PENNSYLVANIA LEGAL UPDATE

SUMMER 2004 ISSUE

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MORE HARM THAN HELP? VACCINATION DANGERS

Vaccines protect us from a host of diseases that once regularly brought suffering and death to the global population. Polio, diphtheria, tetanus, measles, meningitis, and hepatitis are just a few of the many potentially deadly diseases prevented relatively easily by timely vaccination. But for some people, vaccination may bring injury in the form of autoimmune, neurological, gastrointestinal, or developmental disorders. Vaccines contain suspending fluids, preservatives, and stabilizers to help the vaccines remain stable, and they may include enhancers, as well.

The National Vaccine Injury Compensation Act of 1986 is a federal law that limits the litigation rights of people injured by vaccines. Before bringing a civil suit against a vaccine manufacturer, an injured victim must first file a claim in a specially created federal court, sometimes referred to as "the Vaccine Court." The Vaccine Act was enacted to streamline vaccine litigation and to create opportunities for the prompt settlement of vaccine injury claims. It provides for "a less-adversarial, expeditious, and informal" process of resolving vaccine injury claims.

People who can prove that they suffered some injury from a vaccine are entitled to "no-fault" compensation. A claimant suffering from a "vaccine-related injury" may recover actual medical and rehabilitative expenses, damages for reduced earning capacity or lost wages, up to $250,000 in damages for pain and suffering or emotional distress, and reasonable attorney's fees and costs. No punitive damages are permitted, and no jury trials are held. The decisions in the Vaccine Court are made by federally appointed "special masters."

If a person accepts compensation awarded by the Vaccine Court, he or she cannot later sue the manufacturer. But the Vaccine Act also gives people the option to reject the Vaccine Court's award and take their cases to state or federal court. Strict and sometimes conflicting rules apply in vaccine claims, and it is important for vaccine claimants to meet the Vaccine Court's filing deadlines and also, if the claimants later choose to sue, the filing deadlines of the state or federal court.

Recently, a Pennsylvania couple took a vaccine-related claim to state court without first going to the Vaccine Court. The couple's seven-year-old son was diagnosed with disintegrative autism resulting from his ingestion of mercury. The child's developmental history included impaired language and motor skills beginning at 18 months. The couple asserted that when the boy was an infant he was poisoned by mercury contained in Thimersol®, an additive used as a preservative in many vaccines until the late 1990s. Contending that their suit did not raise vaccine issues but instead focused on a contaminant intentionally added to a vaccine, the couple argued that they should be permitted to bring a defective product lawsuit without going to the Vaccine Court. The Pennsylvania court disagreed, holding that injuries from Thimersol® are vaccine-related under the meaning of the Act and must be litigated in the Vaccine Court.

To find out what chemical additives are in specific vaccines, you can ask your health-care provider or pharmacist for a copy of the vaccine package insert, which lists all ingredients in the vaccine and discusses any known adverse reactions. To report a health problem that followed a vaccination, you or your provider should call the Vaccine Adverse Event Reporting System (VAERS) at 1-800-822-7967.







BEWARE OF VACANCY

Just about every homeowner carries insurance for losses from fire and other causes. But many insured homeowners do not realize that their insurance policies include "vacancy clauses." Such clauses suspend or restrict some insurance coverage if the home is vacant or unoccupied for 60 or more consecutive days before the occurrence of the loss.

If a homeowner takes an extended trip, temporarily relocates, or dies, a vacancy may exist. If fire damage occurs, pipes freeze, or other insured losses happen during such a vacancy, the insurance company may be entitled to deny all coverage even if the premium payments were made on time.

In a recent case, a Pennsylvania woman's heirs challenged an insurance company's denial of fire insurance coverage. The heirs paid the annual premium on the woman's homeowner's insurance shortly after her death. But before the heirs could sell the house and settle the estate, the house was damaged by a fire that occurred 36 days after they had paid the annual fire insurance premium. In the course of investigating the claim, the insurance company discovered that the house had been vacant for more than 60 days before the fire. The heirs argued that their premium payment marked a renewal of the policy and that only 36 days had run on the new policy before the fire. The court acknowledged the renewal of the policy but noted that the vacancy clause was in both the old and the new policy. Since the house was actually unoccupied for more than 60 days before the fire, the court upheld the insurance company's denial of the claim, "tacking" the vacancy period under the old policy to the 36 days that elapsed after the heirs' renewal of the policy.

An unoccupied house poses higher risks of loss to an insurance carrier. Vacant properties not only attract vandalism, they also suffer more extensive damage in the event of an accidental fire or water leak. The occupants of an inhabited house can stop a small fire or water damage or can call for assistance from emergency responders. When no one is home, fire or water damage is often much more extensive.

Homeowners who take long vacations or extended business trips and adult children who are managing their deceased parents' homes have various options to assure that their coverage will not be denied. Policies are available, at an added expense, to insure vacant homes.

Entrusting a home to a house-sitter or a short-term tenant may prevent the occurrence of a vacancy. But care should be taken to understand the precise terms of a policy's vacancy clause--is occupation by the homeowner himself or herself required by the policy? Is a house-sitter acceptable but is a paying tenant a trigger for denial of coverage? Reading your policy and communicating clearly with your agent or insurance company are essential elements in establishing adequate and appropriate homeowner's insurance coverage.

For an excellent overview of how your homeowner's insurance policy works, go to the website www.insurance.state.pa.us where the Pennsylvania Insurance Commissioner maintains a collection of consumer brochures on insurance issues.







STEELER FANS SUE TO GET THEIR SEATS BACK

Disgruntled Pittsburgh Steeler fans have won the right to sue the Steelers over the location of their season ticket seats. Their suit gave Pennsylvania courts an opportunity to clarify basic consumer contract law.

