NY COURTS HOLD GRAVES AMENDMENT PRE-EMPTS NEW YORK STATE VEHICLE & TRAFFIC LAW

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1 Kent & McBride... ON THE RECORD THIS ISSUE NOTABLE CASES AND VOICES FROM THE BENCH Published Newsletter for our Valued Clients - Winter 2007/2008 Notable Cases and Voices from the Bench PENNSYLVANIA SUPERIOR COURT SAYS ASBESTOS TWO DISEASE RULE CAN BE APPLIED RETROACTIVELY Pennsylvania Superior Court says Asbestos Two Disease Rule can be Applied Retroactively NY Courts Hold Graves Amendment Pre-empts New York State Vehicle & Traffic Law PA Superior Court Affirms Need for Strict Compliance with Rules of Civil Procedure Pennsylvania Supreme Court Applies Frequency, Regularity, and Proximity standard to Mesothelioma Case Supreme Court of Pennsylvania Holds that an Insured s Request for Reduction in Liability Coverage does not affect Previous Election of UIM Limits less than Liability Limits Legislative Update Rule Governing Preliminary Objections in Philadelphia is Revised Recent Verdicts Devanny Obtains Defense Verdicts in NY Auto Cases Third Circuit Affirms Dismissal of Medical Malpractice Case involving Missing Child Off the Record Welcome New Attorneys K&M Partner: Jeffrey W. McDonnell T he Pennsylvania Superior Court has applied the Two Disease Rule retroactively to two Plaintiffs who filed claims for non-malignant diseases prior to Abrams v. Pneumo Abex Corp., 939 A.2d 388 (Pa. Super. 2007)(en banc). In this case, Plaintiffs were diagnosed with lung cancer and filed lawsuits alleging that their disease was a result of occupational exposure to asbestoscontaining products manufactured by numerous Defendants. Defendant filed a Motion for Summary Judgment and argued that Plaintiffs claims were barred by the Statute of Limitations as a result of a prior lawsuit filed by Plaintiffs in the 1980s, which included claims for increased risk and fear of cancer. The trial court granted Defendant s Motion for Summary Judgment. Plaintiffs appealed. The Superior Court reversed that decision and remanded the case. Defendant filed an application for en banc reargument which was granted. Following the reargument, the En Banc Court affirmed the Summary Judgment. Prior to 1992, Plaintiffs in asbestos cases filed suit claiming damages for their present nonmalignant disease and all claims for future damages, specifically increased risk of developing a malignant illness such as cancer. In 1992, the Commonwealth adopted a new rule, known as the two disease rule, due to the criticism of enabling Plaintiffs to recover damages for illnesses that had not been diagnosed. The new rule abolished a Plaintiff s claim for fear of cancer or increased risk of cancer, but allowed Plaintiff to file a new cause of action following the development of a malignant disease. Marinari v. Asbestos Corp., Ltd., 612 A. 2d 1021 (Pa. Super. 1992)(en banc). In affirming the trial court s order granting Summary Judgment, the Superior Court held that if a Plaintiff filed a lawsuit prior to 1992, Plaintiff was required to include claims for all diseases, including increased risk and fear of cancer and therefore could not institute subsequent actions against a new defendant based upon a cancer diagnosis. This case is significant as the Court found that Plaintiffs were barred from recovering against a Defendant not named in the first lawsuit. For additional information, please contact Teresa Mullaney at: tmullaney@kentmcbride.com NY COURTS HOLD GRAVES AMENDMENT PRE-EMPTS NEW YORK STATE VEHICLE & TRAFFIC LAW T he Kings County Supreme Court was recently asked to determine whether 49 U.S.C (commonly referred to as the Graves Amendment ) constitutes an unconstitutional exercise

2 of Congressional power under the Commerce Clause. Castillo v. Bradley, N.Y.L.J. 10/24/07. The Court held that it did not. In this matter, Plaintiff Jose Castillo was operating his vehicle on July 31, 2006 at approximately 4:45 p.m. when a vehicle operated by the Defendant Cameron R. Bradley (hereinafter Bradley ) and owned by defendant U- Haul Company of Oregon (hereinafter U-Haul ) collided with Plaintiff s vehicle at or near the intersection of 8 th and 9 th Avenues in Brooklyn, New York. Earlier that day Defendant Bradley rented the vehicle from Defendant U-Haul s Brooklyn location for local use within New York City for a one day period. On December 1, 2006, Plaintiff commenced an action seeking recovery for his injuries by filing a summons and complaint against Defendants Bradley and U-Haul. The Defendants served an answer which contained an affirmative defense based on 49. U.S.C Under 49. U.S.C (a) an owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any state or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation or possession of the vehicle during the period of the rental or lease, if - (1) the owner or an affiliate of the owner is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner. U-Haul moved for summary judgment based on this affirmative defense. In support of its motion, U-Haul attached a copy of its answer and the rental agreement indicating that the vehicle involved in the collision was rented to Defendant Bradley. Based on the documents, Defendant U-Haul urged the Court to dismiss the complaint against them because they established that they were engaged in the business of renting and leasing motor vehicles and there was no negligence alleged directly against them. In opposition, Plaintiff asserted that 49. U.S.C is an unconstitutional exercise of Congressional power under the Commerce Law and concerns an area of law reserved to the States by the Tenth Amendment of the United States Constitution. The Plaintiff further argued that New York State Vehicle and Traffic Law 388 holds the owner of a vehicle vicariously liable for the negligence of the driver. The Court granted the Defendant s motion and dismissed the Complaint against U-Haul Company. The Court reasoned that there was ample authority to the effect that the Graves Amendment has pre-empted New York State Vehicle & Traffic Law 388. The Court sited the recent decisions of Hernandez v. Sanchez, 40 A.D.3d 446, 836 N.Y.S.2d 577 (1st Dept., 2007); Jones v. Bill, 34 A.D.3d 741, 825 N.Y.S.2d 508 (2nd Dept., 2006). Further, the Court noted that the Constitutionality of the statute had been upheld in two out of three Federal Court cases found to have considered the question. This case is significant in that it shows the New York State Court s acknowledgment that the Graves Amendment pre-empts the New York State Vehicle & Traffic Law 388 which holds the owner vicariously liable for the negligence of the driver of a vehicle. For additional information, please contact Chris Devanny at: cdevanny@kentmcbride.com PA SUPERIOR COURT AFFIRMS NEED FOR STRICT COMPLIANCE WITH RULES OF CIVIL PROCEDURE The Pennsylvania Superior recently held that failure to comply with the rules of civil procedure in service of a complaint will act to void an entry of default judgment. Brooks v. B&R Touring Company, 939 A.2d 398 (Pa. Super. 2007). In this case, Plaintiff Brooks filed a complaint naming only B&R Touring Company ( B&R ) as a Defendant. The complaint was then served on B&R, as well as the tour bus operator Beverly Frey ( Frey ). It is important to note that at the time of service, Frey was not a named Defendant on the complaint. Plaintiff then filed an amended complaint which added Frey as one of the named Defendants. The amended complaint was not served on Frey. After such time as was appropriate, Plaintiff obtained a default judgment against Frey for her failure to answer the complaint. Frey then filed a petition to strike/open the default judgment. The trial court denied Frey s petition and Frey appealed to the Superior Court. The Superior Court was asked to determine whether the trial court erred in refusing to strike the default judgment when the amended complaint naming Frey was never actually served on her. In reaching their decision, the Superior Court reasoned that [i]t is a fundamental legal premise that in order to enter a judgment against a person, the court must first possess jurisdiction over that individual and that judgment is deemed void if it is entered against a party over which the court does not possess such jurisdiction. The Court went on to reason that in order to possess jurisdiction over an individual, that individual must be served with a complaint in compliance with the rules of civil procedure. Because the amended complaint, which was the pleading actually naming Frey as a Defendant, was not served on Frey, there were fatal defects in effectuating proper service under the rules of civil procedure. Accordingly, the Superior Court reversed the trial court s decision and held that they were required to strike the default judgment. In so holding, the Court relied on the Pennsylvania Supreme Court s holding in Reichert v. TRW, Inc., Cuttin Tools Div., 611 A.2d In Reichert, one of the Defendants, Falcon, was served with the original complaint. After such time, Reichert filed an amended complaint which Reichert failed to serve on Falcon. Reichert then pursued, and obtained, a default judgment against Falcon. After the trial court granted Falcon s petition

