Monday, November 9, 2009

A Post-Koken Decision on Consolidation That Goes the Other Way

Butler County Court of Common Pleas Judge Marilyn J. Horan issued a November 5, 2009 Opinion and Order in the post-Koken case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., A.D. 09-11444 (Butler Co. Nov. 5, 2009) that goes against the trend of a number of recent trial court opinions from around the Commonwealth of Pennsylvania allowing third party claims against the tortfeasor to proceed in a consolidated fashion with the UIM claim under one lawsuit.

The case of Baptiste arose out of a motor vehicle accident during which a DUI defendant lost control of her vehicle, crossed the center line, and crashed into the plaintiff's vehicle. The plaintiffs sued the defendant driver and the owner of the defendant vehicle under a negligent entrustment claim. The plaintiff also named her own automobile insurance carrier, State Farm, in the lawsuit as a defendant on the plaintiff's underinsured motorists (UIM) claim.

In Baptiste, the court granted preliminary objections filed by State Farm against the Complaint under Pa.R.C.P. 1028(a)(5), "misjoinder of a cause of action."

In so ruling, the court in Baptiste did not cite or review any of the number of prior trial court opinions from around the Commonwealth that have essentially all held that a third party claim and a UIM claim can and should be consolidated under one caption. For a review of those decisions, you can go down the right hand column of this blog to the "Labels" section and click on "Koken."

Also, it appears that post-Koken State Farm automobile insurance policies have a provision in it that not only requires that the UIM claim be pursued by way of a lawsuit as opposed to an arbitration, but also requires that the UIM claim be joined with the claim against the third party tortfeasor under one caption. No mention was made by the Baptiste court as to whether the State Farm policy at issue in this matter had such a clause.

In any event, State Farm argued that it was improperly joined in the plaintiff's complaint and asked that the counts of the Complaint against State Farm on the UIM claim should be severed for purposes of the trial. State Farm also requested that the UIM claim be stayed pending the resolution of the third party negligence action.

In granting State Farm's preliminary objections, the court accepted State Farm's argument that keeping an insurance company in as a defendant in a negligence action against a tortfeasor would violate Pennsylvania Rule of Evidence 411, which generally precludes the admission of evidence of insurance in civil litigation matters.

More specifically, although Rule of Evidence 411 allows the admission of evidence of insurance for certain limited purposes such as to show agency, ownership, control, or bias or prejudice of a witness, the Baptiste court stated that there was no "other purpose" under which Rule 411 would support the admission of UIM insurance issues in the third party negligence portion of the claim. Stated otherwise, the trial court noted that "the issue of UIM insurance in the claim against State Farm bears no relation to the determination of the negligence cause of action between Plaintiffs and Defendant, Strobel."

The court also noted that, even if the insurance evidence was relevant to the negligence portion of the lawsuit, such evidence would still be inadmissible under Pennsylvania Rule of Evidence 403 which allows a court to exclude evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

The trial court felt that the inclusion of insurance evidence in the negligence portion of the case would "yield minimal, if any, probative value in comparison to the potential for undue prejudice" to the tortfeasor defendant.

Prior trial court decisions in other counties have ruled in favor of the joinder of these types of actions under Pa.R.C.P. 213, pertaining to the consolidation of actions arising out of the same transaction or occurrence. It does not appear that the plaintiff made such an argument in opposition to the preliminary objections in this matter.

The plaintiff did make an argument for the permissive joinder of claims under the similar Pa.R.C.P. 2229(c), which argument was also rejected by the Butler County Court of Common Pleas in Baptiste. The court again indicated that the joinder of these claims would improperly inject irrelevant and prejudicial insurance issues in the negligence portion of the case against the tortfeasors. The court felt that, even though the severance would require a second trial on the same issues of liability and damages, undue prejudice would be avoided by severing the cases into two separate matters.

In so ruling the trial court rejected the plaintiff's arguments in favor of judicial economy and the goal of avoiding inconsistent verdicts. The trial court felt that the consideration of whether the joinder would interfere with the just determination of the matter for all parties was a higher priority.

Last but not least, the trial court noted its power to sever and order separate trials where warranted under Pa.R.C.P. 213(b). The court reiterated its opinion that "where joinder presents the potential for undue prejudice, [judicial] economy and inconvenience must yield to fairness for all parties."

Accordingly, the court felt that severance of the third party liability claims from the UIM claim was appropriate and, consequently, the court granted State Farm's preliminary objections. The UIM claims were severed and stayed pending the resolution of the third party liability negligence claims.

To date, there have not been any appellate court opinions on this consolidation issue. It is unlikely that any appellate decisions will be forthcoming in the near future as such issues are not readily appealable at such early stages in the litigation. As such, litigators will have to continue to rely upon the trial court opinions out there to convince the court they are before at the time the issue arises in their own case.

Anyone desiring a copy of this opinion may contact me at

I thank Dave Cole, Esquire of the Pennsylvania Defense Institute for bringing this case to my attention.

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