DANIEL E. CUMMINS, ESQ.
CUMMINS LAW
firm website: www.CumminsLaw.net
Email: dancummins@CumminsLaw.net
[UPDATED January 1, 2024]
DANIEL E. CUMMINS, ESQUIRE is an AV-Rated insurance defense attorney with the Clarks Summit, Pennsylvania law firm of CUMMINS LAW. In addition to being a civil litigator, he has also written for the Pennsylvania Law Weekly on important cases and emerging trends under Pennsylvania law. He is also the former author of the annual Supplement for The Pennsylvania Trial Advocacy Handbook.
Attorney Cummins was selected as the "Distinguished Defense Counsel of the Year" in 2014 by the Pennsylvania Defense Institute.
Since 2015, Attorney Cummins has also been annually selected for inclusion in the Best Lawyers in America for the category of Defense of Personal Injury matters, as well as being selected as a Super Lawyer.
To date, he is one of only a few attorneys in all of northeastern Pennsylvania to be selected to appear in the Best Lawyers in America Directory under the category of Personal Injury-Defense. In 2023, Cummins Law was selected to appear in the same Directory as one of the Best Law Firms in the Nation. To date, Cummins Law is the first, and only, insurance defense law firm from northeastern PA to be included.
Here's an update list of the post-Koken or post-Koken-like cases uncovered to date, broken down by county-to-county decisions. This Scorecard was created back in December of 2009 and has been updated with cases discovered ever since.
The list is not represented to be exhaustive and there may be other decisions out there that I am not aware of at present. As such, it is recommended that you conduct your own additional research on your particular issue to determine if there are any other relevant decisions out there.
It is important that these decisions be publicized so that a consistent common law in this novel area can be developed. I would appreciate it if you could please advise me of any new cases that you may come across on these topics.
APPELLATE DECISIONS TO DATE:
COLLATERAL ESTOPPEL
[See Trial Court Collateral Estoppel Cases below too]
[Click this LINK to view my October 7, 2014 Article on the topic of the application of the Collateral Estoppel Doctrine in UIM matters.]
USAA v. Hudson, No. 224 EDA 2014 (Pa. Super. Sept. 24, 2014 Lazarus, J., Ott, J., Strassburger, J.) (Memorandum by Ott, J.)("Non-Precedential")(The Pennsylvania Superior Court addressed the doctrine of collateral estoppel in a matter involving a claim for second level Underinsured Motorist (UIM) benefits after an arbitration award was entered for UIM benefits under a primary policy. The court ruled that since the Plaintiff's award on the first-level UIM claim was fully litigated and resulted in an award below the available first-level UIM limits, the Plaintiff was precluded from proceeding on to the second-level UIM claim.).
JOINDER OF ACTIONS
Richner v. McCance and Erie Insurance Group, 2011 WL 32499, 2011 Pa.Super. 4, No. 2045 WDA 2009 (Pa.Super. Jan. 6, 2011, Stevens, Donohue, and Ott, JJ.)(The Superior Court applied Pa.R.C.P. 2229(b), pertaining to the joinder of actions, and found that the requirements of that rule were not met to allow for a joinder of a tort claim with a declaratory judgment action on a coverage question. More specifically, the court found that, although the tort allegations and the coverage question essentially both arise out of the same accident, the liabilities of the respective defendants arise from different circumstances, i.e. one in tort and the other in contract law. In so ruling the Superior Court rejected the trial court's reliance on post-Koken cases ruling in favor of the consolidation of tort claims and claims for UIM benefits under Pa.R.C.P. 2229(b), as the analysis in those types of cases was "inapposite" to the issue in this case involving the separate and different question of the combination of a tort claim with a request for a declaratory judgment in response to a coverage question. Id. at p. 17, n. 4. In that same footnote, the Superior Court also stated, "We emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefit claims.").
VENUE
O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 984 A.2d 938, 2009 WL 3720649 (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)(As of November 30, 2009, the Plaintiff had filed for re-argument en banc before the Superior Court, which request was denied by way of a December 30, 2009 Order of Court.). [appeal denied, 2010 WL 1752268, 39 EAL 2010 (May 4, 2010)].
Sehl v. Neff and State Farm, No. 3438 EDA 2009 (Pa.Super. July 25, 2011 Olson, Freedburg, Colville, JJ.)(opinion by Freedburg) (Accident and torfeasor defendant from Montgomery County; UIM carrier's policy did not have forum selection clause; Plaintiff filed in Philadelphia County on grounds that UIM carrier conducted business in that County; Tortfeasor defendant argued, under Pa.R.C.P. 1006, that since tortfeasor and UIM carrier are not joint tortfeasors, tortfeasor defendant can not be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier. Tortfeasor defendant's preliminary objections based upon improper venue granted at trial court level and affirmed here by Superior Court. Accordingly, where there is no venue selection clause, it appears that venue in a post-Koken case is proper where the accident occurred, where the tortfeasor defendant resides, or where the tortfeasor defendant can be served as that is proper venue for the tortfeasor defendant under Pa.R.C.P. 1006 and also proper venue for the UIM carrier defendant as the UIM carrier defendant, as a corporate entity that conducts business in all counties of Pennsylvania.
TRIAL ISSUES
Zellat v. McCulloch, No. 1610 W.D. 2014, 2016 W.L. 312486 (Pa. Super. Jan. 26, 2016) (Bowes, Olson, and Stabile, J.J.) (Mem. Op. by Bowes, J.) (Non-precedential)(Follows Stepanovich ruling that it is not per se reversible where UIM carrier Defendant is not identified to jury during trial).
Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), appeal denied 11 WAL 2014 (Pa. April 22, 2014) (Superior Court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant. Yet, the Court did rule that Pa.R.E. 411, pertaining to preclusion of mention of liability insurance at trial, does not apply in context of references to UIM insurance at trial. However, open issue remains on whether common law prohibition of mentioning other forms of insurance at trial serves to preclude evidence of insurance in this context; Pennsylvania Supreme Court denied Petition to Appeal.).
TRIAL COURT DECISIONS
COLLATERAL ESTOPPEL
Eastern District Federal Court of Pennsylvania
Gallagher v. Ohio Casualty Ins. Co., 13-0168 (E.D. Pa. April 9, 2014)(Judge Nitza I. Quinones Alejandro of the Federal District Court for the Eastern District found that a Non-Binding ADR Award precluded a UIM claim, not under collateral estoppel doctrine but on basis that there was evidence, by way of the mediator's "settlement valuation," which was less than the third party limits, that showed that the tortfeasor was not underinsured.)
Harvey v. Liberty Mut. Ins. Group, NO. 130-CV-04693 (E.D. Pa. March 26, 2014 Joyner, J.)(Judge J. Curtis Joyner ruled that an injured party was barred by the doctrine of collateral estoppel from proceeding on a UIM claim after having agreed to a high/low arbitration on the third party side with a high parameter below the third party liability limits and where the arbitration award was entered below that high parameter. The court ruled in this fashion even though there was an agreement between the parties in the third party liability case that the binding arbitration was not intended to preclude any subsequent proceedings.).
Delaware County
USAA v. Hudson, 101 Del. 154 (C.P. Del. Feb 21, 2014)(Court holds that doctrine of collateral estoppel precludes re-litigation on UIM claim when same issues were previously litigated.)
Monroe County
DeHoyos v. GEICO, No. 10532-CV-2013 (C.P. Monroe Co. April 20, 2015 Willamson, J.)(Court rules that a Plaintiff was barred from pursuing a UIM claim where the award the Plaintiff received from the third party tortfeasor after an application of a high/low agreement to the jury's verdict was less than the tortfeasor's liability limits.)
Philadelphia County
Borrelli v. AIU North Americam, Inc., No. 0430, Control No. 13110820 (C.P. Phila. Jan. 15, 2014 Bernstein, J.)(Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted a UIM carrier's motion for summary judgment based on collateral estoppel in a case where the Plaintiff proceeded through an agreed upon high/low arbitration with the tortfeasor defendant first and was awarded an amount less than the tortfeasor's liability limits).
[Click on Label for "Collateral Estoppel" down on right hand column on www.TortTalk.com for more cases on this issue].
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PLEADINGS ISSUES
POST-KOKEN DECISIONS IN FEDERAL COURT REGARDING REMOVAL/REMAND
Federal Middle District Court of Pennsylvania
Hagan v. Leon, No. 3:17-cv-2155 (M.D. Pa. Jan. 3, 2018 Mariani, J.) (Mem. Op.)(Court denied a Plaintiff’s Motion to Remand his post-Koken claims back to the state court.).
Oswald v. State Farm, No. 3:09-CV-2578 (M.D.Pa. 2010, Caputo, J.) (Addressing an apparently novel scenario in the post-Koken context, Federal Middle District Court Judge A. Richard Caputo allowed a UIM carrier to join the third party tortfeasor into a Federal post-Koken lawsuit as a third party defendant).
Wabby v. State Farm Mutual Automobile Insurance Company, No. 3:09cv2449 (M.D. Pa. 2010, Munley, J., mem. op.),(Judge Munley delineated the standard of review on a motion to join a party in a case that has been removed to the federal court where such a joinder may serve to destroy the diversity of citizenship necessary for federal court jurisdiction; rules, under circumstances of this case that plaintiff could join non-diverse third party tortfeasor defendant into plaintiff's case against UIM carrier that had been removed to federal court by carrier; joinder of non-diverse defendant destroys diversity and leads federal court to remand case back to state court.).
Federal Eastern District Court
Kennedy v. Allstate, No. 2:15-CV-02221-TON (E.D.Pa. July 8, 2015 O'Neill, J.)(Allstate removed the matter to federal court, asserting a fraudulent joinder and the lack of any colorable claims under Pennsylvania law. There was no dispute that Allstate was an Illinois resident and that the three adjuster Defendants and the Plaintiff were Pennsylvania residents. There was also no dispute that the amount in controversy element was satisfied. After reviewing the applicable law on the issues raised, and after finding that the Plaintiff had stated colorable claims against the non-diverse claims adjuster defendants, the court remanded the case back to state court in Delaware County. The court so ruled despite noting a lack of concrete Pennsylvania state law recognizing the validity of a negligence claim against a claims adjuster by an insured relative to the handling of the insured's claims (i.e., is there a duty of care owed by an adjuster to an insured?). The court in Kennedy believed that, since there was a "possibility" that the Pennsylvania Supreme Court could someday rule that a claims adjuster owes a duty to an insured and therefore could be the subject of a negligence cause of action, the defendants in this matter had failed to meet their heavy burden under the law of attempting to show that there was no colorable claim and/or a fraudulent joinder of claims in an effort to defeat the diversity of citizenship necessary for federal court jurisdiction.
Western Federal District Court
Schutte v. GEICO, 2:16-cv-00374 (W.D. Pa. May 10, 2016 Schwab, J.)(Judge Arthur J. Schwab denied a Plaintiff’s Motion to Remand a post-Koken UIM claim back to the state court.)
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POST-KOKEN TRIAL COURT DECISIONS ON CONSOLIDATION vs. SEVERANCE OF CLAIMS
PENNSYLVANIA FEDERAL DISTRICT COURT DECISIONS IN FAVOR OF CONSOLIDATION
United States Federal Eastern District Court
Goldstein v. Am. States Ins. Co., No. 18-CV-3163 (E.D. Pa. Nov. 28, 2018 Baylson, J.)(Eastern District Federal Court of Pennsylvania denied a Defendant carrier’s Motion to Sever and Stay an Plaintiff’s Bad Faith Claim in a post-Koken litigation.).
Yellowbird Bus Co. v. Lexington Ins. Co., Civ. No. 09-5835, 2010 WL 2766987 (E.D. Pa. July 12, 2010) (Court denied Motion to Bifurcate because discovery with respect to the Plaintiffs’ bad faith and UIM claims would substantially overlap).
United States Federal Middle District Court
Griffiths v. Allstate, No. 3:13 - CV - 02674 (M.D. Pa. Feb. 21, 2014 Mannion, J.)(Middle District of Pennsylvania Federal Court Judge Malachy E. Mannion issued a detailed Opinion outlining his rationale for following the majority rule in the Middle District in favor of denying Motions to Sever bad faith claims from the breach of contract claim for UIM benefits.).
Consugar v. Nationwide Ins. Co., No. 3:10-cv-2084, 2011 WL 2360208 (M.D. Pa. 2011 Munley, J.) (Court denied Defendant’s Motion to Bifurcate because Plaintiff’s bad faith and UIM claims were based on the same facts and evidence).
Calestini v. Progressive Cas. Ins. Co., 3:09-CV-1679 (M.D.Pa. Dec. 16, 2009, Caputo, J.)(Court ruled against the Defendant insurance carrier's Motion to Bifurcate and Stay Discovery in a post-Koken case in which a UIM breach of contract action was joined with the bad faith action.).
Christian v. The First Liberty Ins. Corp, No. 1:10-CV-125 (M.D.Pa. March 16, 2011, Rambo, J.) (Court denied a Plaintiff's request to consolidate the Plaintiff's negligence lawsuit against the tortfeasors with the Plaintiff's separately filed uninsured (UM) claim against the Plaintiff's own carrier under an allegation that a phantom vehicle was also involved in the accident.).
Federal Western District of Pennsylvania
Cooper v. MetLife Auto & Home, No. 13-CV-687 (W.D. Pa. Aug. 6, 2013 Conti, J.) (Court denied Defendant’s Motion to Bifurcate the Plaintiff’s bad faith claim from the UIM breach of contract claim after finding that the potential prejudice presented by the situation does not outweigh the interests of judicial economy).
Schutte v. GEICO, No. 2:16-CV-00374 (W.D.Pa. May 24, 2016 Schwab, J.)(In a Memorandum Order, Court denied a UIM carrier's motion to sever and stay a bad faith claim asserted in a Post-Koken matter).
STATE TRIAL COURT DECISIONS IN FAVOR OF CONSOLIDATION
(Decisions from across 24 Counties)
Allegheny County
(Note split of authority on the issue-see Allegheny County cases under severance section below)
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).
Vernon v. Erie Insurance, No. GD 08-10406 (Allegheny Co. 2009, Wettick, J.)(court issued an Order without Opinion denying Erie's motion to stay discovery and bifurcate the UIM Claim from the Bad Faith claim; the bad faith claim was scheduled to be tried immediately upon the UIM case being sent to the jury. Also, the tort action was consolidated for trial with the UIM action. Ultimately, the case settled before jury selection).
Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008, Strassburger, J.)(Preliminary objection seeking to sever claims denied.).
Richner v. McCance and Erie Insurance Group, GD 09-2578, 2045 WDA 2009(Alleg. Co. Feb. 17, 2010, Hertzberg J.)(Third party claim against defendant driver and separate declaratory judgment action on UIM coverage issue allowed to proceed in a consolidated fashion; court leaves the door open to bifurcate at time of trial, if necessary.).
Shipers and Thompson v. Brown and Safe Auto, No.: GD-13-002037 (C.P. Allegheny
But see Jenkins v. State Farm, G.D. 07-020234 (Alleg. Co. Sept. 9, 2009, Wettick, J.)(Motion to stay and sever granted in UIM/Bad Faith case).
But see Wutz v. Smith and State Farm, GD07-021766 (Allegh. Co. March 2, 2010, Strassburger, J.)(Court ordered the severing of a third party claim from a UIM claim and Bad Faith claim against the UIM carrier. In this case, the UIM carrier paid the third party defendant’s settlement offer under Daley-Sand and thereby stepped into the Plaintiff’s shoes against the third party tortfeasor. Since there was no longer any “live dispute” against a tortfeasor in this matter, Judge Strassburger thought it appropriate to sever the cases and to allow the Plaintiff to proceed on the UIM and bad faith claims first.).
Armstrong County
Stennett v. Religa and Erie Ins. Exchange, No. 2017-0491-Civil (C.P. Armstrong Co. July 24, 2017 Panchik, J.) (Court denied a tortfeasor defendant's efforts to sever the tort claims asserted against him from the breach of contract UIM claims asserted against the carrier defendant.).
Beaver County
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.).
Bradish-Klein v. Kennedy and State Farm, PICS Case No. 09-2059 (C.P. Beaver Dec. 3, 2009, Kwidis, J.)(State Farm was not only UIM carrier, but also provided the liability coverage to the third party tortfeasor; Plaintiff initially filed suit against the third party tortfeasor only and then moved to amend the Complaint to add the UIM claim against the UIM carrier, State Farm. Third party tortfeasor opposed the motion to amend on the grounds that "insurance" would then come into play during the trial; Judge Kwidis relied on his prior decision in Six v. Phillips and Nationwide Ins. Co. to allow the amendment and allow the joinder of the third party claim and UIM claim under one caption; court again notes that fact that evidence of insurance may come in at trial does not preclude joinder).
Bucks County
Hartman v. Schofield and Progressive, No. 2009-CV-11956 (Bucks Co. Feb. 2010, Waite, J.)(Without opinion, trial court overruled carrier's preliminary objection seeking a severance of UM claim from negligence claims against third party defendant. However, trial court sustained UM carrier's preliminary objection and severed bad faith claims from breach of contract claims against UM carrier and negligence claims against third party tortfeasor).
Cambria County
Link v. Eckenrode and State Farm, No. 2009- Civil - 1312 (Cambria Co., Jan. 10, 2011)(Opinion by President Judge Timothy P. Creany, Concurrence by Judge David J. Tulowitzki, and Dissenting Opinion by Linda Rovder Fleming)(En banc Court, by 2-1 decision, ruled that negligence claims should be allowed to proceed in a consolidated fashion with UIM claims under one caption).
Lydick v. Keilman, No. 2010- Civil - 1700 (Cambria Co., Jan. 10, 2011, Creany, J.)(En banc Court, by a 2-1 decision ruled in favor of consolidation of negligence and UIM claims).
Centre County
Murphy v. Hampton et al, No. 2012-3855 (Centre Co. Feb. 14, 2013 Grine, J.)(Court overrules tortfeasor Defendant's preliminary objections asserting misjoinder of actions and requesting severance. Case allowed to remain consolidated).
Fennessey v. Sweeney and State Farm Mut. Automobile Ins. Co., No. 2012-2865 (Centre Co. Dec. 11, 2012 Ruest, J.)(In Opinion, court denied Defendants' preliminary objections asserting misjoinder of actions and also denied companion motion to sever to allow case to proceed in consolidated fashion).
Chester
County
Allen
v. Schreiber, et al., No. 3787-2012 (C.P. Chester July 2,
2013 Mahon, J.)(By Order without Opinion, trial court overruled UIM carrier’s
Preliminary Objections seeking to sever UIM and negligence claims.).
Clinton County
Wentzel v. Swinehart and State Farm, No. 375-10 CV (June 3, 2010, Williamson, P.J.)(Court denied both the UIM carrier’s Motion to Sever the Plaintiff’s bad faith claim and the request that the bad faith claim be stayed pending the resolution of the underinsured motorist action.).
Crawford County
Lamagna v. Keffer, No. A.D. 2015-630 (C.P. Crawford Co. March 1, 2016 Stevens, J.)(Judge Mark D. Stevens of the Crawford County Court of Common Pleas addressed Preliminary Objections filed by all Defendants to a Plaintiff’s Complaint along with a Motion to Sever the negligence claim from UIM claims and a companion Motion to Stay and Sever the Bad Faith Claims. The Court denied the request for a severance of the UIM claims from the negligence claim, but ruled in favor of a severance and stay of the bad faith claim.).
Dauphin County
Wolfe v. Hans and Progressive, No. 2010-CIVIL-11199 (Dauphin Co. March 21, 2011 Evans, J.)(Court denied severance in response to Preliminary Objections and a Motion to Sever filed by the tortfeasor Defendant.).
Fuhrman v. Frye and State Farm, Dauphin, 2008 CV 17687 (Without Opinion, request to sever UIM claim and third party claim denied).
Sellers v. Hindes and State Farm, Dauphin, 2009 CV 1989 (Without Opinion, 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)(Without Opinion, trial court ruled tortfeasor's preliminary objections to complaint which joined tortfeasor and the underinsured motorist causes of action under one caption denied in one line Order).
Schaeffer v. Bonny and Donegal Group, No. 2010 - Civil - 4547 (Dauph. Co., Sept. 10, 2010, Coates, J.)(Without Opinion, court denied preliminary objections filed by tortfeasor defendants and the UIM carrier and allowed the claims filed by the Plaintiff against the tortfeasor to remain consolidated under one caption with the claims against the UIM carrier).
Steele v. Kelly, No. 2009-CV-07007 (Dauphin Co., May 13, 2011, Curcillo, J.) and Steele v. Erie Insurance Exchange, No. 2010-CV-15431 (Dauphin Co., May 13, 2011, Curcillo, J.)(Court consolidated the Plaintiff’s claims against the tortfeasor with the Plaintiff’s separate claim against the underinsured motorist carrier. This may be the first case where the joinder occurred after the cases against the tortfeasor and the UIM carrier were initially filed separately.).
[But see Dauphin County decision in favor of severance in Severance section below].
Delaware
County
Gallo
v. Maiale & Grange Ins. Co., No. 2012-05963 (C.P.
Delaware August 12, 2013 Fizzano-Cannon, J.)(Plaintiff sued third party
tortfeasor and UIM carrier under one Complaint. By Order without Opinion, trial
court denied UIM carrier’s motion for summary judgment which sought dismissal
on the grounds that the UIM claim was not ripe as the Plaintiff had not yet
secured a settlement or verdict against the third party defendant driver.)Erie County
Jordan v. White, Gonzales, and Erie Insurance Exchange, No. 15540-Civil-2009 (Erie Co. October 28, 2010, Garhart, J.)(Court denied Preliminary Objections by the UIM/UM carrier seeking severance; Court says it will entertain a motion to sever at the time of trial, if desired).
But see below in "Severance" listing Brown v. Haas and State Farm, No. 11658 - 2011 (C.P. Erie Oct. 31, 2011 Connelly, J.)(In an Opinion, court granted the preliminary objections filed by the tortfeasor defendant seeking a severance of the negligence and UIM claims on the basis that the tortfeasor would be prejudiced by the introduction of evidence of insurance in violation of Pennsylvania law. The defense also argued that the claims did not arise out of the same "occurrence" in that one action was in negligence and the other in contract. Court also struck bad faith claim filed against UIM carrier as sufficient facts not pled in support of that claim.).
Lackawanna County
(Note split of authority within county-see Lackawanna County cases under severance section below)
Martin v. Ochenduszko, No. 17-CV-3912 (C.P. Lacka. Co. Jan. 16, 2019 Nealon, J.)(Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the UIM carrier’s Motion to Sever the Plaintiffs’ UIM claims from the tort claims asserted against a tortfeasor Defendant against whom punitive damages claims were pled given the Defendant-driver’s alleged operation of a vehicle under the influence of controlled substances at the time of the accident. Court foreshadows that bifurcation motion might be granted given that the case includes a punitive damages claim against the tortfeasor.).
Fertig v. Kelley No. 16-CV-4801 (C.P. Lacka. Co. 2017 Nealon, J.)(In a comprehensive Opinion, Judge Nealon denies a UIM carrier's motion to sever and stay the Plaintiff's bad faith claim and to sever the UIM claim).
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, Minora, J.).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008, Mazzoni, J.)(Court allowed discovery in a UIM/bad faith case to proceed in a consolidated fashion but noted that claims would later be severed into two separate trials).
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).
Nehme v. Erie Insurance and Osborne, 2009-CV-4982 (Lacka. Co. Nov. 5, 2009, Thomson, S.J.)(Without Opinion, Preliminary Objections seeking, in part, a severance of the third party claims and UIM claims denied).
Yesu v. Arcieri and Encompass Insurance Company of America, No. 2010-CV-9877 (Lacka. Co. May 18, 2011, Thomson, S.J.)(Without Opinion, court overruled the Preliminary Objections of the tortfeasor Defendant seeking a severance of the negligence claims filed against the tortfeasor from the breach of contract/bad faith claims filed against the UIM carrier.).
Bingham v. Poswistilo, Ritz, and Erie Ins., No. 10 - CV - 6020 (Lacka. Co., April 8, 2011, Nealon, J.)(In the most thorough Opinion anywhere on the issue, Judge Nealon ruled in favor of consolidation of third party claims and UIM claims for discovery purposes but left door open for parties to revisit severance issue at time of trial; However, court did end up severing claims based upon venue issue, with UIM claim being kept in Lackawanna County pursuant to forum selection clause in policy and with tortfeasor claims being sent to Lehigh County where venue was proper for that part of case.).
Richards v. McPhillips and Progressive Insurance Company, 2010-CIV-7020 (Lacka. Co. June 10, 2011, Mazzoni, J.)(Court denies preliminary objections of UIM carrier to sever negligence claims against third party tortfeasor from UIM claims against carrier. A wrinkle in this case separating the facts from previous post-Koken cases on this issue is that there were punitive damages allegations asserted against the third party tortfeasor on the basis that the tortfeasor was operating his vehicle allegedly under the influence of heroin and/or as otherwise impaired. Judge Mazzoni ruled that the punitive damages claims did not change the result. However, although Judge Mazzoni ruled that the cases could remain consolidated for purposes for discovery, he left the door open for the claims to possibly be severed at the time of trial by motion to the trial court judge.).
Knott v. Walters and Nationwide Mutual Automobile Ins. Co., No. 2010 CV 4745 (Lacka. Co. Aug. 5, 2011, Mazzoni, J.)(In a detailed Order, the court denied the preliminary objections filed by the tortfeasor defendant who claimed, in part, a misjoinder of actions under the Pennsylvania Rules of Civil Procedure; Although court rules case is to proceed to trial in consolidated fashion, court also points out that trial judge retains discretion to sever or bifurcate the cases if appropriate.).
But see Mehall v. Benedetto and Erie Ins. Exchange, 09-CV-744 (Lacka. Co. 2010 Thomson, S.J.)(Court orders that third party claims should be severed from UIM claims into two separate lawsuits; Motion for Reconsideration denied by July 10, 2010Court Order by Judge Thomson).
Golin v. Baggetta and The Travelers Home and Marine Ins. Co., 2014 CV 1839 (C.P. Lacka. Co. Dec. 3, 2014 Braxton, S.J.)(Motion to Sever Bad Faith claim and Stay Bad Faith Discovery denied).
Lawrence County
Joseph v. Perrotta and State Farm, No. 10457 of 2010 (Lawrence Co. Nov. 19, 2010, Cox, J.)(UIM carrier's Motion To Consolidate separate cases against tortfeasor and UIM carrier granted; Court notes it would entertain a motion to sever at the time of trial, if desired).
Lehigh County
Holland v. Yankauskas and Erie Insurance Exchange, No. 2015-C-1866 (C.P. Lehigh Co. Nov. 2, 2017 Reichley, J.), the court denied the UIM carrier’s Motion for Severance in which the carrier requested a separate trial. The Motion was denied without prejudice to the carrier's right to restate the Motion closer to trial.
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.).
Luzerne County
Rhoades v. Johnson and Erie Insurance Company, No. 9659 - CV - 2015 (C.P. Luz. Co. Feb. 11, 2016 Amesbury, J.)(In an Order without Opinion, Judge William H. Amesbury of the Luzerne County Court of Common Pleas denied the Defendant UIM carrier's Preliminary Objections/Motion to Sever filed in response to a Post-Koken Complaint. This matter arose out of a motor vehicle accident during which the Defendant tortfeasor driver was allegedly driving under the influence. The Defendant UIM carrier filed Preliminary Objections asserting a misjoinder of negligence claims against the alleged tortfeasor and UIM breach of contract claims under a single Complaint. The carrier combined the Preliminary Objections with a Motion to Sever pursuant to Pa.R.C.P. 213 asserting, in part, that it would be prejudicial for the UIM carrier to have to proceed through the same jury trial with the inflammatory facts associated with a Co-Defendant accused of a DUI and facing punitive damages.
Baldinucci v. Purcell and State Farm Mut. Auto. Ins. Co., No. 2015-Civil-7972 (C.P. Luz. Co. Dec. 18, 2015 Polachek-Gartley, J.)(Judge Tina Polachek-Gartley of the Luzerne County Court of Common Pleas denied Preliminary Objections filed by the UIM carrier Defendant asserting a misjoinder of the Plaintiff’s tort and UIM breach of contract claims in a case where the tortfeasor Defendant driver was alleged to have been driving under the influence at the time of the accident.)
Best v. Emsley and Progressive Insurance Company, No. 1549 of 2014 (C.P. Luz. Co. Aug. 29, 2014 Hughes, J.)(By Order only, Judge Richard M. Hughes, III of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant’s Preliminary Objections requesting the severance of the third party negligence claims from the contractual UIM claims asserted against the UIM carrier.)
Hoinski v. Farrell and Erie Ins. Co., No. 7270-CV-2013 (C.P. Luz. Co. 2013 Hughes, J.)(Judge Richard Hughes of the Luzerne County Court of Common Pleas denied Preliminary Objections filed by the UIM carrier seeking a severance of claims; tortfeasor was a DUI defendant facing punitive damages claim; court leaves door open for later motion to bifurcate.).
Weitoish v. Heck and State Farm Mutual Automobile Insurance Company, No. 13831 OF 2009 (C.P. Luz. Co. July 6, 2012, Amesbury, J.) (By Order only, Court denies Preliminary Objections of UIM carrier seeking severance of actions against UIM carrier from claims filed against third party tortfeasor).
Doran v. Williams, Price, and Nationwide, No. 7792-CV-2009 (Luz. Co. Dec. 29, 2009) (Without Opinion, court denied preliminary objections by the tortfeasor defendants as well as by Nationwide as the UIM carrier, both of which sets of preliminary objections had argued in part for the severance of the third party liability claims from the underinsured motorists (UIM) claims. As such, all claims were allowed to proceed in a consolidated fashion.)
Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009, Burke, J.)(Without Opinion, Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).
Rinker v. Kellar and State Farm, No. 11038 of 2009 (Luz. Co. June 25, 2010, Burke, J.)(Preliminary objection by tortfeasor defendant to sever third party claim from consolidated UIM claim overruled.).
Mitkowski v. Nationwide, No. 582-Civil-2010 (Luz. Co. July 29, 2010, Gartley, J.) and Mitkowski v. Stefanec, No. 17284 - Civil - 2008 (Luz. Co. July 29, 2010, Gartley, J.)(Court issued order granting UIM carrier's motion to consolidate the Plaintiff's UIM claim with the Plaintiff's third party claim against the tortfeasor.).
