudential policy. We shall address each of these issues seriatim.

Jayneann’s estate, Keith and Mrs. Craley are attempting to “stack” the uninsured motorist benefits coverage under Randall’s State Farm policy onto the benefits already paid by State Farm under Jayneann’s State Farm policy. Therefore, at the outset, it should be noted that this is commonly referred to as “inter-policy stacking” because it involves single vehicles insured under separate policies. It is to be distinguished from “mira-policy stacking” where there are multiple vehicles insured under a single policy and an insured attempts to collect benefits available for all of the vehicles insured under that same single policy. State Farm argues that the “stacking waiver” provisions at bar preclude the claimants from obtaining this “zVzfer-policy” stacking. Conversely, the claimants argue that these waivers preclude only “intra-policy stacking.”

In looking to the case law submitted by the parties, we find that none of it is factually on point because it does not address the situation where, as here, there were single vehicles which were each insured under a separate insurance policy. As a result, we are left to make our own interpretation of section 1738 of the Pennsylvania Motor Vehicle Financial Responsibility Law, title 75, 75 Pa.C.S. §1738 (Supp. 1998) which provides as follows:

“(a) Limit for each vehicle. — When more than one vehicle is insured under one or more policies providing uninsured or underinsured motorist coverage, the stated limit for uninsured or underinsured coverage shall apply separately to each vehicle so insured. The limits of coverages available under this subchapter for an insured shall be the sum of the limits for each motor vehicle as to which the injured person is an insured.
“(b) Waiver. — Notwithstanding the provisions of subsection (a), a named insured may waive coverage providing stacking of uninsured or underinsured coverages in which case the limits of coverage available under the policy for an insured shall be the stated limits for the motor vehicle as to which the injured person is an insured.
“(c) More than one vehicle. — Each named insured purchasing uninsured or underinsured motorist coverage for more than one vehicle under a policy shall be provided the opportunity to waive the stacked limits of coverage and instead purchase coverage as described in subsection (b). The premiums for an insured who exercises such waiver shall be reduced to reflect the different cost of such coverage.”

In interpreting section 1738, we must utilize the time-honored principles of statutory construction set forth in the Statutory Construction Act. The most important principle, therefore, is that, in reviewing a statute such as the one before us, the court must ascertain and effectuate the intention of the General Assembly in order to give effect to all of its provisions. We are also directed to presume that the General Assembly did not intend an absurd or unreasonable result. Title 1, 1 Pa.C.S. §1922(1) (Supp. 1998); Title 1, 1 Pa.C.S. §1921(a) (Supp. 1998); Meier v. Maleski, 670 A.2d 755 (Pa. Commw. 1996).

In applying these principles, the only reasonable interpretation of the language of section 1738 is that “stacking waivers” are enforceable only in the case of “intra-policy stacking,” where the named insured has multiple vehicles insured under either one policy or under separate policies. Therefore, section 1738 has absolutely no application to “inter-policy stacking,” such as where two different persons insure two different vehicles under two separate policies and neither is a named insured under the other’s policy. This rationale appears to be consistent with the United States District Court’s reasoning in State Farm Mutual Automobile Insurance Company v. Powell, 879 F. Supp. 538 (W.D. Pa. 1995), where the district court concluded under similar circumstances that “stacking waivers” could be enforced only in an “intra-policy stacking” situation where multiple vehicles are insured under either a single policy or under separate policies. As a result, we conclude that the “stacking waiver” executed by Randall is not enforceable to preclude a recovery of uninsured motorist benefits by Jayneann’s estate, Keith and Mrs. Craley under Randall’s State Farm policy.

We must next determine whether the “household exclusion” clause in Randall’s State Farm policy and the “family car exclusion” clause in Mr. and Mrs. Craley’s Prudential policy are enforceable so as to preclude the recovery of uninsured motorist benefits under either policy. Jayneann’s estate, Keith and Mrs. Craley contend that these exclusions violate the public policy of this Commonwealth and are, therefore, invalid, while State Farm and Prudential argue that each of those exclusions has previously been upheld by our appellate courts as not being against public policy. Our review of the case law leads us to conclude that Eichelman v. Nationwide Insurance Co., 551 Pa. 558, 711 A. 2d 1006 (1998), and Paylor v. Hartford Insurance Co., 536 Pa. 583, 640 A.2d 1234 (1994), two cases decided by the Supreme Court of Pennsylvania, are controlling on this issue.

