Consumer Alert: High Lead Levels Found In Chinatown Kitchenware

According to a recent Philadelphia.com article, "Five pieces of ceramic kitchenware purchased in Chinatown contained levels of lead many times higher than the legal limit, according to an analysis by Thomas Jefferson University doctors who have tested dozens of items sold by Philadelphia merchants.

They reported the results to the Food and Drug Administration, and a spokesman said Monday night that the agency would be following up with its own tests.

Although the two spoons and three plates appear to be clearly out of compliance - the lead standard for plates is 3 parts per million, and these contained 52, 130, and 145 ppm - it is unclear whether they caused any problems for infants, who are most at risk."

This once again underscores the importance of consumer protections and legislation in our society. This includes issues involving potential product defect and liability. Pennsylvania has laws to protect consumers from fraudulent or deceptive practices. The law is known as the Unfair Trade Practices and Consumer Protection Law (UTPCPL). If you have suffered harm due to the fraudulent or deceptive practices of a business, contact Mayerson Law, PC.

Our trial lawyers have a genuine passion for helping victims reach a sense of justice in the midst of confusion, frustration and anger.attorneys have a genuine passion for helping victims reach a sense of justice in the midst of frustration and tragedy.

If you are concerned that you have suffered from a product defect, liability, a food or drug related illness, contact the trial lawyers at Mayerson Law.

New Mayerson Merger To Offer Exciting New Legal Representation in Pennsylvania

DOLAN & MAYERSON, P.C.

In today’s economy, people are seeking “center city legal representation” with the cost and feel of a local lawyer. That is why Benjamin Mayerson and Peter J. Dolan have formed Dolan & Mayerson, P.C., a general practice law firm concentrating in personal injury, family law, estate planning, estate administration and business law. Importantly, the firm will serve its clients with all the strength of a large firm with the feel of a local attorney. “Frankly, this place often feels like a barber shop with clients and friends stopping by to discuss their cases, the day’s politics or local happenings,” said Pete Dolan. Making the client comfortable, well informed and getting great results are the priorities for Dolan & Mayerson.

Ben Mayerson has 16 years of experience working exclusively in the area of personal injury. Ben worked with his father, Hy Mayerson, at the Spring City office of the Mayerson Law Offices, P.C. since 1994. Ben has successfully litigated all sizes of cases from minor injuries through multi-million dollar claims. His passion for achieving great results for his clients has had him litigate cases from the local district justice through the Pennsylvania Supreme Court. “Just last month the Pennsylvania Supreme Court ruled in my client’s favor in a dispute regarding a lower court’s rules,” Mayerson said. “With that ruling, I will be able to continue my client’s claim against the insurance company for its bad faith handling of the underling insurance claim.”

Peter J. Dolan has been representing clients in the Pottstown area since 1999 concentrating in all areas of family law, estate planning, estate administration and business law. Peter worked for a local firm until 2005 when he left to be corporate counsel for a company in Trooper, Pennsylvania where he reviewed interstate and international multi-million dollar contracts. He left there to begin his own firm in 2006 desiring to return to the general practice of law and helping individuals through difficult times. “I truly enjoy being an attorney and helping clients through difficult times,” Dolan said. “I can’t imagine doing anything else.”

“My clients are my boss,” said Dolan. In today’s economy, many clients come in with agreements in hand and look to me to get the divorce done with the costs down. Clients don’t want to spend money on attorneys and litigate themselves to the poorhouse. “My role as their attorney is to keep them fully informed of the court process and what they may be entitled to if they were to litigate.” Then, with that information, the client can often reach good agreements and not spend their money on costly litigation. If not, Dolan has a strong reputation with the courthouses in Montgomery, Berks and Chester counties and will use the courts to achieve the best results possible.

Also, joining the new firm will be Margaret Connors, Esquire who has been an integral part of the Mayerson firm since 1984. Margaret has extensive appellate court experience and largely devotes her professional efforts to legal research and writing at the firm.