3 to strike/open the default judgment, Reichert appealed to the Superior Court. The Superior held that because service of the original complaint was proper, the default judgment should stand. Falcon appealed to the Pennsylvania Supreme Court. In reversing the Superior Court s decision, the Supreme Court held that the filing of the amended complaint acted as a withdrawal of the original complaint; therefore, unless the default was pursued before the filing of the amended complaint, there was in essence no service on Falcon. The Brooks case is important in that it serves to solidify the Superior Court s position to uphold the principles set forth by the Pennsylvania Supreme Court in Reichert. It shows a consistency of emphasis on the importance of following the letter of the law when it comes to compliance with the rules of civil procedure and displays the Supreme Court s reluctance on appreciating any exceptions or loopholes. For additional information, please contact Dominique Ryan at: dryan@kentmcbride.com PENNSYLVANIA SUPREME COURT APPLIES FREQUENCY, REGULARITY AND PROXIMITY STANDARD TO MESOTHELIOMA CASE T he Pennsylvania Supreme Court has determined that the frequency, regularity and proximity standard applies to all asbestos cases. Gregg v. V-J Auto Parts, Inc., 943 A.2d 216 (Pa. 2007)(en banc). In this case, Plaintiff filed a Complaint on behalf of his father to recover damages for alleged exposure to asbestoscontaining products. Plaintiff alleged that his father was exposed through his employment, his service in the U. S. Navy and his maintenance of his personal vehicles. Appellant was an auto parts store where Plaintiff s father allegedly purchased material for maintenance of his vehicles. Appellant filed Motion for Summary Judgment arguing Plaintiff failed to prove sufficient frequent and regular exposure to sustain a claim. The trial court granted Summary Judgment. The Superior Court reversed and remanded. The trial court once again granted Summary Judgment. The Superior Court once again reversed the trial court and remanded the case. Appellant petitioned for Allowance of Appeal to the Supreme Court. The Supreme Court found that the frequency, regularity and proximity test applies to all asbestos cases regardless of whether the evidence of exposure to a Defendant s product is direct, circumstantial or a combination of both. The Pennsylvania Supreme Court further held that... it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity to a plaintiff s /decedent s asserted exposure, a jury would be entitled to make the necessary inference of a substantial causal connection between the defendant s and the asserted injury. Gregg v. V-J Auto Parts, Inc., supra. This case makes it clear that the frequency, regularity and proximity test in all cases, specifically including mesothelioma and cancer claims, mandates trial courts to require Plaintiffs to produce sufficient evidence to overcome Motions for Summary Judgment. For additional information, please contact Theresa Mullaney at: tmullaney@kentmcbride.com SUPREME COURT OF PENNSYLVANIA HOLDS THAT AN INSURED S REQUEST FOR REDUCTION IN LIABILITY COVERAGE DOES NOT AFFECT PREVIOUS ELECTION OF UIM LIMITS LESS THAN LIABILITY LIMITS I n a recent decision that reversed the ruling of the Pennsylvania Superior Court, the Supreme Court held that an insured s decision to reduce their liability limits did not require an additional election of reduced UM/UIM coverage. Blood v. Old Guard Ins. Co.,934 A.2d 1218 (2007) In this case, the insured, Jay Blood, first applied for insurance with Old Guard Insurance Company ( Old Guard ) in At that time, he selected $500, in liability limits, but elected reduced UM/UIM coverage at $35,000, with the stacking option. In June of 2000, the insured reduced the liability coverage to $300,000.00, but made no selections relative to UM/UIM coverage. Mr. Blood was injured while a passenger in another vehicle in August of He collected liability limits of $25,000 from State Farm, who insured the operator of the vehicle in which he was a passenger. The insured then filed a underinsured motorist (UIM) claim under his Old Guard policy. Old Guard paid $105,000.00, which represented the $35, UIM limits, multiplied by the insured s three (3) vehicles. Mr. Blood then filed a declaratory judgment action claiming that the UIM limits should have been $900,000.00, which represented $300, times the three (3) vehicles. His position was that the Motor Vehicle Financial Responsibility Law ( MVFRL ) required Old Guard to obtain a new written sign-down of UM/UIM coverage following the reduction of liability coverage. Without doing so, the insured claimed to have UM/UIM coverage of $300,000, stacked.