Eichelman involved the validity of a “household exclusion” clause that was worded almost identically to the one found in the State Farm policies at bar. There, Eichelman was operating his own motorcycle at the time he was involved in a collision with an underinsured truck driver. He had previously waived underinsured motorist benefits coverage under the policy insuring his motorcycle but attempted to recover underinsured motorist benefits under policies issued to his mother and to her husband, with whom he resided. Each of those policies contained a “household exclusion” clause providing that the underinsured motorist benefits coverage under the policy did not apply to:

“(6) Bodily injury suffered while occupying a motor vehicle owned by you or a relative not insured for underinsured motorist coverage under this policy;

After Nationwide Insurance Co. denied his claim for benefits, Eichelman filed a declaratory judgment action requesting a determination that he was entitled to the benefits inasmuch as the “household exclusion” clause violated public policy. The trial court granted summary judgment in Eichelman’s favor. On appeal, the Superior Court of Pennsylvania reversed the trial court’s decision, thereby enforcing the “household exclusion” clause as not being against public policy. Thereafter, in a detailed opinion, the Supreme Court of Pennsylvania affirmed the Superior Court’s decision. The court began its analysis by noting that a clear and unambiguous contract provision must be given its plain meaning unless to do so would be contrary to a clearly expressed public policy. It went on to quote its prior opinion in Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941), in explaining when a contract provision may be declared void for public policy reasons:

“It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring” that the contract is against public policy. Id.

The Supreme Court referred to the legislative intent behind the Pennsylvania Motor Vehicle Financial Responsibility Law, this time quoting from Rump v. Aetna Casualty & Surety Co., 551 Pa. 339, 710 A.2d 1093, 1096 (1998):

“[T]he repeal of the No-Fault Motor Vehicle Insurance Act, 40 PS. §1009.101, and the simultaneous enactment of the MVFRL, reflected a legislative ‘concern for the spiralling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways.’ ”

The Supreme Court concluded by saying that there was no overriding public policy which would forbid the enforcement of a “household exclusion” clause like the one at issue in Eichelman.

However, what is also clear from the court’s opinion at page 1010, and what is particularly applicable to the case at bar, is that the court reached that conclusion because Eichelman had voluntarily waived underinsured motorist benefits coverage on his motorcycle:

“Here, appellant voluntarily chose not to purchase underinsured motorist coverage. In return for this choice, appellant received reduced insurance premiums. . . . Thus, this court concludes that giving effect to the ‘household exclusion’ in this case furthers the legislative policy behind underinsured motorist coverage in the MVFRL since it will have the effect of holding appellant to his voluntary choice.”

And in Paylor v. Hartford Insurance Company, 536 Pa. 583, 640 A.2d 1234 (1994), the Supreme Court addressed the issue of the validity of a “family car exclusion” clause in the context of a claim for underinsured motorist benefits. In that case, Betty Dymond was a passenger in a motor home being operated by her husband, Fred Dymond, which was involved in a single vehicle collision in which both Mr. and Mrs. Dymond were killed. At the time of the collision, the motor home was insured under an insurance policy issued by Foremost Insurance Company. The Dymonds also maintained insurance coverage on three other vehicles that they owned. The other vehicles were insured under a separate insurance policy issued by Hartford Insurance Company. Janet Paylor, the administratrix of the Dymonds’ estate, received the limits of the liability coverage under the policy issued by Foremost for the motor home. She then sought to recover underinsured motorist benefits under the Hartford policy, but Hartford denied coverage on the basis of a “family car exclusion” clause contained in the policy which excluded under-insured motorist benefits coverage for “any vehicle owned by or furnished or available for the regular use of the named insured or any family member.”

Paylor subsequently initiated a declaratory judgment action against Hartford asserting that the “family car exclusion” clause violated the Pennsylvania Motor Vehicle Financial Responsibility Law and the public policy of the Commonwealth. Following a non-jury trial, the trial court entered judgment in favor of Hartford. On appeal, a panel of the Superior Court reversed.