The law firm of Dolan & Mayerson, P.C. has offices in Pottstown, Limerick and Exeter Pennsylvania. The firm’s staff includes three attorney, two paralegals and two support staff. Two members of the staff, Janice Sudzina and Donna Horst have more than 25 years of experience as legal assistants and have been employed by Mayerson Law for 25 years.

The goal of the firm is to provide its clients legal services exceeding those offered by large center city law firms with the “at home” feel of a local attorney. It concentrates on not only delivering the best legal services but also strives to keep costs down.

Presenting Uninsured and Underinsured Motorist Claims

Uninsured and Underinsured Motorist Claims are insurance claims presented under your own insurance policy. Because you have paid for the coverage through months, if not years, of premium payments, your insurance company is required to honor your claim in good faith, and with fair dealings. However, because insurance companies are sometimes overzealous with containing costs, they often resist paying fair value on Underinsured and Uninsured claims, particularly if the insured does not have legal representation. Representatives of the insurance company will work to refute or discredit aspects of their policyholder's claim. The severity of physical injury and emotional trauma, and the account of the events that led up to the accident are the most often contested parts of a claim. Accordingly, speaking with our auto accident attorneys before giving your insurance company a statement after an accident is the most prudent thing to do. We have law offices in Pottstown, Spring City, and Limerick for your convenience.

Will Motorcycle Stacking Issues be Resolved by PA Supreme Court Decision?

Although it is anticipated, by accident attorneys thought to be specialists in motorcycle accident law, that the inter policy stacking issues facing motorcycle accident victims will be resolved when the Pennsylvania Supreme Court decides, Government Employees Ins. Co. v. Ayers, 2 A.3d 468 (Pa. Jul 27, 2010) (No. 442 WAL 2008), these lawyers may be disappointed. In this article, Attorney Ben Mayerson discusses the coverage issue that arises when an insurance carrier sells its insured two single vehicle policies that portend to provide stacked underinsured motorist coverage (UIM), but where the insurer then refuses to stack that coverage, after a loss occurs, pursuant to Geico v. Ayers, 955 A.2d 1025 (Pa. Super. Ct. 2008).

In Hunt v. Progressive Northern Ins. Co., Court of Common Pleas of Chester County, Docket No. 09-08265, Attorney Ben Mayerson challenges his client’s insurer on this issue by filing a lawsuit against the insurer, alleging fraud and deceit under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. The Hunt insurance claim dispute originates out of a disagreement over whether Randall Hunt was entitled to stack his underinsured motorist benefits (UIM), for his truck and his motorcycle, as provided for in his insurance policies. As is typical in this type of coverage dispute, the insurer sold its insured two single vehicle insurance policies to insure a truck and a motorcycle. Both policies provide stacked underinsured benefits (in this case $100,000 each), but after the accident the insurer (Progressive Insurance) refused to stack the coverage, citing a “family exclusion” buried within the truck policy. In support of the claim denial, Progressive relied upon the Superior Court’s decision in Geico v. Ayers, which found that such exclusions were valid and enforceable even if the insured was unaware of the exclusionary language, and even though the insured explicitly requested stacked UIM coverage.

Notwithstanding the Superior Court’s reasoning, Pennsylvania law clearly requires all insurers to offer consumers stacked UIM coverage, whether the coverage is requested by the insured or not. 75 Pa.C.S.A. §1738(d). Indeed, Pennsylvania deems stacked UIM coverage to be so important, that it requires all insurers to secure the insured’s signature on a statutorily mandated waiver of stacking form before the insurer is permitted to avoid providing the insured stacked UIM coverage. 75 Pa.C.S.A. §1738(e). Thus, no insurer should be able to circumvent the intent of the law by requiring consumers to insure their motorcycles on separate insurance policies in order to prevent the insured from stacking their UIM benefits.

In an effort to stop this practice, Attorney Ben Mayerson filed suit on behalf of his injured client because, as the suit alleges, the exclusionary language inserted into the truck policy violates the Motor Vehicle Financial Responsibility Law (MVFRL), in that it precludes stacking of policies without the requisite waiver of stacking required by §1738(d) and (e), and that the reasoning in Geico v. Ayers was not controlling because it was the same insurer that wrote both single vehicle policies. Mayerson’s suit further alleges that the truck policy is ambiguous, self-contradictory, deceptive, and thus fraudulent, in that it purportedly and facially provides stacking, yet it denies stacking in the event the insured is injured while operating either of his two vehicles.

