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BREAKING NEWS: Increase in UIM Policy Limit Considered a ‘Purchase’ Requiring New Stacking Waiver

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UIM Coverage

On February 5, 2018, the federal District Court for the Eastern District of Pennsylvania ruled that an increase in Under Insured Motorist (UIM) benefits is a new purchase of insurance coverage.  As such, automobile insurance carriers are required to obtain a new waiver of the stacked benefits under the auto insurance policy.

Stacked benefits, in UIM coverage, means that a person who purchases automobile insurance on more than one vehicle under the same policy can elect to purchase up to double the UIM insurance coverage.  The Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) requires an insurance carrier to offer stacked benefits to every policy holder who purchases insurance.  If the policy holder decides not to take advantage of the stacked benefits, the insurer must obtain a written waiver of those benefits.

For instance, if you insure two cars for $20,000.00 each, you are eligible for stacking benefits that would allow you claim up to $40,000.00 on each vehicle.  The MVFRL requires that the insurer offer this option to each and every insured.

If the insured declines, then the insurer must obtain an express written waiver of the option to purchase “stacked” benefits.

According to the Pennsylvania Eastern District Court in Barnard v Travelers, No. 17-00290, whenever an insured chooses to increase the amount of coverage under her UIM policy, the insurance carrier must obtain a new written waiver of stacked benefits as required by the MVFRL.

Background

Michelle Barnard, the Plaintiff in this case, held a UIM policy with The Travelers Home and Marine Insurance Company, the Defendant, since 2007.  When she initially secured the policy, she had UIM coverage limits of $50,000.00 for each of her two vehicles.

At the time of purchasing the initial insurance coverage, she signed a written waiver of stacked benefits under that policy, i.e., Ms. Barnard waived her right to stack UIM benefits under her policy.  With that, the maximum amount of UIM benefits that she could claim, and ultimately receive, under her policy was $50,000.00.

However, in May 2009, Ms. Barnard increased her third-party liability coverage limits under the policy from $50,000.00 to $100,000.00 on each insured vehicle.  So, this meant she would have been entitled to claim up to $200,000.00 on each car, as per her allowable stacked benefits.  Notably, Ms. Barnard did not sign any written waiver of her stacked benefits upon this increase in coverage.

Thereafter, when Ms. Barnard was injured in a car accident on June 17, 2016, she submitted a UIM claim under her policy with Travelers Insurance.  Travelers tendered $100,000.00 in UIM benefits to Ms. Barnard, assuming that she had waived her option to stack her UIM benefits in 2007.  Ms. Barnard, however, rejected this tender and, claiming that she was entitled to more than was tendered, she sued the Travelers.

Increase in UIM limit is a ‘Purchase’

Travelers argued before the Eastern District Court that, among other things, it had no duty to obtain a new waiver of stacked benefits under the policy, even after Ms. Barnard had increased her liability insurance coverage limits in 2009.  In other words, Travelers claimed that the initial 2007 waiver was still in operation and effective, despite the increased coverage purchased by Ms. Barnard in 2009.

The federal district court, however, rejected Travelers’ argument.  Judge Gerald McHugh held that the language of the MVFRL requires a renewed waiver of stacked benefits when liability coverage limits are increased and/or purchased.

According to Judge McHugh, because an increase in coverage under an existing policy requires that an insured pay a higher premium, an increase in coverage limits also qualifies as a “purchase” as defined by the MVFRL.  As a result, the court ruled that Travelers should have obtained a new waiver of UIM stacked benefits, in 2009, when Ms. Barnard increased her liability insurance limits.  Pursuant to the district court’s ruling, Travelers was responsible, and required, to pay Ms. Barnard up to $200,000.00 in UIM benefits under her policy.[1]

For questions relating to the MVFRL and Pennsylvania auto insurance coverages, please contact Matthew R. Zwick, partner of Zwick Law, at (814) 371-6400 or mrz@zwick-law.com, to schedule a legal consultation.  At Zwick Law, we’re always here for you.[2]

 

[1] Note: Travelers filed an appeal of the district court’s decision to the United States Third Circuit Court of Appeals, which remains pending at the time of publication of this article.

[2] Disclaimer: The use of the Internet, Facebook and/or any other form of social media communication with the firm or any individual member of the firm does not establish an attorney-client relationship.  Time-sensitive information should be directed immediately to the office of Zwick Law at (814) 371-6400.

 

In Pennsylvania, Your Doctor Must Personally Obtain Your Informed Consent

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What is “informed consent?”  Informed consent means that a physician must inform the patient of all material risks, complications, facts and benefits involved in any proposed, nonemergency surgical treatment, so that the patient can make an informed decision about whether to undergo surgical intervention.