In reversing' the Superior Court’s decision and reinstating the trial court’s original verdict, the Supreme Court reasoned as follows at pages 598, 640 A.2d at 1240-41 of its opinion:

“The litany of cases demonstrates that the ‘family car exclusion’ is not necessarily violative of public policy or the legislative intent underlying the MVFRL [the Motor Vehicle Financial Responsibility Law]. The enforceability of the exclusion is dependent upon the factual circumstances presented in each case. Allowing the ‘family car exclusion’ to bar coverage in cases where a plaintiff is attempting to convert underinsured coverage into liability coverage is a limited exception to the general rule that such provisions are invalid as against the policy of the MVFRL. Sherwood v. Bankers Standard Insurance Co., 424 Pa. Super. 13, 17, 621 A.2d 1015, 1017 (1993) (citations omitted). . . .
“ . . . all three of the policies under which Mrs. Dymond’s estate sought to recover benefits were in the name of the same insureds — Betty Dymond and Fred Dymond. We conclude that the facts of this case fall within the limited exception recognized in Marroquin which permits the family car exclusion to be enforced in cases where the plaintiff is attempting to convert underinsured motorist coverage into liability coverage. The application of this limited exception in this case serves to promote the legislative intent of the MVFRL and the expression of public policy articulated in the case law of Pennsylvania.”

It is clear, therefore, from both Eichelman and Paylor, that while the Supreme Court considers exclusionary clauses, as a general rule, to be against public policy and, therefore, not enforceable, it has carved out a limited “exception” for those exclusionary clauses which deter an insured from attempting to recover benefits which the insured voluntarily chooses not to pay for. That, of course, is not the situation in the case at bar. Both Jayneann and Randall paid for uninsured motorist benefits coverage under separate State Farm policies. Randall’s parents, Mr. and Mrs. Craley, likewise paid for uninsured motorist benefits coverage from Prudential. No attempt was being made by any of them to “convert” any other type of coverage to uninsured motorist benefits coverage. As a result, the denial of uninsured motorist benefits coverage would not serve to promote the legislative intent behind the Pennsylvania Motor Vehicle Financial Responsibility Law of controlling the high cost of insurance. We conclude, therefore, that the “household exclusion” clause contained in Randall’s State Farm policy and the “family car exclusion” clause contained in the Prudential policy are not enforceable.

CONCLUSIONS OF LAW

(1) The “stacking waiver” executed by Randall P. Craley under his State Farm policy, no. S56-1103-C1738, is not enforceable so as to prevent the estate of Jayneann M. Craley, Keith P. Craley and Gloria M. Craley from recovering uninsured motorist benefits under Randall’s State Farm policy, no. S56-1103-C17-38, because the “stacking waiver” does not apply to “inter-policy” stacking of benefits.

(2) The “household exclusion” clause contained in Randall’s State Farm policy, no. S56-1103-C17-38, is not enforceable so as to prevent the estate of Jayneann M. Craley, Keith R Craley and Gloria M. Craley from recovering uninsured motorist benefits under his State Farm policy because the “household exclusion” clause is against public policy.

(3) The “family car exclusion” clause contained in Mr. and Mrs. Craley’s Prudential policy, no. 282A-670586, is not enforceable so as to prevent the estate of Jayneann M. Craley, Keith P. Craley and Gloria M. Craley from recovering uninsured motorist benefits under their Prudential policy because the “family car exclusion” clause is against public policy.

(4) The estate of Jayneann Craley, Gloria M. Craley and Keith P. Craley are each entitled to recover uninsured motorist benefits under Randall’s State Farm policy, no. S56-1103-C17-38.

(5) The estate of Jayneann Craley, Gloria M. Craley and Keith P. Craley are each entitled to recover uninsured motorist benefits under the Prudential policy, no. 282A-670586.

VERDICT

And now, December 22, 1998, based upon the uninsured motorist benefits coverage provided in Randall’s State Farm policy, no. S56-1103-C17-38, of $15,000 per person/$30,000 per accident and under the Prudential policy, no. 282A-670586, of $100,000 per person/$300,000 per accident, it is hereby ordered that Randall P. Craley, in his capacity as administrator of the estate of Jayneann Craley and as parent and natural guardian of Keith P. Craley, and Gloria M. Craley are entitled to recover the following uninsured motorist benefits, totalling $330,000:

A. From State Farm Fire and Casualty Company:

(1) Randall R Craley, administrator of the estate of Jayneann Craley $30,000
(2) Randall P. Craley, as parent and natural guardian of Keith P. Craley, a minor 30,000
(3) Gloria M. Craley 30,000
Total $90,000
B. From Prudential Property and Casualty Insurance Company:
(1) Randall P. Craley, administrator of the estate of Jayneann Craley $100,000
(2) Randall P. Craley, as parent and natural guardian of Keith P. Craley, a minor 40,000
(3)Gloria M. Craley 100,000
Total $240,000

      . While the term “resident relative” is defined in the Prudential policy, it is not defined in the State Farm policies.