Borthwick v. Webb and GEICO, No. 2735-Civil-2010 (Luz. Co. Sept. 21, 2010, Cosgrove, J.)(Court denied the Preliminary Objections of Defendant GEICO, the UIM carrier, seeking a severance of the first party claims against it(breach of contract (UIM) and Bad Faith) from the third party liability claims, and, in the alternative a severance of the UIM claims and Bad Faith claims filed against GEICO. In a footnote in his Opinion, Judge Cosgrove cited to Pennsylvania Law Weekly article by Daniel E. Cummins, Esquire outlining decisions in this regard around the state. Case was allowed to proceed in a consolidated fashion).
Johns v. Cooper and GEICO, No. 9153 - Civil - 2010 (Luz. Co. Dec. 30, 2010, Burke, J.)(Court, in Order without Opinion, denied the tortfeasor Defendant's Preliminary Objections and Motion to Sever, thereby allowing the claims against the tortfeasor and the UIM carrier to proceed in a consolidated fashion. As support for his decision, Judge Burke cited to another Luzerne County decision, Borthwick v. Webb and GEICO, 100 Luz. Reg. Reports 135 (2010).).
Dunsmuir v. Tredinnick and State Farm, No. 12077 - Civil - 2010 (Luz. Co. June 29, 2011 Lupas, J.)(Court rejects State Farm's argument that Plaintiff's breach of contract complaint is really a bad faith complaint; case allowed to remain consolidated with third party negligence claim against tortfeasor).
Price v. Price III and State Farm, No. 13625 - Civil - 2010 (Luz. Co. Feb. 28, 2011 Gartley, J.)(Court overrules State Farm's preliminary objections requesting severance of UIM and negligence claims).
Korona v. Kemler and Mercury Insurance, No. 328 of 2011(Luz. Co. 2011 Muroski, S.J.). (Court, by Order only, denied the tortfeasor's Preliminary Objections claiming a misjoinder of actions and the case was allowed to remain consolidated.).
Monroe County
Cahill v. Fritz and Hartford Ins. Co., No. 7056-CV-2014 (C.P. Monroe Co. Jan. 16, 2015 Williamson, J.)(Court denies preliminary objections by UIM carrier seeking severance of negligence/UIM claims where defendant driver was allegedly DUI and Plaintiff pled punitive damages. Court says cases will be kept together for discovery purposes, but that a motion to bifurcate the trial could be filed at the conclusion of discovery to be considered by the court).
Cocuzza v. Castro, No. 406 – CV – 2012 (C.P. Monroe Co.J uly 12, 2012 Zulick, J .)(Court denies preliminary objections to sever and allows cases to remain consolidated without prejudice to parties to file motion to bifurcate trial after discovery is completed).
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Cocuzza v. Castro, No. 406 – CV – 2012 (C.P. Monroe Co.
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Montgomery County
Dininni v. Encompass Insurance Company, No. 2010 - Civil - 04615 (Montg. Co. June 16, 2010, Tilson, J.)(Court stayed discovery as to claims of bad faith and unfair trade practices until underlying UIM claims were tried or otherwise resolved. While ruling in favor of the defense in that regard, the court did also deny the defense request that the Bad Faith Claim and Unfair Trade Practices Claim be severed from the UIM claim.).
Montour County
Slaterbeck v. Sutsko and Erie Insurance, No. 237-CV-2012 (C.P. Montour Co. Oct. 12, 2012 Norton, J.)(Court overruled the Preliminary Objections of the UIM carrier, Erie Insurance Company, to the joinder of actions in this post-Koken case thereby allowing cases to remain consolidated).
Northampton County
Firoozifard v. Krome and State Farm, 2010 WL 2666306, No. C-48-Civil-2009-14369 (Northampton Co. June 21, 2010, Beltrami, J.)(Court denied a third party tortfeasor defendant's motion to sever the third party liability claims from the UIM and UM claims; court also notes that insurance issues can be kept from jury and the task of applying third party credit to determine UIM award can be kept away from jury and handled by the court only after the verdict).
Philadelphia County
(Note split of authority on the issue-see Philadelphia County cases under severance section below)
Little v. Bond and GEICO, June Term 2020, No. 1539 (C.P. Phila. Co. Sept. 8, 2020 New, J.), Judge Arnold L. New of the Philadelphia County Court of Common Pleas denied a UIM carrier's Preliminary Objections seeking to sever the third party negligence claims from the UIM claims under an improper joinder argument. This decision is by Order only and no Opinion.
Gaghan v. Killion and Encompass Ins. Co., Jan. Term 2020, No. 02905 (C.P. Phila. Co. May 27, 2020 New, J.), the Court denied a UIM carrier's Motion to Sever a Plaintiff's Tort case from the UIM case in an Order only.
Leone v. Ellingberg and Allstate, No. 180802705 (C.P. Phila. Co. Nov. 5, 2018 Younge, J.)(Court denied the carrier’s Motion to Sever the Plaintiff’s negligence claims from the UIM claim breach of contract claims by Order only.)
Schlesinger v. GEICO, June Term 2014, No. 0549, Control No. 14083387 (C.P. Phila. Co. Sept. 26, 2014)(Motion to Sever denied in one line Order).
Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (Without Opinion, 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).
Spano v. Carney and Nationwide Insurance, March Term, 2008 No. 5707 (Phila. Co. July 3, 2008 New, J.)(Preliminary objections of third party tortfeasor to joinder of negligence claims with UIM claims against insurance company overruled.).
Zerggan v. Rietman and Nationwide Insurance, No. 0906 o1752 June Term 2009 (Phila. Co. March 3, 2010, McInerney, J.)(Preliminary objections filed by the tortfeasor on a venue argument denied by court; court also denied misjoinder of causes of action preliminary objection--refuses to sever the third-party case from the underinsured motorist claim against Nationwide.
Bomentre v. Alifano and Nationwide Mut. Ins. et. al., Nov. Term, 2009 No. 4470 (Phila. Co. April 2, 2010, Glazer, J.)(Preliminary objections of third party defendant to joinder of negligence claims with UIM claims denied.)
Celia v. McQueeny [citation to be secured] (Phila. Co. 2010)(Court did not sever the UIM claims from negligence claims as requested but did transfer the consolidated case over to Bucks County pursuant to a forum selection clause under UIM policy.).
Bomentre v. Alifano and Nationwide, Nov. Term, 2009 No.: 447 (C.P. Phila.April 7, 2010 Glazer, J.) (Without Opinion, trial court denied third-party Defendant’s Preliminary Objections to joinder of claims against third party Defendant and UIM carriers, Nationwide and State Farm. The court noted that the claims against third party Defendant and UIM carriers “may be properly joined as they arise out of the same occurrence and have common questions of law or fact….the joinder will save resources, time and expense. There is no mis-joinder and the claims will be tried together in this court”).
Leone v. Ellingberg and Allstate, No. 180802705 (C.P. Phila. Co. Nov. 5, 2018 Younge, J.)(Court denied the carrier’s Motion to Sever the Plaintiff’s negligence claims from the UIM claim breach of contract claims by Order only.)
Schlesinger v. GEICO, June Term 2014, No. 0549, Control No. 14083387 (C.P. Phila. Co. Sept. 26, 2014)(Motion to Sever denied in one line Order).
Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (Without Opinion, 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).
Spano v. Carney and Nationwide Insurance, March Term, 2008 No. 5707 (Phila. Co. July 3, 2008 New, J.)(Preliminary objections of third party tortfeasor to joinder of negligence claims with UIM claims against insurance company overruled.).
Zerggan v. Rietman and Nationwide Insurance, No. 0906 o1752 June Term 2009 (Phila. Co. March 3, 2010, McInerney, J.)(Preliminary objections filed by the tortfeasor on a venue argument denied by court; court also denied misjoinder of causes of action preliminary objection--refuses to sever the third-party case from the underinsured motorist claim against Nationwide.
Bomentre v. Alifano and Nationwide Mut. Ins. et. al., Nov. Term, 2009 No. 4470 (Phila. Co. April 2, 2010, Glazer, J.)(Preliminary objections of third party defendant to joinder of negligence claims with UIM claims denied.)
Celia v. McQueeny [citation to be secured] (Phila. Co. 2010)(Court did not sever the UIM claims from negligence claims as requested but did transfer the consolidated case over to Bucks County pursuant to a forum selection clause under UIM policy.).
Bomentre v. Alifano and Nationwide, Nov. Term, 2009 No.: 447 (C.P. Phila.
Spano v. Carney and Nationwide, March Term, 2008 No.: 5707 (C.P. Phila. July 3, 2008 New, J.) (Without Opinion, trial court denied Preliminary Objections of tortfeasor Defendant arguing improper joinder and that the inclusion of the UIM claim with the third party claim would impermissibly allowed evidence of insurance to be introduced in violation of Pa. R.E. 411. The court also denied tortfeasor Defendant’s Preliminary Objection on improper venue; since court denied Preliminary Objections on mis-joinder of actions, venue issue raised by Defendant was also denied.
But see Astillero v. Harris and State Farm, August Term 2009, No. 1580 (Phila. Co. Dec. 11, 2009, Fox, J.)(Order states claims are severed "for purposes of trial only" presumably meaning claims may proceed together in discovery phase).
But see Morawski v. Dunleavy and State Farm, October Term 2009, No. 03493 (Phila. Co. April 26, 2010, Overton, J.)(third party claims and UIM claims severed for all purposes, not just for trial purposes).
But see Dangler v. Robinson and AIU Insurance Company, March Term 2009, No. 4027, Control No. 09-092828 (Phila. Co. 2010, DiVito, J.)(Court issued an Order granting the tortfeasor's preliminary objections, alleging a misjoinder of actions, in a post-Koken case.The Court, by Order only and without any Opinion, severed the UIM claim and ordered that it be tried separately from the third party claim.).
But see Schramm v. McComb and Penn National Insurance and State Auto Insurance, No. 1002 03394 (Phila. Co. May 10, 2010, Tereshko, J.)(Court granted the preliminary objections of the tortfeasor defendants and severed the third party claims from the UIM claims and ordered separate trials).
But see Carter v. Gillespie and Travelers Insurance Company, April 2010 Term No. 0564 (Phila Co. May 27, 2010, Tereshko, J.) (Court granted the third party tortfeasors' Preliminary Objections asserting a Misjoinder of Actions; Judge Tereshko ordered the actions severed and also mandated that the matters were to be tried separately.).
But see Thomas v. Titan Auto Ins., Nationwide Ins. Co., Jones, and Briel, March Term 2010 No. 03050 (May 10, 2010, Tereshko, J.)(Court granted the Petition to Sever filed by Titan/Nationwide the third party claims from the UIM claims and also granted the request that the case be therefore transferred to Montgomery County.)(Update: In the court's Rule 1925 Opinion, the trial court clarified that it was only sending negligence claim to Montgomery County and was keeping the UIM claim in Philadelphia County.).
But see Saltzburg v. Haynes and State Farm, November Term, 2010, No. 03227 (Phila. Co. Jan. 14, 2011 Tereshko, J.)(Preliminary Objections of tortfeasor defendant on basis of improper venue and improper joinder of third party negligence case with UIM case; claim against tortfeasor dismissed without prejudice to Plaintiff's right to re-file in Montgomery county).
But see Pascal v. Nalbondian, et al., July Term, 2010, No. 2118, Control No. 10121229 (Phila. Co. Jan. 14, 2011, Fox, J.)(Tortfeasor's motion to sever negligene claims from claims filed against UIM carrier granted).
But see Gollinge-Motroni v. Machado and Allstate Ins. Co., October Term 2010 No. 002528 (Phila. Co. Jan. 14, 2011, Tereshko, J.)(severance of UIM and negligence claims ordered and case transferred for improper venue).
Pike County
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).
Loiacono v. Moraza and Selective Insurance Company, No. 902-2010-Civil (Pike Co. Oct. 25, 2010, Kameen, P.J.)(Plaintiff's Preliminary Objections to Tortfeasor Defendant's untimel Preliminary Objections seeking to sever granted. Cases remain consolidated but Court says it will entertain a motion to sever come trial time).
But see Hansen v. Fucetola and NJM Ins. Co., 1079-2014-Civil (C.P. Pike Co. Feb. 26, 2019 Chelak, J.)(Judge Gregory H. Chelak of the Pike County Court of Common Pleas granted a UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith Claim From the Plaintiff's Breach of Contract Claim.)
Schuylkill County
[SPLIT OF AUTHORITY: Note below Schuylkill County decisions in favor of severance.]
Smith v. Koch and Allstate, No. S-460-2016 (C.P. Schuylk. Co. July 22, 2016 Goodman, J.), (In an Order only, Court denied motion of the UIM carrier to sever the UIM claim from the negligence claim.)
Wall v. Ebersole, Erie Ins., and Donegal Ins., No. S-495-2014 (C.P. Schuylkill Co. Oct. 29, 2014 Miller, J.)(Judge Charles M. Miller denied a second-level UIM carrier's request for a severance of claims and a directive to the Plaintiff to file a separate, later suit against the second-level UIM carrier once the liability claims and first-level UIM claims were concluded.)
Foster v. Naresh and Atlantic States Ins. Co., No. S-2298-2013 (C.P. Schuylkill Co. April 29, 2014 Domalakes, J.)(Court issues Opinion in favor of consolidation of claims.).
Washington County
Koontz v. Mast, No. 2011-Civil-142 (C.P. Wash. Co. Nov. 21, 2011 Emery, J.)(Court denied a post-Koken Motion to Sever and Preliminary Objections seeking to divide the negligence claims against the tortfeasor from the UIM breach of contract claims against the UIM carrier.).
Hoffman v. Ellis and State Farm, No. 2011-8417 (C.P. Wash. Co. Feb. 15, 2011 DiSale, J.,) (Court issued Order overruling a Defendant’s Preliminary Objections and Motion to Sever a post-Koken automobile accident litigation. The Court did state in its Order that it would “reconsider the issue of Severence prior to trial.”).
TRIAL COURT DECISIONS IN FAVOR OF SEVERANCE
(Decisions from across 25 Counties)
EASTERN DISTRICT FEDERAL COURT
Morninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.), Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation.
WESTERN DISTRICT FEDERAL COURT
Pastin v. Allstate Ins. Co., No. 17-CV-1503 (W.D. Pa. Nov. 30, 2018 Horan, J.)(court rejected an effort by a Plaintiff to join her underlying state court negligence action against the tortfeasor in a motor vehicle accident case with her UIM bad faith and breach of contract action filed in the federal court against her own carrier.)
Adams County
Megert v. Stambaugh, Erie Ins. Co., and The Hartford, 2010 WL 231525, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.)(Court rules in favor of the severance of the third party claims against the tortfeasor from the UIM claims asserted against the two separate levels of UIM carriers).
Michaleski v. National Indemnity Co., No. 09-S-1529 (Adams Co. Dec. 22, 2009, Kuhn, J.)(Carrier's preliminary objections to Plaintiff's attempt to join suit against third party tortfeasor for damages with declaratory judgment suit against first party carrier granted as claims do not arise out of same transaction or occurrence.).
Allegheny County
(Note split of authority-See Allegheny County cases under consolidation section above)
Jenkins v. State Farm, G.D. 07-020234 (Allegh. Co. Aug. 30, 2009, Wettick, J.)(Motion to Sever and Stay Bad Faith claim granted in UIM/Bad Faith litigation).
Wutz v. Smith and State Farm, GD07-021766 (Allegh. Co. March 2, 2010, Strassburger, J.)(Court ordered the severing of a third party claim from a UIM claim and Bad Faith claim against the UIM carrier. In this case, the UIM carrier paid the third party defendant’s settlement offer under Daley-Sand and thereby stepped into the Plaintiff’s shoes against the third party tortfeasor. Since there was no longer any “live dispute” against a tortfeasor in this matter, Judge Strassburger thought it appropriate to sever the cases and to allow the Plaintiff to proceed on the UIM and bad faith claims first.).
Beaver County
Muller v. Erie Insurance Exchange et al., No. 11362-2011 (C.P. Beaver Co., February 1, 2012, Kunselman, J.)(Court granted the preliminary objections of Erie Insurance Exchange and ordered the contractual and statutory bad faith counts to be severed from the underinsured motorist breach of contract count. The Court also issued a stay order on the bad faith action.).
Butler County
Weichey v. Marten and Allstate, 2009 WL 4395727, 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).
Marburger v. Erie Ins. Exchange, 2009-Civil-10927 (Butler Co. June 19, 2009, Horan, J.)(Motion to Sever and Stay on behalf of Erie granted; court precluded plaintiffs from conducting any bad faith discovery until further Order of court and permitted severance and stay of plaintiff's bad faith action pending resolution of UIM claim).
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)(Judge Horan more recently issued another Order in this case denying Plaintiff's Motion for Reconsideration of the court's decision ordering the claims severed. The Judge did amend her Order to allow discovery on the UIM and tort claims to proceed concurrently. It was indicated to me that no party objected to this request pertaining to the discovery.)
See also Lowry v. Aliquo and Erie Insurance Exchange, 159 PLJ 35 (Alleg. Co. 2010, Strassburger, J.)(Allegheny County Court of Court enforced the carrier’s forum selection clause for a UIM claim which required venue against carrier to be in Butler County under facts presented. Allegheny County Court notes that severance is the rule in Butler County and therefore severed the UIM claim and transferred only that claim to Butler County.).
Crawford County
Rucci v. Erie Insurance Exchange, No. A.D. 2014 - 803 (C.P. Crawford Co. February 5, 2015 Stevens, J.)(In an Opinion, the court ruled in favor of the UIM carrier's severance of and stay of bad faith claims in the combined UIM Breach of Contract and Bad Faith cause of action in the case).
Cumberland County
Stumpf v. Erie Ins. Exchange and Barricklow, No. 2011 - Civil - 7290 (C.P. Cumb. Co. Feb. 2, 2012 Hess, P.J.)(President Judge Kevin Hess of the Cumberland County Court of Common Pleas issued an Order directing the severance of the liability claims (negligence) and the UIM claims (breach of contract) found in a single Complaint into separate trials; Order allows claims to remain consolidated for discovery purposes.).
Henry v. Amin and Westfield Ins. Co., No. 11-4881 Civil (C.P. Cumberland Sept. 1, 2011 Ebert, J.)(By Order only, court severs negligence claims against tortfeasor from breach of contract claims against UIM carrier; court also orders that negligence claim is to be tried first).
Dauphin County [Split of authority]
Ali v. Erie Insurance Company, No. 2017-CV-03544 (C.P. Dauph. Co. March 1, 2019 Cherry, J.)(Court denied a Plaintiff’s Motion to Consolidate a third party negligence claim with a companion UIM claim in a post-Koken motor vehicle accident matter.).
Oaks v. Erie Insurance Exchange and Austin, No. 2012 - CV - 3741 - CV (C.P. Dauphin Co. May 8, 2015 Bratton, J.)(In a decision handed down after a mistrial in a matter, Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas granted the tortfeasor Defendant's Motion for Reconsideration of the court's prior denial of the tortfeasor's Motion to Sever the negligence claims asserted against him by the Plaintiff from the Plaintiff's UIM claims against the carrier for purposes of the retrial of the matter.).
Phaler v. Ray and Westfield Ins. Co., No. 2014 CV 7332 (C.P. Dauph. Co. April 3, 2015 Bratton, J.) (By Order only, the court granted a third party tortfeasor's Preliminary Objections seeking the severance of the negligence claims asserted against him from the breach of contract claims asserted against the UIM carrier.)
[See several Dauphin County decisions above in favor of consolidation in Consolidation section above].
Delaware County
Bryant v. Graham and Allstate, No. 09-11736 (Del. Co. May 26, 2010, Pagano, J.)(Order only)(Court grants Motion to Sever breach of contract and bad faith claims asserted against UM carrier from the UM claim and the negligence claim against the tortfeasor; no motion to sever UM claim from negligence claim filed).
Ryan and Neilson v. Hatala and Allstate, No.: 12-004323 (C.P. DelawareNov. 12, 2012 Proud, J.) (In Order without Opinion, the trial court sustain the third party Defendant’s Preliminary Objections under arguments that the presence of the UIM carrier in action would cause the tortfeasor Defendant undue prejudice and would violate Pa. R.E. 411. The third party Defendants also argued that the causes of action were impermissibly joined together under Pa. R.C.P. 2229(b) because the issues and proofs at issue in the Plaintiffs’ negligence claims were different from the issues and proofs at issue in their claims against the UIM carrier. The court granted the Preliminary Objections of the third party Defendants and dismissed them from the action without prejudice to the Plaintiffs’ right to institute a separate action against them).
Erie County
Erie Insurance Exchange v. Porter, No. 10327 - 2015 (C.P. Erie. Co. June 11, 2015 Cunningham, J.)(In a detailed Order, Judge William R. Cunningham granted the carrier's request to sever and stay UIM and Bad Faith Claims from a Declaratory Judgment action on coverage issues filed by the carrier.).
Crownover v. Orzano, Liberty Mutual Group, Inc., et.al., No. 14329-2011 (C.P. Erie Co. March 9, 2012 Garhart, J.)(Court sustained a tortfeasor’s Preliminary Objections on the subject of improper joinder and ordered that the Plaintiff “shall try their liability claims against [the tortfeasor Defendant] separately from their contract/UIM claims against the other Defendants.”).
Santos v. Erie Insurance Exchange, No. 12835-Civil-2011 (C.P. Erie Co. Feb. 22, 2012 Connelly, J.)(Court granted the carrier’s Motion to Sever the Plaintiffs’ UIM breach of contract claim and bad faith claim in a post-Koken matter. The Court also sustained the Defendant’s Motion to Strike claims for punitive damages and attorney’s fees asserted under the breach of contract portion of the claim.
Brown v. Haas and State Farm, No. 11658 - 2011 (C.P. Erie Oct. 31, 2011 Connelly, J.)(In an Opinion, court granted the preliminary objections filed by the tortfeasor defendant seeking a severance of the negligence and UIM claims on the basis that the tortfeasor would be prejudiced by the introduction of evidence of insurance in violation of Pennsylvania law. The defense also argued that the claims did not arise out of the same "occurrence" in that one action was in negligence and the other in contract. Court also struck bad faith claim filed against UIM carrier as sufficient facts not pled in support of that claim.).
But see above in "Consolidation" listing Jordan v. White, Gonzales, and Erie Insurance Exchange, No. 15540-Civil-2009 (Erie Co. October 28, 2010, Garhart, J.)(Court denied Preliminary Objections by the UIM/UM carrier seeking severance; Court says it will entertain a motion to sever at the time of trial, if desired).
Forest/Warren Counties (37 Judicial District combined)
Burr v. Erie Ins. Exchange, No. 008-Civil-2011/Forest County Branch (Warren and Forest Co., April 6, 2011, Hammond, J.)(Court ruled in an Order only that a combined UIM and Bad Faith lawsuit would be severed and that the discovery and trial in the Bad Faith aspect of the case could only occur after the resolution of the UIM case by verdict or settlement.).
Frankin County
York County
Forry v. Erie Insurance Exchange, No. 2013-SU-1162-89 (C.P. York Co.July 15, 2013 Linebaugh, P.J.)(President Judge Stephen P. Linebaugh of the York County Court of Common Pleas granted a Motion to Sever and Stay the bad faith claim filed Defendant, Erie Insurance Exchange in a combined UIM/bad faith litigation. The Court further ordered that all further pleadings, discovery, and trial of the bad faith claim was severed and stayed until after the Plaintiff’s claims for UIM benefits have been concluded by settlement or final verdict.).
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).
Winkler v. Argabright and Allstate Insurance Company, No. 2009 -SU -001244 -01 (York Co. May 20, 2010 Chronister, Thompson, Linebaugh) (Court issued an en banc decision, by Order only, granting a tortfeasor's Preliminary Objections and request for severance of the third party claims from the UIM claims).
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POST-KOKEN TRIAL COURT DECISION ON CONSOLIDATION vs. SEVERANCE OF CLAIMS WHERE BAD FAITH IS ALLEGED
TRIAL COURT DECISIONS DENYING MOTION TO SEVER OR BIFURCATE POST-KOKEN BAD FAITH CLAIMS
(Decisions from across 10 Counties, the Eastern Federal District Court, the Federal Middle District Court, and Federal Western District Court)
United States Federal Eastern District Court
Goldstein v. Am. States Ins. Co., No. 18-CV-3163 (E.D. Pa. Nov. 28, 2018 Baylson, J.), the Eastern District Federal Court of Pennsylvania denied a Defendant carrier’s Motion to Sever and Stay an Plaintiff’s Bad Faith Claim in a post-Koken litigation.
Jones-Silverman v. Allstate Fire & Casualty Ins. Co., No. 17-1711 (E.D. Pa. July 31, 2017 Baylson, J.)(Eastern District Federal Court denied a carrier’s Motion to Bifurcate a Plaintiff’s UIM breach of contract and bad faith claims.).
Eizen Fineberg & McCarthy, P.C. v. Ironshore Specialty Ins. Co., No. 16-2461, 319 F.R.D. 209 (E.D. Pa. Dec. 7, 2016 Slomsky, J.)(Court denied a carrier’s Motion to Bifurcate the insured’s bad faith claim from a coverage claim.).
Zinno v. GEICO¸ No. 16-792 (E.D. Pa. Nov. 21, 2016 Baylson, J.)(Court denied the carrier’s Motion to Bifurcate the breach of contract and bad faith claims in this UIM case. The court also denied the carrier’s Motion for a Stay of the discovery on the bad faith side of the claim.)
Wagner v. Allstate Ins. Co., No. 5:14-cv-07326 (E.D. Pa. Jan. 19, 2016 Leeson, J.)(Judge Joseph Leeson of the Federal Eastern District Court of Pennsylvania refused the UIM carrier’s effort to stay the Plaintiff’s bad faith claim but, in the end, rejected most of the insured’s bad faith discovery requests.).
Yellowbird Bus Co. v. Lexington Ins. Co., Civ. No. 09-5835, 2010 WL 2766987 (E.D. Pa. July 12, 2010) (Court denied Motion to Bifurcate because discovery with respect to the Plaintiffs’ bad faith and UIM claims would substantially overlap).
Rohm and Haas Co. v. Utica Mut. Ins. Co., 2008 WL 2517176 (E.D.Pa. 2008)(Motion to sever and stay bad faith claim denied).
United States Federal Middle District Court
Ferguson v. USAA, No. 1:19-cv-401 (M.D. Pa. Dec. 5, 2019 Rambo, J.)(Federal Middle District Court determined that a bad faith claim could proceed independently of a breach of contact claim, even if the breach of contact claim failed. In its decision, the Ferguson court also denied the carrier’s Motion to Sever the bad faith claim and stay bad faith discovery.).
Newhouse v. GEICO, No. 4:17-CV-00477 (M.D. Pa. Sept. 18, 2017 Brann, J.)(U.S. Middle District Judge Matthew W. Brann denied GEICO’s Motion to Sever and Stay the bad faith portion of a post-Koken claim filed by a Plaintiff also asserting a UIM claim.).
Griffith v. Allstate, No. 3:13 - CV - 02674 (M.D. Pa. Feb. 21, 2014 Mannion, J.), Middle District of Pennsylvania Federal Court Judge Malachy E. Mannion issued a detailed Opinion outlining his rationale for following the majority rule in the Middle District in favor of denying Motions to Sever bad faith claims from the breach of contract claim for UIM benefits.
Consugar v. Nationwide Ins. Co., No. 3:10-cv-2084, 2011 WL 2360208 (M.D. Pa. 2011 Munley, J.) (Court denied Defendant’s Motion to Bifurcate because Plaintiff’s bad faith and UIM claims were based on the same facts and evidence).
Calestini v. Progressive Cas. Ins. Co., 3:09-CV-1679 (M.D.Pa. Dec. 16, 2009, Caputo, J.)(Court ruled against the Defendant insurance carrier's Motion to Bifurcate and Stay Discovery in a post-Koken case in which a UIM breach of contract action was joined with the bad faith action.).
Suscavage v. Nationwide Mut. Ins. Co, 2008 WL 2278082 (M.D.Pa. 2008 Munley, J.)(Court denied Motion to Bifurcate trial of bad faith claim and breach of contract claim. Held that the bifurcation of such matters would lead to confusion, delay and inconvenience that would not serve the interests of judicial economy).
United States Federal Western District Court
Walls v. American Modern Select Ins. Co., No. 3:19-cv-80 (W.D. Pa. Feb. 6, 2020 Gibson, J.) (ourt denied the carrier’s Motion to Sever and Stay the insured’s bad faith claim).
Schutte v. GEICO, No. 2:16-CV-00374 (W.D.Pa. May 24, 2016 Schwab, J.)(In a Memorandum Order, Court denied a UIM carrier's motion to sever and stay a bad faith claim asserted in a Post-Koken matter).
Cooper v. MetLife Auto and Home, No. 687-2013 (W.D.Pa. Aug. 6,
2013 Conti, J.)(Court denied UIM carrier’s motion to sever and stay bad faith
claim for failure to establish that bifurcation was appropriate. Court found that the issues in the UIM and
bad faith claims were not significantly different, many of the witnesses would
be the same in both trials, and any minor prejudice that might exist was
outweighed by the court’s obligation to promote the expeditious resolution of a
case.).
Craker v. State Farm, No. 2011 – Civil – 0225 (W.D.Pa. Sept. 29, 2011 Lancaster, C.J.)(Carrier's request to sever Bad Faith and UIM claim denied).
Zettle v. American National Prop. & Cas. Co., 2011 WL 13130887 (W.D.Pa. 2011).
Allegheny County
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; Court also rules that Plaintiff's efforts to discover UIM carrier's evaluation information denied as such information is protected from discovery by the privilege against the disclosure of mental impressions, conclusions, or opinions of a representative of a party regarding value. Court notes that such discovery would be allowed once UIM claim is concluded by jury verdict or otherwise.).
Vernon v. Erie Insurance, No. GD 08-10406 (Allegheny Co. 2009, Wettick, J.)(court issued an Order without Opinion denying Erie's motion to stay discovery and bifurcate the UIM Claim from the Bad Faith claim; the bad faith claim was scheduled to be tried immediately upon the UIM case being sent to the jury. Also, the tort action was consolidated for trial with the UIM action. Ultimately, the case settled before jury selection).
