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Defense Digest

Pennsylvania Superior Court Ends Split of Authority Based on Allegations of Recklessness Within a Negligence Complaint

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Brad E. Haas

Key Points:

  • The Superior Court recently addressed the long unsettled issue regarding ability of plaintiffs to allege recklessness in negligence complaint.
  • The court’s opinion removes the requirement that plaintiffs plead allegations of reckless conduct with particularity.

In what can be seen as a setback for the defense bar, the Pennsylvania Superior Court recently addressed the long unsettled issue regarding the ability of plaintiffs to allege recklessness in a negligence complaint. Out of an abundance of caution, these types of allegations have routinely been subject to preliminary objections, to avoid the potential for punitive damages. In Monroe v. CBH2O LP, d/b/a Camelback Ski Resort, 2022 WL 17087072 (Pa. Super. Nov. 21, 2022), the Superior Court held that, under Pa.R.C.P. 1019(b), allegations of recklessness and/or reckless conduct fall under “state of mind” allegations and, thus, may be pled generally. The opinion removes the requirement that plaintiffs plead allegations of reckless conduct with particularity.

The Monroe case arose out of an accident involving a zipline. While the court’s review was based upon the granting of a motion for judgment on the pleadings related to allegations of recklessness, the Superior Court made clear that its holding would encompass cases in which a defendant files preliminary objections to a complaint on the same grounds.

The complaint in Monroe contained general allegations of recklessness, as follows:

[Defendant’s] recklessness, carelessness and negligence included, but was not limited to:

a. Failing to properly monitor the speed of the zipline, in disregard of the safety of [Plaintiff];

b. Failing to use reasonable prudence and care by leaving [Plaintiff] to land with no help, in disregard of the safety of [Plaintiff];

c. Failing to use reasonable prudence and care to respond to [Plaintiff]’s safety concerns during the ziplining, specifically when [Plaintiff] asked [Defendant] to slow down the ziplining machine, in disregard of the safety of [Plaintiff]; and,

d. Failing to inspect and/or properly monitor the ziplining machine engine, in disregard of the safety of [Plaintiff].

The court began its discussion by reviewing the language of Pa.R.C.P. 1019(b), which states:

(b)       Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.

The court stated, “The plain language of this Rule thus indicates that, while a party must plead the material facts that support a cause of action, a party may generally aver knowledge, intent, and state of mind.” Monroe, 2022 WL 17087072, at *8. The Monroe court went on to discuss the interplay between negligence and recklessness, stating, “In other words, gross negligence and recklessness are states of mind; they are forms of negligence, not independent causes of action. Thus, our procedural rules allow the plaintiff to plead gross negligence and recklessness generally.” Id. at *9.

The Monroe court held that allegations of recklessness are “subsumed” within the negligence allegation. See Id. at *9-10. As such, these allegations do not require a separate, more specific type of pleading. The court opined that doing so would place an undue burden on the plaintiff to plead specific facts related to the alleged recklessness at the pleading stage. It further noted that only through discovery and expert opinion could the plaintiff determine what the defendant knew or should have known about the risk involved in a given situation. The opinion further stated that, only upon the completion of discovery, is a plaintiff required to produce evidence of recklessness and that, should a plaintiff fail to meet this burden, summary judgment should be entered on the claims of recklessness.

In a footnote to the opinion, the court discussed its awareness of the inconsistent rulings by various Pennsylvania trial courts and specifically stated that requiring a plaintiff to plead specific facts of recklessness was a misapplication of rule 1019. Id. at *10 n. 6. The court listed several trial level cases which either struck down allegations of recklessness or required a more specific pleading. In addressing these cases, the Monroe court held:

These and all other trial court decisions that have sustained preliminary objections or granted judgment on the pleadings based upon demands for heightened factual averments to support a claim of willful, wanton, or reckless conduct did not accurately apply the law. Our ruling today removes any doubt that, so long as a plaintiff’s complaint (1) specifically alleges facts to state a prima facie claim for the tort of negligence, and (2) also alleges that the defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.

Id.

Based upon the Superior Court’s ruling, it appears that the split of authority amongst Pennsylvania trial courts has been settled and plaintiffs may plead recklessness in nearly every type of negligence case. The court’s holding will undoubtedly lead to an increase in complaints alleging reckless conduct, with defense attorneys being forced to withhold attacking the sufficiency of such allegations until the summary judgment stage, after discovery has closed. Defense counsel will need to remain mindful of the allegations of recklessness throughout a case and strategize their defense to pave the way for an eventual motion for summary judgment to rid the case of any recklessness issue and avoid any chance that punitive damages will be a jury question.

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Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

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