Wednesday, December 30, 2009

Pennsylvania Supreme Court Allows DPW to Recover on Lien Beyond Statute of Limitations

In a December 29, 2009 decision in the case of EDB v. Gerald Clair and Centre Hospital Apl of: Dept. of Public Welfare, No. 78 MAP 2008 (Pa. 2009), the Pennsylvania Supreme Court overruled a Superior Court decision and held that the Department of Public Welfare (DPW) can obtain reimbursement from a tortfeasor for Medicaid expenditures made on behalf of a disabled minor even when a claim therefore by the minor’s parents is barred by the statute of limitations.

As it is the holidays and given that judicial opinions on the lien issues generally give me a headache, instead of trying to decipher the decision, I give you the links to read the Opinion yourself if you desire:

Majority Opinion: http://www.pacourts.us/OpPosting/Supreme/out/J-42-2009mo.pdf

Concurring Opinion: http://www.pacourts.us/OpPosting/Supreme/out/J-42-2009co.pdf

Dissenting Opinion: http://www.pacourts.us/OpPosting/Supreme/out/J-42-2009do.pdf


Thanks to Attorney Richard Bishop from the Wilkes-Barre/Scranton law firm of Hourigan, Kluger & Quinn for bringing this case to my attention.

Pennsylvania Supreme Court Upholds Economic Loss Doctrine

In an Opinion issued on December 29, 2009, in the case of Excavation Technologies, Inc. v. Columbia Gas Co. of Penna., 2009 WL 5103605 (Pa. 2009), the Pennsylvania Supreme Court upheld the economic loss doctrine. The doctrine generally forbids, with limited exceptions, any negligence actions for purely economic damages, i.e. not involving any personal injury or property damages.

In this case a gas line was negligently damaged during a construction project, resulting only in monetary damages to the plaintiff. The Court upheld the defendant's reliance upon the doctrine and affirmed the lower courts' dismissals of the claim.

The Court's majority opinion can also be viewed by clicking on this link: http://www.aopc.org/OpPosting/Supreme/out/J-123-2008mo.pdf.

Thanks sent to Attorney James Beck of the Philadelphia office of the Dechert, LLP law firm for bringing this case to my attention.

Latest Out Of Luzerne County

On December 29, 2009, Luzerne County Judge Michael Toole appeared in the Federal District Court in Scranton, Pennsylvania and plead guilty to to federal charges related to fixing a court decision on the appointment of a neutral arbitrator in an underinsured (UIM) motorists case as well as charges related to failing to report a referral fee from a second attorney on his taxes.

For a more complete version of this story, I refer you the following link to an article written by Dave Janoski and Michael R. Sisak of the Citizen's Voice: http://www.citizensvoice.com/news/toole-accepts-whatever-punishment-the-court-imposes-1.515794.

Tuesday, December 29, 2009

Top 10 Pennsylvania Civil Litigation Cases/Issues of 2009

As we come to another year and get inundated with year-end lists, some interesting, some not--here's my list of what, in my estimation, proved be the top cases/issues in Pennsylvania civil litigation matters:

10. New Judges Across the Commonwealth

In 2009, the voters elected Joan Orie Melvin to the Pennsylvania Supreme Court along with Judge Judy Olson, Judge Paula Ott, Judge Sallie Mundy, and Judge Anne Lazarus to the Pennsylvania Superior Court.

Two open seats on the Commonwealth Court were won by private practice attorneys Kevin Brobson, from Harrisburg, and Patricia McCullough, from Pittsburgh.

In other state judicial election news, Luzerne County voters elected not to retain Judge Peter Paul Olszewski, Jr. for a second 10 year term on the trial court bench.

9. Medical Malpractice Issues

In 2009, the Pennsylvania Supreme Court took the rare step of overturning one of its own prior decisions. In the medical malpractice case of Freed v. Geisinger Medical Center, 971 A.2d 1202 (Pa. 2009), the Court went against its prior ruling and now held that nurses should not be precluded from offering medical opinions when testifying as experts in a civil trial. It is noted, however, that the import of this decision is tempered by the legislative enactment of the MCARE Act which mandates that, in medical malpractice cases, only doctors can serve as experts against doctors.

