A Look at Product Liability in Pennsylvania

product liability

Product liability is that area of law which concerns harm to persons or property caused by manufactured products. Suits seeking compensation for such harms commonly articulate claims under several different legal formulations or causes of action, i.e.  negligence, breach of warranty, and strict liability. Furthermore, in some cases, a claim of fraud may be appropriate.

Negligence

The elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss. Minnich v. Yost, 2003 PA Super. 52, 817 A.2d 538, 541 (Pa. Super. 2003). Since courts have held that product designers and manufacturers have a duty to exercise reasonable care in manufacturing and designing products, a product liability claim may be couched in negligence terms.

Breach of Warranty

Although a product liability claim may be couched in terms of the breach of an express warranty, i.e. a spoken or written warranty, such claims are more typically pled as breaches of implied warranties, i.e. warranties which are not actually communicated to the buyer but are implied by law. There are 2 implied warranties in Pennsylvania which fit this description: The implied warranty of merchantability and the implied warranty of fitness for a particular purpose. These 2 warranties are imposed on the sale of goods in Pennsylvania by statute:

13 Pa.C.S. § 2314  Implied Warranty: merchantability

 13 Pa.C.S. § 2315 Implied Warranty: fitness for particular purpose

Strict Liability

Although an attorney litigating a product liability claim on behalf of a plaintiff will likely plead claims in negligence and breach of warranty, just to make sure that all bases are covered, as a practical matter those causes of action have been largely subsumed by a strict liability cause of action as described in the Restatement (2D) of Torts § 402A:

§ 402A Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property,
if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The Supreme Court of Pennsylvania has held that a plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm
caused by the product outweigh the burden or costs of taking precautions. Tincher v. Omega Flex, Inc. 104 A.3d 328 (Pa 2014).

Fraud

Also, if a consumer reasonably relies on a material misrepresentation by a manufacturer or distributor of a product and suffers injury to his or her person or property as a result, the person could plead his or her claim as a fraud claim, possibly entitling them to treble damages, costs, and attorneys’ fees pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Subrogation

Insurance companies, when they pay claims to their insureds, are frequently entitled to seek reimbursement of their payments from any parties legally responsible for the harm caused to their insureds. For example, if a residential fire is caused by a defective product, e.g. a lamp which sustained an electrical short because it was not insulated properly, the homeowner’s insurance carrier could sue the lamp manufacturer and distributor. In such a case, the homeowner could join in the suit to recover damages which were not covered by his or her insurance.

I have handled the litigation of product liability cases, including subrogation cases. If you would like to discuss such a case with me, please telephone me at 814-283-5788. There will be no fee for your initial consultation.

 

A Brief Look at Mechanics’ Liens

Mechanics’ liens are liens filed against real estate to ensure full payment to contractors and subcontractors who make improvements to such real estate. In Pennsylvania, they are governed by the Mechanics’ Lien Law of 1963. It is important to note that the definitions of contractor and subcontractor under the act include suppliers of materials used in the improvements. Also, there are restrictions concerning subcontractors filing liens against certain residential properties when the contractor has been fully paid by the owner (consult an attorney for details). Also, under certain circumstances, contractors and subcontractors may waive their lien rights.

Lien Filing

Mechanics’ liens are not automatically perfected upon completion of the work or delivery of the supplies by the contractor or subcontractor.  Indeed, in order to perfect the lien, the contractor or subcontractor must file a lien claim with the Court within 6 months of completion of the work. In addition, subcontractors must give the owner 30 days prior written notice before they file their claims. Also, recent amendments to the lien law have imposed additional notice requirements where the cost of the project is $1.5 million or more (consult an attorney for details).

Judgment and Execution

However, after the lien claim has been successfully filed, the contractor or subcontractor must take 2 further steps to judicially enforce payment by the owner: 1. they must commence a lawsuit to obtain judgment on the lien claim within two years of the filing of the lien claim, and 2. they must obtain execution on said judgment, which would result in the subject real estate being sold at sheriff’s sale and the proceeds from the sale paid to the contractor or subcontractor to pay the debt.

