Friday, August 3, 2012

Automobile Law - Pedestrian v. Auto

The Long Road to Justice

Background and Facts:

This is a pedestrian v. automobile case.  On June 14, 2007 my client was walking home from her daughter's house in Reading, PA. It was about 8:55 p.m. She decided to cross Penn Street and in order to save time crossed in the middle of the block. She was sure to clear both ways of cars before she proceeded. When she was almost all the way across the street on the other side, she was struck by a car. The driver of that car did not stop despite watching her cross the street the whole way.

First Trial:

We filed a lawsuit in 2008 and three years later in January 2011 had a trial in Berks County Court of Common Pleas. The Honorable Judge Jeffrey Schmehl presided over the jury trial. After an the close of the case and an hour of deliberations, the jury returned a verdict. The jury found that the plaintiff (my client) was 75% responsible and the defendant was 25% responsible for the incident. However, the jury awarded my client $25,000.00 for her injuries. Judge Schmehl "molded" the verdict and entered Judgment in favor of the defendant. This verdict was inconsistent. The verdict could be interpreted in 2 ways. 1) that the plaintiff loses or 2) the plaintiff is entitled to $25,000.00. Instead of molding the verdict the Judge should have sent the jury back for further deliberations to clarify the verdict. He did not. It was on this basis the we got a new trial.

Second Trial:

On July 30, 2012 we had a second trial. We presented the same evidence and arguments. The argument simplified is that no matter why a pedestrian is in the road, a driver does NOT have the right to “run them down” if they see them in time to take action to avoid striking them. I think this is a common sense argument; something that most jurors and people in general already know.

This time the jury returned a verdict of 50% liability on the plaintiff and 50% liability on the defendant and awarded damages. This was probably what the first jury intended on doing.

Final Outcome:

Justice was served in this case after 5 long years. The jury reached a “common sense” outcome and my client was finally able to get some compensation for injuries she suffered so many years ago. However, the battle for justice continues. Since no offer to settle was ever made to the plaintiff a Petition for Delay Damages pursuant to PA Rule of Civil Procedure is being filed. This will add over $2,400.00 to the verdict. In addition a Bill of Costs is being filed seeking compensation for costs the plaintiff was forced to pay in getting her justice.

There are no appealable issues for either side so this will be final judgment in this case.


It gives me great pleasure to fight for individuals who are hurt in accidents or other cases. This is just an example of how hard I and the other attorneys at Haggerty, Goldberg, Schleifer & Kupersmith, P.C. (HGSK) will fight to get justice for the people. If you or anyone you know are ever injured in an accident, a work accident, or have any other case (hopefully not), please let me know.


I can be reached at 267-350-6600

Friday, May 18, 2012

A primer on Bad Faith law in PA

Bad Faith in the Commonwealth of Pennsylvania

Insurance companies are required by law to meet certain obligations to their clients. In Pennsylvania, and across the U.S., insurance companies must investigate claims in a timely fashion, they have a responsibility to settle claims quickly, and clear explanation must accompany any claim denial or settlement. Failure of an insurance company to meet any of its obligations is considered “bad faith.” There are many instances where an insurance company can be said to be dealing in bad faith, or unfairly, with its clients. The most prevalent among these include:

1. Unreasonably low offer to compensate for damages.
2. Delay or Denial of a claim without reason.
3. Ambiguous policy wording.
4. Failure to investigate or perform due diligence.
5. Failure to act within a reasonable time.
6. Delay in payment while waiting on a settlement with a third-party insurer.
7. Intentional deception and fraud.
8. Refusing a settlement offer and then losing in court for an amount larger than is provided for in the policy.

In many cases, we are able to recover the full amount of the claim plus additional punitive damages where appropriate and allowed by law. Bad Faith insurance claims can affect individuals (home insurance, auto, casualty, medical, et al) and businesses (product liability insurance, workplace accident, third-party liability). There are generally two types of bad faith in Pennsylvania.

“Third-party” Bad Faith

Insurance companies have a duty to act in good faith in their settlement or defense of claims against their insureds and may be liable for excess verdicts beyond their policy limits in the event that duty is breached. In the “third-party” bad faith context, an insurer does not demonstrate good faith merely by showing that it acted with sincerity. Nor is it automatically liable for an excess verdict merely because the outcome is adverse. Nor does it have an absolute duty to settle simply because it is possible that a verdict might exceed its policy limits. However, an insurer’s contractual right to settle or defend is not a right to risk the insured’s financial well-being unless there is a real and substantial chance of a finding of non-liability and an insurer will be liable for an excess verdict if it unreasonably refuses an offer of settlement. An insurer’s decision to litigate rather than settle must be based upon a reasonable assessment of the circumstances and a real and substantial chance of a verdict in favor of the insured. The critical standard (and, admittedly, a movable one,) is that of reasonableness.

“First-party” Bad Faith

The Pennsylvania Courts have held that there is no common law right of action on the part of an insured against his or her insurer based upon its alleged bad faith handling of a first-party claim. The Pennsylvania Legislature enacted the current bad faith statute, appearing at 42 Pa.C.S.A. §8371, effective July 1, 1990, which provides as follows: § 8371. Actions on insurance policies In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer.

What is “Bad Faith”?

The courts have generally defined the term “bad faith” as referring to a “frivolous and unfounded” refusal to pay policy proceeds, involving “conduct which imports a dishonest purpose” and involves the breach of the insurer’s known duty of good faith and fair dealing through “some motive of self-interest or ill will.” To establish bad faith, the courts have held that a plaintiff must show by “clear and convincing evidence” that the defendant insurer (1) lacked a reasonable basis for its denial of coverage or benefits, and (2) that the insurer either knew, or recklessly disregarded its lack of a reasonable basis in denying the claim.

Tuesday, May 8, 2012

New Beginnings

I am very excited and proud to say that James Haggerty, Esq. formerly of Swartz Campbell is now a member of my firm!

Wednesday, February 8, 2012

New Baby Sater

Hello all. I have been extremly busy at work these past feww days. Tomorrow we are expecting to announce the birth of our second daughter. As for updates on personal injury law, I will have some really good ones soon. Lots of developments in PI law recently that are important to everyone.

Tuesday, January 17, 2012

Getting back to basics

Hello. It has been quite some time since I posted here. I am going to get my blog up and running again. Please be sure to look out for new posts. I will update tomorrow.