Saturday, November 28, 2009

Latest Compilation of Post-Koken Cases

The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.

All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.


To date there have been at least fifteen (15) trial court decisions in favor, or suggesting they would be in favor, of the consolidation of UIM and third party claims. Those decisions have come out of Lackawanna, Luzerne, Pike, Lehigh, Philadelphia, Dauphin, Beaver, and Allegheny Counties.

There have also been at least three (3) trial court decisions in favor of the severance of the UIM claims and third party claims. Those decisions have come out of Butler and York Counties.

I have an article coming out in this week's Pennsylvania Law Weekly providing a detailed review of this split of authority in the post-Koken cases on the issue of consolidation vs. severance. I will republish that article on this blog later this week.



I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.

If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I am in possession of a copy of most of the opinions noted.

I also invite anyone, including claims representatives, needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.


The post-Koken cases that I am aware of to date on the consolidation/severance issue are, as follows:

DECISIONS IN FAVOR OF CONSOLIDATION

Decker v. Nationwide Ins. Co., 2008 WL 6653069, 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage). See also Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007).

Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).

Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).

Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).

Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).

Jannone v. McCooey and State Farm, 2009 WL 2418862, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).

Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).

Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008, 2009 WL 2418861 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).

Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).

Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied).

Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied).

Fuhrman v. Frye and State Farm, Dauphin, 2008 CV 17687 (request to sever UIM claim and third party claim denied).

Sellers v. Hindes and State Farm, Dauphin, 2009 CV 1989 (request to sever UIM claim and third party claim denied).

Gingrich v Esurance and Susan Graci, No. 08795 CV 2009 (Dauphin Co. Nov. 2, 2009, J. Hoover)(Tortfeasor's preliminary objections to complaint which joined tortfeasor and the underinsured motorist causes of action under one caption denied in one line Order).



DECISIONS IN FAVOR OF SEVERANCE

Weichey v. Marten and Allstate, A.D. No. 09-10116 (Butler Co., June 11, 2009, Yeager, J.)(Court orders severance of UIM and third party claims under the general rationale that insurance is not admissible in third party negligence actions).

Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (Butler Co. Nov. 5, 2009, Horan, J)(Court orders UIM claim and third party claim severed).

Grove v. Uffelman and Progressive Ins. Co., 2009 WL 3815756, No. 2009-SU-2878-01 (York Co., Nov. 9, 2009, Chronister, J.)(Court orders UIM claim and third party claim severed).



SUPERIOR COURT DECISIONS IN POST-KOKEN CASE

O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly)(Consolidation vs. severance issue not implicated as plaintiff settled with tortfeasor and only sued UIM carrier in post-Koken case; Superior Court upholds UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident).


PLEASE PUBLICIZE CASES

It is again emphasized that it is important that these cases be publicized so that the judiciary and the bar can attempt to develop a consistent common law on the issues presented. If you come across such a case it may be advisable to make the Pennsylvania Defense Institute or the Pennsylvania Association for Justice aware of the new decision so that they can work to publicize it across the state. I, too, will continue my efforts in that regard here on Tort Talk.

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