I have filed lien claims and represented parties in lawsuits to obtain judgments on lien claims.  If you wish to discuss with me your options in either filing or enforcing a mechanics’ lien or defending against one, please telephone me at 814-283-5788. Your initial consultation will be at no cost.

What is unfair debt collection?

debt collection

Debt collection practices are governed by both Federal and Pennsylvania law. Both the federal Fair Debt Collection Practices Act and the Pennsylvania Fair Credit Uniformity Act regulate what communications debt collectors are to have with consumer debtors and with third parties, partly to protect the debtor’s privacy and partly to protect debtor’s from deception and harassment.

Privacy

For example, both the federal and the state law require a debt collector to identify himself or herself when attempting to obtain location information concerning the debtor from third parties and prohibiting the collector from telling the third party that the debtor owes a debt. Also, once the collector knows the debtor is represented by an attorney and knows the name and address of that attorney, the collector may not communicate with any person other the attorney concerning the debt unless the attorney fails to respond to the collector’s communications within a reasonable time.

Harassment

Both the federal and state law restrict the collector to communicating with the debtor between 8 am and 9 pm. Similarly, both laws prohibit the “use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person” and the “use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader”.

Deception

Both the federal and state law prohibit “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

Remedies

While the federal and state laws are quite similar, but not identical, in the conduct they prohibit, there are significant differences in the remedies afforded to the consumer. The federal law allows the consumer debtor to recover damages for actual damages sustained as a result of the creditor’s prohibited practices, plus additional damages up to $1,000 at the discretion of the Court, in addition to costs and reasonable attorney’s fees as determined by the Court. However, the consumer debtor who brings a lawsuit pursuant to the state act may potentially obtain significantly higher damages since conduct prohibited by the state act also constitutes a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law which affords triple damages, as well as costs and attorney fees.

Criminal

Certain collection agency practices constitute a third-degree misdemeanor under Pennsylvania law:

18 Pa.C.S.A. § 7311 Unlawful collection agency practices

If you believe that you have been subjected to unfair debt collection practices, I would be pleased to discuss the situation with you. Your initial consultation will be free of charge.

Invasion of Privacy – A Multi-Faceted Tort

privacy

Previously I posted on drones and privacy. This post will address invasion of privacy more generally. Invasion of privacy is a very broad topic. Indeed, invasion of privacy can be a criminal offense in Pennsylvania. However, I will be addressing invasion of privacy as a tort, i.e. a civil wrong. In fact, invasion of privacy encompasses 4 separate torts: 1. Intrusion Upon Seclusion 2. Appropriation of Name or Likeness 3. Publicity Given to Private Life, and 4. Publicity Placing Person in False Light.

Intrusion Upon Seclusion

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts § 652B.

An action pursuant to this section does not depend upon any publicity given to the person whose interest is invaded or to his affairs…The invasion may be (1) by physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs, or (3) some other form of investigation or examination into plaintiff’s private concerns…

The defendant is subject to liability under this section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs…There is also no liability unless the interference with the plaintiff’s seclusion is substantial and would be highly offensive to the ordinary reasonable person…
[T]his cause of action also requires that the plaintiff have a reasonable expectation of privacy.” … Finally, a tortious invasion of privacy must ” cause mental suffering, shame or humiliation to a person of ordinary sensibilities…

As set forth above, intrusion upon seclusion can occur under three situations: (1) by physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs, or (3) some other form of investigation or examination into plaintiff’s private concerns…

Tagouma v. Investigative Consultant Services, Inc., 2006 CV 1532 (Dauphin CCP 2009)

Appropriation of Name or Likeness

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy. Restatement 2nd of Torts 652C

An example of this would be a business using a photograph of you without your permission in advertising their product or service.