Informed Consent

The Supreme Court of Pennsylvania recently decided that doctors in Pennsylvania have an affirmative duty to obtain their patients’ informed consent, and this affirmative duty is non-delegable.  As such, this duty is only discharged when the physician personally obtains the client’s consent. The Supreme Court issued this ruling in Shinal v Toms, 162 A.3d 429 (Pa. 2017).

Under Pennsylvania law, before a physician conducts any proposed, non-emergent treatment on a patient, the patient must receive information concerning the nature of the proposed procedure, as well as the expected, and the possibly unexpected, risks and results.  Generally speaking, in Pennsylvania, similar to the majority of other jurisdictions, a physician has an affirmative duty to advise a patient of the facts, risks, and complications of, and alternatives to, a procedure.  This duty is required under the Pennsylvania’s Medical Care Availability and Reduction of Error (“MCARE”) Act.  It is only with this information, that a patient can make an educated or “informed” decision regarding the available options and/or alternatives to medical procedures.

According to the majority opinion of the Supreme Court in Shinal, the aforesaid information must be given, and the consent obtained, by the physician personally (rather than by a physician assistant, nurse or medical aide).  In other words, unless the procedure-related information is provided to a patient by a treating physician, the duty to adequately inform is not discharged.

Background

Mrs. Shinal and her husband sued the defendant, Dr. Toms and Geisinger Clinic in a medical malpractice suit.  Mrs. Shinal, who had been diagnosed with a recurrent non-malignant tumor around her brain, alleged that Dr. Toms failed to properly inform her of the risks associated with a surgery to remove the tumor.

Dr. Toms, denying that he had breached his duty to inform Mrs. Shinal, countered that in a consultation he conducted with the Shinals on November 26, 2007, he had explained the risks of the different approaches to the surgery.  These risks included possible damage or injury to Ms. Shinal’s carotid artery and optic nerve.

According to Dr. Toms, he felt that Mrs. Shinal had understood the risks and wanted him to try and totally remove the tumor which, though risky, would give her a better shot at long-term survival.  Besides, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant (“PA”) on December 19, 2007, and the PA had gone through the risks of the procedure with her again at that time.

On January 31, 2008, Mrs. Shinal had an operation to remove the tumor, during which Dr. Toms perforated her carotid artery.  As a result of the perforation, Mrs. Shinal sustained a hemorrhage, stroke, brain injury and partial blindness.  This medical malpractice lawsuit ensued shortly thereafter.

Jury Instruction: Informed Consent

The Supreme Court was invited to overrule the decisions of the trial court and the Superior Court, both of which exonerated the Defendant.  The reasoning at the lower court and Superior Court had been that the Defendant was not obligated to personally inform the Plaintiff of all of the facts, risks, and complications of the procedure.  The Superior Court further ruled that the Defendant doctor could be assisted in this duty by his PA.

The trial court judge, before the finding of the jury, directed that the jury could consider any information provided to Mrs. Shinal by “any qualified person” working as an assistant to Dr. Toms.

However, the Supreme Court, with a majority of four justices concurring, held that a doctor was personally obligated to inform a patient of the risks and benefits of the procedure, as well as obtain her informed consent to proceed with the proposed treatment.  The case was, therefore, ordered to be retried because, as in the opinion of the Supreme Court, the trial court judge was wrong in his instructions to the jury.

The aggressive attorneys at Zwick Law are standing by to provide you with the legal advice and representation that you need and deserve.  We offer personalized attention and we work tirelessly to maximize the value of our clients’ injury claims.  Our experienced medical malpractice attorneys are always here to discuss your case and provide you with the peace of mind you desrve.

For questions relating to an medical malpractice issue, contact Matthew R Zwick, partner of Zwick Law, at (814) 371-6400 or mrz@zwick-law.com, to schedule a legal consultation and free case analysis.  At Zwick Law, we’re always here for you.[1]

 

 

[1] Disclaimer: The use of the Internet, Facebook and/or any other form of social media communication with the firm or any individual member of the firm does not establish an attorney-client relationship.  Time-sensitive information should be directed immediately to the office of Zwick Law at (814) 371-6400.

 

What is Workers’ Compensation?

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Have you been injured on the job? Maybe you twisted your ankle while rushing into the elevator for that meeting with the boss or sprained your wrist while trying to beat that deadline. If you have suffered a work-related injury, you may be entitled to benefits under the Pennsylvania workers’ compensation laws.

workers' compensation

workers’ compensation

The Pennsylvania Workers’ Compensation Act (the “Act”) was enacted to provide no fault recourse for workers who suffer injuries in the workplace.  The Act ensures that no worker will go without some form of compensation for workplace-related injuries. The Act thus requires that all Pennsylvania employers register with an insurer for workers’ compensation coverage.