Blair County
Fisher v. Erie Insurance Exchange, No. 2016-GN-298 (C.P. Blair Co. May 9, 2018 Bernard, J.), the trial court denied the insurance company’s Motion to Sever the UIM and bad faith claims and further denied the carrier’s Motion to Stay the bad faith case.
Swan v. Moorefield, No. 2014 GN 2606 (C.P. Blair Co. Sept. 9, 2017 Kagarise, J.) (Court denied a UIM carrier’s Motion to Sever and Stay Bad Faith Claims in a post-Koken matter.).
But see Blair County decision in favor of severance in next section below.
Clinton County
Wentzel v. Swinehart and State Farm, No. 375-10 CV (June 3, 2010, Williamson, P.J.)(Court denied both the UIM carrier’s Motion to Sever the Plaintiff’s bad faith claim and the request that the bad faith claim be stayed pending the resolution of the underinsured motorist action.).
Fayette County
Rimel v. Mutual Benefit Insurance Company and State Farm Mutual Automobile Insurance Company, No. 2450 of 2016, G.D., (C.P. Fayette Co. March 23, 2017 Cordaro, J.)(Court denied the Motion of Defendant, Mutual Benefit Insurance Company, to Sever and Stay a Bad Faith Claim.).
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, Minora, J.).
But see Lackawanna County trial court decisions below in favor of severance of bad faith claims.
Lehigh County
Holland v. Yankauskas and Erie Insurance Exchange, No. 2015-C-1866 (C.P. Lehigh Co. Nov. 2, 2017 Reichley, J.)(The court denied the UIM carrier’s Motion for Severance in which the carrier requested a separate trial. The Motion was denied without prejudice to the carrier's right to restate the Motion closer to trial.).
Pelton v. Allstate Fire and Cas. Ins. Co., No. 1507-CV-2015 (C.P. Luz. Co. June 3, 2015 Pierantoni, J.)(In an Order only, the court denied the UIM carrier's motion to stay bad faith discovery in a case where the parties had previously agreed to a severance of the bad faith claims from the UIM claims).
Schuckers v. Penn National Mut. Cas. Ins. Co., No. 9080 of 2011 (C.P. Luz. Co. Nov. 6, 2012 Amesbury, J.)(Court denied motion to sever and stay bad faith claims pending resolution of UIM claims by noting there would be a “severance of the case by application of law” in that the UIM case would be tried first followed by a bench trial on the bad faith claim. Court also denied the UIM carrier’s motion to stay bad faith discovery, noting that UIM carrier had the right to protect non-discoverable information and that the UIM carrier’s conclusions or opinions regarding the strengths and weaknesses of the Plaintiff’s case would be protected from disclosure until the completion of the UIM claim; cites Judge Wettick’s decision in Gunn v. Auto. Ins. Co. of Hartford.).
Borthwick v. Webb and GEICO, No. 2735-Civil-2010 (Luz. Co. Sept. 21, 2010, Cosgrove, J.)(Court denied the Preliminary Objections of Defendant GEICO, the UIM carrier, seeking a severance of the first party claims against it(breach of contract (UIM) and Bad Faith) from the third party liability claims, and, in the alternative a severance of the UIM claims and Bad Faith claims filed against GEICO. In a footnote in his Opinion, Judge Cosgrove cited to Pennsylvania Law Weekly article by Daniel E. Cummins, Esquire outlining decisions in this regard around the state. Case was allowed to proceed in a consolidated fashion).
Montgomery County
Dininni v. Encompass Insurance Company, No. 2010 - Civil - 04615 (Montg. Co. June 16, 2010, Tilson, J.)(Court stayed discovery as to claims of bad faith and unfair trade practices until underlying UIM claims were tried or otherwise resolved. While ruling in favor of the defense in that regard, the court did also deny the defense request that the Bad Faith Claim and Unfair Trade Practices Claim be severed from the UIM claim.).
Northumberland County
Kerchoff v. Donegal Ins. Group, No. 16-CV-1266 (C.P. Northumberland Jan. 4, 2017 Jones, J.)(Court denied a UIM carrier's Motion to Sever and Stay a Bad Faith claim. This Post-Koken matter involved bad faith and breach of contract UIM claims asserted following a motor vehicle accident.)
Philadelphia County
Kiszlo v. Erie Insurance Exchange, No. 2355, October Term 2014 (C.P. Phila. Co. March 30, 2015 Rau, J.)(In an Order only, the court denied the UIM carrier’s Motion to Sever the UIM and bad faith claims.).
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TRIAL COURT DECISIONS IN FAVOR OF SEVERANCE OF BAD FAITH CLAIM
(Decisions from across 22 Counties and Federal Eastern District Court and the Federal Western District Court)
Eastern District Federal Court
Corley v. Nat'l Indemn. Co., No. 2:16-CV-00584-MMB (E.D. Pa. Sept. 9, 2016 Baylson, J.)(Motion to sever and stay a bad faith claim granted.)
Morninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.),(In Opinion, Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation.)
AstenJohnson v. Columbia Cas. Co., 2006 WL 1791260 (E.D.Pa. 2006)(Court grants motion to sever and stay bad faith claim).
Western District Federal Court
Pastin v. Allstate Ins. Co., No. 17-CV-1503 (W.D. Pa. Nov. 30, 2018 Horan, J.), the court rejected an effort by a Plaintiff to join her underlying state court negligence action against the tortfeasor in a motor vehicle accident case with her UIM bad faith and breach of contract action filed in the federal court against her own carrier.
Allegheny County
Stoots v. Mutual Benefit Ins. Co., No. GD 16-024731 (C.P. Allegh. Co. Dec. 7, 2018 Colville, J.)(The court granted a carrier's Motion to Sever and Stay the Bad Faith portion of this Post-Koken matter by Order only).
Nebel v. Encompass Home and Auto Insurance Company, No. GD-15-015891 (C.P. Allegh. Co. Oct. 6, 2016 Folino, J.)(In an Order only, Court granted a Defendant’s Motion to Sever and Stay the Bad Faith portion of a UIM/bad faith matter.)
Wutz v. Smith and State Farm, GD07-021766 (Allegh. Co. March 2, 2010, Strassburger, J.)(Court ordered the severing of a third party claim from a UIM claim and Bad Faith claim against the UIM carrier. In this case, the UIM carrier paid the third party defendant’s settlement offer under Daley-Sand and thereby stepped into the Plaintiff’s shoes against the third party tortfeasor. Since there was no longer any “live dispute” against a tortfeasor in this matter, Judge Strassburger thought it appropriate to sever the cases and to allow the Plaintiff to proceed on the UIM and bad faith claims first.).
Jenkins v. State Farm, G.D. 07-020234 (Alleg. Co. Sept. 9, 2009, Wettick, J.)(Motion to stay and sever granted in UIM/Bad Faith case.
Beaver County
Butts v. Erie Ins., No. 10036-2016 (C.P. Beaver Sept. 8, 2016 Kunselman, J.)(When the defendant moved to sever the UIM and bad faith cases and to stay all bad faith discovery, the plaintiff agreed to voluntarily stay bad faith discovery but objected to the severance request arguing that bifurcation was the proper procedural option to avoid alleged prejudice. The trial court held that, going forward, bifurcation would be the preferred procedure for handling UIM and bad faith cases in Beaver County.).
Muller v. Erie Insurance Exchange et al., No. 11362-2011 (C.P. Beaver Co., February 1, 2012, Kunselman, J.)(Court granted the preliminary objections of Erie Insurance Exchange and ordered the contractual and statutory bad faith counts to be severed from the underinsured motorist breach of contract count. The Court also issued a stay order on the bad faith action.).
Blair County
Raia v. Agency Insurance Company of Maryland, Inc., No. 2015- GN-3456 (C.P. Blair Co. Feb. 28, 2017 Doyle, P.J.) (Court sustained an insurance company’s Preliminary Objections in a post-Koken matter seeking the severance of the bad faith claim from the breach of contract claim. The court also agreed to stay discovery in the bad faith portion to the case.).
But see Blair County decision denying motion to sever in preceding section above.
Bucks County
Hartman v. Schofield and Progressive Insurance, 2009 - Civil - 11956 (Bucks Co. Feb. 16, 2010, Waite, J.)(Court granted Preliminary Objections of the UIM carrier requesting that the bad faith claim be severed from the third party claims and the UIM claim all filed under one caption).
Butler County
Marburger v. Erie Ins. Exchange, 2009-Civil-10927 (Butler Co. June 19, 2009, Horan, J.)(Motion to Sever and Stay on behalf of Erie granted; court precluded plaintiffs from conducting any bad faith discovery until further Order of court and permitted severance and stay of plaintiff's bad faith action pending resolution of UIM claim).
Crawford County
Foster v. Erie Ins. Exchange, No. A.D. 2015-218 (C.P. Crawford Nov. 23, 2016 Vardaro, J.)(Court issued a detailed Order granting the carrier's Motion to Sever the Bad Faith claim from the Breach of Contract claim. The Court also stayed discovery on the Bad Faith claim pending the resolution of the Breach of Contract claim. The Court further ruled that the Breach of Contract claim would be tried first followed by the Bad Faith claim.)
Lamagna v. Keffer, No. A.D. 2015-630 (C.P. Crawford Co. March 1, 2016 Stevens, J.), Judge Mark D. Stevens of the Crawford County Court of Common Pleas addressed Preliminary Objections filed by all Defendants to a Plaintiff’s Complaint along with a Motion to Sever the negligence claim from UIM claims and a companion Motion to Stay and Sever the Bad Faith Claims. The court denied the request for severance of the UIM and tort claims, but granted the request for a severance and stay of the bad faith claim.).
Rucci v. Erie Insurance Exchange, No. A.D. 2014 - 803 (C.P. Crawford Co. February 5, 2015 Stevens, J.)(In an Opinion, the court ruled in favor of the UIM carrier's severance of and stay of bad faith claims in the combined UIM Breach of Contract and Bad Faith cause of action in the case).
Delaware County
Bryant v. Graham and Allstate, No. 09-11736 (Del. Co. May 26, 2010, Pagano, J.)(Order only)(Court grants Motion to Sever and severs breach of contract and bad faith claims asserted against UM carrier from the UM claim and the negligence claim; no motion to sever negligence claim from UM claim filed).
Erie County
Erie Insurance Exchange v. Porter, No. 10327 - 2015 (C.P. Erie. Co. June 11, 2015 Cunningham, J.)(Judge William R. Cunningham granted the carrier's request to sever and stay UIM and Bad Faith Claims from a Declaratory Judgment action on coverage issues filed by the carrier.).
Santos v. Erie Insurance Exchange, No. 12835-Civil-2011 (C.P. Erie Co. Feb. 22, 2012 Connelly, J.), (Court granted the carrier’s Motion to Sever the Plaintiffs’ UIM breach of contract claim and bad faith claim in a post-Koken matter. The Court also sustained the Defendant’s Motion to Strike claims for punitive damages and attorney’s fees asserted under the breach of contract portion of the claim.)
Brown v. Haas and State Farm, No. 11658 - 2011 (C.P. Erie Oct. 31, 2011 Connelly, J.)(In an Opinion, court struck bad faith claim filed against UIM carrier as sufficient facts not pled in support of that claim.).
Forest/Warren Counties (37 Judicial District combined)
Burr v. Erie Ins. Exchange, No. 008-Civil-2011/Forest County Branch (Warren and Forest Co., April 6, 2011, Hammond, J.)(Court ruled in an Order only that a combined UIM and Bad Faith lawsuit would be severed and that the discovery and trial in the Bad Faith aspect of the case could only occur after the resolution of the UIM case by verdict or settlement.).
Lackawanna County
Golin v. Baggetta and The Travelers Home and Marine Ins. Co., 2014 CV 1839 (C.P. Lacka. Co. Dec. 3, 2014 Braxton, S.J.)(Motion to Sever Bad Faith claim and Stay Bad Faith Discovery denied).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008, Mazzoni, J.)(Court allowed discovery in a UIM/bad faith case to proceed in a consolidated fashion but grants motion to sever for trial purposes).
Smith v. GEICO, No. 10-CIV-2024 (Lacka. Co. Aug, 18, 2010, Thomson, S.J.) (Court sustained GEICO’s Preliminary Objections to the extent that the bad faith claim contained in the Plaintiff’s Complaint would be severed from the action and the parties would proceed with the claims bifurcated. Although defense counsel also requested a stay of any bad faith discovery, that part of the Defendant’s request was not addressed in the Court Order.).
Lancaster County
Amway v. Agency Ins. Co., No. CI-19-10224 (C.P. Lanc. Co. March 11, 2020 Brown, J.) (Court granted a carrier's Motion to Sever and Stay a Plaintiff's bad faith claim from a companion breach of contract claim. The decision is by way of an Order with detailed footnotes providing insight into the Court's rationale).
Lebanon County
Dunkelberger v. Erie Insurance Company, No. 2010-Civil-01956 (Leb. Co. Jan. 24, 2011 Charles, J.)(Motion of Erie Insurance Company for an Emergency Protective Order and Stay in terms of any discovery requested by the Plaintiff on the bad faith claim. Judge Charles also ruled that the Plaintiff’s UIM claim was to be severed from the bad faith claim.).
Luzerne County [Split of Authority - See above]
Albright v. Erie Insurance Exchange, No. 3919-2018 (C.P. Luz. Co. Oct. 15, 2018 Gelb, J)(Judge Lesa Gelb of the Luzerne County Court of Common Pleas denied a Defendant carrier’s Motion to Sever and Stay a statutory bad faith claim in a post-Koken matter by Order only).
McLaughlin v. State Auto Property and Cas. Ins. Co., No. 2017-CV-08471 (Aug. 29, 2018 Gartley, J.)(Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas granted in part and denied in part the UIM carrier’s Motion to Sever and Stay the Plaintiffs’ statutory and common law bad faith claims in a Post-Koken litigation. The Court agreed to sever the bad faith claims from the breach of contract claims for trial purposes but denied the motion for a stay of any bad faith discovery.)
Denisco v. USAA, No. 2248-CV-2018 (C.P. Luz. Co. May 21, 2018 Amesbury, J.)(Court granted a UIM carrier’s Motion to Sever and Stay a Plaintiffs’ Bad Faith Claims from the Plaintiffs’ Breach of Contract Claims.)
Monroe County
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. May 8, 2015, Williamson, J.)(Court revisits its first decision in this case and still keeps UIM and Bad Faith Claims severed BUT NOW grants a request for a stay of bad faith discovery.).
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.)(Court granted the Defendant carrier’s Motion to Sever the bad faith and extra-contractual claims from the UIM claims, but denied the UIM carrier’s Motion to Stay Bad Faith Discovery.)
Susquehanna County
Zembrzicki v. Allstate Fire & Cas. Ins. Co., 2013 - 475CP(C.P. Susq. Co. 2013 Seamans, J.)(Court granted a UIM carrier's request to sever the UIM claim from a bad faith claim.).
Venango County
Boughner v. Erie Ins. Exchange, No. 1875 - Civil - 2010 (C.P. Venango Co. April 16, 2012 Boyer, J.)(Court granted the UIM carrier's Motion to Sever the Bad Faith Count from the UIM contractual claim and also the Motion to Stay any discovery under the bad faith claim.).
Westmoreland County
Steele v. Erie Insurance Exchange, No. 4005-2016 (C.P. Westmoreland Co. Dec. 9, 2016)(Court grants Motion to Sever and Stay Bad Faith Claim in Post-Koken matter; Court also orders that the defendant carrier's Motion for a Protective Order was granted such that all bad faith discovery was stayed until the resolution of the UIM claim).
Ainsley v. Erie Ins. Exch., No. 1876 of 2014 (C.P. Westmoreland June 2, 2015 Regoli, J.)(Court granted UIM carrier's motion to sever and stay bad faith claim for purposes of discovery and trial. Court specified that bad faith claim was severed and stayed pending resolution of UIM claim).
York County
Miller v. Conn and Penn Nat'l Ins., No. 2019-SU-000078 (C.P. York Co. Feb. 27, 2020 Vedder, J.) (Court granted the UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith claims from the third party and UIM claims pled in the case. No Opinion was issued with the Order).
Forry v. Erie Insurance Exchange, No. 2013-SU-1162-89 (C.P. York Co.July 15, 2013 Linebaugh, P.J.)(President Judge Stephen P. Linebaugh of the York County Court of Common Pleas granted a Motion to Sever and Stay the bad faith claim filed Defendant, Erie Insurance Exchange in a combined UIM/bad faith litigation. The Court further ordered that all further pleadings, discovery, and trial of the bad faith claim was severed and stayed until after the Plaintiff’s claims for UIM benefits have been concluded by settlement or final verdict.).
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SUPERIOR COURT DECISIONS IN POST-KOKEN CASE ON CONSOLIDATION vs. SEVERANCE OF CLAIMS
None to date.
But see Richner v. McCance and Erie Insurance Group, 2011 WL 32499, 2011 Pa.Super. 4, No. 2045 WDA 2009 (Pa.Super. Jan. 6, 2011, Stevens, Donohue, and Ott, JJ.).(The Superior Court applied Pa.R.C.P. 2229(b), pertaining to the joinder of actions, and found that the requirements of that rule were not met to allow for a joinder of a tort claim with a declaratory judgment action on a coverage question. More specifically, the court found that, although the tort allegations and the coverage question essentially both arise out of the same accident, the liabilities of the respective defendants arise from different circumstances, i.e. one in tort and the other in contract law.
The court also found that the questions of law at issue were not common to both actions.
In so ruling the Superior Court rejected the trial court's reliance on post-Koken cases ruling in favor of the consolidation of tort claims and claims for UIM benefits under Pa.R.C.P. 2229(b), as the analysis in those types of cases was "inapposite" to the issue in this case involving the separate and different question of the combination of a tort claim with a request for a declaratory judgment in response to a coverage question. Id. at p. 17, n. 4.
In that same footnote, the Superior Court also stated, "We emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefit claims.").
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COORDINATION OF ACTIONS FILED IN SEPARATE COUNTIES
Lackawanna County
Grimes v. Velez, No. 2016-CV-4071 (C.P. Lacka. Co. Jan. 22, 2018 Gibbons, J.)(Judge James A. Gibbons of the Lackawanna County Court of Common Pleas granted a Plaintiff’s Motion to Coordinate separate motor vehicle accident litigations filed in separate counties. The court granted the motion under Pa. R.C.P. 213.1.)
Luzerne County
Orsulak v. Penn National Mutual Cas. Ins. Co. and Penn National Ins., No. 12255-Civil-2010 (Luz. Co., April 12, 2011, Van Jura, J.)(Court addresses Motion for Coordination of in Post-Koken case involving claims filed in different counties; applies Rule 213.1 and rules that cases should be coordinated because they arise out of same transaction or occurrence.) affirmed Orsulak v. Penn National Mutual Cas. Ins. Co., No. 957 M.D.A. 2011 (Pa. Super. Feb. 23, 2012 Gantman, Alan and Mundy, JJ., (Memorandum Opinion by Mundy, J.),
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POST-KOKEN CASES ON VENUE
PENNSYLVANIA SUPERIOR COURT DECISIONS
O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 984 A.2d 938, 2009 WL 3720649 (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)(As of November 30, 2009, the Plaintiff had filed for re-argument en banc before the Superior Court, which request was denied by way of a December 30, 2009 Order of Court.). [appeal denied, 2010 WL 1752268, 39 EAL 2010 (May 4, 2010)].
Sehl v. Neff and State Farm, No. 3438 EDA 2009 (Pa.Super. July 25, 2011 Olson, Freedburg, Colville, JJ.)(opinion by Freedburg) (Accident and torfeasor defendant from Montgomery County; UIM carrier's policy did not have forum selection clause; Plaintiff filed in Philadelphia County on grounds that UIM carrier conducted business in that County; Tortfeasor defendant argued, under Pa.R.C.P. 1006, that since tortfeasor and UIM carrier are not joint tortfeasors, tortfeasor defendant can not be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier. Tortfeasor defendant's preliminary objections based upon improper venue granted at trial court level and affirmed here by Superior Court. Accordingly, where there is no venue selection clause, it appears that venue in a post-Koken case is proper where the accident occurred, where the tortfeasor defendant resides, or where the tortfeasor defendant can be served as that is proper venue for the tortfeasor defendant under Pa.R.C.P. 1006 and also proper venue for the UIM carrier defendant as the UIM carrier defendant, as a corporate entity that conducts business in all counties of Pennsylvania.
CASES WHERE UIM CARRIER HAS FORUM SELECTION CLAUSE
Federal Eastern District Court of Pennsylvania
Otto v. Erie Ins. Exch., No. 13-CV-06722 (E.D.Pa. March 31, 2014 Brody, J.)(Plaintiff sued UIM carrier in Eastern District. Erie forum selection clause provides that “[s]uit must be brought in a court of competent jurisdiction in the county and state of [plaintiff’s] legal domicile at the time of the accident.” Plaintiff resided in Montgomery County and sued in Eastern District Federal Court. UIM carrier’s motion to dismiss pursuant to forum non conveniens doctrine arguing that only the Montgomery Court of Common Pleas was the proper venue was rejected as the Eastern District Federal Court was a court of competent jurisdiction that covered Montgomery County.).
Allegheny County
Lowry v. Aliquo and Erie Insurance Exchange, 159 PLJ 35 (Alleg. Co. 2010, Strassburger, J.)(Court enforced the carrier’s forum selection clause for a UIM claim which required venue against UIM carrier in Butler County under facts presented. Court then severed the cases under Butler County and transferred only the UIM portion of the action to Butler County.).
Erie County
Werner v. Jamison and Erie Ins., 2011 CV-3221 (March 7, 2012 Evans, J.)(Court issues Order only denying preliminary objections filed by Erie Insurance asserting improper venue.).
Lackawanna County
Kichline v. Erie Ins. Exchange, 2009 CIV 3052 (Lacka. Co. Feb. 16, 2010, Thomson, S.J)(Venue/forum selection clause of UIM policy upheld and case transferred to proper county).
Luzerne County
Walls v. Erie Ins. Co. and Muneshwar, No. 15095 of 2009 (Luz. Co. Feb. 24, 2010, Amesbury, J.)(court transfered a post-Koken case to its proper venue of Columbia County. Plaintiff resided in Columbia County and was involved in a Luzerne County car accident. Plaintiff filed a lawsuit in Luzerne County against the tortfeasor and the UIM carrier. The policy of the UIM carrier, Erie Insurance, provided that all UIM claims must be filed in the county of the Plaintiff's residence which, as noted, was Columbia county in this case; court transferred case to Columbia County).
Monroe County
Colman v. Malave and State Farm, No. 2015-CV-10242 CV (C.P. Dauph. Co. Dec. 13, 2016 Tully, J.) (The court granted a tortfeasor Defendant's Preliminary Objections to the Plaintiff's Amended Complaint and transferred venue of the case to Lancaster County. According to the Opinion, the accident occurred in Lancaster County and the tortfeasor Defendants resided in Lancaster County. The court otherwise noted that there was no forum selection clause in the State Farm policy and that, in any event, the tortfeasor Defendants and the UIM carrier were not joint tortfeasors for venue purposes or otherwise.).
Lancaster County
Burton v. Burton and USAA, No CI-09-09343 (Lanc. Co. , Miller, J.) (Court issued Order granting a tortfeasor's preliminary objections filed by both the tortfeasor and and the first party carrier arguing a misjoinder of actions. As a result of this decision, the negligence claim asserted against the tortfeasor was severed from the breach of contract claim asserted by the Plaintiff against his own carrier related to a denial of first party medical benefits following a peer review. As part of the rationale of her decision, Judge Miller also noted that allowing the cases to remain together may have brought the issue of "insurance" in front of the jury during the trial of the negligence claim of the tortfeasor in violation of Pennsylvania Rule of Evidence 411.)
Luzerne County
Wissinger v. Brady, Laubach, and State Farm, No. 3792-Civil-2010 (Luz. Co. Aug. 16, 2010, Van Jura, J.)(Court granted the Preliminary Objections of a third party defendant asserting improper venue under Pa. R.C.P. 1006. The plaintiff involved in this matter was from Northumberland County. The accident occurred in Northumberland County. The tortfeasor defendants were from Montour County. Plaintiff sued in Luzerne County on grounds that State Farm did business there. Court rejected argument as tortfeasors and State Farm were not joint tortfeasors. Case transferred to Northumberland County.)(Appealed but then appealed discontinued due to partial settlement of case)
Philadelphia County
Levin v. Grandinetti and Progressive Direct Ins. Co., March Term, 2010 No. 0080 (Phila. Co. June 14, 2010, Tereshko, J.)(Plaintiff resident of Montgomery County injured in Philadelphia County Defendant. Two of third party defendants were New Jersey residents and the third tortfeasor was a resident of Montgomery County. Without Opinion, court granted preliminary objections of UIM carriers and severed the third party negligence claims from the UIM claims without prejudice to the Plaintiff's right to file their UIM claims in Montgomery County or in the U.S. District Court for the Eastern District.).
Kochergina v. Liberty Mutual Ins. Co., et al., August Term 2010, No. 2880 (Phila. Co. October 1, 2010 Moss, J.)(Court granted the tortfeasor's defendant's Preliminary Objections based upon an allegation of improper venue. The plaintiff and the tortfeasor defendant resided in Bucks County and the accident happened in Bucks County. Also, the UIM carrier had a forum selection clause the application of which called for the case to go to Bucks County. The court ordered case transferred to Bucks County with all cost to be borne by Plaintiff. Judge Moss also ruled that the decision on the remainder of the Defendants' Preliminary Objections were deferred and left to be decided by the Bucks County Court of Common Pleas.).
Johns v. Jones and Erie Ins. Exchange, Jan. Term, 2011, No. 1395 (Phila. Co. March 17, 2011, Moss, J.)(Delaware Plaintiff injured in Philadelphia accident by Philadelphia resident Defendant. Plaintiff covered by Erie Insurance policy which has venue selection clause (insured's "legal domicile at time of accident"). Plaintiff files suit against third party tortfeasor and Erie in Philadelphia County. Without Opinion, court grants Erie Insurance preliminary objections on improper venue and transfers the entire case to Delaware County.).
Spano v. Carney and Nationwide, March Term, 2008, No.: 5707 (C.P. Phila.July 3, 2008 New, J.) (Bucks County resident Plaintiff was injured in a car accident in Bucks County caused by a third party Defendant who resided in Bucks County . Plaintiff filed suit against the third party Defendant and the UIM carrier in Philadelphia County on the basis that Nationwide conducted business in Philadelphia . The third party Defendant filed Preliminary Objections to improper joinder and improper venue. Without Opinion, the trial court denied both Preliminary Objections).
Taylor v. Nationwide and Natale, August Term, 2008, No.: 3204 (C.P. Phila. Dec. 14, 2009 Abramson, J.) (Plaintiff and third party Defendants were residents of Chester County and were involved in a motor vehicle accident in Chester County . Plaintiff filed a lawsuit against the third party Defendants and the UIM carrier of Philadelphia County . Without Opinion, the trial court denied third party Defendant’s Motion to Transfer Venue from Chester County on grounds of forum known conveniens).
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PRELIMINARY OBJECTIONS TO CROSS-CLAIM FILED BY UIM CARRIER AGAINST THIRD PARTY TORTFEASOR
Luzerne County
Emery v. Culver and Nationwide, No. 6764 – CIVIL – 2010 (C.P. Luz. Co. Sept. 28, 2011 Burke, J.)(By Order only, Court sustained the tortfeasor Defendant’s Preliminary Objections and struck the Co-Defendant UIM carrier’s cross-claim for contribution or indemnification; defense relied upon Monroe County decision in Bridgeman noted below).
Monroe County
Bridgeman v. Cruz, PICS Case No. 11-0238 (Monroe Co., Jan. 7, 2011, Wallach, Miller, J.)(Court sustained the tortfeasor Defendant’s Preliminary Objections and struck the Co-Defendant UIM carrier’s cross-claim for contribution or indemnification after finding that such claim was not yet ripe for judicial review.).
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TRIAL COURT DECISIONS IN POST-KOKEN CASES ON DISCOVERY AND EVIDENTIARY ISSUES
DISCOVERY TIMETABLE IN UIM/BAD FAITH POST-KOKEN CASE
United States Federal Western District Court
Craker v. State Farm, No. 2011 – Civil – 0225 (W.D.Pa. Sept. 29, 2011 Lancaster, C.J.)(Court rejects carrier's request for stay of any bad faith discovery until UIM claim completed).
Allegheny County
Wutz v. Smith and State Farm Ins. Co., No. GD07-21766 (Allegheny Co., Sept. 9, 2009, Wettick, J.)(Judge sets up discovery time table in case where UIM breach of contract claim consolidated with bad faith claim--no discovery on bad faith until UIM claim concluded).
Vernon v. Erie Insurance, No. GD 08-10406 (Allegheny Co. 2009, Wettick, J.)(court issued an Order without Opinion denying Erie's motion to stay discovery and bifurcate the UIM Claim from the Bad Faith claim; the bad faith claim was scheduled to be tried immediately upon the UIM case being sent to the jury. Also, the tort action was consolidated for trial with the UIM action. Ultimately, the case settled before jury selection).
Brands v. Erie Ins. Exchange, No. 2604-CIVIL-2015 (C.P. Monroe Oct. 1, 2015 Willamson, J.), (Judge Williamson issued another Opinion severing a Bad Faith claim from a UIM claim in a Post-Koken case, and also issued a stay order against any bad faith discovery pending the resolution of the UIM claim.).
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. May 8, 2015, Williamson, J.)(Court revisits and reverses its first decision in this case and now still keeps UIM and Bad Faith Claims severed, BUT NOW grants the request for a stay of bad faith discovery.).
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.)(court severed UIM and Bad Faith Claims but denied a request for a stay of bad faith discovery.).
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Montgomery County
Dininni v. Encompass Insurance Company, No. 2010 - Civil - 04615 (Montg. Co. June 16, 2010, Tilson, J.)(Court stayed discovery as to claims of bad faith and unfair trade practices until underlying UIM claims were tried or otherwise resolved. While ruling in favor of the defense in that regard, the court did also deny the defense request that the Bad Faith Claim and Unfair Trade Practices Claim be severed from the UIM claim.).
