News In Brief

Pittsburgh – Five of the state Supreme Court justices braved the reported winter storms last week in Pittsburgh to hear oral arguments in a couple of notable cases in the immunity and insurance arenas. Two justices, Sandra Schultz Newman and Russell Nigro, did not make it.

One case, Yanno v. Consolidated Rail Corp., PICS Case No. 99-2398 (Pa. Super. Dec. 29, 1999) Johnson, J.; Musmanno, dissenting (15 pages), could finally determine how cases involving the Recreational Use of Land and Water Act should be handled.

The plaintiff fell off a train trestle on property owned by Consolidated Rail Corp. The high court was asked to determine whether Conrail was immune under RULWA and what factors should be used to determine whether immunity is applicable.

The act was created to encourage property owners to open up their land to the public for recreational use by providing that they do not assure the property is safe, do not owe a duty of care to those who use the property and do not assume responsibility for any accidents on the property.

Since its adoption, courts have found themselves attempting to sort out exactly what kind of land the statute protects.

Conrail’s lawyers argued that immunity should apply. When asked by Justice Ralph J. Cappy if the company had some social responsibility to upgrade the structure, attorney J. Lawston Johnston of the Pittsburgh firm Dickie McCamey & Chilcote said the act does not require a landowner to make improvements.

Johnston maintained that the property is used solely for recreation, is located in a remote, open area and that the physical change did not constitute improvements.

The plaintiff’s attorney, Edwin H. Beachler of Caroselli Beachler McTiernan & Conboy of Pittsburgh, argued that Conrail opened its property for public use, it opened a piece of property with improvement, which, if not maintained, could cause injury.

Justice Ronald D. Castille asked Johnston if that case doesn’t give “a hint” that landowners are responsible for the upkeep of a structure.

In another of the cases argued, Sunbeam Corp. v. Liberty Mutual Insurance, PICS Case No. 99-2010 (Pa. Super. Oct. 26, 1999) Musmanno, J.; McEwen, P.J. & Del Sole, J., concurring & dissenting (29 pages), lawyers for Sunbeam Corp. argued the court should consider surrounding circumstances when interpreting the phrase “sudden and accidental” in an insurance contract to determine whether there is ambiguity in the contract wording.

The meaning of the phrase “sudden and accidental” is at the core of most commercial liability insurance policies.

Attorney David Binder of the Philadelphia firm Raynes McCarty Binder Ross & Mundy said a looser reading of the phrase “sudden and accidental” is supported by a memorandum written in 1970 by insurance industry representatives who petitioned Pennsylvania’s insurance department to add the pollution exclusion to general liability policies.

The standard policy precludes coverage for damages caused by environmental pollution or contamination under what’s commonly called the “pollution exclusion clause.” An exception to the exclusion of coverage for damages caused by environmental pollution usually exists if the release of pollution or chemicals is “sudden and accidental.”

He also argued insurers should not be permitted to violate insurance regulatory laws by enforcing a policy exclusion in a manner different than was represented to gain approval for the exclusion’s use.

Joseph G. Manta of Klett Rooney Lieber & Schorling’s Philadelphia office, argued Sunbeam was asking the high court to override a long established guideline that would “create uncertainty in commercial markets.”

He added that every insurance commissioner during the last 30 years did not take action to reverse the industry’s earlier standards and said their lack of action “speaks volumes” about the validity of the insurance regulations.

Justice Ralph J. Cappy questioned the language of the policy in 1970 and asked why it was changed if the existing language was not going to adversely affect policyholders.

Manta said Liberty wanted to clarify language at that time.

High Court Affirms ‘Fear of AIDS’ Ruling

Philadelphia – Because Pennsylvania does not recognize a cause of action for fear of AIDS, a plaintiff could not sue for the emotional distress he allegedly suffered after being misdiagnosed with the disease, according to a recent Supreme Court ruling.

The justices made the decision in a one-page per curium order, affirming the Superior Court.

The plaintiff, referred to as John Doe, was misdiagnosed as HIV positive. He went through a year believing he had the disease and being treated for it before learning the truth.

According to the Superior Court opinion in Doe, the plaintiff went to Philadelphia Community Health Alternatives for an HIV test after an “unsafe sexual experience” in January 1993. PCHA testified the results of that first test were inconclusive, so it advised Doe to be retested. The results of the second test were also inconclusive.

PCHA asked Doe to take a third test, which would take into consideration the fact that he was from Africa. PCHA told Doe he tested HIV positive on March 30 and referred him to Dr. Michael L. Silverman for further treatment.

Silverman’s treatment included T-cell count testing, prescribing AZT and administering influenza vaccines. Silverman also recommended Doe participate in a clinical study of AIDS patients with tuberculosis. When Doe was screened for the study around May 1994, it was discovered that he was not HIV-positive.

Parents Can Sue Over AIDS Foster Child