Also, in the case of Pringle v. Rapaport, 980 A.2d 159 (Pa.Super. 2009), the Superior Court held, for the first time, that it was reversible error for a trial court judge to give the previously accepted "error of judgment" jury instruction to the jury in a medical malpractice case.

8. Seat Belt Defense Gets a Flicker of Life and Then is Killed

In the case of Gaudio v. Ford, Judge Harold A. Thomson, Jr. of the Pike County Court of Common Pleas gave the seat belt defense a flicker of life by allowing it, in part, during the course of a trial in early 2009, only to see the Pennsylvania Superior Court strike down the defense in its opinion found at Gaudio v. Ford Motor Co., 976 A.2d 524 (Pa.Super. 2009).

An analysis of these cases can be found in my article "Seat Belt Defense Ban Wearing Thin," which can be viewed at http://www.jdsupra.com/post/documentViewer.aspx?fid=254be516-293e-462b-81db-b7a868b1f342.

7. Negligent Infliction of Emotional Distress

Constituting what some commentators are touting as the first time in 20 years that the Pennsylvania Supreme Court has agreed to address the ambit of the cause of action for negligent of infliction of emotional distress and the physical injury requirement, the Court granted allocatur on the issue in the case of Toney v. Chester County Hospital, No. 813 MAL 2008 (Pa. 2009).

This may be one of the most highly anticipated decisions from the Pennsylvania Supreme Court in 2010.

6. Household Exclusion Upheld Again

In the case of Erie Ins. Exchange v. Baker, 972 A.2d 507 (Pa.Super. 2009), the Superior Court again rebuffed the plaintiffs' bar's attempt to have a UIM carrier's household exclusion overturned. This exclusion holds that there is no UIM coverage available to an injured party when that party was injured while occupying a vehicle in the household that was not covered under the carrier's policy issued to that party--i.e. the vehicle was covered by another carrier.

Generally speaking, the Court upheld the old adage that you can't get something for nothing. In other words, if the injured party hasn't paid a premium for the coverage, they are not going to be able to secure UIM benefits under that policy.


5. Former Judges Michael T. Conahan, Mark A. Ciavarella, and Michael Toole Resign from Luzerne County Bench Amidst Scandal

Enough said.


4. Ongoing Debate over the Assumption of Risk Doctrine

Over the past year a number of decisions came down on the issue of the continuing validity of the Assumption of Risk Doctrine under Pennsylvania law. While the Commonwealth Court repeatedly upheld the doctrine to dismiss suits by plaintiffs in the cases of Cochrane v. Kopko, 975 A.2d 1203 (Pa.Cmwlth. 2009) and Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233 (Pa.Cmwlth. 2009), the Pennsylvania Superior Court continued to question the ongoing validity of the doctrine in the case of Zeidman v. Fisher, 980 A.2d 637 (Pa.Super. 2009).

This split of authority was analyzed in my article entitled "Alive and Well: Assumption of Risk Doctrine remains a valid defense," which can be viewed at http://www.jdsupra.com/post/documentViewer.aspx?fid=fda3f4da-9ebf-4f6c-b37c-ab0b1f69f528


3. Defense-friendly Premises Liability Decisions

2009 gave us a number of defense-friendly premises liability decisions whereby the notice defense was repeatedly upheld to dismiss plaintiffs' trip and fall and slip and fall cases. Basically, the courts found that where a plaintiff is unable to show how long a spill or defect existed, the plaintiff can not sustain his or her burden of showing that the premises owner knew or should have known of the defect and/or had enough time to remedy the situation.

These cases are summarized in my article "You'd Better Watch Your Step," which can be viewed at http://www.jdsupra.com/post/documentViewer.aspx?fid=792bd369-89d3-4aff-9d68-2a4be9ee0c20.


2. Puls v. Means, 982 A.2d 550 (Pa.Super. 2009)

Superior Court holds that where a Plaintiff secures UIM benefits first, defendant tortfeasor on the third party lawsuit side of the case is entitled to a set-off against the verdict in the amount of the UIM benefits previously secured in order to prevent a double recovery by the Plaintiff. Case may be working its way up to the Pennsylvania Supreme Court.

If the Supreme Court agrees to hear this issue, this too will be a highly anticipated decision.