4 The trial court granted summary judgment for Old Guard. The Superior Court, in a split decision, reversed and held that the requirement of written reduction of UM/UIM coverage limits is to avoid confusion and litigation by providing an assumption that in absence of a written election, the coverage limit is equal to the liability coverage limit. The Supreme Court reversed the Superior Court, and determined that the MVRFL does not provide any support for insured s contention that change in liability coverage had any effect on an otherwise valid 1734 reduction of UM/UIM coverage. Further, they held that it made no sense to reason that the insured s written request to reduce liability limits would operated to increase the UM/UIM limits. Therefore, the previous reduction of UM/UIM limits was still in effect. For additional information, please contact Josh Ferguson at: jferguson@kentmcbride.com I n LEGISLATIVE UPDATE RULE GOVERNING PRELIMINARY OBJECTIONS IN PHILADELPHIA IS REVISED January 2008, Phila. Civ. Rule 1028(c) was amended to implement a new procedure for filing Preliminary Objections in Philadelphia County. The Preliminary Objections are now required to be filed with a Memorandum of Law. Further, responses to Preliminary Objections are only necessary to Objections raising an issue under Pa. R. C. P (a) (1), (5), (6), (7) or (8). The new rules also require that the Preliminary Objections contain a Notice to Plead. An answer need not be filed to Preliminary Objections raising an issue under Rule 1028 (a) (2), (3) and (4). For additional information, please contact Theresa Mullaney at:tmullaney@kentmcbride.com RECENT VERDICTS THIRD CIRCUIT AFFIRMS DISMISSAL OF MEDICAL MALPRACTICE CASE INVOLVING MISSING CHILD The case that gained notoriety in Philadelphia nearly 10 years ago, begins with a house fire that occurred in Philadelphia on December 15, The Plaintiff/Mother ran into the second floor bedroom where her infant daughter had been in her crib. Upon entering the room, Plaintiff did not observe her daughter in the crib. Plaintiff attempted to re-enter the bedroom but was unable to due to smoke and flames. The Philadelphia Fire Department arrived shortly thereafter and extinguished the fire in approximately 14 minutes. Plaintiff informed the Fire Department and/or Fire Marshall s office of the situation regarding her daughter. A search for the infant s body was conducted by the Fire Marshall but was unsuccessful. The Pathologist, Patricia Kaufman, M.D., on behalf of the Philadelphia Medical Examiner s office, also conducted an on the scene investigation to look for remains of the infant s body. Once again, the search was unsuccessful. Based on the failure to discover any remains, a Certificate of Death was not issued and the Medical Examiner s Office stated that the infant is presumed to have been completely consumed by the fire. As of that moment, it appeared to be another tragic house fire. Fast forward to January 2004 when the Plaintiff/Mother was attending a child s party and spotted a six-year old girl whom Plaintiff thought bore a striking resemblence to herself. After obtaining a lock of the little girl s hair, Plaintiff had it analyzed. From this it was determined that the child s DNA and the Plaintiff s DNA matched. This little six-year old girl turned out to be Plaintiff s infant daughter that had presumably died in the December 1997 fire. An investigation discovered that the infant had been kidnapped by a woman who had apparently started the fire to cover-up the kidnapping. The Plaintiff/Mother filed a civil lawsuit in Federal Court against The City of Philadelphia, and other entities, including Patricia Kaufman, M.D. Kent & McBride Partner John P. Shea represented Dr. Kaufman. The allegations against Dr. Kaufman, as well as against the other Defendants, were that under the Federal Missing Child Statute, the City of Philadelphia and its agents (including Dr. Kaufman) were required to report the child as missing to the United States Department of

5 Justice. Under the Missing Child Statute, local law enforcement agencies are required to report each case of a missing child under the age of 21 to the National Crime Information Center of the United States Department of Justice. Plaintiff asserted that since the Defendants did not do as such, they deprived Plaintiff and her daughter their rights as guaranteed under the statute. The girl s biological father also filed suit against some of the Defendants, including Dr. Kaufman. The Defendants filed Motions to Dismiss under Rule 12(b)(6). In addition to arguing that the statute did not create an individual right of enforcement, counsel for Dr. Kaufman also argued that the statute did not apply to the Medical Examiner s officer or specifically, did not apply to Dr. Kaufman. Oral arguments were held before The Honorable Gene E. K. Pratter. After presiding over oral arguments and reviewing all supporting briefs, Her Honor, in a 44 page opinion, granted the Defendants Motions to Dismiss. Plaintiffs then filed an appeal to the Third Circuit Court of Appeals. After the parties filed briefs and presented