      . The writer will be adding italic type throughout this decision for emphasis purposes only.

      . Although the “household exclusion” clause also appears in Jayneann’s State Farm policy, there is no need for this court to make any further reference to it, since the uninsured motorist benefits available under Jayneann’s State Farm policy have already been paid.


author: FIELD, J.,

text:
    Rubino v. Weiss

      Leonard N. Ross, for plaintiffs.

      James R. Kahn, for defendant.
    November 20, 1998
   FIELD, J.,

Plaintiffs, James Rubino and Judy Rubino, husband and wife, and defendant, Albert A. Weiss M.D., have filed cross appeals from two orders issued June 29,1998. Defendant Weiss had filed two separate motions for summary judgment, one of which was denied and the other granted. Since the motion granting summary judgment disposed of this matter, it was a final order and appealable. Because a final order has been entered, the denial of the first motion, which at the time was interlocutory, is now also appealable. For the reasons below, both orders were properly entered and should be affirmed.

DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

In 1985, plaintiff, James Rubino, consulted defendant Dr. Albert Weiss, complaining of pain in his left toe. In July of that year, Dr. Weiss performed an arthroplasty on Rubino’s left great toe, inserting an implant. On April 7,1989, Dr. Weiss performed a second arthroplasty and inserted another implant because of the fracture of the original implant. Rubino began to feel pain in his foot during the fall of 1991. In December of 1992, Dr. Weiss removed the second implant because it also had fractured, whereupon he fused the first metatarsalphangeal joint of the left foot with a left tibial bone graft. Rubino remained under Dr. Weiss’ care until January 19, 1994. In his complaint filed April 14, 1994, Rubino described swelling and pain in his left toe as well as numbness and swelling of the left shin and alleges that these injuries were caused by Dr. Weiss’ malpractice during the 1985, 1989 and 1992 surgeries.

Defendant moved for partial summary judgment with regard to the 1985 and 1989 surgeries, claiming that these portions of plaintiffs’ claim is barred by the two-year statute of limitations concerning injuries caused by the wrongful act or negligence of another. 42 Pa.C.S. §5524 (2). In reviewing a motion for summary judgment, the record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party and the nonmoving party also has the burden of proving that there are no genuine issues of material fact. Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 658 A.2d 423 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995). If there are genuine issues of material fact, then summary judgment may not be entered.

The general rale is that once the statute of limitations on a particular claim has ran, a party is barred from bringing suit. However, there is an exception to the general statute of limitations known as the “discovery rale.” The discovery rale, first enunciated by the Supreme Court in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed period, the limitations period does not begin to ran until the discovery of the injury is reasonably possible. Szpynda v. Pyles, 433 Pa. Super. 1, 639 A.2d 1181 (1994), appeal denied, 539 Pa. 655, 651 A.2d 541 (1994).

The question of whether a patient’s injury was reasonably ascertainable is a question of fact that requires a jury’s determination. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). Pennsylvania courts have consistently held that the question whether or not a statute of limitations has ran on a claim requires a factual determination by a jury. See White v. Owens-Coming Fiberglas Corp., 447 Pa. Super. 5, 668 A.2d 136 (1995), appeal denied, 546 Pa. 648, 683 A.2d 885 (1996); Szpynda supra; Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959). Only in instances where “the disputed facts lead unerringly to the conclusion that the time it took to discover an injury was unreasonable as a matter of law” should a court enter summary judgment. A. McD. v. Rosen, 423 Pa. Super. 304, 308, 621 A.2d 128, 130 (1993). The facts of the instant matter are not so clear as to lead “unerringly” to the conclusion that defendant Weiss is entitled to judgment as a matter of law.

