Friday, December 18, 2009

Post-Koken Update

In his two-paged December , 2009 Opinion, in the case of Calestini v. Progressive Cas. Ins. Co., 3:09-CV-1679 (M.D.Pa. Dec. 16,2009, Caputo, J.) Judge A. Richard Caputo of the Federal District Court for the Middle District of Pennsylvania 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.

Judge Caputo felt that it was in the interest of judicial economy to allow the cases to remain consolidated. He also noted that any privileges the Defendant carrier wished to assert with regards to the evidence in one portion of the claim could be raised and addressed by the court at a later time. Judge Caputo also noted that the risk that the attorneys involved may have to become witnesses in the bad faith action could be addressed in the "customary fashion."

Finding that there was no prejudice to allow the claims to remain consolidated and to allow discovery to go forward, the Court denied the Motion. In so ruling the Court did not cite any of the previous post-Koken cases that have been discussed in this blog.

Anyone desiring a copy of this Opinion may contact me at

I thank Attorney James Conaboy of the Scranton law firm of Abrahamsen, Conaboy & Abrahamsen for bringing this case to my attention.


Should anyone wish to receive a copy of the same, please note that I am now in possession of a copy of the recent post-Koken case of Bradish-Klein v. Kennedy and State Farm, (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).

Please email me at should you need a copy.


Here's an update on the case of 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).

I was informed by the attorneys involved in the Baptiste case that Judge Horan recently denied 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.

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