Wednesday, July 29, 2009

Another Recent Post-Koken Decision in Favor of Consolidation

A recent April 9, 2009 Order in a Lehigh County post-Koken case was brought to my attention by Attorney Evan Kline, a former classmate of mine at the Dickinson School of Law and a current member of the York, Pennsylvania law firm of Katherman, Briggs & Greenberg . I thank Evan for this tip.

As a reminder, "post-Koken" cases are those cases arising after the Pennsylvania Supreme Court issued an opinion in a case commonly referred to the "Koken" case (the name of one of the parties)--in that case, the PA Supreme Court ruled that carriers could do away with the arbitration clause and allow for UM/UIM cases to be litigated by way of a jury trial.

Ever since, the carriers have issued new policies without an arbitration clause and many auto accident cases have been filed with the cause of action against the defendant driver and the UIM claim being pursued in one lawsuit. Some defendants are objecting to being lumped in a case with an insurance company defendant. So far, the trial courts are keeping the cases together.

In her Order issued in the case of Serulneck v. Kilian and Allstate Fire and Cas. Ins. Co., 2008-C-2859 (Lehigh Co. April 9, 2009), Judge Carol K McGinley follows the trend of allowing post-Koken third party and UIM cases to proceed under the same caption. The Judge denied the tortfeasor defendant's Motion for Severance and, in her footnote to the Order, the Judge wrote:

"The entire cause of action, whether sounding in tort or contract, arises from the same set of facts. Defendant Allstate will be prejudiced if excluded in any litigation which fixes its liability."


Anyone wishing to receive a copy of this Order may contact me and I will be happy to email it to you. I am also in possession of a number of other post-Koken decisions from other counties as well.

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