Attorney Ben Mayerson argues that his client’s case, raising the issue of whether a family exclusion is enforceable when a single insurer issues stacked UIM coverage on two single vehicle policies, is not controlled by either the Supreme Court’s decision, Erie Ins. Exch. v. Baker, 927 A.2d 507 (Pa. 2009), or the Superior Court’s decision, Geico v. Ayers, 955 A.2d 1025 (Pa. Super. Ct. 2008). Mayerson argues that the facts of his client’s case are materially different, and thus distinguishable from both appellate decisions. Rather, Mayerson argues, his client’s case falls under an earlier Pennsylvania Supreme Court decision, Tonkovic v. State Farm Mutual Auto. Ins. Co., 521 A.2d 920 (1987).

1. Erie Ins. Exch. v. Baker

Erie Ins. Exch. v. Baker, 927 A.2d 507 (Pa. 2009), is a plurality opinion (4-3 split decision) of the Supreme Court of Pennsylvania. The four member majority opinion is written by Justice Greenspan, and joined by Chief Justice Castille and Justice Eakin. Justice Saylor filed a concurring opinion making up the four member majority. The dissent, or 3 member minority opinion, was written by Justice Baer, and joined by Justice Todd and Justice McCaffery. Thus, three of the seven members of the Supreme Court agreed that the family exclusion should be unenforceable because it voided stacking without the statutorily mandated waiver and/or notice to the insured.

Baker involved a serious motorcycle accident. Baker insured his motorcycle with Universal Underwriters Insurance Company, which included $15,000 of stacked UIM coverage, but his three automobiles were insured with a different insurance company, Erie Insurance Exchange (Erie). The Erie policy provided $100,000 of stacked UIM coverage, or $300,000.

After settling his claim with the striking vehicle, and his first level of UIM coverage with Universal Underwriters Ins. Co., Baker sought to collect the three stacked UIM policies he purchased from Erie. Erie refused to honor the claim, filed an action for declaratory relief, and thereafter secured judgement on the pleadings from the trial judge, which was later affirmed by the Superior Court. The Supreme Court granted review, and the four member majority concluded that the household exclusion contained in the Erie policy was valid even though the insured never signed a waiver of stacking.

The four member majority reasoned that the family exclusion made sense because the insurer would otherwise “be paying on a risk it did not knowingly insure, or collect a premium to underwrite: in this case, the substantially higher risk associated with motorcycles.” Id. at 511. The decision left open the issue of whether the exclusion would be upheld when the same insurer wrote both insurance policies, and thus knew of the increased risk associated with motorcycle(s). This issue was raised in Geico v. Ayers; still, the Superior Court determined that the waiver was valid even though the same insurer wrote both policies, and was thus aware of the increased risk associated with the motorcycle(s).

2. Government Employees Ins. Co. v. Ayers

Government Employees Ins. Co. v. Ayers, 955 A.2d 1025 (Pa. Super. Ct. 2008) is a divided decision of the Superior Court, written by Judge Colville, and joined by Judge Orie Melvin. Judge Musmanno filed the dissenting opinion, and on July 27, 2010, the Supreme Court of Pennsylvania granted an appeal.

It is anticipated, by most motorcycle accident attorneys, that the Supreme Court will reverse the Superior Court’s decision, and find that the family exclusion may not be applied to void a valid selection of stacked UIM coverage when the same insurer issued both insurance policies. Reversal is anticipated, in part, because Justice Greenspan, who found the Baker exclusion valid, is no longer a sitting Justice. She was replaced by former Superior Court Judge, Orie Melvin. Likewise, Justice Orie Melvin was one of the Superior Court judges that decided Geico v. Ayers while on the Superior Court. Thus, she properly recused herself from participating in the Supreme Court’s review of her Superior Court decision.

