.
Casualty

Defense Digest

Failure to Join Both Property Owners Leads to Case Dismissal*

Defense Digest, Vol. 29, No. 4, December 2023

December 1, 2023

by Brad E. Haas

*This case has since been reversed on appeal. Please see: How Simone V. Alam Reshaped the Standard for Indispensable Parties in Premises Liability Actions

Key Points:

  • Pennsylvania Superior Court recently held that a plaintiff’s failure to join an indispensable party property co-owner was grounds for full dismissal of his premises liability claim.
  • The case discussed the specifics of proprietary rights and ownership, as two brothers co-owned a property as tenants in common.
  • Plaintiff only named one of the co-owner brothers as a defendant, despite being made aware of the joint ownership.
  • The court held that, under Pennsylvania law, because the claim directly related to the ownership and alleged negligence related to that ownership, both of the owners/brothers were indispensable parties to the matter.
  • Due to the fact that the statute of limitations had passed, the court dismissed the action.

A recent decision by the Pennsylvania Superior Court underscores the importance of having a full understanding of the proprietary rights and ownership of a given property in premises liability suits. In Simone v. Alam, 303 A.3d 140 (Pa. Super. 2023), the Superior Court affirmed a trial court’s granting of a motion to dismiss based upon the plaintiff’s failure to join the co-owner of a property.

The lawsuit stemmed from a fall-down incident at a rental property which was owned and maintained by the defendant, Mohammed Zakiul Alam, and his brother, Mohammed Zafuil Alam. The incident occurred on January 16, 2018. The plaintiff filed her complaint on December 2, 2019, alleging the fall occurred due to an accumulation of ice beneath an outdoor staircase. The complaint named Mohammed Zakuil Alam as the only defendant, and not his brother/co-owner. The plaintiff alleged that the defendant owned, possessed, and controlled the property, such that he was responsible for the defective condition that led to her injuries.

The parties engaged in discovery, including responses to interrogatories and party depositions. Through the responses and the defendant’s deposition, it was made clear that the property was co-owned by the two Alam brothers as tenants in common. Despite this, the plaintiff never sought to amend her complaint.

Following the running of the applicable statute of limitations, on October 7, 2020, the defendant filed a Motion to Dismiss for Plaintiff’s Failure to Join an Indispensable Party. The plaintiff argued that the co-owner’s absence should not impact the case, emphasizing that he had no possession or control over the multi-tenant rental property. However, the trial court granted the defendant’s motion, holding that the unnamed co-owner/brother was an indispensable party. The plaintiff thereafter appealed to the Pennsylvania Superior Court. The question before the Superior Court was: Did the trial court err in dismissing her complaint for failure to join an indispensable party when the absent co-owner merely held a tenant-in-common interest without any possession or control over the property?

The plaintiff contended that the co-owners/brothers were merely tenants in common and that the co-owners’ interest would remain unaffected by a judgment against the unnamed defendant Alam. Additionally, she attempted to argue that there was no specific Pennsylvania case law deeming tenants in common as indispensable parties without exceptions. To support her position, she referenced case law from Washington, which provided that a premises liability action could proceed against the possessor of the premises, irrespective of the absence of the true owner.

The Pennsylvania Superior Court disagreed. The court began its opinion by giving an overview of the relevant proprietary rights involved. In discussing tenancy in common, the court noted that when individuals own property as tenants in common, they own and possess, in equal shares, an undivided interest in the whole property. Regarding those rights as it related to indispensability, the court stated that the legal concept of indispensability is defined by the connection between a party’s rights and the claims of the litigants. It further stated that the rule is not based on administrative convenience, but on the unity and identity of co-owners’ interests. The court discussed the case of Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 29 (Pa. Super. 2015), emphasizing that a party is indispensable when that party’s rights are so connected with the claims that no decree can be made without impairing those rights. The court further noted that Pa.R.C.P. 2227 explicitly states that persons with a joint interest must be joined on the same side as plaintiffs or defendants. 

The court disagreed with the plaintiff’s assertion that there was no on-point Pennsylvania case law, referencing the case of Minner v. Pittsburgh, 69 A.2d 384 (Pa. 1949). In Minner, the Pennsylvania Supreme Court mandated the joinder of all tenants in common in a negligence action arising from ownership of real estate. The Minner mandate was reinforced in the subsequent cases of Moorehead v. Lopatin, 445 A.2d 1308 (Pa. Super. 1982) and Enright v. Kirkendall, 819 A.2d 555 (Pa. Super. 2003). These decisions emphasized that when a party’s liability stems from ownership of real estate held by tenants in common, all co-owners are required to be joined.