Publicity Given to Private Life

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public…The publicity element requires that the private information be “made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”

Hahn v. Loch, 2984 EDA 2014 (Pa. Super. 2016)

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Restatement (Second) of Torts § 652E.

Under this section, “publicity” means “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”…”Thus, it is not an invasion of the right of privacy…to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. The plaintiff must also establish the publicity given to him is such that a reasonable person would feel seriously aggrieved by it. Furthermore, the publication must be false. The publication must also be a major misrepresentation of a person’s character, history, activities, or beliefs which could cause a reasonable person to take serious offense.

Lapinski v. Poling, 250 WDA 2016 (Pa. Super. 2017)

If your privacy has been invaded and you seek redress, you may telephone me at 814-283-5788 to discuss the situation. There will be no charge for your initial consultation.

The Basics of Insurance Bad Faith Claims

There are two broad categories of bad faith claims which insureds can bring against their insurance carriers, i.e. first party claims and third party claims.

First Party Claims

First party claims pertain to situations where the insurance company has exercised bad faith toward its insured in failing to pay a claim or delaying in paying a claim.

There is a Pennsylvania statute which affords remedies to insureds when they are subjected to first party bad faith by their insurance carrier, i.e. 42 Pa.C.S. § 8371:

§ 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.

The statute provides no definition of bad faith and does not indicate what evidentiary standards are applied in adjudicating bad faith claims. However, Pennsylvania courts have ruled that, to succeed on a bad faith claim, the insured must present clear and convincing evidence to satisfy a two-part test: (1) the insurer did not have a reasonable basis for denying benefits under the policy, and (2) the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim. Terletsky v. Prudential Prop. and Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (Pa. Super. 1994).

Third Party Claims

Third party claims pertain to situations where the insured faces a claim from a third party and the insurance carrier exercises bad faith in protecting its insured from the risk of incurring a judgment in favor of the third party which is  in excess of the insured’s policy limit, thereby subjecting the insured to personal liability for any amount in excess of the insurance policy limit. Pennsylvania courts have held that an insurer may be liable for the entire amount of a judgment secured by a third party against the insured, regardless of any limitation in the policy, if the insurer’s handling of the claim, including a failure to accept a proffered settlement, was done in such a manner as to evidence bad faith on the part of the insurer in the discharge of its contractual duty. Gray v. Nationwide Mutual Insurance Co., 422 Pa. 500, 223 A.2d 8 (1966).

Since Pennsylvania courts have held that  good faith “requires that the chance of a finding of nonliability be real and substantial and that the decision to litigate be made honestly”, and the decision to expose the insured to personal pecuniary loss must be based on a bona fide belief by the insurer, predicated upon all the circumstances of the case, that it has a good possibility of winning the suit”, where an insurer refuses to settle a claim that could have been resolved within policy limits without ‘a bona fide belief . . . that it has a good possibility of winning,’ it breaches its contractual duty to act in good faith and its fiduciary duty to its insured. Cowden v. Aetna Casualty and Surety Co ., 389 Pa. 459, 134 A.2d 223 (Pa. 1957).

 

Who Gets Your Stuff If You Die Without a Will?

Writing a will

Who Gets Your Stuff If You Die Without a Will?

It’s complicated:

Ownership Title

You can pass property to someone after your death by titling it properly before you die. If you own property jointly with right of survivorship, or by the entireties (which is joint ownership between spouses) and you die, the property passes to your surviving joint owners automatically by operation of law, without a will.

You can designate certain of your assets to be paid to a preferred recipient after your death by designating that person as a beneficiary, e.g. life insurance, and securities accounts.

Trusts

You can open a bank account in your own name in trust for another person. That person will receive the account upon your death. This is sometimes referred to as a Totten or tentative trust. It’s tentative because you retain the right to withdraw the entire balance of the account during your lifetime. In fact, some would dispute that it is a true trust. However, regardless of whether it should be regarded as a true trust or not, it is recognized in Pennsylvania as an effective means of leaving an account to someone after your death.