Thus, it appears promising that the Supreme Court will find the exclusion not enforceable when the same insurer writes both insurance policies. More specifically, it is anticipated that the dissenting opinion of Justice Baer in Baker, which was joined by Justices Todd and McCaffery, will control the outcome in Geico v. Ayers. However, the Supreme Court has been known to throw some curve balls, and this case presents an interesting fact which, when combined with some of the language in Baker, suggests the Court may affirm, rather than reverse.

Specifically, Baker contains language suggesting that as long as the insured is able to stack some coverage, then the exclusion should be upheld. And the insured in Geico v. Ayers insured more than one vehicle on each policy, and would thereby still receive the benefit of stacking, even if the exclusion is upheld. In short, the Court may find that standard principals of contract interpretation dictate that the exclusion be upheld to give meaning to all policy provisions whenever possible.

In the lawsuit filed by Attorney Ben Mayerson, Hunt v. Progressive Northern Ins. Co., the insured was sold two single vehicle policies with stacked coverage where, if the exclusion is imposed, there is nothing to stack. More specifically, if the exclusion is upheld, it will eviscerate any right to stack UIM coverage whenever the insured is injured while operating either of his two vehicles.

Given the above, all family exclusions should be stricken when a single insurer writes two single vehicle policies that portend to provide stacked UIM benefits. This would be accurate even if the Supreme Court affirms Geico v. Ayers. This result is consistent with, and supported by Tonkovic v. State Farm, 521 A.2d 920 (Pa. 1987), which was cited by Justice Baer within his dissenting opinion in Baker as follows:

We find a crucial distinction between cases where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested, and cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for. When the insurer elects to issue a policy differing from what the insured requested and paid for, there is clearly a duty to advise the insured of the changes so made. The burden is not on the insured to read the policy to discover such changes, or not read it as his peril.

Baker at 517 (Baer, J. dissenting), citing Tonkovic v. State Farm Mutual Auto. Ins. Co., 513 Pa. 445, 521 A.2d 920, 925 (1987).

This point was also expressly recognized by the Superior Court majority in Geico v. Ayers, as follows:

There is an important distinction between paying for something you cannot receive (e.g., paying for stacking in a policy which contains an exclusion of all stacking) and paying for something that all parties know is limited by the terms of the policy (e.g., the situation here where the house-hold exclusion clause limits stacking only in certain situations and does not otherwise affect the insured’s right to stack.) The latter is contractually valid and not inconsistent with public policy.

Geico v. Ayers at 1030, emphasis in original, internal citations omitted. This is the issue raised by Attorney Ben Mayerson in Hunt v. Progressive Northern Ins. Co., Court of Common Pleas of Chester County, Docket No. 09-08265 . If the issue is not addressed by the Supreme Court in Geico v. Ayers, Attorney Mayerson is confident it will be addressed in a subsequent appellate decision, Hunt v. Progressive Northern Ins. Co., perhaps.

PA Supreme Court Agrees to Address Home Vehicle Exclusions

Copyright 2010. ALM Media Properties, LLC. All rights reserved. The Legal Intelligencer.

Page printed from: The Legal Intelligencer

Leo Strupczewski

08-10-2010

Allocatur Watch

The state Supreme Court has granted allocatur to determine whether an insurance company can deny inter-policy stacking to an insured who has all his or her vehicles insured through the company and has not waived stacking.

According to a one-page per curiam order, the court will address in GEICO v. Ayers whether issuing such a denial through a household vehicle exclusion violates Section 1738 of the Motor Vehicle Financial Responsibility Law.

The decision to answer the question comes nearly 13 months after a plurality of the court ruled in Erie v. Baker that an insurance policy’s household exclusion clause could bar the recovery of UM/UIM benefits in a claim involving a vehicle owned by the insured but covered by a different policy issued by another company.

At the time of that decision, plaintiffs attorneys said Justice Thomas G. Saylor’s concurring opinion left open the door for the court to revisit the issue of household exclusion clauses.

Now, they’re hopeful the court will rule in favor of stacking.

