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Case Law Alerts

Third District Court of Appeals Clarifies the Rules Surrounding Third-Party Intervention

Accident911 Help Medical Center Corp., et al. v. Direct General Insurance Company, 3rd District, Case No, 3D23-773. L.T. Case No. 22-9836, Aug. 23, 2023

October 1, 2023

The Third District Court of Appeal rules that the trial court abused its discretion in denying the medical providers’ and assignees’ motion to intervene in a declaratory judgment action between an insurer and an insured. The movant’s interest in litigation is of such direct and immediate character that they will either gain or lose by direct legal operation and effect of judgment where the insurer sought declaration that the policy at issue was rescinded and void ab initio.

This appeal involved a suit filed by Direct General against its insured Ivet Caro and her son, Daniel Jose Alvare, who had been involved in a motor vehicle accident on September 8, 2021, while operating the insured vehicle. Ivet Caro had been involved in a motor vehicle accident on September 21, 2021, in which she was a passenger of a vehicle that was not insured under the immediate policy. As a result of both accidents, Caro and Alvare made a claim under the policy. Alvare had assigned his rights to PIP benefits under the policy to East Coast Medical Rehab, while Caro had assigned her rights to PIP benefits to both Accident911 Help and Rivero Diagnostic Center. 

After receiving the two claims, Direct General filed an action for breach of contract and declaratory judgment against both Caro and Alvare. In its complaint, Direct General alleged that it had rescinded Caro’s insurance policy and sought a declaration that the policy was now void ab initio because Caro made a material misrepresentation on the application for insurance by failing to disclose that her son, Alvare, was a household resident over the age of fifteen. Direct General asserted that the misrepresentation was material as, had it been disclosed, it would have resulted in an increase in the policy premium. In its prayer for relief, Direct General sought a declaration that, since the policy was void ab initio, any assignment of PIP benefits from Caro and Alvare to any medical provider, doctor, or medical entity is void. 

After a default was obtained against Alvare, 911Help Medical Center Corp, East Coast Medical Rehab Ctr., Inc. and Rivero Diagnostic Center, Inc. all filed a motion to intervene pursuant to Florida Rule of Civil Procedure 1.230 which provides: “Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” 

The lower court denied the motion and, in its decision, focused on the providers’ contention that they were “indispensable parties” to the action, after which the immediate appeal followed. In issuing its ruling, the Third District ruled that the trial court abused its discretion as the providers clearly met the well-established test for intervention, which was established in the Florida Supreme Court decision in Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507 (Fla. 1992). In Carlisle, the court articulated a two-part test that requires the trial court to “first make a preliminary determination whether the interest asserted is appropriate to support intervention” and, if so, must “exercise its sound discretion whether to permit the intervention” by taking into consideration “a number of factors, including the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstance.”

In applying the test, the court noted that the allegations in Direct General’s complaint undermined any assertion that the providers lacked the requisite interest in the litigation to necessitate intervention. The court analyzed several of the allegations in the complaint, including the following: (1) the plaintiff Direct General, the defendant’s Caro and Alvare, and the claimants, Accident911 Help Medical Center Corp., East Coast Medical Rehab Ctr., Inc. and Rivero Diagnostic Center, “have an actual, present, adverse and antagonistic interest in the subject matter described herein; (2) Direct General “seeks a declaration of its rights and obligations under the automobile policy with respect to the claims asserted against [it]”; and (3) Direct General seeks a declaration that, because the insurance policy issued to Caro was rescinded and is void ab initio, “any assignment of personal injury protection (PIP) benefits” from Caro or Alvare to any medical provider, doctor and/or medical entity is void.” In analyzing these allegations, the court noted that, were Direct General successful in obtaining a judgment declaring that the policy is void ab initio, the providers’ right to policy benefits pursuant to the assignments from Caro and Alvare would be extinguished and that, based on same, it appeared the providers were the only entities who could adequately protect their rights in the suit. 

Ultimately, the court held that, since the providers’ interest in the suit is “of such a direct and immediate character that [it] will either gain or lose by the direct legal operation and effect of the judgment,” the lower court committed reversible error and ordered that the order denying intervention be reversed.

The significance of this case is that it arguably gives any provider who was assigned policy benefits the right to intervene in a suit between the insured and insurer, even when the insurer is alleging fraud or misrepresentation against its insured. SIU adjusters should be aware of this caveat when making the decision to initiate a declaratory action against an insured in a claim involving potential misrepresentations or fraud by the insured. 
 

 

Case Law Alerts, 4th Quarter, October 2023 is prepared by Marshall Dennehey to provide information on recent 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. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Firm Highlights

Thought Leadership

Pennsylvania Superior Court Confirms RESDL Claims Are Subject to a Two-Year Statute of Repose