If you’re so inclined, you can also create a more complicated trust to convey assets to others after your death. However, such would entail the creation of a trust document which would likely be as complicated as a will. Accordingly, before creating a trust to convey assets after your death, you will probably want to consult an attorney.

The Law of Intestate Succession

If you die and leave behind property which has not been disposed of by a will or by any of the means described above, it will be distributed to your survivors pursuant to the terms of a rather complicated Pennsylvania statute, depending on which of your relatives survive you and how they are related to you. Precedence is given to spouses:

Share of surviving spouse

Shares of others than surviving spouse

If you wish to discuss these or related matters with me, please call me at 814-283-5788. Your initial consultation is free.

What Do You Need to Know About Magisterial District Courts?

While certain criminal matters and traffic offenses are handled in Magisterial District Courts in Pennsylvania, this post will address how such courts handle civil matters. First,  you need to know that MD Courts are small claims courts, i.e. the maximum amount of damages you can seek, exclusive of interest and costs, is $12,000. Second, you need to know that MD Courts cover geographic areas smaller than counties. Third, you need to know that that any party in DJ Court has a right to appeal a judgment to the Court of Common Pleas where the case will be tried anew. While a matter in DJ Court will likely proceed to trial much more quickly than a matter in the Court of Common Pleas, as long as the opposing party is willing to bear the expense of appealing to the Court of Common Pleas, it is easy to frustrate a final resolution of the dispute in MD Court. If you have any questions about Magisterial District Courts, please give me a call at 814-283-5788

What is the PACA?

The PACA is a federal statute, the Perishable Agricultural Commodities Act. As explained by the United States Department of Agriculture “PACA protects businesses dealing in fresh and frozen fruits and vegetables by establishing and enforcing a code of fair business practices and by helping companies resolve business disputes”.

The law contains trust provisions which put sellers of fresh and frozen fruits and vegetables in a priority status in the event their buyers become insolvent or file for bankruptcy protection. Moreover, pursuant to the PACA the USDA makes available administrative procedures to assist produce suppliers in collecting debts from their buyers. The PACA also provides for jurisdiction in the federal courts for lawsuits for the collection of such debts. Moreover, because of the trust provisions of the PACA, federal courts are authorized to fashion equitable remedies to prevent dissipation of the trust assets. Such remedies may include injunctions to prevent debtors from spending funds or selling other assets and/or the institution of specific claims procedures which allow creditors to present their claims to the court in an orderly and relatively simple manner, rather than every creditor filing a separate lawsuit against the debtor.

I have experience in representing both PACA creditors and PACA debtors in both administrative proceedings before the U.S. Department of Agriculture and in court proceedings in United States District Courts. In fact, I argued an appeal in a PACA case before the United States Court of Appeals for the Third Circuit. Several of the PACA cases in which I have represented parties are described in the following published case reports:

Botman International vs. International Produce Imports
Bear Mountain Orchards vs. Mich Kim

If you have any questions about the PACA, please telephone me at 814-283-5788

Introduction to the PA Consumer Fraud Statute

Are you familiar with the Pennsylvania law which protects consumers from misleading and otherwise unscrupulous business practices? The actual rather lengthy title of the statute is the Pennsylvania Unfair Trade Practices and Consumer Protection Law but it is sometimes more simply and generically referred to as the PA Consumer Fraud Statute. While the statute authorizes courts to order businesses to cease a wide variety of unfair trade practices when the Attorney General seeks to enjoin such behavior,  the statute also allows consumers to seek monetary damages if they are harmed by such practices. In fact the Court may at its discretion award the claimant triple his or her actual damages as well as attorneys’ fees and costs. The language of the statute includes a rather lengthy list of prohibited behaviors which constitute “unfair methods of competition” and “unfair or deceptive acts or practices”. You can see the full list at section 201-2(4) of the document at the following link, but some highlights are misrepresenting the characteristics of goods or services, false advertising, failing to comply with a written guarantee or warranty, and making repairs below the standard agreed to in writing. However, included in the list is a “catchall” provision which encompasses “any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding”. Accordingly, if you feel you’ve been “ripped off” in a consumer transaction, you may want to consult an attorney about bringing a case under the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Uninsured and Underinsured Motorist Insurance Basics