1. Post-Koken Consolidation Cases

In 2010, we saw a slew of trial court opinions come down on the issue of whether the post-Koken cases involving both a third party claim and a UIM claim arising out of single motor vehicle accident should proceed separately or in a consolidated fashion under one caption. Overall, there have been approximately 15 cases in favor of consolidation and three cases (two from Butler County and one from York County) in favor of the cases proceeding in two separate suits.

An analysis of these post-Koken cases can be viewed by clicking on the "Post-Koken Scorecard" in the right-hand column of this blog


Here's to hoping the year 2010 proves just as interesting!

THANKS AND HAPPY NEW YEAR

I am taking a year-end moment to say "Thanks" to all the email subscribers and readers of Tort Talk and to send you my Best Wishes for a Happy New Year.

In addition to providing updates on the law, an obvious goal of starting this blog was to attempt to obtain increased exposure and new contacts for myself and my firm, Foley, Cognetti, Comerford, Cimini & Cummins here in Scranton, Pennsylvania.

In this increasingly competitive insurance defense business, I was looking for a way to set myself and my firm apart from the other insurance defense firms covering matters up here in the Northeastern corner of Pennsylvania.

I am happy to report that the number of email subscribers to TORT TALK has ballooned to nearly 200 and TORT TALK has gained attention even outside of Pennsylvania with the syndication through Newstex as well as with being quoted in newspapers as far away as Maryland and New Orleans, Louisiana.

With this increased exposure comes the hope, on my part, that I will also be able to serve as insurance defense counsel or local counsel for new carriers and clients here in Northeastern Pennsylvania along with the continuing representation of my current clients. In that regard, I invite anyone needing such assistance to please contact me at dancummins@comcast.net. For more background information on my firm you can visit our website at http://www.foleycognettilaw.com/. For more background information on myself, I invite you to visit my online profile at http://www.avvo.com/attorneys/18503-pa-daniel-cummins-610885.html.

In 2010, I hope to continue to provide the periodic updates on Pennsylvania civil litigation law in the same straightforward manner that it appears the readers seem to enjoy and appreciate. Whereas other blogs and discussion boards venture into failed attempts at humor and inane commentary, I will continue to try to keep myself out of it for the most part and stick to the point. While this may prove to be dry reading at times, at least it won't be annoying.

I also note that the Pennsylvania Law Weekly, the statewide legal newspaper here in Pennsylvania, has asked me to increase my contributions of civil litigation articles to them up to one per month. I will give that a shot and will be sure to highlight those articles here on the blog as well after they have appeared in the Law Weekly.

So thanks again for following Tort Talk and Best Wishes for a Happy New Year to you all.

Saturday, December 26, 2009

Plaintiffs Also Required to Produce Their Medical Expert's File

In the Cumberland County Court of Common Pleas case of Barrick v. Holy Spirit Hospital, PICS Case No. 09-2159 (C.P. Cumberland Dec. 15, 2009, Hess, J.) the court held that a plaintiff should expect to be required produce the complete file of his or her treating physician who is serving as the plaintiff's expert, including letters issued to that doctor from the plaintiff's attorney regarding the expert opinion and testimony.

In this case, the plaintiff's treating orthopedic surgeon withheld some documents in response to a subpoena issued by defense counsel. The plaintiff argued that some of those documents need not be produced as they pertained to communications between the doctor and the plaintiff's attorney regarding the doctor's role as an expert witness.

While the court agreed that an attorney's work product is not discoverable, in this case, where the letters from the attorney could have influenced the doctor's opinion, those documents, along with the rest of the doctor's file, were ordered to be produced after an in camera review by the court.


A copy of this opinion can be secured from the Pennsylvania Law Weekly's Instant Case Service for a small fee by calling 1-800-276-7427 and giving the above PICS Case No.

New Westlaw Cite for Post-Koken Case

A new Westlaw citation has been given to the following post-Koken case:

Weichey v. Marten and Allstate, 2009 WL 4395727, A.D. No. 09-10116 (Butler Co., June 11, 2009, Yeager, J.)(Minority rule decision where trial court ordered severance of UIM and third party claims under the general rationale that insurance is not admissible in third party negligence actions).