In cases such as the instant matter, where there is a continuing relationship between doctor and patient, it is well-settled that the two-year statute of limitations is tolled until the patient becomes dissatisfied and discontinues treatment with that doctor. See A. McD. v. Rosen, supra; Held v. Neft, 352 Pa. Super. 195, 507 A.2d 839 (1986). Under this standard, the statute of limitations for the duration of Rubino’s nine-year treatment began to run on January 19, 1994, when Rubino ended his relationship with Dr. Weiss. Thus, defendant’s motion for partial summary judgment with respect to the 1985 and 1989 surgeries was properly denied.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant’s second motion for summary judgment was based on plaintiffs’ failure to produce expert testimony in support of their allegations. On March 25, 1997, the Honorable William J. Manfredi entered a case management order which set forth various deadlines, including a January 5,1998 deadline for the identification of plaintiffs’ expert witness(es). The same order scheduled a trial date on July 1998. Plaintiffs’ counsel filed a petition for extraordinary relief seeking a 90-day extension, but said motion was denied. On February 3, 1998, defense counsel wrote to plaintiffs’ counsel stating that plaintiffs’ expert reports were already a month late and that if they were not produced immediately, appropriate relief from the court would be sought. This summary judgment motion was filed two weeks later, on February 18, 1998.

Plaintiffs argue that since the petition for extraordinary relief was uncontested, the defendant should be precluded from enforcing the court-imposed deadlines. This argument has no merit. The deadline for plaintiffs’ expert report was originally set by the court, and then reinforced by the court’s denial of an extension. The parties to this action had no authority to either extend or waive any deadline set by the court.

Without an expert, plaintiffs have failed to establish a prima facie case on their malpractice claim. Expert testimony is required, except in those cases where the matter is so simple and the lack of care is so obvious as to be within the comprehension of an ordinary layman. Gregorio v. Zeluck, 451 Pa. Super. 154, 678 A.2d 810 (1996), appeal denied, 546 Pa. 681, 686 A.2d 1311 (1996). The instant matter concerns three surgeries, whether each should have been performed at all, as well as whether each was performed correctly. Such is not within the common knowledge of the average juror. Hence, expert testimony was essential.

Similarly, in an action premised on the lack of informed consent, a plaintiff must produce a medical expert to show a causal connection between the lack of informed consent and the actual harm suffered by the plaintiff. Maliszewski v. Rendon, 374 Pa. Super. 109, 542 A.2d 170 (1988), appeal denied, 520 Pa. 617, 554 A.2d 510 (1989). Without such testimony, a jury would have to speculate as to any link between the plaintiffs’ harm and the defendant’s actions. The mere fact that a medical procedure has a bad result, without more, is not a sufficient basis upon which to maintain an action for damages. Because the plaintiffs failed to provide their expert report in accord with the court-imposed deadline, summary judgment was appropriate.

For all of the above reasons, the judgment as entered, should be affirmed.


author: WETTICK, J.,

text:
    Fetchen v. Kelly Run Sanitation
    C.P. of Allegheny County,
    no. GD95-17729.

      John P. Joyce, for plaintiffs.

      Arthur A. Asti Jr., for Lawrence E. Trainer and Cheryl Trainer.

      Raymond J. Conlon, for Richard D. Fetchen.

      David J. Obermeier, for Kelly Run Sanitation Inc. and Lawrence E. Trainer.

      John G. Eidemueller Jr., for additional defendant PennDOT.
    November 25, 1998
   WETTICK, J.,

This lawsuit arises out of a motor vehicle accident in which plaintiff-husband sustained orthopedic injuries to his lower extremities. By a letter dated October 15, 1998, defendants’ counsel notified plaintiffs’ counsel that he was scheduling a medical examination of plaintiff on November 2, 1998 with a neuropsychiatrist whom he identified and a medical examination of plaintiff on December 1, 1998 with an orthopedic surgeon whom he identified. Plaintiffs’ counsel responded with a letter stating that he intended to be present with his client at these examinations and to record these examinations with a videotape recorder.

Neither defendants’ counsel nor the neuropsychiatrist objected to the recordation of the November 2, 1998 examination with the videotape recorder. Consequently, plaintiffs’ counsel videotaped this examination and apparently will be providing copies of the videotape to other counsel by agreement of the parties.