Washington County
Cope v. State Farm, No. 2013-CV-2188 (C.P. Wash. Co. Oct. 21, 2015 Nalitz, J.)( By Orders only, the court granted Defendant insurance company’s Motion In Limine and precluded the Plaintiff from offering any evidence related to the carrier’s evaluation of the claims, the carrier’s possible agreement to waive subrogation for the tortfeasor, any payment of benefits to the Plaintiff for any claims, including property and/or first party claims, and pertaining to settlement offers. The court also agreed to grant the Defendant carrier’s Motion In Limine regarding the scope of and/or preclusion of the testimony of a corporate designee for the Defendant and thereby precluding the Plaintiff from calling any representative of State Farm to testify at trial on claims handling activities.).
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DISCOVERY DEPOSITION OF A UIM CLAIMS REPRESENTATIVE IN POST-KOKEN CASE
Eastern District of Pennsylvania Federal Court
Wagner v. State Farm Mut. Automobile Ins. Co., No. 5:13 - CV - 06645 (E.D. Pa. Feb. 20, 2014 Sitarski, M.J.)(Magistrate Judge Lynne A. Sitarski of the Eastern District Federal Court of Pennsylvania denied the Plaintiff's Motion to Compel and granted State Farm's Motion for a Protective Order to prevent the deposition of a State Farm claims representative and claims manager as requested by the Plaintiff in this Post-Koken UIM case.)
Middle District of Pennsylvania Federal Court
Centini v. MetLife Auto & Home, No. 3:17-cv-02144 (M.D. Pa. April 3, 2018 Munley, J.)(Judge James M. Munley of the Federal Middle District Court of Pennsylvania granted a Plaintiff’s Motion to Compel the deposition of the carrier’s claims professional.).
Dauphin County
Welcomer v. Donegal Mut. Ins. Co., No. 2011-CV-474 (Dauphin Co. June 24, 2011, Lewis, J.)(In Order only, court grants Plaintiff's motion to compel discovery of UIM carrier's settlement evaluation and reserves information; also allows for depostion of claims rep without limitations).
Erie County
Engel v. State Farm Mut. Auto. Ins. Co., No. 13083 - Civil - 2011 (C.P. Erie Co. Dec. 11, 2012 Connelly, J.)(Court issued an Order only granting State Farm's Motion for a Protective Order for Corporate Designee Deposition and quashing a Notice of Deposition sent to a UIM carrier's claims representative. Court emphasized that many of the questions posed in the Notice of Corporate Designee Deposition were previously answered in written discovery responses submitted to State Farm and that the Plaintiff did not object to any such responses. Court noted that the remainder of the questions noted in the Deposition Notice were either irrelevant or impermissibly inquired into the corporate designee's (i.e. claims representative's) mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics in violation of Pa.R.C.P. 4003.3.).
Lackawanna County
Novoczynski v. Swingle et al., No. 2016-CV-6538 (C.P. Lacka. Co. Nov. 20, 2017 Gibbons, J.) (Court granted a Plaintiff's Motion to Compel a claims representative's deposition and denied a carrier Defendant's Motion for a Protective Order in a Post-Koken auto accident case. While the court allowed the deposition, the court also ordered that the Plaintiff was not permitted to inquire into the claims representative's mental impressions, conclusions or opinions respecting the value or merit of the claims or defenses, or with regards to strategy or tactics. In this regard, the court cited to Pa.R.C.P. 4003.3.).
Culkin v. Sciandra and Liberty Mutual, and Safeco, No. 2559-Civil-2014 (C.P. Lacka. Co. May 4, 2015 Burke, Special Trial Master)(arguably not precedential)(Deposition of claims rep allowed).
Carlson v. Scarantino and First Liberty Insurance, No. 2014-Civil-7786 (C.P. Lacka. Co. Aug. 27, 2015 Burke, Special Trial Master))(arguably not precedential)(Deposition of claims rep allowed).
Luzerne County
Simonetti v. Lalko and Depositors Ins. Co., No. 2018-CV-02421 (C.P. Luz. Co. Aug. 27, 2018 Gelb, J.)(Court denied the carrier’s Motion for a Protective and to Stay a Deposition of its Adjuster but confirmed that the Plaintiff may not inquire into areas of the adjuster’s mental impressions or conclusions or opinions respecting the value or merit of the claim or with respect to defenses of the claim or strategy or tactics in the defense of the claim by the carrier).
Cairl v. Chiogna and Nationwide, No. 2015-CV-08159 (C.P. Luz. Co. March 9, 2016 Burke, J.)(Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted a Plaintiff's motion to compel the deposition of a UIM carrier's claims representative in a Post-Koken case. The court did circumscribe the parameters of the deposition in the Order by noting, for example, that the Plaintiff could not inquire into privileged areas such as the mental impressions, conclusions or opinions of the representative regarding the merit or value of a claim or defense.).
Boyle v. Progressive Specialty Insurance Company, No. 8815-Civil-2014 (C.P. Luz. Co. Nov. 3, 2015 Amesbury, J.)( Judge William H. Amesbury of the Luzerne County Court of Common Pleas granted an Order without Opinion granting the Motion of the Plaintiff to Compel a Deposition of the Progressive claims handler. Court also ordered that Plaintiff could not inquire as to claims rep's mental impressions, conclusions, or opinions regarding the merit or value of any claim or defense.).
Griffin and Erie Ins. Exchange, No. 17274 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.)(By Order only, Court grants the Motion of Erie Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.).
Krznefski v. Bish and State Farm, No. 16643 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.)(By Order only the Court grants the Motion of State Farm Mutual Automobile Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.).
Paulewicz v. Fronczkewicz and State Farm, No. 10655 of 2009 Civil (Luz. Co. Feb. 1, 2010, Amesbury, J.)(In Order only, Court allows deposition of claims representative but precludes questions regarding mental impressions, conclusions or opinions regarding value of claim).
Pike County
Liszka v. Ferro and GEICO, No. 109 - 2010 - Civil (Pike Co. March 20, 2011 Chelak, J.)(In an Opinion, Court denies motion for protective order by GEICO seeking to stop Plaintiff's deposition of claims representative; however, court cautions that deposition may only cover those areas allowed by Rules of Civil Procedure pertaining to discovery).
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DISCOVERY OF RESERVES AND CARRIER'S SETTLEMENT EVALUATION INFORMATION
Discovery Precluded
Allegheny County
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; Court also rules that Plaintiff's efforts to discover UIM carrier's evaluation information denied as such information is protected from discovery by the privilege against the disclosure of mental impressions, conclusions, or opinions of a representative of a party regarding value. Court notes that such discovery would be allowed once UIM claim is concluded by jury verdict or otherwise.).
Wutz v. Smith and State Farm, 2009 WL 2920956, No. GD07-021766 (Alleg. Co. Sept. 9, 2009, Wettick, J.)(Plaintiff's motion to compel discovery of State Farm's UIM evaluation information denied as such information is protected from discovery by the privilege against the disclosure of mental impressions, conclusions, or opinions of a representative of a party regarding value.).
Butler County
Weichey v. Marten and Allstate, 2009 WL 4395727, 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).
Dauphin County
Castellano v. Erie Insurance Exchange, No. 2014-CV-9647 (C.P. Dauph. Co. March 23, 2016, Bratton, J.)(In this case, the Plaintiff sought discovery of unredacted claim notes including the adjuster’s mental impressions, conclusions, evaluations, opinions and strategy. The Plaintiff argued that she was entitled to know how the insurance carrier “evaluated” her UIM claim. After reviewing briefs from both parties, hearing argument on the issue and studying the proposed redactions by Erie Insurance in an in camera review, Judge Bruce Bratton issued an Order without Opinion found that the redactions were appropriate and prevented the plaintiff from discovering any additional unredacted claim notes.)
Luzerne County
Migatulski v. Nationwide, Eberts, et al., No. 7269 - Civil - 2006 (Luz. Co. Sept. 7, 2010, Wetzel, J.) (UIM carrier's objection to discovery of reserves information sustained).
Discovery Allowed
Eastern District of PA Federal Court
Borgia v. State Farm Mut. Auto. Ins. Co., No. 14-3149 (E.D.Pa. Sept 3, 2014 Sanchez, J.)( Eastern District of Pennsylvania Federal Court addressed a discovery dispute in a UIM breach of contract/bad faith lawsuit arising out of the handling of an underinsured motorist claim. The court recognized that the work product doctrine protected from discovery those documents, among others, that were produced in anticipation of litigation. The UIM carrier was deemed to have reasonably anticipated litigation regarding the Plaintiff’s UIM claim when the company first retained outside counsel to assist in handling the claim. According to the court in Borgia, this date essentially becomes the dividing line for when materials needed to be produced. Thus, since the UIM carrier was not deemed to reasonably anticipate litigation until it assigned defense counsel, the UIM carrier was required by the court to produce unredacted documents, including reserves information contained therein, with respect to those documents produced in the claims file prior to the time defense counsel was assigned by the carrier.
Dauphin County
Welcomer v. Donegal Mut. Ins. Co., No. 2011-CV-474 (Dauphin Co. June 24, 2011, Lewis, J.)(In Order only, court grants Plaintiff's motion to compel discovery of UIM carrier's settlement evaluation and reserves information; also allows for depostion of claims rep without limitations; case was settled shortly after Order was entered).
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EVIDENCE OF INSURANCE NOT ADMISSIBLE AT TRIAL
Federal Eastern District Court
Schmerling v. LM General Insurance Company, Inc., 2018 WL 5848981 (E.D. Pa. Nov. 8, 2018)(Court rules that evidence pertaining to the amount of the Plaintiff's settlement with the third party tortfeasor and evidence of the amount of the UIM limits are not admissible at Post-Koken trial).
Lucca v. GEICO, No. 2:15-CV-04124-GEKP (E.D. Pa. July 7, 2016 Pratter, J.), the court issued an Opinion granting a pre-trial motion in limine of the UIM carrier to preclude any mention at trial of the amount of the available UIM limits and/or the premiums paid by the Plaintiff for those UIM benefits.
Federal Middle District Court
Ridolfi v. State Farm Mutual Automobile Insurance Company, 2017 WL 3198062 (M.D. Pa. 2017 Mag. J.) (Excluding evidence of premium payments in breach of contract action between insured and insurer).
Allegheny County (Split of Authority)
Zubeck v. Yogan and State Farm, No. GD 09-014254, 1380 WDA 2012 (C.P. Alleg. Co. Nov. 16, 2012 McCarthy, J.)(Court ruled that it was permissible to hold a Post-Koken trial without identifying the UIM carrier particularly where it appears from the Opinion that the Plaintiff was in agreement with that scenario going into the trial)(But see Stepanovich decision below from Allegheny County).
Crawford County
Pelc v. Burkell & State Farm, No. A.D. 2009 483 (C.P. Crawford Sept. 23, 2013)(Plaintiff filed suit against third party tortfeasor and UIM carrier. Plaintiff settled with tortfeasor prior to trial and proceeded to trial against UIM carrier. On the basis of Pa.R.E. 411, UIM carrier filed motion in limine to preclude Plaintiff from identifying UIM carrier by name at trial and to preclude evidence pertaining to the details of the Plaintiff’s auto insurance coverage, the UIM policy limits, and the Plaintiff’s settlement with the third party defendant. Motion in Limine denied with respect to request that UIM carrier not be identified at trial. However, the Motion in Limine as to the remaining issues was granted as the court found that the relevancy of that more specific insurance information was outweighed by the risk of unfair prejudice and the increased potential of confusing the issues and misleading the jury.).
Mercer County
Gravatt v. Smith and Unitrin Auto and Home Ins. Co., 2010-Civil-2155 (Mercer Co. Oct. 15, 2010, Fornelli, P.J.)(Claims severed at Preliminary Objections stage under primary rationale that evidence of insurance is not admissible in negligence actions).
Monroe County
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Northampton County
Firoozifard v. Krome and State Farm, No. C-48-Civil-2009-14369 (Northampton Co. June 21, 2010 Beltrami, J.)(Court denied a third party tortfeasor defendant's motion to sever the third party liability claims from the UIM and UM claims; court also notes that insurance issues can be kept from jury and the task of applying third party credit to determine UIM award can be kept away from jury and handled by the court only after the verdict)
Susquehanna County
Phillips v. National General Assurance Company, No. 2016-959 (C.P. Susq. Co. Nov. 16, 2018 Legg, P.J.)(President Judge Jason J. Legg of the Susquehanna County Court of Common Pleas granted a UIM carrier’s Motion In Limine to exclude extraneous evidence relating to insurance. Evidence of the third party liability limits and the UIM limits precluded).
Washington County
Cope v. State Farm, No. 2013-CV-2188 (C.P. Wash. Co. Oct. 21, 2015 Nalitz, J.)(The court granted Defendant insurance company’s Motion In Limine and precluded the Plaintiff from offering any evidence at a Post-Koken trial related to the carrier’s evaluation of the claims, the carrier’s possible agreement to waive subrogation for the tortfeasor, any payment of benefits to the Plaintiff for any claims, including property and/or first party claims, and pertaining to settlement offers. The court also agreed to grant the Defendant carrier’s Motion In Limine regarding the scope of and/or preclusion of the testimony of a corporate designee for the Defendant and thereby precluding the Plaintiff from calling any representative of State Farm to testify at trial on claims handling activities.
According to the information secured in this matter, this case involved a trial against State Farm as the UIM carrier. There was no tortfeasor defendant involved in this matter).
INSURANCE EVIDENCE ADMISSIBLE IN POST-KOKEN CASES
Federal Middle District Court of Pennsylvania
Rodkey v. Progressive Direct Ins. Co., No. 3:16-CV-454 (M.D. Pa. Dec. 8, 2016 Munley, J.)(Judge James M. Munley addressed the issue of the admissibility of insurance information at a Post-Koken trial and allows in evidence of premiums paid and amount of UIM policy limits as relevant to the breach of contract action.)
Noone v. Progressive Direct Ins. Co., No. 3:12cv1675 (M.D.Pa. May 28, 2013 Munley, J.), Judge James M. Munley of the Federal Middle District Court of Pennsylvania denied a motion in limine filed by the defendant UIM carrier seeking to preclude evidence of (1) the amount of premiums paid by the Plaintiff for the UIM policy, (2) the amount of the limits of UIM coverage available, and (3) the amount of the tortfeasor's third party liability coverage along with the amount received by the plaintiff from the tortfeaser. As such, all such evidence was allowed).
PENNSYLVANIA SUPERIOR COURT
Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), appeal denied 11 WAL 2014 (Pa. 2014)(Superior Court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant. Yet, the Court did rule that Pa.R.E. 411, pertaining to preclusion of mention of liability insurance at trial, does not apply in context of references to UIM insurance at trial. However, open issue remains on whether common law prohibition of mentioning other forms of insurance at trial serves to preclude evidence of insurance in this context.)
Allegheny County (Split of authority)
Stepanovich v. McGraw and State Farm, No. GD 10-16523 (C.P. Allegh. Co. Dec. 10, 2012)(Trial court initially allowed trial to proceed without mention of insurance company UIM defendant; but, in post-trial motions, trial court reversed itself and held that to not identify UIM insurance company defendant while allowing UIM carrier's defense attorney to participate at trial, violates Plaintiff's due process rights; as noted directly above, this decision was overturned on appeal(But see Zubeck decision above from Allegheny County)).
Beaver County
Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008, 2009 WL 2418861 (Beaver Co. June 30, 2009, Kwidis, J.)(dicta)(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.).
Bradish-Klein v. Kennedy and State Farm, PICS Case No. 09-2059 (C.P. Beaver Dec. 3, 2009, Kwidis, J.)(dicta)(State Farm was not only UIM carrier, but also provided the liability coverage to the third party tortfeasor; Plaintiff initially filed suit against the third party tortfeasor only and then moved to amend the Complaint to add the UIM claim against the UIM carrier, State Farm. Third party tortfeasor opposed the motion to amend on the grounds that "insurance" would then come into play during the trial; Judge Kwidis relied on his prior decision in Six v. Phillips and Nationwide Ins. Co. to allow the amendment and allow the joinder of the third party claim and UIM claim under one caption; court again notes that fact that evidence of insurance may come in at trial does not preclude joinder).
Centre County
Fennessey v. Sweeney and State Farm Mut. Automobile Ins. Co., No. 2012-2865 (Centre Co. Dec. 11, 2012 Ruest, J.)(dicta)(In Opinion, court denied Defendants' preliminary objections asserting misjoinder of actions and also denied companion motion to sever to allow case to proceed in consolidated fashion. Court states that Pa.R.E. 411 does not warrant severance.).
Lackawanna County
Bingham v. Poswistilo, Ritz, and Erie Ins., No. 10 - CV - 6020 (Lacka. Co., April 8, 2011, Nealon, J.)(In the most thorough Opinion anywhere on the issue, Judge Nealon ruled in favor of consolidation of third party claims and UIM claims for discovery purposes but left door open for parties to revisit severance issue at time of trial; However, court did end up severing claims based upon venue issue, with UIM claim being kept in Lackawanna County pursuant to forum selection clause in policy and with tortfeasor claims being sent to Lehigh County where venue was proper for that part of case. In dicta, the court also noted various avenues to handle evidence of "insurance" at trial).
Pike County
Jannone v. McCooey and State Farm, 2009 WL 2418862, 2320-2008-Civil (Pike Co. April 1, 2009, Chelak, J.)(dicta)(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).
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AGREEMENT TO ADR (PRIVATE ARBITRATION)
Monroe County
Campbell v. SafeCo Ins. Co. of Ill. , PICS Case No. 13-2525 (C.P. Monroe Co. July 10,
2013 Williamson, J.) (Monroe County trial court a Plaintiff’s Petition to Set
Aside an Arbitration Award in an uninsured (UM) motor vehicle accident case
where the parties had privately agreed to arbitrate the matter where there was
no agreement to arbitrate under the policy, i.e. it was a Post-Koken policy
with no arbitration clause. After the
arbitrator granted the Defendant UM carrier's motion to dismiss, the Plaintiff
filed a Petition to Vacate the Arbitrator’s Decision as contrary to law. Judge Williamson concluded that, in the
absence of a formal arbitration agreement, the case should
be considered as if the parties submitted the matter to common law
arbitration under 42 Pa.
C.S.A. §7341.)
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MOTION TO BIFURCATE TRIAL
FEDERAL COURT DECISIONS (Split of Authority)
SEPARATE TRIALS ALLOWED
Eastern District Federal Court
Moninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.),(Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation).
REQUEST FOR BIFURCATED TRIAL DENIED
Western District Federal Court
Cracker v. State Farm Mut. Auto. Ins. Co., No. 11-0225, 2012 U.S. Dist. Lexis 109357 (W.D. Pa. Aug. 3, 2012 Lancaster, C.J.)(United States District Court for the Western District of Pennsylvania denied State Farm’s Motion In Limine to bifurcate a breach of contract and bad faith post-Koken lawsuit.)
STATE COURT DECISIONS ON BIFURCATION
State Appellate Court Decision
Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), appeal denied 11 WAL 2014 (Pa. April 22, 2014) (Superior Court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant. Yet, the Court did rule that Pa.R.E. 411, pertaining to preclusion of mention of liability insurance at trial, does not apply in context of references to UIM insurance at trial. However, open issue remains on whether common law prohibition of mentioning other forms of insurance at trial serves to preclude evidence of insurance in this context; Pennsylvania Supreme Court denied Petition to Appeal.).
(Split of Authority at trial court level)
SEPARATE TRIALS ALLOWED
(Check above decisions on severance of claims for possible support for bifurcation in those same county courts)
Allegheny County
Vecchio v. Tunison andErie Insurance Exchange, No.: GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.) (In Order without Opinion, trial court granted Motion to Bifurcate filed by UIM carrier in the combined negligence/UIM action, which motion was filed less than two (2) months before this scheduled date of the trial listing. The trial court ordered that the Plaintiffs’ third party negligence claim would be tried before the jury first, with the UIM claim tried separately thereafter.)
Dauphin County
Oaks v. Erie Insurance Exchange and Austin, No. 2012 - CV - 3741 - CV (C.P. Dauphin Co. May 8, 2015 Bratton, J.)(In a decision handed down after a mistrial in a matter, Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas granted the tortfeasor Defendant's Motion for Reconsideration of the court's prior denial of the tortfeasor's Motion to Sever the negligence claims asserted against him by the Plaintiff from the Plaintiff's UIM claims against the carrier for purposes of the retrial of the matter.).
Lehigh County
Purta v. Blower and Erie Ins. Exch., No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.)(Court addressed the seemingly novel issue presented by a Motion to Severance filed by the UIM carrier Defendant to bifurcate jointly filed third party and underinsured motorist (UIM) claims into separate trials. In a detailed Order, Judge Reibman granted the UIM carrier's Motion for Severance and ordered that the case proceed to trial with only the Plaintiffs and Defendant tortfeasor being involved in the first trial.).
Lackawanna County
(But see cases denying bifurcation below)
Caridad v. Caridad, No. 2014-CV-6070 (C.P. Lacka. Co. Nov. 19, 2019 Bisignani-Moyle, J.)(Judge Margie Bisignani-Moyle of the Lackawanna County Court of Common Pleas addressed a defendant carrier's motion to bifurcate a trial and granted the motion in part and denied it in part. The court agreed to bifurcate the coverage question and have a trial on that issue first before proceeding onto the breach of contract UM claim)
REQUEST FOR BIFURCATED TRIAL DENIED - SEPARATE TRIALS NOT ALLOWED
(Check above decisions in favor of consolidation of claims for possible support for a denial of a request for bifurcation by the same court)
But see Martin v. Ochenduszko, No. 17-CV-3912 (C.P. Lacka. Co. Jan. 16, 2019 Nealon, J.)(Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the UIM carrier’s Motion to Sever the Plaintiffs’ UIM claims from the tort claims asserted against a tortfeasor Defendant against whom punitive damages claims were pled given the Defendant-driver’s alleged operation of a vehicle under the influence of controlled substances at the time of the accident. Court foreshadows that bifurcation motion might be granted given that the case includes a punitive damages claim against the tortfeasor.).
Luzerne County
Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), (Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier.).
Gallagher v. Longfoot and Erie Insurance Exchange, No. 2015-CV-3169 (C.P. Luz. Co. May 1, 2017 Burke, J.)(Judge Thomas F. Burke, Jr., of the Luzerne County Court of Common Pleas denied a UIM carrier Defendant’s Motion to Bifurcate a post-Koken case for trial by Order only.).
Loefflad v Nauks &Allstate Fire & Casualty Ins. Co., No. 8673 of 2010 (C.P. Luz. Co. June 20, 2012) (By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).
Price v Price, Auto Glass Unlimited & State Farm, No. 13625 of 2010(C.P. Luz. Co. June 20, 2012)(By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).
Borthwick v. Webb, No. 2735-Civil-2010 (C.P. Luz.Co. Sept. 7, 2012 Vough, J .)(Court ruled at consolidated Post-Koken trial that “Plaintiff is limited to informing the jury that he had an underinsured policy with Defendant, GEICO Insurance Company. There shall be no other evidence presented to the jury regarding insurance.”).
Schuylkill County
Post v. Schnerring and Liberty Mut. Ins. Co., No. S-1887-12 (C.P. Schuylkill Co. Oct. 22, 2013 Dolbin, J.)(Judge Cyrus Palmer Dolbin of the Schuylkill County Court of Common Please denied Motions to Bifurcate the trial filed by both the UIM carrier, Liberty Mutual Insurance Company and the third party Defendant.).
FORM MOTION TO BIFURCATE: In February of 2012, I had an opportunity to draft a Motion to Bifurcate Trial and Supporting Brief in favor of a tortfeasor defendant in a Lackawanna County Post-Koken case. Anyone desiring a copy of the same may contact me at dancummins@comcast.net.
But see Morawski v. Dunleavy and State Farm, October Term 2009, No. 03493 (Phila. Co. April 26, 2010, Overton, J.)(third party claims and UIM claims severed for all purposes, not just for trial purposes).
But see Dangler v. Robinson and AIU Insurance Company, March Term 2009, No. 4027, Control No. 09-092828 (Phila. Co. 2010, DiVito, J.)(Court issued an Order granting the tortfeasor's preliminary objections, alleging a misjoinder of actions, in a post-Koken case.The Court, by Order only and without any Opinion, severed the UIM claim and ordered that it be tried separately from the third party claim.).
But see Schramm v. McComb and Penn National Insurance and State Auto Insurance, No. 1002 03394 (Phila. Co. May 10, 2010, Tereshko, J.)(Court granted the preliminary objections of the tortfeasor defendants and severed the third party claims from the UIM claims and ordered separate trials).
But see Carter v. Gillespie and Travelers Insurance Company, April 2010 Term No. 0564 (Phila Co. May 27, 2010, Tereshko, J.) (Court granted the third party tortfeasors' Preliminary Objections asserting a Misjoinder of Actions; Judge Tereshko ordered the actions severed and also mandated that the matters were to be tried separately.).
But see Thomas v. Titan Auto Ins., Nationwide Ins. Co., Jones, and Briel, March Term 2010 No. 03050 (May 10, 2010, Tereshko, J.)(Court granted the Petition to Sever filed by Titan/Nationwide the third party claims from the UIM claims and also granted the request that the case be therefore transferred to Montgomery County.)(Update: In the court's Rule 1925 Opinion, the trial court clarified that it was only sending negligence claim to Montgomery County and was keeping the UIM claim in Philadelphia County.).
But see Saltzburg v. Haynes and State Farm, November Term, 2010, No. 03227 (Phila. Co. Jan. 14, 2011 Tereshko, J.)(Preliminary Objections of tortfeasor defendant on basis of improper venue and improper joinder of third party negligence case with UIM case; claim against tortfeasor dismissed without prejudice to Plaintiff's right to re-file in Montgomery county).
But see Pascal v. Nalbondian, et al., July Term, 2010, No. 2118, Control No. 10121229 (Phila. Co. Jan. 14, 2011, Fox, J.)(Tortfeasor's motion to sever negligene claims from claims filed against UIM carrier granted).
But see Gollinge-Motroni v. Machado and Allstate Ins. Co., October Term 2010 No. 002528 (Phila. Co. Jan. 14, 2011, Tereshko, J.)(severance of UIM and negligence claims ordered and case transferred for improper venue).
Pike County
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).
Loiacono v. Moraza and Selective Insurance Company, No. 902-2010-Civil (Pike Co. Oct. 25, 2010, Kameen, P.J.)(Plaintiff's Preliminary Objections to Tortfeasor Defendant's untimel Preliminary Objections seeking to sever granted. Cases remain consolidated but Court says it will entertain a motion to sever come trial time).
But see Hansen v. Fucetola and NJM Ins. Co., 1079-2014-Civil (C.P. Pike Co. Feb. 26, 2019 Chelak, J.)(Judge Gregory H. Chelak of the Pike County Court of Common Pleas granted a UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith Claim From the Plaintiff's Breach of Contract Claim.)
Schuylkill County
[SPLIT OF AUTHORITY: Note below Schuylkill County decisions in favor of severance.]
Smith v. Koch and Allstate, No. S-460-2016 (C.P. Schuylk. Co. July 22, 2016 Goodman, J.), (In an Order only, Court denied motion of the UIM carrier to sever the UIM claim from the negligence claim.)
Wall v. Ebersole, Erie Ins., and Donegal Ins., No. S-495-2014 (C.P. Schuylkill Co. Oct. 29, 2014 Miller, J.)(Judge Charles M. Miller denied a second-level UIM carrier's request for a severance of claims and a directive to the Plaintiff to file a separate, later suit against the second-level UIM carrier once the liability claims and first-level UIM claims were concluded.)
Foster v. Naresh and Atlantic States Ins. Co., No. S-2298-2013 (C.P. Schuylkill Co. April 29, 2014 Domalakes, J.)(Court issues Opinion in favor of consolidation of claims.).
Washington County
Koontz v. Mast, No. 2011-Civil-142 (C.P. Wash. Co. Nov. 21, 2011 Emery, J.)(Court denied a post-Koken Motion to Sever and Preliminary Objections seeking to divide the negligence claims against the tortfeasor from the UIM breach of contract claims against the UIM carrier.).
Hoffman v. Ellis and State Farm, No. 2011-8417 (C.P. Wash. Co. Feb. 15, 2011 DiSale, J.,) (Court issued Order overruling a Defendant’s Preliminary Objections and Motion to Sever a post-Koken automobile accident litigation. The Court did state in its Order that it would “reconsider the issue of Severence prior to trial.”).
TRIAL COURT DECISIONS IN FAVOR OF SEVERANCE
(Decisions from across 25 Counties)
EASTERN DISTRICT FEDERAL COURT
Morninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.), Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation.
WESTERN DISTRICT FEDERAL COURT
Pastin v. Allstate Ins. Co., No. 17-CV-1503 (W.D. Pa. Nov. 30, 2018 Horan, J.)(court rejected an effort by a Plaintiff to join her underlying state court negligence action against the tortfeasor in a motor vehicle accident case with her UIM bad faith and breach of contract action filed in the federal court against her own carrier.)
Adams County
Megert v. Stambaugh, Erie Ins. Co., and The Hartford, 2010 WL 231525, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.)(Court rules in favor of the severance of the third party claims against the tortfeasor from the UIM claims asserted against the two separate levels of UIM carriers).
Michaleski v. National Indemnity Co., No. 09-S-1529 (Adams Co. Dec. 22, 2009, Kuhn, J.)(Carrier's preliminary objections to Plaintiff's attempt to join suit against third party tortfeasor for damages with declaratory judgment suit against first party carrier granted as claims do not arise out of same transaction or occurrence.).
Allegheny County
(Note split of authority-See Allegheny County cases under consolidation section above)
Jenkins v. State Farm, G.D. 07-020234 (Allegh. Co. Aug. 30, 2009, Wettick, J.)(Motion to Sever and Stay Bad Faith claim granted in UIM/Bad Faith litigation).
Wutz v. Smith and State Farm, GD07-021766 (Allegh. Co. March 2, 2010, Strassburger, J.)(Court ordered the severing of a third party claim from a UIM claim and Bad Faith claim against the UIM carrier. In this case, the UIM carrier paid the third party defendant’s settlement offer under Daley-Sand and thereby stepped into the Plaintiff’s shoes against the third party tortfeasor. Since there was no longer any “live dispute” against a tortfeasor in this matter, Judge Strassburger thought it appropriate to sever the cases and to allow the Plaintiff to proceed on the UIM and bad faith claims first.).