Scott B. Cooper, who authored an amicus curiae for the Pennsylvania Association for Justice at the Superior Court level, said the Ayers petition for allowance of appeal was sitting at the state Supreme Court before the justices issued their ruling in Baker.

“My guess would be, well, if they were going to overturn and reverse, they would have just done it as part of Erie v. Baker,” said Cooper, who is a partner at Schmidt Kramer in Harrisburg. “It’s really unfair what happens in the situation where an insurance company can basically create the ability to use the exclusion.”

The plaintiff’s attorney in Ayers, Judd Crosby of Pittsburgh, said the fact that the policies in Baker were issued by two different insurance companies was a key distinction.

In Ayers, GEICO was fully aware of the plaintiff’s motorcycles and, therefore, was able to factor that into the premium.

“To allow them to avoid payment … they’re getting a windfall,” Crosby said. “It’s almost the inverse [of the MVFRL] to allow them to enforce the exclusion and thwarts the goal of the statute, which is to give what is paid for.”

In Ayers, a Superior Court panel ruled that an insured was barred from collecting stacked underinsured motorist benefits for injuries he sustained while riding his motorcycle because the policy’s household vehicle exclusion clause was unambiguous and did not violate public policy.

“The household vehicle exclusion prohibits the application of stacked coverage under narrow circumstances, which were triggered in the first accident,” Senior Judge Robert E. Colville wrote for the 2-1 majority. “Thus, the exclusion prohibits the application of stacked coverage under narrow circumstances, which were triggered in the first accident.”

Colville was joined in the majority by now Justice Joan Orie Melvin.

Orie Melvin did not participate in the decision to grant allocatur, according to the per curiam order.

In a dissent, Judge John L. Musmanno wrote that denying benefits to an insured under the circumstances presented in Ayers “deprives an insured of the benefits for which he or she paid.”

Further, he wrote, the majority was wrong in its ruling that the “stripping of inter-policy stacking” would only occur in “narrow circumstances.”

“Because insurance companies routinely require motorcycle owners to insure their motorcycles under a separate insurance policy from the owners’ other vehicle, those motorcycle owners who elected and paid for inter-policy stacking will be stripped of these benefits when they are injured while riding their motorcycles,” Musmanno wrote. “I do not characterize this as a ‘narrow circumstance’ and permit the insurance companies to receive a windfall, as they would be permitted to withhold benefits for which the insured has paid.”

According to Colville, Jesse Ayers was injured in back-to-back accidents when a pick-up truck struck him and his motorcyle. Ayers fell to the street and the truck then rolled backward over his body.

At the time of the accident, Ayers had two separate policies with GEICO — one for two motorcycles and one for two pick-up trucks, according to Colville. He had elected for stacking on both policies.

When Ayers filed for underinsured motorist benefits, however, GEICO denied his claim to stack the coverage as it related to the first accident, because he had been on his motorcycle at the time of the accident.

GEICO cited the household vehicle exclusion found in the policy covering the two trucks.

It read as follows:

“This coverage does not apply to bodily injury while occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured for underinsured motorist coverage under this policy.”

After unsuccessfully seeking a declaratory judgment action, GEICO appealed to the Superior Court.

The majority of the panel accepted arguments that the exclusion was valid and did not violate the MVFRL.

In doing so, Colville wrote that Ayers’ stacked coverage, “not unlike most forms of coverage,” was subject to exceptions.

Those exceptions were noticeable in the policy’s amendment and that the language was “clear and unambiguous,” Colville wrote.

The exclusion also did not violate the MVFRL or run contrary to public policy, because it only applied in “narrow circumstances,” Colville wrote.

“Thus, the exclusion does not operate as a de facto waiver of inter-policy stacking;” Colville wrote. “[I]nstead, it merely excludes from coverage accidents which occur under limited circumstances.”

GEICO’s attorney, Joseph A. Hudock Jr. of Summers McDonnell Hudock Guthrie & Skeel in Pittsburgh, said he’s unsure of whether Saylor’s concurrence in Baker creates a hurdle for the insurance company to overcome.

“Every case is different,” he said. “Anything is possible.”