The plaintiff’s case, akin to Minner, involved a liability claim arising directly from the unnamed defendant Alam’s ownership of the premises and allegations of negligence based upon that ownership. The Superior Court held that the fact that the Alam brothers were joint owners as tenants in common rendered the co-owner/brother an indispensable party. Based upon this, it affirmed the decision of the trial court, dismissing the plaintiff’s claim.

*Brad is a shareholder in our Pittsburgh, Pennsylvania, office. He can be reached at 412.803.2448 or BEHaas@mdwcg.com.

 

Defense Digest, Vol. 29, No. 4, December 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

 

*This case has since been reversed on appeal. Please see: How Simone V. Alam Reshaped the Standard for Indispensable Parties in Premises Liability Actions

 

Firm Highlights

Thought Leadership

Appellate Division Affirmed Workers’ Compensation Order Striking Defenses and Ordering Treatment

Kneezel v. Lambertville House, No. A-2729-24 (June 1, 2026) In Kneezel v. Lambertville House, Lambertville House appealed from a workers’ compensation order to strike its defenses and directing it to authorize knee replacement surgery. By way of background, the petitioner worked as a property manager for Lambertville and injured his back and knee in December 2019. A workers’ compensation claim was filed and the petitioner treated at Rothman Institute. He underwent four injections to his low back and was recommended for surgery. The day before, Lambertville canceled and set up a second opinion exam with Dr. Lawrence Barr. The petitioner filed a motion for medical and temporary benefits (MMT), which was ultimately granted by the workers’ compensation judge. As such, he received authorized treatment for his back. The petitioner was then referred for his left knee pain and treatment was provided by Lambertville. He was recommended for a knee replacement, but the petitioner declined at that time. Approximately two years later, he sought additional treatment, which was denied. After obtaining a report from Dr. Dhimant Balar, the petitioner filed another MMT. In response, Lambertville submitted Dr. Zachwieja’s report and surveillance reports. Dr. Balar opined the left knee injury was related to the work accident, whereas Dr. Zachwieja believed it was due to his advanced degeneration as there was no evidence of acute trauma. A hearing on the MMT began in November 2024, with the petitioner testifying his knee pain never went away and he had a lot of trouble walking, especially for more than five to ten minutes. The surveillance investigators were scheduled to testify after, but had to be rescheduled a couple of times. During a conference in early February 2025, prior to when the investigators were to testify, it was discovered that Lambertville did not provide discovery to the petitioner, including the investigators’ information and surveillance footage. The petitioner moved to strike Lambertville’s defenses and sought an order to authorize the left knee treatment. Petitioner’s counsel pointed to Lambertville’s unreasonable delay in providing the necessary information and Lambertville did not file an opposition. In March 2025, the investigators’ testimonies were set for mid-March. On March 14, 2025, petitioner’s counsel advised she was still waiting for discovery and the judge directed Lambertville’s counsel to provide any missing information by March 17, 2025. Lambertville provided video clips after the petitioner had testified so the judge indicated that if everything was not provided to petitioner’s counsel by the end of March 19, 2025, the judge would sign the order granting the MMT. The next day, the judge entered the order striking Lambertville’s defenses and ordering left knee treatment. Lambertville moved for reconsideration of stay of the order pending appeal. Following oral arguments, the judge denied Lambertville’s motion, citing N.J.A.C. 12:235-3.11 (a)(4)(i) that Lambertville was required to provide surveillance after the petitioner’s testimony and that it had failed to do so even after he testified in November 2024. The judge also noted the investigators’ testimonies were rescheduled multiple times and Lambertville had more than enough time to provide the requested information and failed to do so. The judge also noted Lambertville failed to file a response to the petitioner’s motion to strike. In addition, the judge pointed to the petitioner’s testimony, finding him to be credible and observing him to have to stand and move multiple times during testimony. Lambertville appealed, arguing its due process rights were violated as there was no opportunity to be heard and the order was procedurally and factually defective. However, the Appellate Division disagreed, noting Lambertville had sufficient notice and many opportunities to be heard. It was noted Lambertville’s failure to comply with the judge’s requests led to the order. As for the motion to strike, the Appellate Division indicated Lambertville failed to oppose the motion, which provided the judge with the ability to decide without a hearing for an uncontested motion. Ultimately, the Appellate Division found no abuse of discretion and affirmed the judge’s rulings and order.