Every Pennsylvania worker is covered by the Act.  So, even if your employer has failed to procure workers’ compensation insurance coverage, you are still able to obtain compensation benefits under the Uninsured Employer Guaranty Fund.

What is workers’ compensation?

Workers’ compensation laws and regulations provide for you in the event of work-related injuries.  The Act provides financial, medical and other related benefits and support to workers who have been injured on the job.

The Act ensures that injured workers can obtain no-fault compensation for work-related injuries.  However, this “no-fault” insurance coverage comes with a compromise — your right to sue your employer for the injury.

What are some of the requirements to obtain workers’ compensation?

Before you can be eligible to receive benefits under the Pennsylvania workers’ compensation law, you must fulfil some requirements

  1. There must be an employer/employee relationship.

While this is usually straightforward, there are some situations when it is difficult to determine whether the relationship is an employment relationship under the law. For instance, an independent contractor does not qualify as an employee. For the purpose of determining whether a person qualifies as an employee, four things are usually considered:

  • The right of the employee to select the employer;
  • The employer’s right to “sack” the employee;
  • The employer’s power to direct the manner of performing the job; and
  • The employer’s power to control the employee;

Even if you don’t qualify as an employee under these conditions, you may still be an employee under the definition of a “statutory employer”.  For instance, if you are an employee of a sub-contractor that has been hired by a general contractor for a construction-type job, you may be entitled to compensation for work-related injuries. Your employer in this case is a “statutory employer.”

  1. The injury must have occurred under Pennsylvania jurisdiction

If you are hired in Pennsylvania, but often have to work in other states, it won’t matter whether the work injury happen in Pennsylvania, or some other jurisdiction.

  1. You must have suffered the injury in the course of employment

Each situation is usually decided on its merits, on a case-by-case basis. You don’t have to be actively working when the injury occurs, though. You could be playing tennis as part of the company’s sports team or attending a party for the company and possibly still be covered. The important requirement is that you must have been furthering the interest of your employer.

What type of workers’ compensation are you entitled to receive?

Under the Act, you are generally compensated for any disability that occurs as a result of work-related injuries.

Disability, under the Pennsylvania workers’ compensation law, is defined by work loss. A disability may result in total disability, temporary total disability or temporary partial disability. It is total disability scenarios when you are completely unable to work because of the work injury.

The Act defines an “injury” to include any condition caused by an accident or activity at work. As such, injuries need not be caused by accidents alone. Injuries caused by having to do the same thing over and over, such as typing with your back bent or injuries cause by abnormal working conditions, would also qualify as an “injury.”

What benefits can you receive under the Pennsylvania workers’ compensation law?

Depending on your injury, you may be entitled to any one or more of the following benefits:

  • Medical benefits. This would typically include the cost of obtaining medical treatment for the injury.
  • Wage benefits. You are generally entitled to compensation of up to two-thirds, sometimes more, of your average weekly wage. These benefits are not taxable.
  • Death benefits. This would be applicable only in the event of death caused by a wok-related injury. These benefits would be paid to the family or survivors of the employee.
  • Scarring benefits. This compensation is applicable in the event of disfigurement caused by work injury.
  • Specific loss benefits. If loss of limbs is involved, compensation would be payable for that specific loss. This does not mean that the whole limb must be lost though. It would suffice if it is shown that it has been made useless for the job.

How can you obtain workers’ compensation?

The Pennsylvania workers’ compensation law requires that workers who suffer any work-related injury must report the injury to their employer within 120 days – this period starts to run from the date of the injury.  You should always report a work-related injury to your employer, and make sure that an accident report is generated.

Your employer then either accepts or denies the claim. If the claim is denied, you can file a lawsuit to establish your work-related claim. You do this by filing a Claim Petition.

While there is no law that says you can’t fight for the claim on your own, it is generally a good idea to get in touch with an experienced workers’ compensation attorney from the moment you get injured.  The experienced worker’s compensation lawyers at Zwick Law understand how vital quality representation is to your claim.  We are prepared to review your situation and take over the time-consuming and stressful task of negotiating and fighting for you.

For questions relating to a work-related injury, contact Matthew R Zwick, partner of Zwick Law, at (814) 371-6400 or mrz@zwick-law.com, to schedule a legal consultation and free case analysis.  At Zwick Law, we’re always here for you.[1]

 

[1] Disclaimer: The use of the Internet, Facebook and/or any other form of social media communication with the firm or any individual member of the firm does not establish an attorney-client relationship.  Time-sensitive information should be directed immediately to the office of Zwick Law at (814) 371-6400.