oral argument on the appeal, the Court of Appeals affirmed the District Court s decision granting the Defendants Motions for Dismissal. Plaintiffs did not file a petition for re-hearing. For additional information, please contactjohn Shea at: jshea@kentmcbride.com DEVANNY OBTAINS DEFENSE VERDICTS IN NY AUTO CASES Kent & McBride Senior Associate, Christopher Devanny, was recently successful in obtaining a defense verdict in a personal injury lawsuit filed as a result of an automobile accident. The case was venued in Queens County, Civil Court. The Plaintiff was a passenger in Mr. Devanny s client s vehicle. The Co-Defendant failed to yield at a stop sign. The Plaintiff contended that Mr. Devanny s client was at fault for failing to make proper observations when entering the intersection and increasing his speed even though he observed the Co-Defendant s vehicle proceeding through the stop sign. Mr. Devanny argued that his client had the right to expect that the Co- Defendant would yield at the stop sign. Moreover, the client had to accelerate in order to avoid being struck broadside. At the conclusion of the liability phase of the trial the jury rendered a defense verdict in favor of Mr. Devanny s client. The jury found the Co-Defendant completely liable for the accident. Mr. Devanny also recently obtained defense verdicts in the Supreme Court in Queens County and Suffolk County New York involving claims for uninsured motorist benefits. In those actions, both Claimants sought uninsured motorist benefits because the tortfeasors fled the scene. The Claimants carriers filed petitions to stay the arbitrations, arguing that Devanny s clients were involved in the accident. Through witness testimony and documentary evidence Mr. Devanny was able to prove that his clients were not involved in the accidents. Thus, the Court dismissed the claims against his clients. For additional information, please contact Chris Devanny at: cdevanny@kentmcbride.com Off The Record WELCOME NEW ATTORNEYS David A. Arndt David graduated from Delaware State University in 1996, and Widener University School of Law in While attending law school, David was employed as a Sergeant with the Frederica Police Department and has worked as a Law Enforcement Agent for the Delaware DNREC. David is admitted to the Bar of Delaware and has focused his practice in workers compensation, occupational disease, product liability, toxic tort, personal injury, and motor vehicle claims. D. Rebecca Higbee Rebecca attended Rutgers University and graduated from Rutgers University School of Law-Camden, where she was New Developments Editor of the Journal of Law & Public Policy, represented clients through the Rutgers Civil Practice Clinic's Elder Law and LEAP Legal Programs, and received the Bar Association Land Use Law Award for Excellence in the Study of Land Use Law. Rebecca is licensed to practice law in New Jersey and Pennsylvania. Kristen L. Sarnocinski Kristen attended Moravian College and graduated from Widener University School of Law in Harrisburg, PA in While in law school, Ms. Sarnocinski was a member of the Moot Court Team. She also interned as a law clerk for the Delaware Attorney General's Office in Wilmington, DE and for the President Judge of Dauphin County, the Honorable Richard A. Lewis. She was admitted to the Pennsylvania and New Jersey State Bars in Her areas of practice include motor vehicle litigation, general civil litigation, toxic tort and commercial premises litigation.

6 K&M PARTNER: JEFFREY W. MCDONNELL Congratulations to Jeffrey McDonnell for recently accepting a partnership at Kent & McBride, P.C. Jeff concentrates his practice in medical malpractice, products liability and general civil litigation. He works out of Kent & McBride s Philadelphia office. Jeff was also recently elected to the Board of Supervisors of Montgomery Township, Montgomery County, PA. As one of five Board members, he will help manage a budget of $12 million and ensure that the approximately 24,000 community residents receive essential governmental services, such as police and fire protection. He will also oversee all local land development planning. Congratulations and Best of Luck! Kent & McBride On the Record is created and distributed for informational purposes only. The distribution of Kent & McBride On the Record is in no way intended to create an attorney/client relationship or represent legal advice. Kent & McBride On the Record is the sole property of Kent & McBride, P.C., with all rights reserved. Montgomery County Office 3031C Walton Road Suite 202 Plymouth Meeting, PA Fax Philadelphia Office 1617 JFK Boulevard Suite 1200 Philadelphia, PA Fax New York Office 420 Lexington Avenue The Graybar Building, 29th Floor New York, NY Fax South Jersey Office 1040 Kings Highway North Suite 600 Cherry Hill, NJ Fax North Jersey Office 555 Route 1 South Woodbridge Towers, 4th Floor Iselin, NJ Fax Atlantic City Office 2311 Atlantic Avenue Suite 201 Atlantic City, NJ Fax Delaware Office 1105 Market Street 5th Floor Wilmington, DE Fax Kent & McBride... ON THE RECORD 1617 JFK BOULEVARD, SUITE 1200, PHILADELPHIA, PA 19103