Thanks to Attorney James Beck of the Philadelphia office of the Dechert, LLP firm. I invite you to check out Attorney Beck's Drug and Device Law Blog at http://druganddevicelaw.blogspot.com/.

Sunday, December 20, 2009

Third Circuit Addresses Duty to Defend and Indemnify in Homeowners and Umbrella Policy

In the recent case of State Farm v. Estate of Mehlman, 2009 WL 4827027 (3rd Cir. Dec. 16, 2009), the Third Circuit tackled the issue of whether a carrier, which issued both a homeowner's policy and an umbrella policy, had a duty to defend and/or indemnify the estate of a man who, in a drunken rage, had unsuccessfully attempted to kill the plaintiff before killing himself. This coverage action was related to an underlying negligence suit brought by the plaintiff against the estate of the decedent.

According to the opinion, the Homeowners Policy provided coverage for damages caused by an “occurrence,” and the Umbrella Policy limited coverage to damages caused by a “loss.” The policies defined “occurrence” and “loss” as "accidents." Neither policy defined the term "accident."

Therefore, the question became whether the decedent's drunkeness rendered his otherwise purposeful and repeated acts of trying to kill the plaintiff an "accident" within the meaning of that term in the policies.

The Third Circuit, applying Pennsylvania law, noted that an "accident" has been said to be an "unanticipated event." The Court found that the decendent's intoxication did not render his intentional acts of chasing and repeatedly shooting at the plaintiff an "accident." As such, the Court found that coverage was not triggered under the policy and ruled in favor of the carrier and found no duty to defend or indemnify.

Thanks to Attorney James Beck of the Philadelphia office of Dechert LLP, and writer of the Drug and Device Law Blog (http://druganddevicelaw.blogspot.com/), for bringing this case to my attention.

Saturday, December 19, 2009

Case of First Impression in Defamation Context

Just in time for the Holiday Season, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas has issued his opinion on what appears to be a case of first impression in a defamation case involving the heartwarming facts of the defendant getting into an argument with the plaintiff and calling the plaintiff "a big dumb f*cking Polack" and "a son-of-a-bitch liar."

In Koldjeski v. Colombo, PICS Case No 09-2117 (C.P. Lackawanna Dec. 4, 2009 Nealon, J. ), Judge Nealon noted that there were no prior opinions on-point on the issue of whether the ethnic slur at issue was defamatory under Pennsylvania law.

Apparently, there are other cases over the years that have ruled, in general, that racial epithets, while offensive, were not capable of defamatory meaning. Judge Nealon noted in his opinion that "[n]o Pennsylvania decisional precedent has recognized an ethnic slur as a basis for a valid defamation claim." He also researched and found the same conclusion in other jurisdictions.

So, while Judge Nealon slammed the defendant for making the first remark noted, he ruled that the slur could not be actionable as defamation or slander under Pennsylvania law. The court did allow the defamation case to move ahead with regards to the second remark in which the defendant called the plaintiff a "liar" as such a public accusation that could harm the plaintiff's position in his employment and in the local government position that he held.

The plaintiff in this matter was represented by Brigid Carey, Esquire and the defendant is represented by P. Timothy Kelly, Esquire of Matisse & Kelley.



A copy of the court's opinion can be secured for a small fee by contacting the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and giving the PICS Case No. noted above.

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 dancummins@comcast.net.

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 dancummins@comcast.net 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.

HAPPY HOLIDAYS AND BEST WISHES FOR THE NEW YEAR


Happy Holidays to you and yours and Best Wishes for a great New Year to you.

Thanks again for being an email subscriber and/or for visiting Tort Talk.

Dan Cummins
Foley, Cognetti, Comerford, Cimini & Cummins

Sunday, December 13, 2009

Two New Features Added to Tort Talk

I have added two new features to Tort Talk.

The first is a "SEARCH THIS BLOG" box in the right hand column of the blog which allows you to search for particular terms across all of the posts previously put up on the blog. This provides another search mechanism in addition to the "Labels" that are listed further down the right hand column.

The second feature is a "POST-KOKEN SCORECARD," which is further down on the right hand column. Clicking on this feature will take you directly to the most recent post or article providing the overview of the current status of the post-Koken cases in Pennsylvania. I plan to continue updating that Scorecard as the cases come down.