Beaver County
Muller v. Erie Insurance Exchange et al., No. 11362-2011 (C.P. Beaver Co., February 1, 2012, Kunselman, J.)(Court granted the preliminary objections of Erie Insurance Exchange and ordered the contractual and statutory bad faith counts to be severed from the underinsured motorist breach of contract count. The Court also issued a stay order on the bad faith action.).
Butler County
Weichey v. Marten and Allstate, 2009 WL 4395727, 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).
Marburger v. Erie Ins. Exchange, 2009-Civil-10927 (Butler Co. June 19, 2009, Horan, J.)(Motion to Sever and Stay on behalf of Erie granted; court precluded plaintiffs from conducting any bad faith discovery until further Order of court and permitted severance and stay of plaintiff's bad faith action pending resolution of UIM claim).
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)(Judge Horan more recently issued another Order in this case denying Plaintiff's Motion for Reconsideration of the court's decision ordering the claims severed. The Judge did amend her Order to allow discovery on the UIM and tort claims to proceed concurrently. It was indicated to me that no party objected to this request pertaining to the discovery.)
See also Lowry v. Aliquo and Erie Insurance Exchange, 159 PLJ 35 (Alleg. Co. 2010, Strassburger, J.)(Allegheny County Court of Court enforced the carrier’s forum selection clause for a UIM claim which required venue against carrier to be in Butler County under facts presented. Allegheny County Court notes that severance is the rule in Butler County and therefore severed the UIM claim and transferred only that claim to Butler County.).
Crawford County
Rucci v. Erie Insurance Exchange, No. A.D. 2014 - 803 (C.P. Crawford Co. February 5, 2015 Stevens, J.)(In an Opinion, the court ruled in favor of the UIM carrier's severance of and stay of bad faith claims in the combined UIM Breach of Contract and Bad Faith cause of action in the case).
Cumberland County
Stumpf v. Erie Ins. Exchange and Barricklow, No. 2011 - Civil - 7290 (C.P. Cumb. Co. Feb. 2, 2012 Hess, P.J.)(President Judge Kevin Hess of the Cumberland County Court of Common Pleas issued an Order directing the severance of the liability claims (negligence) and the UIM claims (breach of contract) found in a single Complaint into separate trials; Order allows claims to remain consolidated for discovery purposes.).
Henry v. Amin and Westfield Ins. Co., No. 11-4881 Civil (C.P. Cumberland Sept. 1, 2011 Ebert, J.)(By Order only, court severs negligence claims against tortfeasor from breach of contract claims against UIM carrier; court also orders that negligence claim is to be tried first).
Dauphin County [Split of authority]
Ali v. Erie Insurance Company, No. 2017-CV-03544 (C.P. Dauph. Co. March 1, 2019 Cherry, J.)(Court denied a Plaintiff’s Motion to Consolidate a third party negligence claim with a companion UIM claim in a post-Koken motor vehicle accident matter.).
Oaks v. Erie Insurance Exchange and Austin, No. 2012 - CV - 3741 - CV (C.P. Dauphin Co. May 8, 2015 Bratton, J.)(In a decision handed down after a mistrial in a matter, Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas granted the tortfeasor Defendant's Motion for Reconsideration of the court's prior denial of the tortfeasor's Motion to Sever the negligence claims asserted against him by the Plaintiff from the Plaintiff's UIM claims against the carrier for purposes of the retrial of the matter.).
Phaler v. Ray and Westfield Ins. Co., No. 2014 CV 7332 (C.P. Dauph. Co. April 3, 2015 Bratton, J.) (By Order only, the court granted a third party tortfeasor's Preliminary Objections seeking the severance of the negligence claims asserted against him from the breach of contract claims asserted against the UIM carrier.)
[See several Dauphin County decisions above in favor of consolidation in Consolidation section above].
Delaware County
Bryant v. Graham and Allstate, No. 09-11736 (Del. Co. May 26, 2010, Pagano, J.)(Order only)(Court grants Motion to Sever breach of contract and bad faith claims asserted against UM carrier from the UM claim and the negligence claim against the tortfeasor; no motion to sever UM claim from negligence claim filed).
Ryan and Neilson v. Hatala and Allstate, No.: 12-004323 (C.P. Delaware
Erie County
Erie Insurance Exchange v. Porter, No. 10327 - 2015 (C.P. Erie. Co. June 11, 2015 Cunningham, J.)(In a detailed Order, Judge William R. Cunningham granted the carrier's request to sever and stay UIM and Bad Faith Claims from a Declaratory Judgment action on coverage issues filed by the carrier.).
Crownover v. Orzano, Liberty Mutual Group, Inc., et.al., No. 14329-2011 (C.P. Erie Co. March 9, 2012 Garhart, J.)(Court sustained a tortfeasor’s Preliminary Objections on the subject of improper joinder and ordered that the Plaintiff “shall try their liability claims against [the tortfeasor Defendant] separately from their contract/UIM claims against the other Defendants.”).
Santos v. Erie Insurance Exchange, No. 12835-Civil-2011 (C.P. Erie Co. Feb. 22, 2012 Connelly, J.)(Court granted the carrier’s Motion to Sever the Plaintiffs’ UIM breach of contract claim and bad faith claim in a post-Koken matter. The Court also sustained the Defendant’s Motion to Strike claims for punitive damages and attorney’s fees asserted under the breach of contract portion of the claim.
Brown v. Haas and State Farm, No. 11658 - 2011 (C.P. Erie Oct. 31, 2011 Connelly, J.)(In an Opinion, court granted the preliminary objections filed by the tortfeasor defendant seeking a severance of the negligence and UIM claims on the basis that the tortfeasor would be prejudiced by the introduction of evidence of insurance in violation of Pennsylvania law. The defense also argued that the claims did not arise out of the same "occurrence" in that one action was in negligence and the other in contract. Court also struck bad faith claim filed against UIM carrier as sufficient facts not pled in support of that claim.).
But see above in "Consolidation" listing Jordan v. White, Gonzales, and Erie Insurance Exchange, No. 15540-Civil-2009 (Erie Co. October 28, 2010, Garhart, J.)(Court denied Preliminary Objections by the UIM/UM carrier seeking severance; Court says it will entertain a motion to sever at the time of trial, if desired).
Forest/Warren Counties (37 Judicial District combined)
Burr v. Erie Ins. Exchange, No. 008-Civil-2011/Forest County Branch (Warren and Forest Co., April 6, 2011, Hammond, J.)(Court ruled in an Order only that a combined UIM and Bad Faith lawsuit would be severed and that the discovery and trial in the Bad Faith aspect of the case could only occur after the resolution of the UIM case by verdict or settlement.).
Frankin County
Stanhope v. Stoner and GEICO, No. 2020-877 (C.P. Franklin Co. Sept. 14, 2020 Shank, J.)(Court granted a UIM carrier's Preliminary Objections and Motion to Sever the UIM claims from the third party negligence claims asserted against the alleged tortfeasor defendant. Court cited to Tort Talk in its decision).
Lackawanna County
(Note split of authority on the issue-see Lackawanna County cases under consolidation section above)
Mehall v. Benedetto and Erie Ins. Exchange, 09-CV-744 (Lacka. Co. 2010, Thomson, S.J.)(Creating a split of authority in this county, the court orders that third party and UIM claims should be severed into two separate lawsuits; Motion for Reconsideration denied by July 10, 2010 Court Order issued by Judge Thomson).
Lancaster County
Burton v. Burton and USAA, No CI-09-09343 (Lanc. Co. , Miller, J.)(Opinion and Order issued granting a tortfeasor's preliminary objections filed by both the tortfeasor and and the first party carrier arguing a misjoinder of actions. As a result of this decision, the negligence claim asserted against the tortfeasor was severed from the breach of contract claim asserted by the Plaintiff against his own carrier related to a denial of first party medical benefits following a peer review.).
Lebanon County
Dunkelberger v. Erie Insurance Company, No. 2010-Civil-01956 (Leb. Co. Jan. 24, 2011, Charles, J.)(Motion of Erie Insurance Company for an Emergency Protective Order and Stay granted in terms of any discovery requested by the Plaintiff on the bad faith claim. Judge Charles also ruled that the Plaintiff’s UIM claim was to be severed from the bad faith claim.).
Mercer County
Gravatt v. Smith and Unitrin Auto and Home Ins. Co., No. 2010-Civil-2155 (Mercer County Oct. 15, 2010, Fornelli, P.J.)(Court grants UIM carrier's Preliminary Objections/Motion to Sever and grants plaintiff right to re-file against UIM carrier under a different docket number).
Monroe County
Kemp v. Mut. Benefit Ins. Co., PICS Case No. 15-0517 (C.P. Monroe Co. Jan. 14, 2015 Williamson J.)(In an Opinion, the court granted a defendant carrier's motion to sever bad faith claims from the contractual claims in the early stages of the matter, but denied the motion for a stay on any bad faith discovery requests, noting that any issues in that regard could be brought to the court on further motion.).
Comrie v. Atlantic State Ins. Co., PICS Case No. 14-096 (C.P. Monroe Co. May 29, 2014 Zulick, J.), (Judge Arthur Zulick of the Monroe County Court of Common Pleas granted a UIM carrier’s Motion to Sever and Stay the bad faith portion of the claims asserted in a post-Koken matter.)
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Montgomery County
Dunne v. Closs, Progressive, et al., No. 09-38446 (Montg. Co. June 29, 2010, Moore, J.)(Court upholds forum selection clause of UIM carrier and severs UIM claim with allowance for Plaintiff to re-file in appropriate county).
Philadelphia County
(Note split of authority on the issue-see Philadelphia County cases in consolidation section above)
Silver v. Wood, April Term, 2013 No. 00276 (C.P. Phila. Sept. 20, 2013 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court denied plaintiff’s Petition to Amend Complaint to Add Additional Defendant, holding that negligence claim against defendant driver is wholly separate from UIM claim; court also cites failure of plaintiff to allege joint and several liability; court also cites potential confusion of issues and prejudice if joinder allowed.).
Parsons v. Hinton and State Farm Insurance Company, No. 02137, August Term, 2010 (C.P. Phila. Co. Dec. 1, 2011, Tereshko, J.) (By Order only, Court grants tortfeasor Defendants’ Motion to Sever actions filed by Plaintiff against third party tortfeasor and UIM carrier).
Burke v. Burke and State Farm Insurance Company, No. 1875, August Term, 2011 (C.P. Phila. Co. Jan. 27, 2012) (By Order only, Court denies Motion to Consolidate filed by UIM carrier).
Antrim v. Bullard and State Farm Mutual Automobile Insurance Company, No. 294, June Term, 2011 (C.P. Phila. Co. Oct. 11, 2011, Manfredi, J.) (By Order only, Court grants tortfeasor Defendants’ Preliminary Objections and severs the claims against the tortfeasor against the claims against the UIM carrier; court also transfers claims against the tortfeasor Defendants to Delaware County as the Plaintiff did not allege any basis for venue in Philadelphia as to the tortfeasor Defendants).
Lewis v. Fischer and Donegal Mutual Ins. Co., Nos. 11-081103, 11-080580 (C.P. Phila. Co. Oct. 12, 2001 Manfredi, J.)(By Order, court granted the Defendants’ Preliminary Objections and ordered that the breach of contract claims against the UIM carrier and the negligence claims against the third party tortfeasor be severed.)
Dangler v. Robinson and AIU Insurance Company, March Term 2009, No. 4027, Control No. 09-092828 (Phila. Co. 2010, DiVito, J.)(Court issued an Order only granting the tortfeasor's preliminary objections, alleging a misjoinder of actions, in a post-Koken case.The Court, by Order only and without any Opinion, severed the UIM claim and ordered that it be tried separately from the third party claim.).
Astillero v. Harris and State Farm, August Term 2009, No. 1580 (Phila. Co. Dec. 11, 2009, Fox, J.)(Without Opinion, court orders claims are severed "for purposes of trial only" presumably meaning claims may proceed together in discovery phase).
Morawski v. Dunleavy and State Farm, October Term 2009, No. 03493 (Phila. Co. April 26, 2010,
Overton, J.)(third party claims and UIM claims severed for all purposes, not just for trial purposes).
Schramm v. McComb and Penn National Insurance and State Auto Insurance, No. 1002 03394 (Phila. Co. May 10, 2010, Tereshko, J.) (Court granted the preliminary objections of the tortfeasor defendants and severed the third party claims from the UIM claims and ordered separate trials).
Thomas v. Titan Auto Ins., Nationwide Ins, Jones, and Briel, March Term 2010, No. 03050 (Phila. Co. May 10, 2010, Tereshko, J)(Court severed the third party liability claim filed against an owner and operator of a vehicle, which vehicle was reported stolen after the accident, from the uninsured (UM) motorist claim against one of the carrier defendants; Judge Tereshko not only severed the matters from each other but also transferred both claims to Montgomery County.)(Update: In court's Rule 1925 Opinion, trial court clarified that it was only sending the negligence claim to Montgomery County and was keeping the UIM claim in Philadelphia County).
Carter v. Gillespie and Travelers Insurance Company, April 2010 Term No. 0564 (Phila Co. May 27, 2010, Tereshko, J.) (Court granted the third party tortfeasors' Preliminary Objections asserting a Misjoinder of Actions; Judge Tereshko ordered the actions severed and also mandated that the matters were to be tried separately.).
Levin v. Grandinetti and Progressive Direct Ins. Co., March Term, 2010 No. 0080 (Phila. Co. June 14, 2010, Tereshko, J.)(Without Opinion, preliminary objections of UIM carriers to joinder of claims with negligence claims granted.).
Saltzburg v. Haynes and State Farm, November Term, 2010, No. 03227 (Phila. Co. Jan. 14, 2011 Tereshko, J.)(Preliminary Objections of tortfeasor defendant on basis of improper venue and improper joinder of third party negligence case with UIM case; claim against tortfeasor dismissed without prejudice to Plaintiff's right to re-file in Montgomery county).
Pascal v. Nalbondian, et al., July Term, 2010, No. 2118, Control No. 10121229 (Phila. Co. Jan. 14, 2011, Fox, J.)(Tortfeasor's motion to sever negligene claims from claims filed against UIM carrier granted).
Gollinge-Motroni v. Machado and Allstate Ins. Co., October Term 2010 No. 002528 (Phila. Co. Jan. 14, 2011, Tereshko, J.)(negligence and UIM claims severed and cases transferred for improper venue).
Barrett v. Pennsylvania Nat'l Mut. Cas. Ins. Co., No. S-1861-2012 (C.P. Schuylkill Co. March 18, 2013 Domalakes, J.)(Judge John E. Domalakes granted an insurance carrier defendant's motion to sever a bad faith claim from a UIM claim but refused to stay the bad faith discovery.).
Corridoni v. Temple and MetLife Auto & Home et.al., No. S-1470-2010 (Schuylkill Co. Nov. 5, 2010, Russell, J.)(Order entered severing the claims against the tortfeasor from the claims asserted against the insurance company Defendants for UIM benefits.).
Susquehanna County
Zembrzicki v. Allstate Fire & Cas. Ins. Co., 2013 - 475CP(C.P. Susq. Co. 2013 Seamans, J.)(By Order only court granted a UIM carrier's request to sever the UIM claim from a bad faith claim.)
Venango County
Boughner v. Erie Ins. Exchange, No. 1875 - Civil - 2010 (C.P. Venango Co. April 16, 2012 Boyer, J.)(Court granted the UIM carrier's Motion to Sever the Bad Faith Count from the UIM contractual claim and also the Motion to Stay any discovery under the bad faith claim.).
Washington County
Barcus v. Mannino and Allstate Ins. Co., 2009 - Civil - 10171 (Wash. Co. June 15, 2010, Loughran, S.J.)(Court rules in favor of UIM carrier's preliminary objections and severs third party liability claims from the companion UIM claims.).
Westmoreland County
Lackawanna County
(Note split of authority on the issue-see Lackawanna County cases under consolidation section above)
Mehall v. Benedetto and Erie Ins. Exchange, 09-CV-744 (Lacka. Co. 2010, Thomson, S.J.)(Creating a split of authority in this county, the court orders that third party and UIM claims should be severed into two separate lawsuits; Motion for Reconsideration denied by July 10, 2010 Court Order issued by Judge Thomson).
Lancaster County
Burton v. Burton and USAA, No CI-09-09343 (Lanc. Co. , Miller, J.)(Opinion and Order issued granting a tortfeasor's preliminary objections filed by both the tortfeasor and and the first party carrier arguing a misjoinder of actions. As a result of this decision, the negligence claim asserted against the tortfeasor was severed from the breach of contract claim asserted by the Plaintiff against his own carrier related to a denial of first party medical benefits following a peer review.).
Lebanon County
Dunkelberger v. Erie Insurance Company, No. 2010-Civil-01956 (Leb. Co. Jan. 24, 2011, Charles, J.)(Motion of Erie Insurance Company for an Emergency Protective Order and Stay granted in terms of any discovery requested by the Plaintiff on the bad faith claim. Judge Charles also ruled that the Plaintiff’s UIM claim was to be severed from the bad faith claim.).
Mercer County
Gravatt v. Smith and Unitrin Auto and Home Ins. Co., No. 2010-Civil-2155 (Mercer County Oct. 15, 2010, Fornelli, P.J.)(Court grants UIM carrier's Preliminary Objections/Motion to Sever and grants plaintiff right to re-file against UIM carrier under a different docket number).
Monroe County
Kemp v. Mut. Benefit Ins. Co., PICS Case No. 15-0517 (C.P. Monroe Co. Jan. 14, 2015 Williamson J.)(In an Opinion, the court granted a defendant carrier's motion to sever bad faith claims from the contractual claims in the early stages of the matter, but denied the motion for a stay on any bad faith discovery requests, noting that any issues in that regard could be brought to the court on further motion.).
Comrie v. Atlantic State Ins. Co., PICS Case No. 14-096 (C.P. Monroe Co. May 29, 2014 Zulick, J.), (Judge Arthur Zulick of the Monroe County Court of Common Pleas granted a UIM carrier’s Motion to Sever and Stay the bad faith portion of the claims asserted in a post-Koken matter.)
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Montgomery County
Dunne v. Closs, Progressive, et al., No. 09-38446 (Montg. Co. June 29, 2010, Moore, J.)(Court upholds forum selection clause of UIM carrier and severs UIM claim with allowance for Plaintiff to re-file in appropriate county).
Philadelphia County
(Note split of authority on the issue-see Philadelphia County cases in consolidation section above)
Silver v. Wood, April Term, 2013 No. 00276 (C.P. Phila. Sept. 20, 2013 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court denied plaintiff’s Petition to Amend Complaint to Add Additional Defendant, holding that negligence claim against defendant driver is wholly separate from UIM claim; court also cites failure of plaintiff to allege joint and several liability; court also cites potential confusion of issues and prejudice if joinder allowed.).
Parsons v. Hinton and State Farm Insurance Company, No. 02137, August Term, 2010 (C.P. Phila. Co. Dec. 1, 2011, Tereshko, J.) (By Order only, Court grants tortfeasor Defendants’ Motion to Sever actions filed by Plaintiff against third party tortfeasor and UIM carrier).
Burke v. Burke and State Farm Insurance Company, No. 1875, August Term, 2011 (C.P. Phila. Co. Jan. 27, 2012) (By Order only, Court denies Motion to Consolidate filed by UIM carrier).
Antrim v. Bullard and State Farm Mutual Automobile Insurance Company, No. 294, June Term, 2011 (C.P. Phila. Co. Oct. 11, 2011, Manfredi, J.) (By Order only, Court grants tortfeasor Defendants’ Preliminary Objections and severs the claims against the tortfeasor against the claims against the UIM carrier; court also transfers claims against the tortfeasor Defendants to Delaware County as the Plaintiff did not allege any basis for venue in Philadelphia as to the tortfeasor Defendants).
Lewis v. Fischer and Donegal Mutual Ins. Co., Nos. 11-081103, 11-080580 (C.P. Phila. Co. Oct. 12, 2001 Manfredi, J.)(By Order, court granted the Defendants’ Preliminary Objections and ordered that the breach of contract claims against the UIM carrier and the negligence claims against the third party tortfeasor be severed.)
Dangler v. Robinson and AIU Insurance Company, March Term 2009, No. 4027, Control No. 09-092828 (Phila. Co. 2010, DiVito, J.)(Court issued an Order only granting the tortfeasor's preliminary objections, alleging a misjoinder of actions, in a post-Koken case.The Court, by Order only and without any Opinion, severed the UIM claim and ordered that it be tried separately from the third party claim.).
Astillero v. Harris and State Farm, August Term 2009, No. 1580 (Phila. Co. Dec. 11, 2009, Fox, J.)(Without Opinion, court orders claims are severed "for purposes of trial only" presumably meaning claims may proceed together in discovery phase).
Morawski v. Dunleavy and State Farm, October Term 2009, No. 03493 (Phila. Co. April 26, 2010,
Overton, J.)(third party claims and UIM claims severed for all purposes, not just for trial purposes).
Schramm v. McComb and Penn National Insurance and State Auto Insurance, No. 1002 03394 (Phila. Co. May 10, 2010, Tereshko, J.) (Court granted the preliminary objections of the tortfeasor defendants and severed the third party claims from the UIM claims and ordered separate trials).
Thomas v. Titan Auto Ins., Nationwide Ins, Jones, and Briel, March Term 2010, No. 03050 (Phila. Co. May 10, 2010, Tereshko, J)(Court severed the third party liability claim filed against an owner and operator of a vehicle, which vehicle was reported stolen after the accident, from the uninsured (UM) motorist claim against one of the carrier defendants; Judge Tereshko not only severed the matters from each other but also transferred both claims to Montgomery County.)(Update: In court's Rule 1925 Opinion, trial court clarified that it was only sending the negligence claim to Montgomery County and was keeping the UIM claim in Philadelphia County).
Carter v. Gillespie and Travelers Insurance Company, April 2010 Term No. 0564 (Phila Co. May 27, 2010, Tereshko, J.) (Court granted the third party tortfeasors' Preliminary Objections asserting a Misjoinder of Actions; Judge Tereshko ordered the actions severed and also mandated that the matters were to be tried separately.).
Levin v. Grandinetti and Progressive Direct Ins. Co., March Term, 2010 No. 0080 (Phila. Co. June 14, 2010, Tereshko, J.)(Without Opinion, preliminary objections of UIM carriers to joinder of claims with negligence claims granted.).
Saltzburg v. Haynes and State Farm, November Term, 2010, No. 03227 (Phila. Co. Jan. 14, 2011 Tereshko, J.)(Preliminary Objections of tortfeasor defendant on basis of improper venue and improper joinder of third party negligence case with UIM case; claim against tortfeasor dismissed without prejudice to Plaintiff's right to re-file in Montgomery county).
Pascal v. Nalbondian, et al., July Term, 2010, No. 2118, Control No. 10121229 (Phila. Co. Jan. 14, 2011, Fox, J.)(Tortfeasor's motion to sever negligene claims from claims filed against UIM carrier granted).
Gollinge-Motroni v. Machado and Allstate Ins. Co., October Term 2010 No. 002528 (Phila. Co. Jan. 14, 2011, Tereshko, J.)(negligence and UIM claims severed and cases transferred for improper venue).
Levin v. Grandinetti and Progressive, March Term 2010, No.: 0080 (C.P. Phila. June 14, 2010 Tereshko, J.). (Without Opinion, court granted Preliminary Objections of the UIM carrier based upon improper joinder of causes of action and improper venue. The court severed Plaintiff’s claims against the third party Defendant and the UIM carriers without prejudice to the Plaintiff’s right to file their UIM claims in Montgomery County or the US District Court for the Eastern District of Pennsylvania).
Matteo v. Andeno and Progressive, February Term, 2012 No.: 0193 (C.P. Phila. Aug. 2, 2012 , Aug. 30, 2012 Tereshko, J.). (By Order without Opinion on August 12, 2012 , the trial court sustained the UIM carrier’s Preliminary Objection based upon improper joinder and severed Plaintiff’s negligence and UIM claim. By subsequent Order dated August 30, 2012 , the trial court further ordered that the Plaintiffs’ negligence and UIM claims be severed in their entirety for purposes of discovery and trial).
Saltzburg v. Hayes and State Farm, November Term, 2010 No.: 03227 (C.P. Phila. Jan. 19, 2011 Tereshko, J.) (Without Opinion, a trial court sustained the Preliminary Objections of the third party Defendant seeking severance of the Plaintiff’s third party and UIM claims. The court dismissed Plaintiff’s claims against the third party Defendant without prejudice to the Plaintiff’s right to refile those claims in Montgomery County ).
Skrocki v. Erie Insurance and Row, February Term, 2012, No.: 03826 (C.P. Phila. Feb. 12, 2013 Tereshko, J.) (Following an automobile accident in Berks County , Plaintiff filed a combined negligence/UIM action against the third party Defendant, a resident of Berks County , and the Plaintiff’s UIM carrier. The UIM carrier filed Preliminary Objections seeking severance of the Plaintiff’s negligence in UIM claims and also filed a Motion to Transfer Venue in the basis of forum known conveniens. The trial court granted the carrier’s Preliminary Objections and severed the actions but denied the UIM carrier’s Motion to Transfer Venue. The trial court also ordered that the Plaintiff’s claims against the third party Defendant will be tried first followed by a trial of the Plaintiff’s claims against the UIM carrier and that both trials would be held before different juries. In this matter, the third party Defendant had also filed Preliminary Objections to improper venue, seeking a transfer of the matter from Berks County . The trial court sustained the third party Defendant’s Preliminary Objections and ordered the entire matter transfer to Berks County . The trial court held that because the UIM claim had been severed from the negligence claim, the accident occurred in Berks County , and that the third party Defendant was served with process in Berks County , there is simply no connection with this case to support proper venue in Philadelphia County .
Nelson Rios v Andy Parker, Phila. Ct. Com. Pl., November Term, 2011, No. 01208, Control No. 11123460 (March 1, 2012, Lachman, J.) (negligence claim against other driver and UIM claim against own insurer; PO filed by the other driver granted to sever tort and contract claims).
Tuan Ahn Ly v. Shawn Murray, Phila. Ct. Com. Pl., June Term, 2013, No. 02575, Control No. 3071025 (August 6, 2013, Lachman, J.) (granting insurance company’s preliminary objection and severing UM and UIM claims from tort claims plaintiffs had against the other driver; order adopts all of the other opinions as the opinion in this motion).
Jamal Giddings v. Traci Poe, Phila. Ct. Com. Pl., October Term 2011, No. 02393, Control No. 12013528 (April 30, 2012, Lachman, J.) (negligence claim against other driver and UM claim against own insurer; Motion filed by UM carrier is granted to sever tort and contract claim).
Kevin Nguyen v Anvel Dorvil, Phila. Ct. Com. Pl., October Term, 2011, No. 03880, Control No. 12020163 (May 10, 2012, Lachman, J.) (negligence claim against other driver and UIM claim against own insurer; Motion filed by UIM carrier is granted to sever tort and contract claim).
[SPLIT OF AUTHORITY: Note above Schuylkill County decision in favor of consolidation.]Nelson Rios v Andy Parker, Phila. Ct. Com. Pl., November Term, 2011, No. 01208, Control No. 11123460 (March 1, 2012, Lachman, J.) (negligence claim against other driver and UIM claim against own insurer; PO filed by the other driver granted to sever tort and contract claims).
Tuan Ahn Ly v. Shawn Murray, Phila. Ct. Com. Pl., June Term, 2013, No. 02575, Control No. 3071025 (August 6, 2013, Lachman, J.) (granting insurance company’s preliminary objection and severing UM and UIM claims from tort claims plaintiffs had against the other driver; order adopts all of the other opinions as the opinion in this motion).
Jamal Giddings v. Traci Poe, Phila. Ct. Com. Pl., October Term 2011, No. 02393, Control No. 12013528 (April 30, 2012, Lachman, J.) (negligence claim against other driver and UM claim against own insurer; Motion filed by UM carrier is granted to sever tort and contract claim).
Kevin Nguyen v Anvel Dorvil, Phila. Ct. Com. Pl., October Term, 2011, No. 03880, Control No. 12020163 (May 10, 2012, Lachman, J.) (negligence claim against other driver and UIM claim against own insurer; Motion filed by UIM carrier is granted to sever tort and contract claim).
Pike County
Hansen v. Fucetola and NJM Ins. Co., 1079-2014-Civil (C.P. Pike Co. Feb. 26, 2019 Chelak, J.), (Judge Gregory H. Chelak of the Pike County Court of Common Pleas granted a UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith Claim From the Plaintiff's Breach of Contract Claim.)
But see decisions above in favor of consolidation of Post-Koken claims not involving Bad Faith claims.
Schuylkill County
Hansen v. Fucetola and NJM Ins. Co., 1079-2014-Civil (C.P. Pike Co. Feb. 26, 2019 Chelak, J.), (Judge Gregory H. Chelak of the Pike County Court of Common Pleas granted a UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith Claim From the Plaintiff's Breach of Contract Claim.)
But see decisions above in favor of consolidation of Post-Koken claims not involving Bad Faith claims.
Schuylkill County
Barrett v. Pennsylvania Nat'l Mut. Cas. Ins. Co., No. S-1861-2012 (C.P. Schuylkill Co. March 18, 2013 Domalakes, J.)(Judge John E. Domalakes granted an insurance carrier defendant's motion to sever a bad faith claim from a UIM claim but refused to stay the bad faith discovery.).
Corridoni v. Temple and MetLife Auto & Home et.al., No. S-1470-2010 (Schuylkill Co. Nov. 5, 2010, Russell, J.)(Order entered severing the claims against the tortfeasor from the claims asserted against the insurance company Defendants for UIM benefits.).
Susquehanna County
Zembrzicki v. Allstate Fire & Cas. Ins. Co., 2013 - 475CP(C.P. Susq. Co. 2013 Seamans, J.)(By Order only court granted a UIM carrier's request to sever the UIM claim from a bad faith claim.)
Venango County
Boughner v. Erie Ins. Exchange, No. 1875 - Civil - 2010 (C.P. Venango Co. April 16, 2012 Boyer, J.)(Court granted the UIM carrier's Motion to Sever the Bad Faith Count from the UIM contractual claim and also the Motion to Stay any discovery under the bad faith claim.).
