Picadio Sneath Miller & Norton, P.C.

Attorneys at Law

412-288-4000 888-288-4028
Business Litigation.Pittsburgh Strong.®
Main Menu

PSMNLaw Blog

PA Superior Court Rejects "Heeding Presumption" In Strict-Liability, Failure-To-Warn Action

In Dolby v. Ziegler Tire & Supply Co., 2017 Pa. Super. Unpub. LEXIS 791 (Pa. Super. Feb. 28, 2017), a case that proceeded to trial solely on a strict-product-liability, failure-to-warn claim, the Superior Court recently affirmed an Allegheny County Court of Common Pleas decision granting defendants' motion for compulsory nonsuit following plaintiff's case in chief. This unpublished decision provides useful guidance regarding the burden of proof in a failure-to-warn case and whether a plaintiff is entitled to a presumption that had an adequate warning been given, it would have been followed.

In Dolby, the court reaffirmed that three types of product defects - design, manufacturing, and failure to warn - may give rise to strict liability. A plaintiff asserting a failure-to-warn claim must establish two elements: (i) the product was sold in a defective condition, unreasonably dangerous to the user; and (ii) the defect caused plaintiff's injury. Focusing on the second element, causation, the Superior Court held that plaintiff must establish the product user would have avoided the risk if warned - i.e., the user would have heeded the warning. The court rejected plaintiff's argument that this element may be presumed under certain circumstances.

Superior Court Finds that Non-owner Party to Construction Contract Not Indispensable to Mechanic's Lien Action

Jeff web photo.jpg

Recently, the Pennsylvania Superior Court held that a trial court's rationale for concluding that the wife of the property owner and a co-party to a construction contract is an indispensable party to a mechanics' lien claim was in error. The Superior Court held that the statute does not require that the mechanics' lien claimant name all parties to the contract to satisfy the requirements set forth in the mechanics' lien statute; it requires only that the claimant name the owner or reputed owner of the property.

In Schell v. Murphy, 2016 Pa. Super 302 (Pa. Superior, Dec. 2016), the Pennsylvania Superior Court reversed the finding of the Bedford County Court of Common Pleas, which held that the wife of property owner Mr. Murphy, who was not an owner of record of the property but was a co-party to a construction contract for improvements to the property, was an indispensable party to the contractor's mechanics lien action. The trial court held that, despite the clear language of the statute requiring only that the mechanics' lien name the owner of the property, Wife was an indispensable party in this mechanics' lien action. The trial court offered the following.

Construction Consultant Permitted to Pursue Unjust Enrichment Claim against Homeowner

Jeff web photo.jpg

The Superior Court of Pennsylvania, in a "non-precedential" opinion, recently remanded a case to allow a construction consultant to pursue a claim for unjust enrichment against a homeowner, in spite of the lack of either a written or oral contract between the parties.

In Karden Construction Service, Inc. v. D'Amico, 1351 MDA 2015 (Pa. Super. 2016), the court found that plaintiff had no claim against a homeowner for litigation support services rendered to plaintiff's counsel. The court held that the attorney for plaintiff retained the consultant for that purpose and accordingly there was a contract between the attorneys and plaintiff for that retention. Moreover, the court held the litigation was still pending so there could be no claim for those services based on an unjust enrichment claim. However, the court remanded the case to the trial court to proceed on an unjust enrichment claim for services that plaintiff rendered directly to the homeowner defendant that were unrelated to the litigation but were in the nature of construction management of the work on the homeowners new home.

A Quick Look into the Statutory Employer Defense

Reiner, Amber 143 .jpgIn a recent case filed in the US District Court for the Middle District of PA, a general contractor and subcontractor agreed to pay $1.2 million to settle claims after a worker fell at a construction site. In short, the plaintiff fell while walking across a 17 foot high wall on a construction site on the Misericordia University campus in Luzerne County, suffering serious injuries to his ankles and feet.

"Litigation is the New Game of Kings"

Owen-J-Mcgrann-profile.jpgThe Commonwealth Court of Pennsylvania recently issued an important opinion in the municipal construction field: F. Zacherl, Inc. v. Flaherty Mech. Contrs., LLC, 2016 Pa. Commw. LEXIS 22 (Pa. Cmwlth. 2016). Zacherl is a trip down the rabbit hole of construction litigation on public projects.

Injured Worker Not a Borrowed Employee Entitled to Workers' Compensation Coverage but a Leased Worker Under CGL Policy Leaving Facility Operator Uninsured

In Westfield Ins. Co. v. Astra Foods Inc., 2016 PA Super 31 (Pa. Super. Feb. 12, 2016) (opinion by Stabile, J.), the Superior Court of Pennsylvania held that an injured worker who was previously determined by a Workers' Compensation Judge ("WCJ") to not be a "borrowed employee" at the time of his injury and, in turn, barred from workers' compensation coverage, was held to be a "leasedBrandonMcCullough--Insurance Blog Photo 2.jpg worker" under the facility operator's Commercial General Liability ("CGL") policy resulting in coverage being excluded by the employer's liability exclusion in the CGL policy, thereby leaving the facility operator without coverage for the loss.

Jose Noe Castillo Ramos ("Ramos"), an employee of BK Packaging Services, Inc. ("BK"), suffered a severe injury to his hand and arm while cleaning an exhaust fan at a facility operated by Astra Foods Inc. ("Astra"). Ramos filed a workers' compensation claim for his injuries. The WCJ issued a decision finding that Ramos was not a "borrowed employee" of Astra at the time of the injury. As a result of the ruling, there was no coverage for Astra under its workers' compensation policy issued by Westfield Insurance Company ("Westfield"). Ramos filed a personal injury action against Astra in which he received a jury verdict award of $763,413. Westfield, who also issued a CGL to Astra, filed a declaratory judgment action seeking a declaration that the employer's liability exclusion in the CGL policy barred coverage because Ramos was an employee of Astra's by satisfying the definition of "leased worker" in the CGL policy. The trial court granted summary judgment in favor of Westfield finding Ramos was a "leased worker" and, thus, the employer's liability exclusion precluded coverage.

Caution Required in Drafting Additional Insured Provisions in Subcontract

Jeff web photo.jpg

In Kreamer v. Lobar (Carbon County 2015), the Court of Common Pleas found that subcontractor Chowns Fabrication and Rigging did not breach its obligation under its subcontract with general contractor Lobar Inc. in spite of Chowns' failure to secure liability insurance to protect Lobar from any claim arising out of Chowns' operations.

As part of its subcontract, Chowns was required to have Lobar named as an additional insured to Chowns' Commercial General Liability Policy " for claims 'caused in whole or in part by' the subcontractor's negligent acts or omissions." Chowns did in fact obtain a certificate of insurance so providing. However, when the underlying claim was tendered to Chowns' carrier, the claim was denied.

In his complaint, Plaintiff, an employ of Chowns, alleged injury as the result soley of Lobar's alleged negligence. The complaint alleged that Lobar failed to: establish safety standards and policies for the erection of plywood structures; implement a safety plan; appoint sufficient supervisors; adequately train personnel; require workers to remove plywood structures; adequately inspect the job site; inform Kreamer of the dangers of removing the plywood structure; and provide him with assistance and means of doing so.

Office Location And Contact Information

Picadio Sneath Miller & Norton, P.C.
Four Gateway Center 444 Liberty Avenue, Suite 1105
Pittsburgh, PA 15222

Toll Free: 888-288-4028
Phone: 412-288-4000
Fax: 412-288-2405
Map & Directions

Super Lawyers Listed in | Best Lawyers | The world's premier guide US Law | Network, inc DRI | TM | The voice of defense Bar