As covered in an earlier post, Pennsylvania requires drivers who register their cars in the Commonwealth to purchase minimum liability coverage and medical benefits coverage. The liability coverage is designed to pay the damages of others whose injuries have been caused by the persons insured under the policy. The no fault medical benefits coverage is designed to pay the medical expenses of those insured by the policy. What these mandatory coverages don’t cover however is damages and expenses to the policyholder himself/herself caused by another motorist, other than the first $5,000 of medical expenses. This is where uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) come into play. Although $15,000 per person, and $30,000 liability coverage is mandatory in Pennsylvania, that is no guarantee that the motorist injuring you will have such coverage. The motorist who injures you could have simply evaded the law and failed to maintain the mandated coverage. Alternatively, you could be injured by a motorist from New Hampshire or Virginia, who are apparently, at the time of his writing, not required to maintain insurance coverage, or you could be injured in a hit and run accident. Also, there is the possibility that the level of insurance coverage held by the at fault motorist is insufficient to cover your damages. Uninsured motorist coverage is designed to pay your damages if the person who has caused your injuries has no liability coverage whatsoever. Underinsured motorist coverage, on the other hand, is designed to pay your damages to the extent that the coverage of the at fault motorist is insufficient to pay your damages in full.
While persons registering their cars in Pennsylvania are not required to purchase uninsured and underinsured motorist coverage, insurance companies offering auto insurance to Pennsylvania motorists are required to make such coverage available for purchase. However, an important aspect of UM and UIM coverage is that such coverage is subject to your tort selection, i.e. if you have selected limited tort and cannot recover noneconomic damages (e.g pain and suffering) because you have not sustained “serious injury”, your UM and UIM coverage will not cover such noneconomic damages. Another issue you should be aware of is that your UM and UIM coverage may be subject to mandatory arbitration, you may contractually give up your right to sue your insurance company for a court determination of the amount your insurance company must pay you pursuant to such coverage. Your policy may require you to submit such a dispute to private arbitration.
Another issue of which you should be aware concerning UM/UIM coverage is that of “stacking”. “Stacking” allows a policyholder to “stack” coverages by adding policy limits together to obtain a higher total policy limit when insuring multiple vehicles. For example, if you have 2 vehicles which are insured for $100,000 each, and the coverages are “stacked”, you will have $200,000 of total coverage available to you if you are in an accident. “Stacking” is the default position but the law allows the policyholder to waive stacking by signing a written form. Waiving of “stacking” would normally be done in order to obtain a lower policy premium.
If you have any questions about UM or UIM coverage, please call me at 814-283-5788 or email me at mel@melvinmcdowell.com.

What Automobile Insurance Coverage Are You Required to Have in PA?

The minimum required coverage to legally register an automobile in Pennsylvania is liability coverage of $15,000 for injury to one person in any one accident and liability coverage of $30,000 for injury to 2 or more persons in any one accident, together with coverage for damage to the property of others in any one accident in the amount of $5,000, and no fault medical benefits coverage for yourself and those covered by your policy of $5,000.
Think about it. This level of coverage would leave you with a high likelihood of having to pay damages out of your own pocket if you were ever responsible for an auto accident. With auto repair costs what they are today, there wouldn’t need to be much damage to the other person’s car for repair or replacement costs to exceed $5,000. Furthermore, if you were responsible for causing the accident, you could be required to pay the injured person’s lost wages. At today’s wage levels, it wouldn’t take long for lost wages to exceed $15,000; not to mention pain and suffering damages which you might be responsible to pay. The Pennsylvania Department of Insurance offers a brochure answering frequently asked questions about automobile insurance:

Q & A About Auto Insurance in PA