Friday, November 13, 2009

A Growing Rift: Another Pennsylvania Trial Court Opinion Severing Third Party/UIM Claims in Post-Koken Case (100th Post to this Blog)

There are signs of a growing rift in the post-Koken trial court opinions on the issue of whether the third party claims against the defendant-driver should be allowed to proceed in a consolidated fashion under one lawsuit with the underinsured (UIM) claim against the UIM carrier for the same accident.

As recently reported in this blog, in a November 5, 2009 decision issued by Butler County Court of Common Pleas Judge Marilyn J. Horan in the case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., A.D. 09-11444 (Butler Co. Nov. 5, 2009), it was held that such cases should be severed, primarily to avoid undue prejudice to the tortfeasor that may result from the introduction of insurance issues at trial.

Now, Judge John H. Chronister of the York County Court of Common Pleas has issued a similar decision a few days ago in a November 9, 2009 Opinion and Order in the case of Grove v. Uffelman and Progressive Ins. Co., No. 2009-SU-2878-01 (York Co. Nov. 9, 2009).

In that case, the third party tortfeasor objected on the grounds that the joinder of these two types of claims was improper in that they did not arise out of the same transaction and given that the introduction of insurance issues would prejudice the defendant-driver on his side of the case.

The Plaintiff argued that the claims did arise out of the same transaction or occurrence and that judicial economy would be furthered and inconsistent verdicts would be prevented by a litigation of these claims under one caption. The Plaintiff also argued that the insurance problem could be avoided at trial by not mentioning insurance and referring to the issue by some other name.

Judge Chronister sided with the third party tortfeasor's arguments and ordered a severence of the cases.

Judge Chronister viewed the claims as involving separate transactions--the claim against the tortfeasor being a tort claim based on negligence and the claim against the UIM carrier being a contract claim to enforce the Plaintiff's rights under the policy.

The Judge also emphasized that his decision was largely influenced by the insurance issue. He noted that, by advising the jury that the Plaintiff was pursuing an underinsured claim, it follows by definition that the jury may conclude that the Defendant had insufficient liability insurance, which would be "a violation of the prohibition against the jury knowing about the Defendants' insurance coverage."

Judge Chronister also noted that, "[e]ven worse," the claim for UIM benefits tells the jury that there is a second insurance company involved as a source for payment, "potentially causing the jury to award an increased amount of damages." He also cautioned that such information may leave the jury with the incorrect assumption that the tortfeasor defendant would not remain personally responsible for any verdict in excess of the tortfeasor's liability limits.

Judge Chronister also did not think it was feasible to allow the claims to remain consolidated and somehow keep the insurance issue away from the jury as suggested by the Plaintiff. He noted that the very fact that the insurance company is named in the caption triggered the concerns that prevent insurance from being mentioned in civil litigation matters. He also noted that "it is always best to tell the jury exactly what is happening, and not camouflaged the situation unless it can't be avoided."

The Judge also noted, "[m]ost importantly," that if the Plaintiff's procedure of consolidated claims was adopted as a general rule UIM carriers may potentially be forced to unnecessarily participate in litigation and trials in case where the UIM coverage is never reached either because a verdict is entered in favor of the defendant-driver or an award is given that is within the defendant-driver's liability limits.

As such, the court granted the defendant-driver's preliminary objections and severed the two claims presented.

Given this increasing split of authority, it appears that appellate guidance is needed on the issue presented. It remains to be seen if a trial courts facing the issue will allow for an interlocutory appeal by permission on the issue so that a clarification on how to properly handle these cases can be provided to the bar.

Anyone desiring a copy of the above cases may contact me at

For more posts on this blog pertaining to the KOKEN issue, please scroll down the right-hand column of this blog to the "Labels" section and click on "Koken."

I thank Candace N. Edgar, Esquire from the Mechanicsburg, PA office of Summers, McDonnell, Hudock, Guthrie, & Skeel, P.C. for bringing this case to my attention.

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