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Thought Leadership

Employer/Carriers Must Explicitly Invoke Right to Deny Claim Under “Pay and Investigate” Statutory Provision; Employes Must Always Prove Medical Necessity of Treatment

Koren v. City of Kissimmee/PGCS, ___So.3d___(Fla 1st DCA 6/10/26) The majority opinion in Koren holds that the Judge of Compensation Claims (JCC) properly denied psychiatric treatment because the claimant did not challenge on appeal the JCC’s finding that the requested treatment was not medically necessary. However, Judge K. Thomas authored a detailed concurrence agreeing with the result on the ground that the claimant failed to meet his burden of proving medical necessity. In doing so, Judge K. Thomas also emphasized an important principle: employer/carriers must expressly invoke the 120-day pay-and-investigate provision under Florida’s Workers’ Compensation Act if they intend to preserve their right to deny compensability. Merely authorizing evaluations, without explicitly invoking the 120-day rule, may be insufficient to preserve the right to deny compensability of specific injuries. In Koren, the claimant sustained injuries to his upper lip, tooth, right knee, and right foot when a board gave way on a deck he was repairing for the employer/carrier. The accident was accepted as compensable, and multiple specialists were authorized to treat his physical injuries, including an ear, nose, and throat physician, dentist, orthopedist, and plastic surgeon. The claimant later sought psychiatric treatment and attended an independent medical examination (IME) with a psychiatrist. The IME diagnosed adjustment disorder with mixed anxiety and depressed mood, opining that the condition was caused by “the actual appearance of the scar” resulting from the industrial accident. The IME recommended continued medication, including an antidepressant, as well as follow-up care with a psychiatrist and psychologist. Critically, however, the IME did not offer an opinion regarding the medical necessity of this treatment. The claimant then filed a petition for benefits attaching the IME report and requesting authorization of psychiatric care. The employer/carrier responded by authorizing a psychiatrist, whom the claimant did, in fact, see. However, the employer/carrier neither denied the claim nor issued written notice invoking the 120-day pay-and-investigate provision. The authorized psychiatrist subsequently opined that the claimant’s psychiatric condition was unrelated to the industrial accident and instead attributable to prior employment as a law enforcement officer and volunteer firefighter. The psychiatrist further concluded that the work accident was not the major contributing cause of the condition. Although the employer/carrier stipulated to the authorization of the psychiatrist, it ultimately denied the claimant’s entitlement to psychiatric treatment. The JCC denied the requested benefit. The majority opinion affirmed on the narrow ground that medical necessity had not been established. Judge K. Thomas’s concurrence, however, expands on the legal framework. Under Florida law, an employer/carrier presented with a claim must “pay, pay and investigate, or deny.” To avail itself of the 120-day pay-and-investigate protection, the employer/carrier must affirmatively and explicitly invoke that option, typically through a written 120-day letter. The statutory investigative period does not arise automatically upon the provision of care. Furthermore, an attempt to characterize authorization as a “one-time evaluation” does not avoid waiver, as even a single evaluation may constitute the provision of a compensable benefit. By authorizing psychiatric care without invoking the 120-day provision, the employer/carrier in Koren effectively accepted compensability of the claimant’s PTSD condition. Nonetheless, it retained the ability to contest entitlement to ongoing treatment. While the employer/carrier failed to demonstrate a break in the causal chain, the claimant still bore the burden of proving that the requested treatment was medically necessary. Because the JCC found that the claimant failed to meet this burden, and the claimant did not challenge that finding either below or on appeal, the denial of psychiatric benefits was ultimately affirmed.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998.  For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer.  In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability.  The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline.  Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter.  The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant.  The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing.  The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations.  As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer.  The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements.  Therefore,  the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b).  Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements.  For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Event

Florida Insurance Fraud Education Committee (FIFEC)

Sean and Alex will present, "Life Care Plans: From Low Impact to Policy Limits," focusing on the history and expanding use of life care plans in litigation and their ability to transform low impact injury claims to disproportionate high value claims. By focusing on the limitations of life care planners, Florida's tort-reform on medical damages, and the Daubert standard, extraordinary life care plans with inflated future medical care recommendations can be defended.