Defendants’ counsel, apparently because of concerns of the orthopedic surgeon, objects to the videotape recording of the second examination. The subject of this opinion and order of court is a motion filed by defendants requesting that the medical examination by the orthopedic surgeon proceed as scheduled and that plaintiffs’ counsel be precluded from videotaping the examination.

Pa.R.C.P. 4010 governs physical and mental examinations of persons. Prior to July 1,1998, this rule authorized a court to order a person to submit only to a physical or mental examination by a physician. Stokes v. Mattie, 16 D.&C.3d 565, 129 P.L.J. 260 (1980). The rule was silent with respect to how an examination would be conducted. Consequently, case law determined whether persons other than the party to be examined could be present and issues involving the recordation of the examination. See e.g., Koch v. Galardi, 11 D.&C.3d 750, 127 P.L.J. 332 (1979).

Rule 4010 was extensively revised through amendments adopted on April 24,1998, effective July 1,1998. In addition to now permitting physical and mental examinations by licensed physicians, dentists, and psychologists, the amended rule provides guidance as to who may attend the examination and how it may be recorded. Rule 4010(a)(4)(i) provides that the person to be examined shall have the right to have counsel or other representative present during the examination. Rule 4010(a)(5)(i) reads as follows:

“The person who is being examined or who is producing for examination a person in the party’s custody or legal control may have made upon reasonable notice and at the party’s expense a stenographic or audio recording of the examination. Upon request and payment of reasonable cost, the party who caused the recording to be made shall provide each other party with a copy of the recording.” (emphasis added)

Defendants’ argument is obvious. Rule 4010(a)(5)(i) provides for only a stenographic or audio recording of the examination. Consequently, the party who is being examined has no right to videotape the examination without the permission of the other parties to the lawsuit.

Plaintiffs argue that Rule 4010(a)(5)(i) should not be construed to permit only stenographic or audio recordings of the examination. The rule does not say that the party who is being examined is prohibited from videotaping the examination. Consequently, a party should be permitted to videotape an examination unless the party scheduling the examination can establish good cause for prohibiting the videotaping.

I disagree. Recordation by videotape is a method of recordation well known to the Pennsylvania Supreme Court. See e.g., Pa.R.C.P. 4017.1. Its omission from Rule 4010(a)(5)(i) was not inadvertent.

Videotaping can be more intrusive than a stenographic or audio recording of the examination. It also can serve a different function. A stenographic or audio recording prevents disputes at trial concerning the content of the conversations between the party being examined and the examiner. Videotaping addresses what the examiner did and what the examiner saw. Even if the machine that makes the audio recording is operated by a partisan operator, it is unlikely that there will be any disputes over the accuracy of what was recorded. However, where an examination is recorded by videotaping, there is a significant likelihood of disputes as to whether the videotape fully and accurately reproduced the examination. This is particularly true if the examination has not been videotaped by a neutral and professional operator. In addition, issues involving interpretation will arise with a videotaped recordation.

If the words within Rule 4010(a)(5)(i) are not intended to operate as limitations, the same argument can be made with respect to other provisions of Rule 4010. For example, Rule 4010(a)(4)(i) provides that the person to be examined shall have the right to have counsel or other representative present during the examination. However, it does not explicitly state that counsel for the party scheduling the examination or other representatives of that party cannot also be present. Rule 4010 provides for a party to submit to physical or mental examination by an examiner. It does not explicitly state that someone who is not an examiner cannot conduct an examination. The words of Rule 4010 were chosen for a purpose, namely to establish the boundaries for physical and mental examinations of persons.

In this case, the issue has not been presented and, consequently, I do not decide the interplay, if any, between the provisions of Rule 4010 or Pa.R.C.R 4010.1 that establish the boundaries for physical and mental examinations of persons/evaluation of earning capacity and Pa.R.C.R 4012 (protective orders) which provides that upon motion by a party or person from whom discovery is sought and for cause shown, the court may make any order which justice requires to protect a party or person from an unreasonable annoyance, embarrassment, oppression, burden, or expense.

For these reasons, I enter the following order of court:

ORDER

On November 25, 1998, upon consideration of defendants’ motion for protective order and argument thereon, it is hereby ordered, adjudged, and decreed that the independent medical evaluation by orthopedist, Dr. Scott Nettrour, shall proceed as scheduled on December 1, 1998, and that plaintiffs’ counsel is hereby precluded from videotaping this examination.