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June 2016

This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.

United States District Court for the Western District of Pennsylvania Finds Arbitration Clause in Nursing Facility Operator’s Admission Agreement Does Not Waive Right to Jury Trial as to Wrongful Death and Survival Claims

Recently, and as previously discussed in this blog, Pennsylvania state courts have found that an arbitration provision in an admission agreement of a nursing home operator or skilled nursing facility does not waive the right to a jury trial as to a wrongful death claim or survival claim.

Differentiating from recent decisions by other federal district courts in Pennsylvania permitting the wrongful death claim and survival claim to be severed when the nursing home or skilled nursing facility contract contained an arbitration agreement, the Honorable Arthur J. Schwab of the United States District Court for the Western District of Pennsylvania held in Grkman v. 890 Weatherwood Lane Operating Company, LLC, 2016 WL 3057656 (May 31, 2016), that wrongful death and survival claims against a nursing facility operator would proceed to a jury trial, despite the plaintiff signing, on behalf of his father, an admission agreement with an arbitration clause.

In Grkman, the plaintiff’s father was admitted to the defendant’s skilled nursing facility with an ulcer.  Over several months, the ulcer worsened, which allegedly caused additional health complications leading to the death of the plaintiff’s father.  So that his father could be admitted to the skilled nursing facility, plaintiff, as Power of Attorney, signed an Admission Agreement containing a clause requiring binding arbitration for any dispute or controversy related to plaintiff’s father’s care at the facility.

Following his father’s death, Plaintiff filed a lawsuit in the United States District Court for the Western District of Pennsylvania alleging claims for wrongful death and survival.  Pursuant to the terms of the arbitration clause in the Admission Agreement, the defendant skilled nursing facility filed a motion to dismiss the claims.

In denying the motion to dismiss, Judge Schwab found that by applying general agency principles, the plaintiff, as the Power of Attorney, had the right to sign the agreement.  By signing the agreement on behalf of his father, plaintiff waived his deceased father’s right to a jury trial as to the survival claim.  Judge Schwab also found, however, the plaintiff did not waive his right to file a wrongful death action, which claim belongs to plaintiff and not his deceased father.

Following the above findings, Judge Schwab noted the Admission Agreement contained a choice of law provision stating that the agreement shall be interpreted according to the laws of Pennsylvania.  Since Pennsylvania substantive law precludes severance of the wrongful death claim and survival claim, Judge Schwab concluded that both claims must be tried before a jury.


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2015 Pennsylvania Heavy Truck (Tractor-Trailer) Crash Facts and Statistics

While driving on the Pennsylvania Turnpike a couple of weeks ago, I twice encountered the remnants of large tires from tractor-trailers in the middle of the highway.  With quick maneuvering, I was lucky to avoid the tires.  The damaged tires easily could have caused an accident and were a reminder of the potential dangers drivers face on state roads and highways.  This made me think about and then inquire into crash statistics for tractor-trailers in the Commonwealth of Pennsylvania.

Interestingly, in April 2016, the Pennsylvania Department of Transportation (“PennDOT”) released its  2015 Pennsylvania Crash Facts and Statistics booklet .  The booklet provides information involving reported crashes involving cars, tractor trailers, buses, motorcycles, etc. that occurred in Pennsylvania in 2015 on the state’s approximately 120,000 miles of roads and highways.  The information was collected from police crash reports from the Pennsylvania State Police and approximately 1,300 local municipal police departments.

In 2015, there were 127,127 reported traffic crashes resulting in 1,200 deaths and 80,004 injured people in Pennsylvania, which was the eleventh lowest total for crashes since 1950.

Notably, out of the 127,127 crashes in Pennsylvania, 6,916 involved heavy trucks.  This was the highest total since 2011.  The booklet defines heavy trucks as including tractor-trailers, single unit trucks, such as coal trucks, and motor homes.  Basically, a heavy truck is one that is designed for carrying a heavy load of property on or in the vehicle.  There were 130 fatal crashes involving heavy trucks, which resulted in 149 deaths.

As you can tell, despite an attempt by automotive manufacturers to improve safety, there are still a fair amount of crashes and deaths that occur on roads and highways in Pennsylvania involving heavy trucks, such as tractor-trailers.


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