Washington County
Barcus v. Mannino and Allstate Ins. Co., 2009 - Civil - 10171 (Wash. Co. June 15, 2010, Loughran, S.J.)(Court rules in favor of UIM carrier's preliminary objections and severs third party liability claims from the companion UIM claims.).
Westmoreland County
Levis v. Kilbert, No. 5576-Civil-2019 (C.P. West. Co. May 6, 2022 Hathaway, P.J.) (Court issued an Order only in a post-Koken litigation addressing Preliminary Objections in which the court sustained the tortfeasor Defendant’s assertion of a misjoinder of actions in terms of the negligence claim against the tortfeasor and the breach of contract UIM claim against the carrier and ordered that the claims be severed into two (2) separate lawsuits.).
York County
Forry v. Erie Insurance Exchange, No. 2013-SU-1162-89 (C.P. York Co.
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).
Winkler v. Argabright and Allstate Insurance Company, No. 2009 -SU -001244 -01 (York Co. May 20, 2010 Chronister, Thompson, Linebaugh) (Court issued an en banc decision, by Order only, granting a tortfeasor's Preliminary Objections and request for severance of the third party claims from the UIM claims).
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POST-KOKEN TRIAL COURT DECISION ON CONSOLIDATION vs. SEVERANCE OF CLAIMS WHERE BAD FAITH IS ALLEGED
TRIAL COURT DECISIONS DENYING MOTION TO SEVER OR BIFURCATE POST-KOKEN BAD FAITH CLAIMS
(Decisions from across 10 Counties, the Eastern Federal District Court, the Federal Middle District Court, and Federal Western District Court)
United States Federal Eastern District Court
Goldstein v. Am. States Ins. Co., No. 18-CV-3163 (E.D. Pa. Nov. 28, 2018 Baylson, J.), the Eastern District Federal Court of Pennsylvania denied a Defendant carrier’s Motion to Sever and Stay an Plaintiff’s Bad Faith Claim in a post-Koken litigation.
Jones-Silverman v. Allstate Fire & Casualty Ins. Co., No. 17-1711 (E.D. Pa. July 31, 2017 Baylson, J.)(Eastern District Federal Court denied a carrier’s Motion to Bifurcate a Plaintiff’s UIM breach of contract and bad faith claims.).
Eizen Fineberg & McCarthy, P.C. v. Ironshore Specialty Ins. Co., No. 16-2461, 319 F.R.D. 209 (E.D. Pa. Dec. 7, 2016 Slomsky, J.)(Court denied a carrier’s Motion to Bifurcate the insured’s bad faith claim from a coverage claim.).
Zinno v. GEICO¸ No. 16-792 (E.D. Pa. Nov. 21, 2016 Baylson, J.)(Court denied the carrier’s Motion to Bifurcate the breach of contract and bad faith claims in this UIM case. The court also denied the carrier’s Motion for a Stay of the discovery on the bad faith side of the claim.)
Wagner v. Allstate Ins. Co., No. 5:14-cv-07326 (E.D. Pa. Jan. 19, 2016 Leeson, J.)(Judge Joseph Leeson of the Federal Eastern District Court of Pennsylvania refused the UIM carrier’s effort to stay the Plaintiff’s bad faith claim but, in the end, rejected most of the insured’s bad faith discovery requests.).
Yellowbird Bus Co. v. Lexington Ins. Co., Civ. No. 09-5835, 2010 WL 2766987 (E.D. Pa. July 12, 2010) (Court denied Motion to Bifurcate because discovery with respect to the Plaintiffs’ bad faith and UIM claims would substantially overlap).
Rohm and Haas Co. v. Utica Mut. Ins. Co., 2008 WL 2517176 (E.D.Pa. 2008)(Motion to sever and stay bad faith claim denied).
United States Federal Middle District Court
Ferguson v. USAA, No. 1:19-cv-401 (M.D. Pa. Dec. 5, 2019 Rambo, J.)(Federal Middle District Court determined that a bad faith claim could proceed independently of a breach of contact claim, even if the breach of contact claim failed. In its decision, the Ferguson court also denied the carrier’s Motion to Sever the bad faith claim and stay bad faith discovery.).
Newhouse v. GEICO, No. 4:17-CV-00477 (M.D. Pa. Sept. 18, 2017 Brann, J.)(U.S. Middle District Judge Matthew W. Brann denied GEICO’s Motion to Sever and Stay the bad faith portion of a post-Koken claim filed by a Plaintiff also asserting a UIM claim.).
Griffith v. Allstate, No. 3:13 - CV - 02674 (M.D. Pa. Feb. 21, 2014 Mannion, J.), Middle District of Pennsylvania Federal Court Judge Malachy E. Mannion issued a detailed Opinion outlining his rationale for following the majority rule in the Middle District in favor of denying Motions to Sever bad faith claims from the breach of contract claim for UIM benefits.
Consugar v. Nationwide Ins. Co., No. 3:10-cv-2084, 2011 WL 2360208 (M.D. Pa. 2011 Munley, J.) (Court denied Defendant’s Motion to Bifurcate because Plaintiff’s bad faith and UIM claims were based on the same facts and evidence).
Calestini v. Progressive Cas. Ins. Co., 3:09-CV-1679 (M.D.Pa. Dec. 16, 2009, Caputo, J.)(Court ruled against the Defendant insurance carrier's Motion to Bifurcate and Stay Discovery in a post-Koken case in which a UIM breach of contract action was joined with the bad faith action.).
Suscavage v. Nationwide Mut. Ins. Co, 2008 WL 2278082 (M.D.Pa. 2008 Munley, J.)(Court denied Motion to Bifurcate trial of bad faith claim and breach of contract claim. Held that the bifurcation of such matters would lead to confusion, delay and inconvenience that would not serve the interests of judicial economy).
United States Federal Western District Court
Walls v. American Modern Select Ins. Co., No. 3:19-cv-80 (W.D. Pa. Feb. 6, 2020 Gibson, J.) (ourt denied the carrier’s Motion to Sever and Stay the insured’s bad faith claim).
Schutte v. GEICO, No. 2:16-CV-00374 (W.D.Pa. May 24, 2016 Schwab, J.)(In a Memorandum Order, Court denied a UIM carrier's motion to sever and stay a bad faith claim asserted in a Post-Koken matter).
Craker v. State Farm, No. 2011 – Civil – 0225 (W.D.Pa. Sept. 29, 2011 Lancaster, C.J.)(Carrier's request to sever Bad Faith and UIM claim denied).
Zettle v. American National Prop. & Cas. Co., 2011 WL 13130887 (W.D.Pa. 2011).
Allegheny County
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; Court also rules that Plaintiff's efforts to discover UIM carrier's evaluation information denied as such information is protected from discovery by the privilege against the disclosure of mental impressions, conclusions, or opinions of a representative of a party regarding value. Court notes that such discovery would be allowed once UIM claim is concluded by jury verdict or otherwise.).
Vernon v. Erie Insurance, No. GD 08-10406 (Allegheny Co. 2009, Wettick, J.)(court issued an Order without Opinion denying Erie's motion to stay discovery and bifurcate the UIM Claim from the Bad Faith claim; the bad faith claim was scheduled to be tried immediately upon the UIM case being sent to the jury. Also, the tort action was consolidated for trial with the UIM action. Ultimately, the case settled before jury selection).
Blair County
Fisher v. Erie Insurance Exchange, No. 2016-GN-298 (C.P. Blair Co. May 9, 2018 Bernard, J.), the trial court denied the insurance company’s Motion to Sever the UIM and bad faith claims and further denied the carrier’s Motion to Stay the bad faith case.
Swan v. Moorefield, No. 2014 GN 2606 (C.P. Blair Co. Sept. 9, 2017 Kagarise, J.) (Court denied a UIM carrier’s Motion to Sever and Stay Bad Faith Claims in a post-Koken matter.).
But see Blair County decision in favor of severance in next section below.
Clinton County
Wentzel v. Swinehart and State Farm, No. 375-10 CV (June 3, 2010, Williamson, P.J.)(Court denied both the UIM carrier’s Motion to Sever the Plaintiff’s bad faith claim and the request that the bad faith claim be stayed pending the resolution of the underinsured motorist action.).
Fayette County
Rimel v. Mutual Benefit Insurance Company and State Farm Mutual Automobile Insurance Company, No. 2450 of 2016, G.D., (C.P. Fayette Co. March 23, 2017 Cordaro, J.)(Court denied the Motion of Defendant, Mutual Benefit Insurance Company, to Sever and Stay a Bad Faith Claim.).
Lackawanna County
Fertig v. Kelley, No. 16 - CV - 4801 (C.P. Lacka. Co. Dec. 29, 2017 Nealon, J.)(In a detailed Opinion, Judge Terrence R. Nealon denied a UIM carrier's motion to sever and stay bad faith claims in a Post-Koken matter but held that the bad faith claims would be later bifurcated for trial.).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, Minora, J.).
But see Lackawanna County trial court decisions below in favor of severance of bad faith claims.
Lehigh County
Holland v. Yankauskas and Erie Insurance Exchange, No. 2015-C-1866 (C.P. Lehigh Co. Nov. 2, 2017 Reichley, J.)(The court denied the UIM carrier’s Motion for Severance in which the carrier requested a separate trial. The Motion was denied without prejudice to the carrier's right to restate the Motion closer to trial.).
Luzerne
County [Split of Authority - See below]
Albright v. Erie Insurance Exchange, No. 3919-2018 (C.P. Luz. Co. Oct. 15, 2018 Gelb, J)(Judge Lesa Gelb of the Luzerne County Court of Common Pleas denied a Defendant carrier’s Motion to Sever and Stay a statutory bad faith claim in a post-Koken matter.).Pelton v. Allstate Fire and Cas. Ins. Co., No. 1507-CV-2015 (C.P. Luz. Co. June 3, 2015 Pierantoni, J.)(In an Order only, the court denied the UIM carrier's motion to stay bad faith discovery in a case where the parties had previously agreed to a severance of the bad faith claims from the UIM claims).
Schuckers v. Penn National Mut. Cas. Ins. Co., No. 9080 of 2011 (C.P. Luz. Co. Nov. 6, 2012 Amesbury, J.)(Court denied motion to sever and stay bad faith claims pending resolution of UIM claims by noting there would be a “severance of the case by application of law” in that the UIM case would be tried first followed by a bench trial on the bad faith claim. Court also denied the UIM carrier’s motion to stay bad faith discovery, noting that UIM carrier had the right to protect non-discoverable information and that the UIM carrier’s conclusions or opinions regarding the strengths and weaknesses of the Plaintiff’s case would be protected from disclosure until the completion of the UIM claim; cites Judge Wettick’s decision in Gunn v. Auto. Ins. Co. of Hartford.).
Borthwick v. Webb and GEICO, No. 2735-Civil-2010 (Luz. Co. Sept. 21, 2010, Cosgrove, J.)(Court denied the Preliminary Objections of Defendant GEICO, the UIM carrier, seeking a severance of the first party claims against it(breach of contract (UIM) and Bad Faith) from the third party liability claims, and, in the alternative a severance of the UIM claims and Bad Faith claims filed against GEICO. In a footnote in his Opinion, Judge Cosgrove cited to Pennsylvania Law Weekly article by Daniel E. Cummins, Esquire outlining decisions in this regard around the state. Case was allowed to proceed in a consolidated fashion).
Montgomery County
Dininni v. Encompass Insurance Company, No. 2010 - Civil - 04615 (Montg. Co. June 16, 2010, Tilson, J.)(Court stayed discovery as to claims of bad faith and unfair trade practices until underlying UIM claims were tried or otherwise resolved. While ruling in favor of the defense in that regard, the court did also deny the defense request that the Bad Faith Claim and Unfair Trade Practices Claim be severed from the UIM claim.).
Northumberland County
Kerchoff v. Donegal Ins. Group, No. 16-CV-1266 (C.P. Northumberland Jan. 4, 2017 Jones, J.)(Court denied a UIM carrier's Motion to Sever and Stay a Bad Faith claim. This Post-Koken matter involved bad faith and breach of contract UIM claims asserted following a motor vehicle accident.)
Philadelphia County
Kiszlo v. Erie Insurance Exchange, No. 2355, October Term 2014 (C.P. Phila. Co. March 30, 2015 Rau, J.)(In an Order only, the court denied the UIM carrier’s Motion to Sever the UIM and bad faith claims.).
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TRIAL COURT DECISIONS IN FAVOR OF SEVERANCE OF BAD FAITH CLAIM
(Decisions from across 22 Counties and Federal Eastern District Court and the Federal Western District Court)
Eastern District Federal Court
Corley v. Nat'l Indemn. Co., No. 2:16-CV-00584-MMB (E.D. Pa. Sept. 9, 2016 Baylson, J.)(Motion to sever and stay a bad faith claim granted.)
Morninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.),(In Opinion, Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation.)
AstenJohnson v. Columbia Cas. Co., 2006 WL 1791260 (E.D.Pa. 2006)(Court grants motion to sever and stay bad faith claim).
Western District Federal Court
Pastin v. Allstate Ins. Co., No. 17-CV-1503 (W.D. Pa. Nov. 30, 2018 Horan, J.), the court rejected an effort by a Plaintiff to join her underlying state court negligence action against the tortfeasor in a motor vehicle accident case with her UIM bad faith and breach of contract action filed in the federal court against her own carrier.
Allegheny County
Stoots v. Mutual Benefit Ins. Co., No. GD 16-024731 (C.P. Allegh. Co. Dec. 7, 2018 Colville, J.)(The court granted a carrier's Motion to Sever and Stay the Bad Faith portion of this Post-Koken matter by Order only).
Nebel v. Encompass Home and Auto Insurance Company, No. GD-15-015891 (C.P. Allegh. Co. Oct. 6, 2016 Folino, J.)(In an Order only, Court granted a Defendant’s Motion to Sever and Stay the Bad Faith portion of a UIM/bad faith matter.)
Wutz v. Smith and State Farm, GD07-021766 (Allegh. Co. March 2, 2010, Strassburger, J.)(Court ordered the severing of a third party claim from a UIM claim and Bad Faith claim against the UIM carrier. In this case, the UIM carrier paid the third party defendant’s settlement offer under Daley-Sand and thereby stepped into the Plaintiff’s shoes against the third party tortfeasor. Since there was no longer any “live dispute” against a tortfeasor in this matter, Judge Strassburger thought it appropriate to sever the cases and to allow the Plaintiff to proceed on the UIM and bad faith claims first.).
Jenkins v. State Farm, G.D. 07-020234 (Alleg. Co. Sept. 9, 2009, Wettick, J.)(Motion to stay and sever granted in UIM/Bad Faith case.
Beaver County
Butts v. Erie Ins., No. 10036-2016 (C.P. Beaver Sept. 8, 2016 Kunselman, J.)(When the defendant moved to sever the UIM and bad faith cases and to stay all bad faith discovery, the plaintiff agreed to voluntarily stay bad faith discovery but objected to the severance request arguing that bifurcation was the proper procedural option to avoid alleged prejudice. The trial court held that, going forward, bifurcation would be the preferred procedure for handling UIM and bad faith cases in Beaver County.).
Muller v. Erie Insurance Exchange et al., No. 11362-2011 (C.P. Beaver Co., February 1, 2012, Kunselman, J.)(Court granted the preliminary objections of Erie Insurance Exchange and ordered the contractual and statutory bad faith counts to be severed from the underinsured motorist breach of contract count. The Court also issued a stay order on the bad faith action.).
Blair County
Raia v. Agency Insurance Company of Maryland, Inc., No. 2015- GN-3456 (C.P. Blair Co. Feb. 28, 2017 Doyle, P.J.) (Court sustained an insurance company’s Preliminary Objections in a post-Koken matter seeking the severance of the bad faith claim from the breach of contract claim. The court also agreed to stay discovery in the bad faith portion to the case.).
But see Blair County decision denying motion to sever in preceding section above.
Bucks County
Hartman v. Schofield and Progressive Insurance, 2009 - Civil - 11956 (Bucks Co. Feb. 16, 2010, Waite, J.)(Court granted Preliminary Objections of the UIM carrier requesting that the bad faith claim be severed from the third party claims and the UIM claim all filed under one caption).
Butler County
Marburger v. Erie Ins. Exchange, 2009-Civil-10927 (Butler Co. June 19, 2009, Horan, J.)(Motion to Sever and Stay on behalf of Erie granted; court precluded plaintiffs from conducting any bad faith discovery until further Order of court and permitted severance and stay of plaintiff's bad faith action pending resolution of UIM claim).
Crawford County
Foster v. Erie Ins. Exchange, No. A.D. 2015-218 (C.P. Crawford Nov. 23, 2016 Vardaro, J.)(Court issued a detailed Order granting the carrier's Motion to Sever the Bad Faith claim from the Breach of Contract claim. The Court also stayed discovery on the Bad Faith claim pending the resolution of the Breach of Contract claim. The Court further ruled that the Breach of Contract claim would be tried first followed by the Bad Faith claim.)
Lamagna v. Keffer, No. A.D. 2015-630 (C.P. Crawford Co. March 1, 2016 Stevens, J.), Judge Mark D. Stevens of the Crawford County Court of Common Pleas addressed Preliminary Objections filed by all Defendants to a Plaintiff’s Complaint along with a Motion to Sever the negligence claim from UIM claims and a companion Motion to Stay and Sever the Bad Faith Claims. The court denied the request for severance of the UIM and tort claims, but granted the request for a severance and stay of the bad faith claim.).
Rucci v. Erie Insurance Exchange, No. A.D. 2014 - 803 (C.P. Crawford Co. February 5, 2015 Stevens, J.)(In an Opinion, the court ruled in favor of the UIM carrier's severance of and stay of bad faith claims in the combined UIM Breach of Contract and Bad Faith cause of action in the case).
Delaware County
Bryant v. Graham and Allstate, No. 09-11736 (Del. Co. May 26, 2010, Pagano, J.)(Order only)(Court grants Motion to Sever and severs breach of contract and bad faith claims asserted against UM carrier from the UM claim and the negligence claim; no motion to sever negligence claim from UM claim filed).
Erie County
Erie Insurance Exchange v. Porter, No. 10327 - 2015 (C.P. Erie. Co. June 11, 2015 Cunningham, J.)(Judge William R. Cunningham granted the carrier's request to sever and stay UIM and Bad Faith Claims from a Declaratory Judgment action on coverage issues filed by the carrier.).
Santos v. Erie Insurance Exchange, No. 12835-Civil-2011 (C.P. Erie Co. Feb. 22, 2012 Connelly, J.), (Court granted the carrier’s Motion to Sever the Plaintiffs’ UIM breach of contract claim and bad faith claim in a post-Koken matter. The Court also sustained the Defendant’s Motion to Strike claims for punitive damages and attorney’s fees asserted under the breach of contract portion of the claim.)
Brown v. Haas and State Farm, No. 11658 - 2011 (C.P. Erie Oct. 31, 2011 Connelly, J.)(In an Opinion, court struck bad faith claim filed against UIM carrier as sufficient facts not pled in support of that claim.).
Forest/Warren Counties (37 Judicial District combined)
Burr v. Erie Ins. Exchange, No. 008-Civil-2011/Forest County Branch (Warren and Forest Co., April 6, 2011, Hammond, J.)(Court ruled in an Order only that a combined UIM and Bad Faith lawsuit would be severed and that the discovery and trial in the Bad Faith aspect of the case could only occur after the resolution of the UIM case by verdict or settlement.).
Lackawanna County
Golin v. Baggetta and The Travelers Home and Marine Ins. Co., 2014 CV 1839 (C.P. Lacka. Co. Dec. 3, 2014 Braxton, S.J.)(Motion to Sever Bad Faith claim and Stay Bad Faith Discovery denied).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008, Mazzoni, J.)(Court allowed discovery in a UIM/bad faith case to proceed in a consolidated fashion but grants motion to sever for trial purposes).
Smith v. GEICO, No. 10-CIV-2024 (Lacka. Co. Aug, 18, 2010, Thomson, S.J.) (Court sustained GEICO’s Preliminary Objections to the extent that the bad faith claim contained in the Plaintiff’s Complaint would be severed from the action and the parties would proceed with the claims bifurcated. Although defense counsel also requested a stay of any bad faith discovery, that part of the Defendant’s request was not addressed in the Court Order.).
Lancaster County
Amway v. Agency Ins. Co., No. CI-19-10224 (C.P. Lanc. Co. March 11, 2020 Brown, J.) (Court granted a carrier's Motion to Sever and Stay a Plaintiff's bad faith claim from a companion breach of contract claim. The decision is by way of an Order with detailed footnotes providing insight into the Court's rationale).
Lebanon County
Dunkelberger v. Erie Insurance Company, No. 2010-Civil-01956 (Leb. Co. Jan. 24, 2011 Charles, J.)(Motion of Erie Insurance Company for an Emergency Protective Order and Stay in terms of any discovery requested by the Plaintiff on the bad faith claim. Judge Charles also ruled that the Plaintiff’s UIM claim was to be severed from the bad faith claim.).
Luzerne County [Split of Authority - See above]
Albright v. Erie Insurance Exchange, No. 3919-2018 (C.P. Luz. Co. Oct. 15, 2018 Gelb, J)(Judge Lesa Gelb of the Luzerne County Court of Common Pleas denied a Defendant carrier’s Motion to Sever and Stay a statutory bad faith claim in a post-Koken matter by Order only).
McLaughlin v. State Auto Property and Cas. Ins. Co., No. 2017-CV-08471 (Aug. 29, 2018 Gartley, J.)(Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas granted in part and denied in part the UIM carrier’s Motion to Sever and Stay the Plaintiffs’ statutory and common law bad faith claims in a Post-Koken litigation. The Court agreed to sever the bad faith claims from the breach of contract claims for trial purposes but denied the motion for a stay of any bad faith discovery.)
Denisco v. USAA, No. 2248-CV-2018 (C.P. Luz. Co. May 21, 2018 Amesbury, J.)(Court granted a UIM carrier’s Motion to Sever and Stay a Plaintiffs’ Bad Faith Claims from the Plaintiffs’ Breach of Contract Claims.)
Monroe County
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. May 8, 2015, Williamson, J.)(Court revisits its first decision in this case and still keeps UIM and Bad Faith Claims severed BUT NOW grants a request for a stay of bad faith discovery.).
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.)(Court granted the Defendant carrier’s Motion to Sever the bad faith and extra-contractual claims from the UIM claims, but denied the UIM carrier’s Motion to Stay Bad Faith Discovery.)
Kemp v. Mut. Benefit Ins. Co., PICS Case No. 15-0517 (C.P. Monroe Co. Jan. 14, 2015 Williamson J.)(Judge David J. Williamson granted a defendant carrier's motion to sever bad faith claims from the contractual claims in the early stages of the matter but denied the request a stay on any bad faith discovery.).
Comrie v. Atlantic State Ins. Co., PICS Case No. 14-096 (C.P. Monroe Co. May 29, 2014 Zulick, J.), (Judge Arthur Zulick of the Monroe County Court of Common Pleas granted a UIM carrier’s Motion to Sever and Stay the bad faith portion of the claims asserted in a post-Koken matter.).
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Philadelphia County
Arabatlian v. American Southern Insurance Company¸ Feb. term, 2015, No. 3325, Commerce Program, Control No: 15112981 (C.P. Phila. Co. Jan. 6, 2016 McInerney, J.)(In an Order without Opinion, Judge McInerney of the Philadelphia Court of Common Pleas granted a Defendant carrier’s Motion to Sever the Plaintiff’s bad faith claim from the breach of contract and further ordered that the Plaintiffs’ claim for bad faith was stayed pending resolution of the Plaintiffs’ claim for breach of contract.)
Pike County
Hansen v. Fucetola and NJM Ins. Co., 1079-2014-Civil (C.P. Pike Co. Feb. 26, 2019 Chelak, J.), Judge Gregory H. Chelak of the Pike County Court of Common Pleas granted a UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith Claim From the Plaintiff's Breach of Contract Claim.
Schuylkill County
Barrett v. Pennsylvania Nat'l Mut. Cas. Ins. Co., No. S-1861-2012 (C.P. Schuylkill Co. March 18, 2013 Domalakes, J.)(Judge John E. Domalakes granted an insurance carrier defendant's motion to sever a bad faith claim from a UIM claim but refused to stay the bad faith discovery.).
Comrie v. Atlantic State Ins. Co., PICS Case No. 14-096 (C.P. Monroe Co. May 29, 2014 Zulick, J.), (Judge Arthur Zulick of the Monroe County Court of Common Pleas granted a UIM carrier’s Motion to Sever and Stay the bad faith portion of the claims asserted in a post-Koken matter.).
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Philadelphia County
Arabatlian v. American Southern Insurance Company¸ Feb. term, 2015, No. 3325, Commerce Program, Control No: 15112981 (C.P. Phila. Co. Jan. 6, 2016 McInerney, J.)(In an Order without Opinion, Judge McInerney of the Philadelphia Court of Common Pleas granted a Defendant carrier’s Motion to Sever the Plaintiff’s bad faith claim from the breach of contract and further ordered that the Plaintiffs’ claim for bad faith was stayed pending resolution of the Plaintiffs’ claim for breach of contract.)
Pike County
Hansen v. Fucetola and NJM Ins. Co., 1079-2014-Civil (C.P. Pike Co. Feb. 26, 2019 Chelak, J.), Judge Gregory H. Chelak of the Pike County Court of Common Pleas granted a UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith Claim From the Plaintiff's Breach of Contract Claim.
Schuylkill County
Barrett v. Pennsylvania Nat'l Mut. Cas. Ins. Co., No. S-1861-2012 (C.P. Schuylkill Co. March 18, 2013 Domalakes, J.)(Judge John E. Domalakes granted an insurance carrier defendant's motion to sever a bad faith claim from a UIM claim but refused to stay the bad faith discovery.).
Susquehanna County
Zembrzicki v. Allstate Fire & Cas. Ins. Co., 2013 - 475CP(C.P. Susq. Co. 2013 Seamans, J.)(Court granted a UIM carrier's request to sever the UIM claim from a bad faith claim.).
Venango County
Boughner v. Erie Ins. Exchange, No. 1875 - Civil - 2010 (C.P. Venango Co. April 16, 2012 Boyer, J.)(Court granted the UIM carrier's Motion to Sever the Bad Faith Count from the UIM contractual claim and also the Motion to Stay any discovery under the bad faith claim.).
Westmoreland County
Steele v. Erie Insurance Exchange, No. 4005-2016 (C.P. Westmoreland Co. Dec. 9, 2016)(Court grants Motion to Sever and Stay Bad Faith Claim in Post-Koken matter; Court also orders that the defendant carrier's Motion for a Protective Order was granted such that all bad faith discovery was stayed until the resolution of the UIM claim).
Ainsley v. Erie Ins. Exch., No. 1876 of 2014 (C.P. Westmoreland June 2, 2015 Regoli, J.)(Court granted UIM carrier's motion to sever and stay bad faith claim for purposes of discovery and trial. Court specified that bad faith claim was severed and stayed pending resolution of UIM claim).
York County
Miller v. Conn and Penn Nat'l Ins., No. 2019-SU-000078 (C.P. York Co. Feb. 27, 2020 Vedder, J.) (Court granted the UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith claims from the third party and UIM claims pled in the case. No Opinion was issued with the Order).
Forry v. Erie Insurance Exchange, No. 2013-SU-1162-89 (C.P. York Co.
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SUPERIOR COURT DECISIONS IN POST-KOKEN CASE ON CONSOLIDATION vs. SEVERANCE OF CLAIMS
None to date.
But see Richner v. McCance and Erie Insurance Group, 2011 WL 32499, 2011 Pa.Super. 4, No. 2045 WDA 2009 (Pa.Super. Jan. 6, 2011, Stevens, Donohue, and Ott, JJ.).(The Superior Court applied Pa.R.C.P. 2229(b), pertaining to the joinder of actions, and found that the requirements of that rule were not met to allow for a joinder of a tort claim with a declaratory judgment action on a coverage question. More specifically, the court found that, although the tort allegations and the coverage question essentially both arise out of the same accident, the liabilities of the respective defendants arise from different circumstances, i.e. one in tort and the other in contract law.
The court also found that the questions of law at issue were not common to both actions.
In so ruling the Superior Court rejected the trial court's reliance on post-Koken cases ruling in favor of the consolidation of tort claims and claims for UIM benefits under Pa.R.C.P. 2229(b), as the analysis in those types of cases was "inapposite" to the issue in this case involving the separate and different question of the combination of a tort claim with a request for a declaratory judgment in response to a coverage question. Id. at p. 17, n. 4.
In that same footnote, the Superior Court also stated, "We emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefit claims.").
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COORDINATION OF ACTIONS FILED IN SEPARATE COUNTIES
Lackawanna County
Grimes v. Velez, No. 2016-CV-4071 (C.P. Lacka. Co. Jan. 22, 2018 Gibbons, J.)(Judge James A. Gibbons of the Lackawanna County Court of Common Pleas granted a Plaintiff’s Motion to Coordinate separate motor vehicle accident litigations filed in separate counties. The court granted the motion under Pa. R.C.P. 213.1.)
Luzerne County
Orsulak v. Penn National Mutual Cas. Ins. Co. and Penn National Ins., No. 12255-Civil-2010 (Luz. Co., April 12, 2011, Van Jura, J.)(Court addresses Motion for Coordination of in Post-Koken case involving claims filed in different counties; applies Rule 213.1 and rules that cases should be coordinated because they arise out of same transaction or occurrence.) affirmed Orsulak v. Penn National Mutual Cas. Ins. Co., No. 957 M.D.A. 2011 (Pa. Super. Feb. 23, 2012 Gantman, Alan and Mundy, JJ., (Memorandum Opinion by Mundy, J.),
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POST-KOKEN CASES ON VENUE
PENNSYLVANIA SUPERIOR COURT DECISIONS
O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 984 A.2d 938, 2009 WL 3720649 (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)(As of November 30, 2009, the Plaintiff had filed for re-argument en banc before the Superior Court, which request was denied by way of a December 30, 2009 Order of Court.). [appeal denied, 2010 WL 1752268, 39 EAL 2010 (May 4, 2010)].