Thanks again for subscribing and/or visiting Tort Talk. I will continue to try to improve the site and I hope you continue to find it informative, interesting and, at times, even entertaining.

As always, should I be able to provide you with more information or assistance on any matters in Northeastern Pennsylvania or otherwise, please do not hesitate to contact me.

Saturday, December 12, 2009

Tip for the Unwary

Here's a tip for the unwary: When appealing from a district magistrate proceeding on a breach of contract claim, don't forget to attach a copy of the contract to your Complaint to avoid a dismissal of the Complaint at the trial court level.

Such was the ruling in the Armstrong County Court of Common Pleas case of Painter v. Allegheny Graphics, Inc., PICS Case No. 09-2969 (C.P. Armstrong Aug. 3, 2009 Valasek, J. ). In Painter, the court applied Pa.R.C.P. 1019(i) which requires the attachment of the actual contract to the Complaint in breach of contract actions.



A copy of this case can be secured from the Pennsylvania Law Weekly's Instant Case Service by calling 1-800-276-7427 and giving the above PICS Case Number.

POST-KOKEN SCORECARD

by

DANIEL E. CUMMINS, ESQ.
FOLEY, COMERFORD & CUMMINS

firm website:  www.foleycomerfordcumminslaw.com

Email:  dancummins@comcast.net



[UPDATED April 23, 2014]

DANIEL E. CUMMINS, ESQUIRE is an insurance defense attorney with the Scranton, Pennsylvania law firm of FOLEY, COMERFORD & CUMMINS. In addition to being a civil litigator, he also writes a regular column 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.


Here's an update list of the post-Koken or post-Koken-like cases uncovered to date, broken down by county-to-county decisions.

The list is not represented to be exhaustive and there may be other decisions out ther that I am not aware of at present.

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:



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

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.).

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).




PLEADINGS ISSUES

POST-KOKEN DECISIONS IN FEDERAL COURT REGARDING REMOVAL/REMAND

Federal Middle District Court of Pennsylvania


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.).


________________________________________________________



POST-KOKEN TRIAL COURT DECISIONS ON CONSOLIDATION vs. SEVERANCE OF CLAIMS

PENNSYLVANIA FEDERAL DISTRICT COURT DECISIONS

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.)

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.).



STATE TRIAL COURT DECISIONS IN FAVOR OF CONSOLIDATION
(Decisions from across 19 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 April 26, 2013 O’Reilly, J.) (In Order without Opinion, trial court overruled Preliminary Objections of tortfeasor Defendant seeking severance and allowed Plaintiffs’ negligence and UIM claim to remain join.   The trial court also noted in its Order that evidence of the third party Defendant’s insurance coverage would be admissible at trial in order to determine the extent of the UIM carrier’s liability).


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.).


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).


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.).


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).


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.).


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)


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).


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

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

 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

Cocuzza v. Castro, No. 406 – CV – 2012 (C.P. Monroe Co. July 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).

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)

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”).  

 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).


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 20 Counties)

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.



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.).


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).



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 Nov. 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

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.).


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


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)

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).



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.).



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 IN FAVOR OF CONSOLIDATION OF BAD FAITH CLAIM
(Decisions from across 4 Counties and the Federal Middle District Court)


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. 


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.).



United States Federal Western District Court

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).


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).


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.).


Lackawanna County

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.


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.).

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TRIAL COURT DECISIONS IN FAVOR OF SEVERANCE OF BAD FAITH CLAIM
(Decisions from across 10 Counties)


Eastern District Federal Court

Moninghoff 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.)



Allegheny County

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

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.).


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).


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

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

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.) (Courtr 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.).


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.).


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).



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.).



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.).



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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

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


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).


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 and Erie 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).  


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


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).



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).



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

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.).



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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.)



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.).


Luzerne County

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


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).



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.).


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

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


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).


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)





INSURANCE EVIDENCE ADMISSIBLE IN POST-KOKEN CASES

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)


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 (Split of Authority)

SEPARATE TRIALS ALLOWED

Allegheny County

Vecchio v. Tunison and Erie 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.) 


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.).



REQUEST FOR BIFURCATED TRIAL DENIED

Luzerne County

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.





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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.).


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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.