Hudock said he wrote in a brief in opposition to Ayers’ petition for allowance of appeal that a 2003 3rd U.S. Circuit Court of Appeals case, Nationwide v. Riley, ruled that it did not matter if policies are issued by the same insurer.

“The rationale for that is the risks involved in being on a motorcycle are different than the risks of being in a passenger car,” he said. “It’s the reasonable thing to do, to make you put it on another policy.”

A secondary argument, said Hudock, is that Ayers could have elected to take more UM/UIM coverage on his motorcycle policy.

“Nobody was stopping this guy from buying more coverage,” he said.

Pennsylvania - CVS reach settlement on expired drugs and products

In a recent case, the Attorney General of the State of Pennsylvania announced that they had reached a settlement with the company CVS over the sale of expired drugs and food products.

According to a recent article in Consumer Affairs:

The Pennsylvania Attorney General's Health Care Section has reached a $250,000 consumer protection settlement with the CVS Pharmacy chain addressing complaints that expired over the counter drugs, infant formula, baby food, dairy products and other food items were sold at stores in the Commonwealth.

"Expiration dates are included on various products to ensure that consumers are purchasing items that are effective and safe to use," Attorney General Tom Corbett said. "This settlement not only requires CVS to adopt policies designed to prevent expired items from being sold in the future, it will also help community organizations provide much-needed food and medical supplies to low-income families across Pennsylvania."

The agreement with Pennsylvania CVS Pharmacy and White Cross Stores Inc. No 14, known as an Assurance of Voluntary Compliance (AVC), requires the pharmacy chain to take a number of steps to prevent items from being sold after their listed "sell by" or "expiration dates."

CVS is required to provide coupons for $2.00 off any future purchase to any consumers who find expired products offered for sale at a CVS store in Pennsylvania, said Corbett. Those consumers must notify a CVS employee about the expired product and present the expired item to a store employee or cashier.

Additionally, Corbett said the settlement includes a $150,000 payment from CVS, which will be distributed by the attorney general's office to organizations that provide assistance to Pennsylvania families by distributing baby food, infant formula, dairy products and over the counter drugs. The AVC also includes $100,000 that will be used by the AG's office for future consumer protection and education activities.

Sadly, incidents such as this are not as isolated as we would like to believe due to a variety of reasons. If you are a consumer who believes you may have a question about the safety or effectiveness of a product that you have purchased, you may contact our office to speak with an attorney concerning your rights.

Safety issues for motorcyclists

Protection is everything for a motorcyclist. There is nothing better than the freedom afforded the rider on the open road, but with that reward of freedom comes great danger.

To maximize the enjoyment of the ride, a motorcyclist should take every precaution to make sure that he is fully protected, both physically and financially.

Training

The state of Pennsylvania's legislature created the Motorcycle Safety Program (MSP) in 1984. This program was developed to teach riders the basics of motorcycle operation and the best ways to stay safe on the road. The course is free to all Pennsylvania riders with a valid license and has trained over 365,000 riders since its inception, with 69 training sites around the state.

Equipment

One of the best ways to protect yourself when riding a motorcycle is to wear a helmet. The National Highway Traffic Safety Administration (NHTSA) estimates that helmets reduce the likelihood of a crash fatality by 37 percent. In Pennsylvania, all riders during the first two years of their license are required to wear a helmet, unless they have taken an approved safety course. All riders under 21 years of age must wear a helmet when operating a motorcycle.

As with any motor vehicle, you should never drink and drive. The National Highway Traffic Safety Association notes that in 2008, nearly 30 percent of motorcyclists involved in a fatal accident had a blood alcohol concentration (BAC) over 0.08 percent; compared with only 23 percent of drivers of cars.

Insurance

Many riders take the bare minimum route when it comes to insurance coverage. This is usually due to people looking at the issue in terms of finances. Riders need to understand the difference between Underinsured Motorist Protection and Uninsured Motorist protection. Even riders who believe that they have 'full coverage' are often mistaken and are left finding out there are exemptions, caps and regulations to this 'full coverage' at the worst possible time. To learn more about the types of insurance coverage and how to make sure you are legally protected, feel free to contact us.