Sehl v. Neff and State Farm, No. 3438 EDA 2009 (Pa.Super. July 25, 2011 Olson, Freedburg, Colville, JJ.)(opinion by Freedburg) (Accident and torfeasor defendant from Montgomery County; UIM carrier's policy did not have forum selection clause; Plaintiff filed in Philadelphia County on grounds that UIM carrier conducted business in that County; Tortfeasor defendant argued, under Pa.R.C.P. 1006, that since tortfeasor and UIM carrier are not joint tortfeasors, tortfeasor defendant can not be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier. Tortfeasor defendant's preliminary objections based upon improper venue granted at trial court level and affirmed here by Superior Court. Accordingly, where there is no venue selection clause, it appears that venue in a post-Koken case is proper where the accident occurred, where the tortfeasor defendant resides, or where the tortfeasor defendant can be served as that is proper venue for the tortfeasor defendant under Pa.R.C.P. 1006 and also proper venue for the UIM carrier defendant as the UIM carrier defendant, as a corporate entity that conducts business in all counties of Pennsylvania.
CASES WHERE UIM CARRIER HAS FORUM SELECTION CLAUSE
Federal Eastern District Court of Pennsylvania
Otto v. Erie Ins. Exch., No. 13-CV-06722 (E.D.Pa. March 31, 2014 Brody, J.)(Plaintiff sued UIM carrier in Eastern District. Erie forum selection clause provides that “[s]uit must be brought in a court of competent jurisdiction in the county and state of [plaintiff’s] legal domicile at the time of the accident.” Plaintiff resided in Montgomery County and sued in Eastern District Federal Court. UIM carrier’s motion to dismiss pursuant to forum non conveniens doctrine arguing that only the Montgomery Court of Common Pleas was the proper venue was rejected as the Eastern District Federal Court was a court of competent jurisdiction that covered Montgomery County.).
Allegheny County
Lowry v. Aliquo and Erie Insurance Exchange, 159 PLJ 35 (Alleg. Co. 2010, Strassburger, J.)(Court enforced the carrier’s forum selection clause for a UIM claim which required venue against UIM carrier in Butler County under facts presented. Court then severed the cases under Butler County and transferred only the UIM portion of the action to Butler County.).
Erie County
Werner v. Jamison and Erie Ins., 2011 CV-3221 (March 7, 2012 Evans, J.)(Court issues Order only denying preliminary objections filed by Erie Insurance asserting improper venue.).
Lackawanna County
Kichline v. Erie Ins. Exchange, 2009 CIV 3052 (Lacka. Co. Feb. 16, 2010, Thomson, S.J)(Venue/forum selection clause of UIM policy upheld and case transferred to proper county).
Luzerne County
Walls v. Erie Ins. Co. and Muneshwar, No. 15095 of 2009 (Luz. Co. Feb. 24, 2010, Amesbury, J.)(court transfered a post-Koken case to its proper venue of Columbia County. Plaintiff resided in Columbia County and was involved in a Luzerne County car accident. Plaintiff filed a lawsuit in Luzerne County against the tortfeasor and the UIM carrier. The policy of the UIM carrier, Erie Insurance, provided that all UIM claims must be filed in the county of the Plaintiff's residence which, as noted, was Columbia county in this case; court transferred case to Columbia County).
Monroe County
In the case of Coello v. Fitzgerald and Erie Insurance Exchange, No. 7019-CV-2021 (C.P. Monroe Co. Feb. 11, 2022 Zulick, J.), the court addressed issued of proper venue in a post-Koken motor vehicle accident litigation.
Relative to the Preliminary Objections filed by the UIM carrier Defendant asserting improper venue, the court noted that, although venue is proper in Monroe County under Pa. R.C.P. 2179, which allows for an injured party to bring a civil action against an insurance company/ corporation in a county where that company or corporation regularly conducts business, in this matter, Erie Insurance was relying upon a forum selection clause in the parties’ insurance contract.
Under that forum selection clause, the parties agreed that any suit to enforce the terms of the policy would be filed in the county of the Plaintiff’s legal domicile at the time the suit was filed. The record in this case confirmed that the Plaintiff alleged in his Complaint that he resided in Scranton, Lackawanna County. The court upheld the forum selection clause and carved out the UIM case and transferred that portion of the case to Lackawanna County but kept the Plaintiff's case against the tortfeasor in Monroe County.
Montgomery County
Dunne v. Closs, Progressive, et al., No. 09-38446 (Montg. Co. June 3, 2010, Moore, J.)(Court upholds forum selection clause dismisses case with allowance for Plaintiff to re-file in appropriate county.).
Philadelphia County
Motta v. Allstate Ins. Co., March Term 2013, NO. 0839 (C.P. Phila.Co. April 22, 2013)(Court issued Order only upholding Allstate's Preliminary Objections based upon forum selection clause and transferred the case to Berks County.).
Fish v. Erie Insurance Company, No. 003411 Jan. Term, 2013 (Phila. Co. 2013 New, J.)(Court issues Order only granting Erie Insurance Company's preliminary objections and transferring venue of a UIM case from Philadelphia to Franklin County. Relies on Erie's forum selection clause. UPDATE: Trial court subsequently issued a Rule 1925 Opinion providing rationale in support of its Order. That Opinion can be viewed HERE).
Lewis v. Fischer and Donegal Mutual Ins. Co., Nos. 11-081103, 11-080580 (C.P. Phila. Co. Oct. 12, 2001 Manfredi, J.)(In this case, by way of Order only with an explanatory footnote, Judge William J. Manfredi granted the Defendants’ Preliminary Objections and ordered that the breach of contract claims against the UIM carrier and the negligence claims against the third party tortfeasor be severed. Judge Manfredi also noted that venue as to any non-insurance Defendant would be transferred to Delaware County given that there was no basis for venue against those Defendants in Philadelphia under Pa. R.C.P. 1006(c)(1). Judge Manfredi also shipped off the claims against the insurance company Defendant to Chester County based upon the insurance contract form selection clause. As such, the ultimate result of this order was that the post-Koken case filed in the Philadelphia County Court of Common Pleas was severed and sent elsewhere.).
Sehl v. Neff and State Farm, May Term 2009 No. 2487 (Phila. Co. Oct. 22, 2009, Allen, J.)(Accident and torfeasor defendant from Montgomery County; UIM carrier's policy did not have forum selection clause; Plaintiff filed in Philadelphia County on grounds that UIM carrier conducted business in that County; Tortfeasor defendant argued, under Pa.R.C.P. 1006, that since tortfeasor and UIM carrier are not joint tortfeasors, tortfeasor defendant can not be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier. Tortfeasor defendant's preliminary objections based upon improper venue granted. [See above synopsis of Superior Court Affirmance.].
Campbell v. Kelly and State Farm, December Term 2009 No. 208 (Phila. Co. March 10, 2010, Overton, J.)(Accident and tortfeasor defendant from Bucks County; UIM carrier's policy did not have forum selection clause; Plaintiff filed in Philadelphia County on grounds that UIM carrier conducted business in that County; Tortfeasor defendant argued, under Pa.R.C.P. 1006, that since tortfeasor and UIM carrier are not joint tortfeasors, tortfeasor defendant can not be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier. Tortfeasor defendant 's preliminary objections based upon improper venue denied.).
Pippett v. Radu and State Farm, March Term 2010, No. 3305 (Phila. Co. July 14, 2010, Tereshko, J.)(Court considered a motion for reconsideration of the court's prior overruling of the tortfeasor's preliminary objections on the issue of improper venue. Case arose out of a Delaware County motor vehicle accident and all of the individuals involved resided in Delaware County as well. The Plaintiff joined State Farm in the litigation on a UIM claim (State Farm's policy language requires that the UIM lawsuit be pursued in the same suit as the claim against the tortfeasor). The Plaintiff filed in Philadelphia County presumably due to State Farm's presence in that county. Although Judge Tereshko originally denied the tortfeasor defendant's Preliminary Objections, upon revisiting the matter via the motion for reconsideration, the Judge issued this July 14, 2010 Order granting the Preliminary Objections and ordered the matter transferred to Delaware County).
Kochergina v. Liberty Mutual Ins. Co., et al., August Term 2010, No. 2880 (Phila. Co. October 1, 2010 Moss, J.)(Court granted the tortfeasor's defendant's Preliminary Objections based upon an allegation of improper venue. The parties resided in Bucks County and the accident happened in Bucks County. Plaintiff filed in Philadelphia on the grounds that the UIM carrier did business there. The Court ruled in favor of the tortfeasor defendant's improper venue Preliminary Objections and transferred the case to Bucks County with all costs to be borne by plaintiff. UIM carrier had also filed Preliminary Objections based upon forum selection clause. Judge Moss also ruled that the decision on the remainder of the Defendants' Preliminary Objections were deferred and left to be decided by the Bucks County Court of Common Pleas.).
Miscannon v. State Farm, GEICO, and Norris, Term June 2010, No. 003302 (Phila. Co. Nov. 30, 2010, J. Rau)(UIM carrier's transfer of venue request denied. No rationale is stated in the Order. It is noted that UIM carrier's preliminary objections were filed late--denied on procedural basis?).
Gollinge-Motroni v. Machado and Allstate Ins. Co., October Term 2010 No. 002528 (Phila. Co. Jan. 14, 2011, Tereshko, J.)(negligence and UIM cases severed and cases transferred for improper venue).
Johns v. Jones andErie Insurance Exchange, January Term, 2011, No.: 1395 (C.P. Phila. Mar. 17, 2011 Moss, J.) (A Delaware County resident Plaintiff was injured in a motor vehicle accident in Philadelphia County, which accident was allegedly caused by a tortfeasor who resided in Philadelphia County who was operating a vehicle owned by a third party Defendant owner who resided in Delaware County. At the time of the accident, the Plaintiff maintained a UIM policy with Erie, which contained a venue clause that required all suits against Erie for UIM benefits to be filed in the insured’s legal domicile at the time of the accident. The Plaintiff filed suit in Philadelphia County against third party tortfeasors and the UIM carrier. Erie filed Preliminary Objections to improper venue citing the venue clause. Without Opinion, the trial court entered an Order transferring the entire matter to the Court of Common Pleas of Delaware County).
CASES WHERE UIM CARRIER DOES NOT HAVE FORUM SELECTION CLAUSE
Dauphin County
Relative to the Preliminary Objections filed by the UIM carrier Defendant asserting improper venue, the court noted that, although venue is proper in Monroe County under Pa. R.C.P. 2179, which allows for an injured party to bring a civil action against an insurance company/ corporation in a county where that company or corporation regularly conducts business, in this matter, Erie Insurance was relying upon a forum selection clause in the parties’ insurance contract.
Under that forum selection clause, the parties agreed that any suit to enforce the terms of the policy would be filed in the county of the Plaintiff’s legal domicile at the time the suit was filed. The record in this case confirmed that the Plaintiff alleged in his Complaint that he resided in Scranton, Lackawanna County. The court upheld the forum selection clause and carved out the UIM case and transferred that portion of the case to Lackawanna County but kept the Plaintiff's case against the tortfeasor in Monroe County.
As such, the UIM carrier Defendant’s Preliminary Objections with regards to venue was sustained.
In so ruling, the court found that the Plaintiff’s argument that it would be unreasonable to put him to the expense of securing a medical expert for two (2) separate trials did not outweigh the contract provision on venue.
In so ruling, the court found that the Plaintiff’s argument that it would be unreasonable to put him to the expense of securing a medical expert for two (2) separate trials did not outweigh the contract provision on venue.
Montgomery County
Dunne v. Closs, Progressive, et al., No. 09-38446 (Montg. Co. June 3, 2010, Moore, J.)(Court upholds forum selection clause dismisses case with allowance for Plaintiff to re-file in appropriate county.).
Philadelphia County
Motta v. Allstate Ins. Co., March Term 2013, NO. 0839 (C.P. Phila.
Fish v. Erie Insurance Company, No. 003411 Jan. Term, 2013 (Phila. Co. 2013 New, J.)(Court issues Order only granting Erie Insurance Company's preliminary objections and transferring venue of a UIM case from Philadelphia to Franklin County. Relies on Erie's forum selection clause. UPDATE: Trial court subsequently issued a Rule 1925 Opinion providing rationale in support of its Order. That Opinion can be viewed HERE).
Lewis v. Fischer and Donegal Mutual Ins. Co., Nos. 11-081103, 11-080580 (C.P. Phila. Co. Oct. 12, 2001 Manfredi, J.)(In this case, by way of Order only with an explanatory footnote, Judge William J. Manfredi granted the Defendants’ Preliminary Objections and ordered that the breach of contract claims against the UIM carrier and the negligence claims against the third party tortfeasor be severed. Judge Manfredi also noted that venue as to any non-insurance Defendant would be transferred to Delaware County given that there was no basis for venue against those Defendants in Philadelphia under Pa. R.C.P. 1006(c)(1). Judge Manfredi also shipped off the claims against the insurance company Defendant to Chester County based upon the insurance contract form selection clause. As such, the ultimate result of this order was that the post-Koken case filed in the Philadelphia County Court of Common Pleas was severed and sent elsewhere.).
Sehl v. Neff and State Farm, May Term 2009 No. 2487 (Phila. Co. Oct. 22, 2009, Allen, J.)(Accident and torfeasor defendant from Montgomery County; UIM carrier's policy did not have forum selection clause; Plaintiff filed in Philadelphia County on grounds that UIM carrier conducted business in that County; Tortfeasor defendant argued, under Pa.R.C.P. 1006, that since tortfeasor and UIM carrier are not joint tortfeasors, tortfeasor defendant can not be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier. Tortfeasor defendant's preliminary objections based upon improper venue granted. [See above synopsis of Superior Court Affirmance.].
Campbell v. Kelly and State Farm, December Term 2009 No. 208 (Phila. Co. March 10, 2010, Overton, J.)(Accident and tortfeasor defendant from Bucks County; UIM carrier's policy did not have forum selection clause; Plaintiff filed in Philadelphia County on grounds that UIM carrier conducted business in that County; Tortfeasor defendant argued, under Pa.R.C.P. 1006, that since tortfeasor and UIM carrier are not joint tortfeasors, tortfeasor defendant can not be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier. Tortfeasor defendant 's preliminary objections based upon improper venue denied.).
Pippett v. Radu and State Farm, March Term 2010, No. 3305 (Phila. Co. July 14, 2010, Tereshko, J.)(Court considered a motion for reconsideration of the court's prior overruling of the tortfeasor's preliminary objections on the issue of improper venue. Case arose out of a Delaware County motor vehicle accident and all of the individuals involved resided in Delaware County as well. The Plaintiff joined State Farm in the litigation on a UIM claim (State Farm's policy language requires that the UIM lawsuit be pursued in the same suit as the claim against the tortfeasor). The Plaintiff filed in Philadelphia County presumably due to State Farm's presence in that county. Although Judge Tereshko originally denied the tortfeasor defendant's Preliminary Objections, upon revisiting the matter via the motion for reconsideration, the Judge issued this July 14, 2010 Order granting the Preliminary Objections and ordered the matter transferred to Delaware County).
Kochergina v. Liberty Mutual Ins. Co., et al., August Term 2010, No. 2880 (Phila. Co. October 1, 2010 Moss, J.)(Court granted the tortfeasor's defendant's Preliminary Objections based upon an allegation of improper venue. The parties resided in Bucks County and the accident happened in Bucks County. Plaintiff filed in Philadelphia on the grounds that the UIM carrier did business there. The Court ruled in favor of the tortfeasor defendant's improper venue Preliminary Objections and transferred the case to Bucks County with all costs to be borne by plaintiff. UIM carrier had also filed Preliminary Objections based upon forum selection clause. Judge Moss also ruled that the decision on the remainder of the Defendants' Preliminary Objections were deferred and left to be decided by the Bucks County Court of Common Pleas.).
Miscannon v. State Farm, GEICO, and Norris, Term June 2010, No. 003302 (Phila. Co. Nov. 30, 2010, J. Rau)(UIM carrier's transfer of venue request denied. No rationale is stated in the Order. It is noted that UIM carrier's preliminary objections were filed late--denied on procedural basis?).
Gollinge-Motroni v. Machado and Allstate Ins. Co., October Term 2010 No. 002528 (Phila. Co. Jan. 14, 2011, Tereshko, J.)(negligence and UIM cases severed and cases transferred for improper venue).
Johns v. Jones and
Levin v. Grandinetti and Progressive, March, Term 2010, No.: 0080 (C.P. Phila. June 14, 2010 Tereshko, J.) (Montgomery resident Plaintiffs were involved in an accident in Philadelphia County . Two of the third party Defendants resided in New Jersey and a third was resident of Montgomery County . Without Opinion, the trial court granted the Preliminary Objections of the UIM carrier and severed the Plaintiff’s claims against the third party Defendants and the UIM carriers, without prejudice to the Plaintiffs’ right to file their UIM claims in Montgomery County or in the U.S. District Court for the Eastern District of Preliminary Objections.
Morroney v. Allstate, November Term, 2011, No.: 0931 (C.P. Phila. Dec. 28, 2011 Moss, J.) (Montgomery County resident Plaintiff was injured in a motor vehicle accident. The Plaintiff maintained a UIM policy with Allstate that contained a venue clause requiring all lawsuits against Allstate for UIM benefits to “be brought, heard, and decided in the county in which your [the insureds] address shown on the policy declarations is located.” Following the accident, the Plaintiff filed suit in Philadelphia County given that Allstate regularly conducted business in that county. Allstate filed Preliminary Objections to improper venue, citing the venue clause. Without Opinion, the trial court sustained Allstate’s Preliminary Objections and transferred the entire matter to the Court of Common Pleas in Montgomery County ).
CASES WHERE UIM CARRIER DOES NOT HAVE FORUM SELECTION CLAUSE
Dauphin County
Colman v. Malave and State Farm, No. 2015-CV-10242 CV (C.P. Dauph. Co. Dec. 13, 2016 Tully, J.) (The court granted a tortfeasor Defendant's Preliminary Objections to the Plaintiff's Amended Complaint and transferred venue of the case to Lancaster County. According to the Opinion, the accident occurred in Lancaster County and the tortfeasor Defendants resided in Lancaster County. The court otherwise noted that there was no forum selection clause in the State Farm policy and that, in any event, the tortfeasor Defendants and the UIM carrier were not joint tortfeasors for venue purposes or otherwise.).
Lancaster County
Burton v. Burton and USAA, No CI-09-09343 (Lanc. Co. , Miller, J.) (Court issued Order granting a tortfeasor's preliminary objections filed by both the tortfeasor and and the first party carrier arguing a misjoinder of actions. As a result of this decision, the negligence claim asserted against the tortfeasor was severed from the breach of contract claim asserted by the Plaintiff against his own carrier related to a denial of first party medical benefits following a peer review. As part of the rationale of her decision, Judge Miller also noted that allowing the cases to remain together may have brought the issue of "insurance" in front of the jury during the trial of the negligence claim of the tortfeasor in violation of Pennsylvania Rule of Evidence 411.)
Luzerne County
Wissinger v. Brady, Laubach, and State Farm, No. 3792-Civil-2010 (Luz. Co. Aug. 16, 2010, Van Jura, J.)(Court granted the Preliminary Objections of a third party defendant asserting improper venue under Pa. R.C.P. 1006. The plaintiff involved in this matter was from Northumberland County. The accident occurred in Northumberland County. The tortfeasor defendants were from Montour County. Plaintiff sued in Luzerne County on grounds that State Farm did business there. Court rejected argument as tortfeasors and State Farm were not joint tortfeasors. Case transferred to Northumberland County.)(Appealed but then appealed discontinued due to partial settlement of case)
Philadelphia County
Levin v. Grandinetti and Progressive Direct Ins. Co., March Term, 2010 No. 0080 (Phila. Co. June 14, 2010, Tereshko, J.)(Plaintiff resident of Montgomery County injured in Philadelphia County Defendant. Two of third party defendants were New Jersey residents and the third tortfeasor was a resident of Montgomery County. Without Opinion, court granted preliminary objections of UIM carriers and severed the third party negligence claims from the UIM claims without prejudice to the Plaintiff's right to file their UIM claims in Montgomery County or in the U.S. District Court for the Eastern District.).
Kochergina v. Liberty Mutual Ins. Co., et al., August Term 2010, No. 2880 (Phila. Co. October 1, 2010 Moss, J.)(Court granted the tortfeasor's defendant's Preliminary Objections based upon an allegation of improper venue. The plaintiff and the tortfeasor defendant resided in Bucks County and the accident happened in Bucks County. Also, the UIM carrier had a forum selection clause the application of which called for the case to go to Bucks County. The court ordered case transferred to Bucks County with all cost to be borne by Plaintiff. Judge Moss also ruled that the decision on the remainder of the Defendants' Preliminary Objections were deferred and left to be decided by the Bucks County Court of Common Pleas.).
Johns v. Jones and Erie Ins. Exchange, Jan. Term, 2011, No. 1395 (Phila. Co. March 17, 2011, Moss, J.)(Delaware Plaintiff injured in Philadelphia accident by Philadelphia resident Defendant. Plaintiff covered by Erie Insurance policy which has venue selection clause (insured's "legal domicile at time of accident"). Plaintiff files suit against third party tortfeasor and Erie in Philadelphia County. Without Opinion, court grants Erie Insurance preliminary objections on improper venue and transfers the entire case to Delaware County.).
Spano v. Carney and Nationwide, March Term, 2008, No.: 5707 (C.P. Phila.
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PRELIMINARY OBJECTIONS TO CROSS-CLAIM FILED BY UIM CARRIER AGAINST THIRD PARTY TORTFEASOR
Luzerne County
Emery v. Culver and Nationwide, No. 6764 – CIVIL – 2010 (C.P. Luz. Co. Sept. 28, 2011 Burke, J.)(By Order only, Court sustained the tortfeasor Defendant’s Preliminary Objections and struck the Co-Defendant UIM carrier’s cross-claim for contribution or indemnification; defense relied upon Monroe County decision in Bridgeman noted below).
Monroe County
Bridgeman v. Cruz, PICS Case No. 11-0238 (Monroe Co., Jan. 7, 2011, Wallach, Miller, J.)(Court sustained the tortfeasor Defendant’s Preliminary Objections and struck the Co-Defendant UIM carrier’s cross-claim for contribution or indemnification after finding that such claim was not yet ripe for judicial review.).
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TRIAL COURT DECISIONS IN POST-KOKEN CASES ON DISCOVERY AND EVIDENTIARY ISSUES
DISCOVERY TIMETABLE IN UIM/BAD FAITH POST-KOKEN CASE
United States Federal Western District Court
Craker v. State Farm, No. 2011 – Civil – 0225 (W.D.Pa. Sept. 29, 2011 Lancaster, C.J.)(Court rejects carrier's request for stay of any bad faith discovery until UIM claim completed).
Allegheny County
Wutz v. Smith and State Farm Ins. Co., No. GD07-21766 (Allegheny Co., Sept. 9, 2009, Wettick, J.)(Judge sets up discovery time table in case where UIM breach of contract claim consolidated with bad faith claim--no discovery on bad faith until UIM claim concluded).
Vernon v. Erie Insurance, No. GD 08-10406 (Allegheny Co. 2009, Wettick, J.)(court issued an Order without Opinion denying Erie's motion to stay discovery and bifurcate the UIM Claim from the Bad Faith claim; the bad faith claim was scheduled to be tried immediately upon the UIM case being sent to the jury. Also, the tort action was consolidated for trial with the UIM action. Ultimately, the case settled before jury selection).
Butler County
Marburger v. Erie Ins. Exchange, 2009-Civil-10927 (Butler Co. June 19, 2009, Horan, J.)(Motion to Sever and Stay on behalf of Erie granted; court precluded plaintiffs from conducting any bad faith discovery until further Order of court and permitted severance and stay of plaintiff's bad faith action pending resolution of UIM claim).
Lackawanna County
Novoczynski v. Swingle et al., No. 2016-CV-6538 (C.P. Lacka. Co. Nov. 20, 2017 Gibbons, J.) (Court granted a Plaintiff's Motion to Compel a claims representative's deposition and denied a carrier Defendant's Motion for a Protective Order in a Post-Koken auto accident case. While the court allowed the deposition, the court also ordered that the Plaintiff was not permitted to inquire into the claims representative's mental impressions, conclusions or opinions respecting the value or merit of the claims or defenses, or with regards to strategy or tactics. In this regard, the court cited to Pa.R.C.P. 4003.3.)
McTague v. Myers and Progressive, No. 769-Civil-2015 (C.P. Lacka. Co. Nov. 2, 2015, Special Trial Master)(Precedential???)(Attorney Henry Burke, the Special Trial Master handling discovery issues in the Lackawanna County Court of Common Pleas issued an Order only requiring the UIM Defendant to produce post-suit claims log notes but allowed the Defendant to redact any mental impressions, conclusions, or opinions respecting the value or merit of a claim or a defense or respecting strategy or tactics.).
Lebanon County
Dunkelberger v. Erie Insurance Company, No. 2010-Civil-01956 (Leb. Co. Jan. 24, 2011 Charles, J.)(Motion of Erie Insurance Company for an Emergency Protective Order and Stay in terms of any discovery requested by the Plaintiff on the bad faith claim until resolution of UIM claim. Judge Charles also ruled that the Plaintiff’s UIM claim was to be severed from the bad faith claim.).
Monroe County
Marburger v. Erie Ins. Exchange, 2009-Civil-10927 (Butler Co. June 19, 2009, Horan, J.)(Motion to Sever and Stay on behalf of Erie granted; court precluded plaintiffs from conducting any bad faith discovery until further Order of court and permitted severance and stay of plaintiff's bad faith action pending resolution of UIM claim).
Lackawanna County
Novoczynski v. Swingle et al., No. 2016-CV-6538 (C.P. Lacka. Co. Nov. 20, 2017 Gibbons, J.) (Court granted a Plaintiff's Motion to Compel a claims representative's deposition and denied a carrier Defendant's Motion for a Protective Order in a Post-Koken auto accident case. While the court allowed the deposition, the court also ordered that the Plaintiff was not permitted to inquire into the claims representative's mental impressions, conclusions or opinions respecting the value or merit of the claims or defenses, or with regards to strategy or tactics. In this regard, the court cited to Pa.R.C.P. 4003.3.)
McTague v. Myers and Progressive, No. 769-Civil-2015 (C.P. Lacka. Co. Nov. 2, 2015, Special Trial Master)(Precedential???)(Attorney Henry Burke, the Special Trial Master handling discovery issues in the Lackawanna County Court of Common Pleas issued an Order only requiring the UIM Defendant to produce post-suit claims log notes but allowed the Defendant to redact any mental impressions, conclusions, or opinions respecting the value or merit of a claim or a defense or respecting strategy or tactics.).
Lebanon County
Dunkelberger v. Erie Insurance Company, No. 2010-Civil-01956 (Leb. Co. Jan. 24, 2011 Charles, J.)(Motion of Erie Insurance Company for an Emergency Protective Order and Stay in terms of any discovery requested by the Plaintiff on the bad faith claim until resolution of UIM claim. Judge Charles also ruled that the Plaintiff’s UIM claim was to be severed from the bad faith claim.).
Monroe County
Brands v. Erie Ins. Exchange, No. 2604-CIVIL-2015 (C.P. Monroe Oct. 1, 2015 Willamson, J.), (Judge Williamson issued another Opinion severing a Bad Faith claim from a UIM claim in a Post-Koken case, and also issued a stay order against any bad faith discovery pending the resolution of the UIM claim.).
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. May 8, 2015, Williamson, J.)(Court revisits and reverses its first decision in this case and now still keeps UIM and Bad Faith Claims severed, BUT NOW grants the request for a stay of bad faith discovery.).
Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.)(court severed UIM and Bad Faith Claims but denied a request for a stay of bad faith discovery.).
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Montgomery County
Dininni v. Encompass Insurance Company, No. 2010 - Civil - 04615 (Montg. Co. June 16, 2010, Tilson, J.)(Court stayed discovery as to claims of bad faith and unfair trade practices until underlying UIM claims were tried or otherwise resolved. While ruling in favor of the defense in that regard, the court did also deny the defense request that the Bad Faith Claim and Unfair Trade Practices Claim be severed from the UIM claim.).
Washington County
Cope v. State Farm, No. 2013-CV-2188 (C.P. Wash. Co. Oct. 21, 2015 Nalitz, J.)( By Orders only, the court granted Defendant insurance company’s Motion In Limine and precluded the Plaintiff from offering any evidence related to the carrier’s evaluation of the claims, the carrier’s possible agreement to waive subrogation for the tortfeasor, any payment of benefits to the Plaintiff for any claims, including property and/or first party claims, and pertaining to settlement offers. The court also agreed to grant the Defendant carrier’s Motion In Limine regarding the scope of and/or preclusion of the testimony of a corporate designee for the Defendant and thereby precluding the Plaintiff from calling any representative of State Farm to testify at trial on claims handling activities.).
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DISCOVERY DEPOSITION OF A UIM CLAIMS REPRESENTATIVE IN POST-KOKEN CASE
Eastern District of Pennsylvania Federal Court
Wagner v. State Farm Mut. Automobile Ins. Co., No. 5:13 - CV - 06645 (E.D. Pa. Feb. 20, 2014 Sitarski, M.J.)(Magistrate Judge Lynne A. Sitarski of the Eastern District Federal Court of Pennsylvania denied the Plaintiff's Motion to Compel and granted State Farm's Motion for a Protective Order to prevent the deposition of a State Farm claims representative and claims manager as requested by the Plaintiff in this Post-Koken UIM case.)
Middle District of Pennsylvania Federal Court
Centini v. MetLife Auto & Home, No. 3:17-cv-02144 (M.D. Pa. April 3, 2018 Munley, J.)(Judge James M. Munley of the Federal Middle District Court of Pennsylvania granted a Plaintiff’s Motion to Compel the deposition of the carrier’s claims professional.).
Dauphin County
Welcomer v. Donegal Mut. Ins. Co., No. 2011-CV-474 (Dauphin Co. June 24, 2011, Lewis, J.)(In Order only, court grants Plaintiff's motion to compel discovery of UIM carrier's settlement evaluation and reserves information; also allows for depostion of claims rep without limitations).
Erie County
Engel v. State Farm Mut. Auto. Ins. Co., No. 13083 - Civil - 2011 (C.P. Erie Co. Dec. 11, 2012 Connelly, J.)(Court issued an Order only granting State Farm's Motion for a Protective Order for Corporate Designee Deposition and quashing a Notice of Deposition sent to a UIM carrier's claims representative. Court emphasized that many of the questions posed in the Notice of Corporate Designee Deposition were previously answered in written discovery responses submitted to State Farm and that the Plaintiff did not object to any such responses. Court noted that the remainder of the questions noted in the Deposition Notice were either irrelevant or impermissibly inquired into the corporate designee's (i.e. claims representative's) mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics in violation of Pa.R.C.P. 4003.3.).