The Pennsylvania Superior Court recently concluded that claims under the Real Estate Seller Disclosure Law (“RESDL”) are subject to a two-year statute of repose running from the settlement date. This decision will further assist defending errors and omission claims against real estate agents as it bars any RESDL action commenced more than two years after the settlement date regardless of when the defect was discovered.  In Hollinger v. Deitrich, 2026 Pa. Super. LEXIS 328 (June 23, 2026), the buyers entered into an agreement of sale in April of 2017 to purchase a residential property. The settlement occurred in June of 2017. The buyers reviewed the seller disclosures that revealed the property had a sump pump in working order and a sump pit. The disclosures further noted no water infiltration into the basement, but disclosed rehab, an addition to the property and prior sewage backup.  Shortly after the settlement and closing, the buyers experienced flooding in their basement. In March of 2020, the buyers filed suit against the seller, the buyers’ real estate agent and broker and the seller’s real estate agent and broker alleging various causes of action including a violation of RESDL. The buyers alleged that they sought assurances from the agent defendants that no water infiltration occurred on the property. They further alleged that both agents lived in the area and should have known about the neighborhood water infiltration issues. The trial court granted summary judgment for the seller and the seller’s agents and dismissed the RESDL violation.  Relying on the Supreme Court’s decision in Gidor v. Mangus d/b/a Mangus Inspections, 345 A.3d 629 (Pa. 2025), the court explained that a statute of limitation begins to run from the time of the injurious occurrence or a discovery of the same. However, a statute of repose runs for a statutorily determined period after a definitively established event. Notably, a statute of repose eliminates a cause of action regardless of when the claim accrues. Because of this, a plaintiff may not invoke the discovery rule or other equitable tolling considerations.  RESDL requires that an action for damages, as a result of a violation of this chapter, must be commenced within two years after the date of final settlement. The court found that Section 7311(b) was clear and unambiguous that an action for damages pursuant to this chapter must be commenced within a certain time after a definitely established event that is independent of any injury or discovery of any injury. Since the buyers sued over two years after closing on the property, their statutory claims were time-barred. The court explained that the seller disclosure statement could not support common law or consumer protection claims, as using it would improperly expand remedies beyond the statute’s terms. Accordingly, the court upheld the trial court’s summary judgment ruling that the buyers’ claims under RESDL were barred by the statute of repose.  Accordingly, defense counsel should scrutinize complaints involving RESDL claims to ensure that such claims have been timely brought within two-years of the settlement date. A plaintiff will no longer be able to invoke the discovery roll to expand the time frame.

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. 

Thought Leadership

Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

Thought Leadership

Not So Fast. . . The Limitations of the Pennsylvania RELRA in Plaintiffs’ Civil Actions Against Real Estate Broker and Licensee Defendants

Much has been made of the importance and weight of the Pennsylvania Real Estate Licensing and Registration Act, 63 P.S. §§ 455.101, et. seq. (RELRA or Act). After all, a real estate broker generally cannot recover any commission absent a signed agreement that complies with RELRA. But can a plaintiff rely on RELRA as a distinct cause of action in a civil action as to a real estate broker or licensee defendant? The Superior Court has emphatically held that he or she cannot. In the unpublished opinion P. Perez Real Est. Holdings, LLC et. al. v. Home Sale Real Est. Servs., Inc., et al., No. 256 MDA 2025, 2025 WL 35389888 (Pa. Super. Ct. December 10, 2025), the Superior Court held that the Act “does not contemplate private actions for money damages as an enforcement mechanism and consequently, does not create a private cause of action.” citing Schwarzwaelder v. Fox, 895 A.2d 614, 620 (Pa. Super. 2006). While the Act authorizes the Bureau of Professional and Occupational Affairs, State Real Estate Commission, to regulate the conduct governed by RELRA, the Act alone does not create a stand-alone legal cause of action as to a broker-defendant in a civil action. See P. Perez, citing Schwarwaelder at 620. Nor can it be stated that RELRA creates or imposes any legally cognizable duties on real estate brokers or licensees. While the Act contains and refers to general concepts of duty (e.g. the agent must “exercise reasonable professional skill and care which meets the practice standards required by this act” and “to deal honestly and in good faith” 63 P.S. §§606.1 (a)(1),(2), or the broker has a duty to the buyer of property to take “action that is consistent with the buyer’s interest in transaction.”  63 P.S. §§606.3 (1)), these general concepts are secondary to the duties imposed by the required written agreement between the broker and consumer. For example, in P. Perez, a case in which the buyers-plaintiffs argued that the real estate broker failed to investigate recent legislation that would affect buyer’s intentions to convert the property to commercial space, the agreement between buyer and broker contained the following provision in the “Buyer’s Due Diligence” clause: Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made an independent examination or determination of the structural soundness of the property, the age or condition of the components, environmental conditions, the permitted uses, nor of conditions existing in the locale where the property is situated. . . Accordingly, the broker defendants expressly disclaimed any duty to buyers to inform them or determine whether any applicable zoning classifications, laws, or ordinances in the township applied to the properties in question. Moreover, the Superior Court refused to read provisions of the Act into the Agreement, citing Skiff re Buss, Inc. v. Buckingham Review, LP, 991 A.2d 956 (Pa. Super. 2010). In defending civil actions it is important for the defense attorney to identify any causes of action predicated solely on RELRA. Preliminary objections may be warranted to the extent that the plaintiff asserts RELRA as a stand-alone cause of action for monetary damages, a position struck down by the Superior Court of Pennsylvania in P. Perez.  Moreover, any attempt to create or heighten duties as to the broker defendants may be countered by the general proposition that the courts will not inject the vague concepts of “reasonable professional skill” or “good faith” where the written agreement has express provisions regarding the duties of the parties. Ironically, although RELRA is an important Act with which all realtors, brokers, and licensees should be familiar to guarantee that their commissions are in fact timely paid, it is not a strong stand-alone mechanism for a plaintiff’s attempts to recover monetary damages in a civil action.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

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