The fans purchased season tickets after receiving a color brochure that included a diagram of the various seating sections and the field's yardlines. After attending the first game of the 2002 season, some fans were frustrated to discover that the team and stadium administration had reconfigured some of the prime seating sections. While the changes in section sizes effectively "moved" fans' seats only by several yards or rows, the fans' decisions to pay higher ticket prices were strongly linked to their expectation that the original diagram was accurate. Some of the fans demanded that they be given the seats they expected in the rows and at the yardlines initially represented on the diagram. They also argued that if they were not restored to their expected seats they should be charged a lower season ticket price.

The Pennsylvania court ruled that the unhappy fans were not entitled to a restoration of the exact seat locations they expected since those seats had since been sold to other fans. Disrupting the seating of "thousands of fans who may be as satisfied with their seats as the plaintiffs are dissatisfied" and possibly triggering additional lawsuits made no sense to the court. Instead, the court found that the fans were entitled to pursue refunds. The court reaffirmed Pennsylvania law holding that a contract is formed when an offer, either oral or written, is accepted. The contract becomes binding when the parties exchange "consideration" or something of value, usually money.

The court concluded that the color brochure and its diagram constituted an offer and that the fans accepted that offer by filling in the attached ticket application. The fans' payments of the requested nonrefundable deposit supplied the "consideration" and bound the Steelers to deliver the promised seats. The case was returned to the Pittsburgh courts for a determination of the amount of money needed to fairly compensate the fans for their inferior seats.

We all enter into consumer contracts on an almost daily basis. When disputes arise, private contracts are enforceable in court.





HMOS ENTITLED TO REIMBURSEMENT

"Subrogation" is a broad legal term that often arises in connection with insurance claims. An insurance company is entitled to "step into the shoes" of a claimant to whom they pay insurance benefits. For example, if you collect insurance proceeds for an injury and if someone can be held legally responsible for that injury, the insurance company may be entitled either to sue that third party or to share any damages won by you if you sue the third party. Rarely do insurance companies bother to sue third parties on their own, but they frequently and consistently seek a share of the proceeds of lawsuits brought by their policyholders against third parties.

Pennsylvania's Motor Vehicle Act prohibits subrogation in all motor vehicle accident cases. The Act requires that all policies of automobile insurance include at least $5,000 in medical coverage. If you are injured in a motor vehicle accident and the medical coverage from your automobile insurance policy is exhausted, then your continuing medical bills may be paid by any health insurance available to you. If you were injured by a negligent driver and you later bring suit, you cannot "double dip" and recover from the negligent driver for your insured medical bills. However, if you are entitled to "full tort" coverage you can sue to collect any other out-of-pocket losses, compensation for your pain and suffering, and compensation for any disability caused by the accident. Your automobile insurer and health insurer cannot look to you or the negligent driver for subrogation reimbursement for money that either insurer pays for your medical bills because the Act prohibits subrogation.

However, HMOs now have a different set of rights. HMOs are a well-known source of health insurance used by many Pennsylvania employers. Recently, a federal judge in Philadelphia ruled that HMOs are entitled to subrogation in motor vehicle cases. The judge gave HMOs subrogation rights because the HMO Act, passed by Pennsylvania's legislature before the Motor Vehicle Act, states clearly that HMOs are exempt from all state insurance laws unless such laws specifically apply to HMOs. Since the Motor Vehicle Act banned subrogation without specifically mentioning HMOs, the judge found that HMOs are entitled to subrogation.

If your health insurance is from an HMO and your medical bills from a motor vehicle accident were paid by the HMO, your HMO now may be entitled to be paid back a reasonable sum for the money it paid for your medical bills.







TREES ARE THE "ROOT" OF DEVELOPMENT DISPUTE

An easement is a limited right to use the property of another. Common easements include driveways, private roads, and utility rights of way for electric, water, or communication lines. Most easements are contained in deeds, but some can arise simply due to the passage of time. A "prescriptive" easement arises when, for 21 consecutive years, one landowner uses the land of another in an "open, notorious, and uninterrupted" manner. If your neighbors run their cable line across your property, after 21 uninterrupted years, they have established the right to do so. If you live on a private road and let it become a shortcut for a neighbor who is not entitled to use the road, after 21 years, he or she will be entitled.

In a recent case, a Pennsylvania homeowner tried to stop his neighbor from developing his property. The homeowner claimed that because the roots and branches of his trees would be disturbed by his neighbor's development plans, the development must be halted by the court. Arguing that 21 years of uninterrupted growth of the roots and branches had created a prescriptive easement for the continued growth of the trees, the homeowner expected that his neighbor's rights to develop his property should be limited.

Noting that Pennsylvania's streets, yards, sidewalks, and neighborhoods are full of unruly trees whose branches and roots cross property lines heedlessly, the Pennsylvania court declined to extend the law of prescriptive easements to tree growth. The court wisely concluded that the encroachment of trees or vegetation from one person's land to another's land does not create any permanent right to continue the encroachment in the future.

If tree branches from neighboring properties overhang your property, you are entitled to "compel" their removal. Overhanging tree branches from adjacent property are legally considered a trespass. It is prudent to speak to the tree owner first and resolve the problem. But if overhanging tree branches pose a danger to you or your property, you are entitled to remove them as long as you can do so without trespassing on your neighbor's property. If the problem cannot be resolved by agreement or by your safe removal of the objectionable growth, the courts will compel a landowner to trim or remove trees that encroach on your land.



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Updated March 22, 2005
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Email: cee@eabylaw.com

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