Lackawanna County
Novoczynski v. Swingle et al., No. 2016-CV-6538 (C.P. Lacka. Co. Nov. 20, 2017 Gibbons, J.) (Court granted a Plaintiff's Motion to Compel a claims representative's deposition and denied a carrier Defendant's Motion for a Protective Order in a Post-Koken auto accident case. While the court allowed the deposition, the court also ordered that the Plaintiff was not permitted to inquire into the claims representative's mental impressions, conclusions or opinions respecting the value or merit of the claims or defenses, or with regards to strategy or tactics. In this regard, the court cited to Pa.R.C.P. 4003.3.).
Culkin v. Sciandra and Liberty Mutual, and Safeco, No. 2559-Civil-2014 (C.P. Lacka. Co. May 4, 2015 Burke, Special Trial Master)(arguably not precedential)(Deposition of claims rep allowed).
Carlson v. Scarantino and First Liberty Insurance, No. 2014-Civil-7786 (C.P. Lacka. Co. Aug. 27, 2015 Burke, Special Trial Master))(arguably not precedential)(Deposition of claims rep allowed).
Luzerne County
Simonetti v. Lalko and Depositors Ins. Co., No. 2018-CV-02421 (C.P. Luz. Co. Aug. 27, 2018 Gelb, J.)(Court denied the carrier’s Motion for a Protective and to Stay a Deposition of its Adjuster but confirmed that the Plaintiff may not inquire into areas of the adjuster’s mental impressions or conclusions or opinions respecting the value or merit of the claim or with respect to defenses of the claim or strategy or tactics in the defense of the claim by the carrier).
Cairl v. Chiogna and Nationwide, No. 2015-CV-08159 (C.P. Luz. Co. March 9, 2016 Burke, J.)(Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted a Plaintiff's motion to compel the deposition of a UIM carrier's claims representative in a Post-Koken case. The court did circumscribe the parameters of the deposition in the Order by noting, for example, that the Plaintiff could not inquire into privileged areas such as the mental impressions, conclusions or opinions of the representative regarding the merit or value of a claim or defense.).
Boyle v. Progressive Specialty Insurance Company, No. 8815-Civil-2014 (C.P. Luz. Co. Nov. 3, 2015 Amesbury, J.)( Judge William H. Amesbury of the Luzerne County Court of Common Pleas granted an Order without Opinion granting the Motion of the Plaintiff to Compel a Deposition of the Progressive claims handler. Court also ordered that Plaintiff could not inquire as to claims rep's mental impressions, conclusions, or opinions regarding the merit or value of any claim or defense.).
Griffin and Erie Ins. Exchange, No. 17274 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.)(By Order only, Court grants the Motion of Erie Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.).
Krznefski v. Bish and State Farm, No. 16643 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.)(By Order only the Court grants the Motion of State Farm Mutual Automobile Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.).
Paulewicz v. Fronczkewicz and State Farm, No. 10655 of 2009 Civil (Luz. Co. Feb. 1, 2010, Amesbury, J.)(In Order only, Court allows deposition of claims representative but precludes questions regarding mental impressions, conclusions or opinions regarding value of claim).
Pike County
Liszka v. Ferro and GEICO, No. 109 - 2010 - Civil (Pike Co. March 20, 2011 Chelak, J.)(In an Opinion, Court denies motion for protective order by GEICO seeking to stop Plaintiff's deposition of claims representative; however, court cautions that deposition may only cover those areas allowed by Rules of Civil Procedure pertaining to discovery).
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DISCOVERY OF RESERVES AND CARRIER'S SETTLEMENT EVALUATION INFORMATION
Discovery Precluded
Allegheny County
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; Court also rules that Plaintiff's efforts to discover UIM carrier's evaluation information denied as such information is protected from discovery by the privilege against the disclosure of mental impressions, conclusions, or opinions of a representative of a party regarding value. Court notes that such discovery would be allowed once UIM claim is concluded by jury verdict or otherwise.).
Wutz v. Smith and State Farm, 2009 WL 2920956, No. GD07-021766 (Alleg. Co. Sept. 9, 2009, Wettick, J.)(Plaintiff's motion to compel discovery of State Farm's UIM evaluation information denied as such information is protected from discovery by the privilege against the disclosure of mental impressions, conclusions, or opinions of a representative of a party regarding value.).
Butler County
Weichey v. Marten and Allstate, 2009 WL 4395727, 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).
Dauphin County
Castellano v. Erie Insurance Exchange, No. 2014-CV-9647 (C.P. Dauph. Co. March 23, 2016, Bratton, J.)(In this case, the Plaintiff sought discovery of unredacted claim notes including the adjuster’s mental impressions, conclusions, evaluations, opinions and strategy. The Plaintiff argued that she was entitled to know how the insurance carrier “evaluated” her UIM claim. After reviewing briefs from both parties, hearing argument on the issue and studying the proposed redactions by Erie Insurance in an in camera review, Judge Bruce Bratton issued an Order without Opinion found that the redactions were appropriate and prevented the plaintiff from discovering any additional unredacted claim notes.)
Luzerne County
Migatulski v. Nationwide, Eberts, et al., No. 7269 - Civil - 2006 (Luz. Co. Sept. 7, 2010, Wetzel, J.) (UIM carrier's objection to discovery of reserves information sustained).
Discovery Allowed
Eastern District of PA Federal Court
Borgia v. State Farm Mut. Auto. Ins. Co., No. 14-3149 (E.D.Pa. Sept 3, 2014 Sanchez, J.)( Eastern District of Pennsylvania Federal Court addressed a discovery dispute in a UIM breach of contract/bad faith lawsuit arising out of the handling of an underinsured motorist claim. The court recognized that the work product doctrine protected from discovery those documents, among others, that were produced in anticipation of litigation. The UIM carrier was deemed to have reasonably anticipated litigation regarding the Plaintiff’s UIM claim when the company first retained outside counsel to assist in handling the claim. According to the court in Borgia, this date essentially becomes the dividing line for when materials needed to be produced.
Dauphin County
Welcomer v. Donegal Mut. Ins. Co., No. 2011-CV-474 (Dauphin Co. June 24, 2011, Lewis, J.)(In Order only, court grants Plaintiff's motion to compel discovery of UIM carrier's settlement evaluation and reserves information; also allows for depostion of claims rep without limitations; case was settled shortly after Order was entered).
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EVIDENCE OF INSURANCE NOT ADMISSIBLE AT TRIAL
Federal Eastern District Court
Schmerling v. LM General Insurance Company, Inc., 2018 WL 5848981 (E.D. Pa. Nov. 8, 2018)(Court rules that evidence pertaining to the amount of the Plaintiff's settlement with the third party tortfeasor and evidence of the amount of the UIM limits are not admissible at Post-Koken trial).
Lucca v. GEICO, No. 2:15-CV-04124-GEKP (E.D. Pa. July 7, 2016 Pratter, J.), the court issued an Opinion granting a pre-trial motion in limine of the UIM carrier to preclude any mention at trial of the amount of the available UIM limits and/or the premiums paid by the Plaintiff for those UIM benefits.
Federal Middle District Court
Ridolfi v. State Farm Mutual Automobile Insurance Company, 2017 WL 3198062 (M.D. Pa. 2017 Mag. J.) (Excluding evidence of premium payments in breach of contract action between insured and insurer).
Allegheny County (Split of Authority)
Zubeck v. Yogan and State Farm, No. GD 09-014254, 1380 WDA 2012 (C.P. Alleg. Co. Nov. 16, 2012 McCarthy, J.)(Court ruled that it was permissible to hold a Post-Koken trial without identifying the UIM carrier particularly where it appears from the Opinion that the Plaintiff was in agreement with that scenario going into the trial)(But see Stepanovich decision below from Allegheny County).
Crawford County
Pelc v. Burkell & State Farm, No. A.D. 2009 483 (C.P. Crawford Sept. 23, 2013)(Plaintiff filed suit against third party tortfeasor and UIM carrier. Plaintiff settled with tortfeasor prior to trial and proceeded to trial against UIM carrier. On the basis of Pa.R.E. 411, UIM carrier filed motion in limine to preclude Plaintiff from identifying UIM carrier by name at trial and to preclude evidence pertaining to the details of the Plaintiff’s auto insurance coverage, the UIM policy limits, and the Plaintiff’s settlement with the third party defendant. Motion in Limine denied with respect to request that UIM carrier not be identified at trial. However, the Motion in Limine as to the remaining issues was granted as the court found that the relevancy of that more specific insurance information was outweighed by the risk of unfair prejudice and the increased potential of confusing the issues and misleading the jury.).
Mercer County
Gravatt v. Smith and Unitrin Auto and Home Ins. Co., 2010-Civil-2155 (Mercer Co. Oct. 15, 2010, Fornelli, P.J.)(Claims severed at Preliminary Objections stage under primary rationale that evidence of insurance is not admissible in negligence actions).
Monroe County
Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.)(Court granted motion for severance of UIM claims and bad faith claim. Court refused to issued blanket order freezing bad faith discovery efforts but noted that the carrier could bring issues to the court by way of motion if necessary. Court also separately allowed for consolidation of UIM and third party claims and ordered that any mentioning of insurance would be precluded in that portion of the trial of the matter).
Northampton County
Firoozifard v. Krome and State Farm, No. C-48-Civil-2009-14369 (Northampton Co. June 21, 2010 Beltrami, J.)(Court denied a third party tortfeasor defendant's motion to sever the third party liability claims from the UIM and UM claims; court also notes that insurance issues can be kept from jury and the task of applying third party credit to determine UIM award can be kept away from jury and handled by the court only after the verdict)
Susquehanna County
Phillips v. National General Assurance Company, No. 2016-959 (C.P. Susq. Co. Nov. 16, 2018 Legg, P.J.)(President Judge Jason J. Legg of the Susquehanna County Court of Common Pleas granted a UIM carrier’s Motion In Limine to exclude extraneous evidence relating to insurance. Evidence of the third party liability limits and the UIM limits precluded).
Washington County
Cope v. State Farm, No. 2013-CV-2188 (C.P. Wash. Co. Oct. 21, 2015 Nalitz, J.)(The court granted Defendant insurance company’s Motion In Limine and precluded the Plaintiff from offering any evidence at a Post-Koken trial related to the carrier’s evaluation of the claims, the carrier’s possible agreement to waive subrogation for the tortfeasor, any payment of benefits to the Plaintiff for any claims, including property and/or first party claims, and pertaining to settlement offers. The court also agreed to grant the Defendant carrier’s Motion In Limine regarding the scope of and/or preclusion of the testimony of a corporate designee for the Defendant and thereby precluding the Plaintiff from calling any representative of State Farm to testify at trial on claims handling activities.
According to the information secured in this matter, this case involved a trial against State Farm as the UIM carrier. There was no tortfeasor defendant involved in this matter).
INSURANCE EVIDENCE ADMISSIBLE IN POST-KOKEN CASES
Federal Middle District Court of Pennsylvania
Rodkey v. Progressive Direct Ins. Co., No. 3:16-CV-454 (M.D. Pa. Dec. 8, 2016 Munley, J.)(Judge James M. Munley addressed the issue of the admissibility of insurance information at a Post-Koken trial and allows in evidence of premiums paid and amount of UIM policy limits as relevant to the breach of contract action.)
Noone v. Progressive Direct Ins. Co., No. 3:12cv1675 (M.D.Pa. May 28, 2013 Munley, J.), Judge James M. Munley of the Federal Middle District Court of Pennsylvania denied a motion in limine filed by the defendant UIM carrier seeking to preclude evidence of (1) the amount of premiums paid by the Plaintiff for the UIM policy, (2) the amount of the limits of UIM coverage available, and (3) the amount of the tortfeasor's third party liability coverage along with the amount received by the plaintiff from the tortfeaser. As such, all such evidence was allowed).
PENNSYLVANIA SUPERIOR COURT
Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), appeal denied 11 WAL 2014 (Pa. 2014)(Superior Court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant. Yet, the Court did rule that Pa.R.E. 411, pertaining to preclusion of mention of liability insurance at trial, does not apply in context of references to UIM insurance at trial. However, open issue remains on whether common law prohibition of mentioning other forms of insurance at trial serves to preclude evidence of insurance in this context.)
Allegheny County (Split of authority)
Stepanovich v. McGraw and State Farm, No. GD 10-16523 (C.P. Allegh. Co. Dec. 10, 2012)(Trial court initially allowed trial to proceed without mention of insurance company UIM defendant; but, in post-trial motions, trial court reversed itself and held that to not identify UIM insurance company defendant while allowing UIM carrier's defense attorney to participate at trial, violates Plaintiff's due process rights; as noted directly above, this decision was overturned on appeal(But see Zubeck decision above from Allegheny County)).
Beaver County
Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008, 2009 WL 2418861 (Beaver Co. June 30, 2009, Kwidis, J.)(dicta)(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.).
Bradish-Klein v. Kennedy and State Farm, PICS Case No. 09-2059 (C.P. Beaver Dec. 3, 2009, Kwidis, J.)(dicta)(State Farm was not only UIM carrier, but also provided the liability coverage to the third party tortfeasor; Plaintiff initially filed suit against the third party tortfeasor only and then moved to amend the Complaint to add the UIM claim against the UIM carrier, State Farm. Third party tortfeasor opposed the motion to amend on the grounds that "insurance" would then come into play during the trial; Judge Kwidis relied on his prior decision in Six v. Phillips and Nationwide Ins. Co. to allow the amendment and allow the joinder of the third party claim and UIM claim under one caption; court again notes that fact that evidence of insurance may come in at trial does not preclude joinder).
Centre County
Fennessey v. Sweeney and State Farm Mut. Automobile Ins. Co., No. 2012-2865 (Centre Co. Dec. 11, 2012 Ruest, J.)(dicta)(In Opinion, court denied Defendants' preliminary objections asserting misjoinder of actions and also denied companion motion to sever to allow case to proceed in consolidated fashion. Court states that Pa.R.E. 411 does not warrant severance.).
Lackawanna County
Bingham v. Poswistilo, Ritz, and Erie Ins., No. 10 - CV - 6020 (Lacka. Co., April 8, 2011, Nealon, J.)(In the most thorough Opinion anywhere on the issue, Judge Nealon ruled in favor of consolidation of third party claims and UIM claims for discovery purposes but left door open for parties to revisit severance issue at time of trial; However, court did end up severing claims based upon venue issue, with UIM claim being kept in Lackawanna County pursuant to forum selection clause in policy and with tortfeasor claims being sent to Lehigh County where venue was proper for that part of case. In dicta, the court also noted various avenues to handle evidence of "insurance" at trial).
Pike County
Jannone v. McCooey and State Farm, 2009 WL 2418862, 2320-2008-Civil (Pike Co. April 1, 2009, Chelak, J.)(dicta)(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).
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AGREEMENT TO ADR (PRIVATE ARBITRATION)
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MOTION TO BIFURCATE TRIAL
FEDERAL COURT DECISIONS (Split of Authority)
SEPARATE TRIALS ALLOWED
Eastern District Federal Court
Moninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.),(Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation).
REQUEST FOR BIFURCATED TRIAL DENIED
Western District Federal Court
Cracker v. State Farm Mut. Auto. Ins. Co., No. 11-0225, 2012 U.S. Dist. Lexis 109357 (W.D. Pa. Aug. 3, 2012 Lancaster, C.J.)(United States District Court for the Western District of Pennsylvania denied State Farm’s Motion In Limine to bifurcate a breach of contract and bad faith post-Koken lawsuit.)
STATE COURT DECISIONS ON BIFURCATION
State Appellate Court Decision
Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), appeal denied 11 WAL 2014 (Pa. April 22, 2014) (Superior Court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant. Yet, the Court did rule that Pa.R.E. 411, pertaining to preclusion of mention of liability insurance at trial, does not apply in context of references to UIM insurance at trial. However, open issue remains on whether common law prohibition of mentioning other forms of insurance at trial serves to preclude evidence of insurance in this context; Pennsylvania Supreme Court denied Petition to Appeal.).
(Split of Authority at trial court level)
SEPARATE TRIALS ALLOWED
(Check above decisions on severance of claims for possible support for bifurcation in those same county courts)
Allegheny County
Vecchio v. Tunison and
Dauphin County
Oaks v. Erie Insurance Exchange and Austin, No. 2012 - CV - 3741 - CV (C.P. Dauphin Co. May 8, 2015 Bratton, J.)(In a decision handed down after a mistrial in a matter, Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas granted the tortfeasor Defendant's Motion for Reconsideration of the court's prior denial of the tortfeasor's Motion to Sever the negligence claims asserted against him by the Plaintiff from the Plaintiff's UIM claims against the carrier for purposes of the retrial of the matter.).
Lehigh County
Purta v. Blower and Erie Ins. Exch., No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.)(Court addressed the seemingly novel issue presented by a Motion to Severance filed by the UIM carrier Defendant to bifurcate jointly filed third party and underinsured motorist (UIM) claims into separate trials. In a detailed Order, Judge Reibman granted the UIM carrier's Motion for Severance and ordered that the case proceed to trial with only the Plaintiffs and Defendant tortfeasor being involved in the first trial.).
Lackawanna County
(But see cases denying bifurcation below)
Caridad v. Caridad, No. 2014-CV-6070 (C.P. Lacka. Co. Nov. 19, 2019 Bisignani-Moyle, J.)(Judge Margie Bisignani-Moyle of the Lackawanna County Court of Common Pleas addressed a defendant carrier's motion to bifurcate a trial and granted the motion in part and denied it in part. The court agreed to bifurcate the coverage question and have a trial on that issue first before proceeding onto the breach of contract UM claim)
REQUEST FOR BIFURCATED TRIAL DENIED - SEPARATE TRIALS NOT ALLOWED
(Check above decisions in favor of consolidation of claims for possible support for a denial of a request for bifurcation by the same court)
Lackawanna County
(But see case granting bifurcation above)
(But see case granting bifurcation above)
Ives v. McLain, No. 20-CV-2658 (C.P. Lacka. Co. Jan. 10, 2023 Gibbons, J.)(Judge James A. Gibbons of the Lackawanna County Court of Common Pleas denied a Motion to Bifurcate filed by a third party Defendant in a post-Koken automobile accident litigation.).
Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Sept 15, 2021 Gibbons, J.) (Court denies a Motion to Bifurcate the Trial filed by the third party defendant in this post-Koken automobile accident litigation.).
Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.)(In an Order, Court denies tortfeasor Defendant's motion for bifurcation; court also outlines appropriate jury instructions for a Post-Koken trial involving both a third party tortfeasor and UIM carrier defendants).
But see Martin v. Ochenduszko, No. 17-CV-3912 (C.P. Lacka. Co. Jan. 16, 2019 Nealon, J.)(Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the UIM carrier’s Motion to Sever the Plaintiffs’ UIM claims from the tort claims asserted against a tortfeasor Defendant against whom punitive damages claims were pled given the Defendant-driver’s alleged operation of a vehicle under the influence of controlled substances at the time of the accident. Court foreshadows that bifurcation motion might be granted given that the case includes a punitive damages claim against the tortfeasor.).
Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), (Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier.).
Gallagher v. Longfoot and Erie Insurance Exchange, No. 2015-CV-3169 (C.P. Luz. Co. May 1, 2017 Burke, J.)(Judge Thomas F. Burke, Jr., of the Luzerne County Court of Common Pleas denied a UIM carrier Defendant’s Motion to Bifurcate a post-Koken case for trial by Order only.).
Loefflad v Nauks &Allstate Fire & Casualty Ins. Co., No. 8673 of 2010 (C.P. Luz. Co. June 20, 2012) (By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).
Price v Price, Auto Glass Unlimited & State Farm, No. 13625 of 2010(C.P. Luz. Co. June 20, 2012)(By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).
Borthwick v. Webb, No. 2735-Civil-2010 (C.P. Luz.
Schuylkill County
FORM MOTION TO BIFURCATE: In February of 2012, I had an opportunity to draft a Motion to Bifurcate Trial and Supporting Brief in favor of a tortfeasor defendant in a Lackawanna County Post-Koken case. Anyone desiring a copy of the same may contact me at dancummins@comcast.net.
REFERENCE TO INSURANCE COMPANY AT TRIAL
Whitlock v. Allstate Fire & Cas. Ins. Co., No. 2:20-CV-00373-KSM (E.D. Pa. Oct. 13, 2022 Marston, J.), the court addressed various Motions In Limine. At a pre-trial conference, Allstate requested to be referred to at the trial in the name of the non-party tortfeasor as opposed to as "Allstate." This the court refused.
JURY INSTRUCTIONS IN POST-KOKEN CASE
To view Links to sample Jury Instructions, as well as Voir Dire Questions, for a Post-Koken case, click this LINK.
Lackawanna County
Moritz v. Hora ce Mann Insurance, 2014 WL 5817681, No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014 Nealon, J.)(Judge Terrence R. Nealon addressed important issues with respect to a post-Koken automobile accident matter that is headed towards trial. Jury instructions utilized by Judge Nealon are outlined in detail in Opinion. Instructions noted to be appropriate for a case where Plaintiff previously settled third party claim against tortfeasor and was proceeding at trial against UIM carrier only. See Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.).
____________________________________________________________
DELAY DAMAGES
United States Eastern District Federal Court
Heebner v. Nationwide Ins. Enterprise, No. 10-2381 (E.D. Pa. Sept. 28, 2011)(Court holds that delay damages are to be included as a component of the compensatory damages to be paid under a UIM insurance policy.).
Pennsylvania Superior Court
Grossi v. Travelers Personal Insurance Company, 2013 Pa. Super. 284, No. 769 WDA 2012 (Pa. Super. Nov. 1, 2013 Bowes, Donohue, and Mundy, JJ) (Opinion by Mundy, J.)(Superior Court follows Pennsylvania Supreme Court's decision in Marlette v. State Farm limiting calculation of delay damages to molded amount downward to available policy limits as opposed to applying calculation of interest to excess verdict amount. Court does suggest that, in context of a Section 8371 bad faith action it may be within discretion of trial court to base calculation on verdict amount as opposed to policy limits amount in appropriate case).
Pennsylvania Supreme Court
Marlette v. State Farm, 2012 WL 6720916 (Pa. Dec. 28, 2012)(Opinion by Todd, J.)(McCaffery, J., dissenting),(Orie Melvin, J., not participating)(The Pennsylvania Supreme Court squarely addressed that very issue of whether, after a jury trial in an uninsured (UM) matter, a plaintiff is entitled to delay damages on the full amount of the jury's verdict or only on the reduced verdict after it has been molded down to the amount of the available uninsured motorists limits allowed by the automobile insurance policy at issue. After reviewing the law surrounding Pa.R.C.P. 238 delay damages, the Court ruled that a plaintiff may only recover delay damages as calculated on the amount of legally-recoverable damages to which the plaintiff is entitled pursuant to the verdict as molded downward to the amount of the available UM limits under the policy. The Court remanded the case back to the trial court for the correct calculation of the delay damages.).
________________________
POST-KOKEN UM/UIM CASES INVOLVING COMPANION WORKER'S COMP CLAIM
PENNSYLVANIA SUPERIOR COURT
Erie Ins. Exchange v. Conley, 29 A.3d 389, No. 1143 WDA 2010 (Pa.Super. June 9, 2011)(Superior Court affirms trial court's granting of a motion for judgment on the pleadings in favor of the carrier in a post-Koken lawsuit for UIM benefits on the basis that the exclusivity provision of the Worker's Compensation Act. Initially issued as a memorandum opinion and later converted to a published, precedential opinion).
Allegheny County
Erie Ins. Exchange v. Conley, No. GD 09-21471 (Alleg. Co. Aug. 27, 2010, Hertzberg, J.), in which the court granted a motion for judgment on the pleadings in favor of the carrier in a post-Koken lawsuit for UIM benefits on the basis that the exclusivity provision of the Worker's Compensation Act. Affirmed on appeal by Pennsylvania Superior Court--see above).
Lackawanna County
Petrochko v. Nationwide, No. 07 CV 7113 (Lacka. Co. Aug. 27, 2010, Nealon, J.). In granting the motion for summary judgment in favor of the UIM carrier, Judge Nealon noted that the issue presented had not been previously addressed by any appellate court in Pennsylvania.
POST-TRIAL MOLDING OF VERDICT
Pennsylvania Superior Court
Pusey v. Allstate Insurance Company, No. 888 EDA 2015 (Pa. Super. May 20, 2016 Ford Elliot, P.J.E. Stabile, and Strassburger, JJ.) (Mem. Op. by Stabile, J.)[Non-Precedential], the Pennsylvania Superior Court affirmed a trial court’s handling of the molding of a verdict after an underinsured motorist trial. The Superior Court affirmed the trial court’s application of the comparative negligence percentage of the Plaintiff first followed by the application of the credit owed from the tortfeasor’s liability limits.).
DISCONTINUANCE OF ACTION
Dauphin County
Phaler v. Ray and Westfield Insurance Company, No. 2014-CV-7332 (C.P. Dauph. Co. May 17, 2016 Bratton, J.), the court granted a Plaintiff’s Motion to Discontinue the post-Koken action against the tortfeasor Defendant over the objection of the UIM carrier.
To view Links to sample Jury Instructions, as well as Voir Dire Questions, for a Post-Koken case, click this LINK.
Lackawanna County
Lackawanna County
Singer v. State Farm, No. 15-CV-2859 (C.P. Lacka. Co. 2018 Gibbons, J.)(Here is a LINK to a copy of the printout of the UIM jury instruction Judge James A. Gibbons presented to the jury over our objection on behalf of the defense.)
Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.)(In an Order, Court denies tortfeasor Defendant's motion for bifurcation; court also outlines appropriate jury instructions for a Post-Koken trial involving both a third party tortfeasor and UIM carrier defendants).
Singer v. State Farm, No. 15-CV-2859 (C.P. Lacka. Co. 2018 Gibbons, J.)(Here is a LINK to a copy of the printout of the UIM jury instruction Judge James A. Gibbons presented to the jury over our objection on behalf of the defense.)
Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.)(In an Order, Court denies tortfeasor Defendant's motion for bifurcation; court also outlines appropriate jury instructions for a Post-Koken trial involving both a third party tortfeasor and UIM carrier defendants).
Moritz v. Hora ce Mann Insurance, 2014 WL 5817681, No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014 Nealon, J.)(Judge Terrence R. Nealon addressed important issues with respect to a post-Koken automobile accident matter that is headed towards trial. Jury instructions utilized by Judge Nealon are outlined in detail in Opinion. Instructions noted to be appropriate for a case where Plaintiff previously settled third party claim against tortfeasor and was proceeding at trial against UIM carrier only. See Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.).
____________________________________________________________
DELAY DAMAGES
United States Eastern District Federal Court
Heebner v. Nationwide Ins. Enterprise, No. 10-2381 (E.D. Pa. Sept. 28, 2011)(Court holds that delay damages are to be included as a component of the compensatory damages to be paid under a UIM insurance policy.).
Pennsylvania Superior Court
Grossi v. Travelers Personal Insurance Company, 2013 Pa. Super. 284, No. 769 WDA 2012 (
Pennsylvania Supreme Court
Marlette v. State Farm, 2012 WL 6720916 (Pa. Dec. 28, 2012)(Opinion by Todd, J.)(McCaffery, J., dissenting),(Orie Melvin, J., not participating)(The Pennsylvania Supreme Court squarely addressed that very issue of whether, after a jury trial in an uninsured (UM) matter, a plaintiff is entitled to delay damages on the full amount of the jury's verdict or only on the reduced verdict after it has been molded down to the amount of the available uninsured motorists limits allowed by the automobile insurance policy at issue. After reviewing the law surrounding Pa.R.C.P. 238 delay damages, the Court ruled that a plaintiff may only recover delay damages as calculated on the amount of legally-recoverable damages to which the plaintiff is entitled pursuant to the verdict as molded downward to the amount of the available UM limits under the policy. The Court remanded the case back to the trial court for the correct calculation of the delay damages.).
________________________
POST-KOKEN UM/UIM CASES INVOLVING COMPANION WORKER'S COMP CLAIM
PENNSYLVANIA SUPERIOR COURT
Erie Ins. Exchange v. Conley, 29 A.3d 389, No. 1143 WDA 2010 (Pa.Super. June 9, 2011)(Superior Court affirms trial court's granting of a motion for judgment on the pleadings in favor of the carrier in a post-Koken lawsuit for UIM benefits on the basis that the exclusivity provision of the Worker's Compensation Act. Initially issued as a memorandum opinion and later converted to a published, precedential opinion).
Allegheny County
Erie Ins. Exchange v. Conley, No. GD 09-21471 (Alleg. Co. Aug. 27, 2010, Hertzberg, J.), in which the court granted a motion for judgment on the pleadings in favor of the carrier in a post-Koken lawsuit for UIM benefits on the basis that the exclusivity provision of the Worker's Compensation Act. Affirmed on appeal by Pennsylvania Superior Court--see above).
Lackawanna County
Petrochko v. Nationwide, No. 07 CV 7113 (Lacka. Co. Aug. 27, 2010, Nealon, J.). In granting the motion for summary judgment in favor of the UIM carrier, Judge Nealon noted that the issue presented had not been previously addressed by any appellate court in Pennsylvania.
POST-TRIAL MOLDING OF VERDICT
Pennsylvania Superior Court
Pusey v. Allstate Insurance Company, No. 888 EDA 2015 (Pa. Super. May 20, 2016 Ford Elliot, P.J.E. Stabile, and Strassburger, JJ.) (Mem. Op. by Stabile, J.)[Non-Precedential], the Pennsylvania Superior Court affirmed a trial court’s handling of the molding of a verdict after an underinsured motorist trial. The Superior Court affirmed the trial court’s application of the comparative negligence percentage of the Plaintiff first followed by the application of the credit owed from the tortfeasor’s liability limits.).
DISCONTINUANCE OF ACTION
Dauphin County
Phaler v. Ray and Westfield Insurance Company, No. 2014-CV-7332 (C.P. Dauph. Co. May 17, 2016 Bratton, J.), the court granted a Plaintiff’s Motion to Discontinue the post-Koken action against the tortfeasor Defendant over the objection of the UIM carrier.
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