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.

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.

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/.

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.

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.

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

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.

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

[UPDATED March 3, 2010]

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 meant to be exhaustive and there may be other decisions out there that I am unaware of at present.


Again, it is important that these decisions be publicized so that a consistent common law in this novel area can be developed. I would appreciate be advised of any new cases that you may come across.


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

PENNSYLVANIA FEDERAL DISTRICT COURT DECISIONS

Middle District

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.).


STATE TRIAL COURT DECISIONS IN FAVOR OF CONSOLIDATION (19 cases)

Lackawanna County

Nehme v. Erie Insurance and Osborne, 2009-CV-4982 (Lacka. Co. Nov. 5, 2009, Thomson, S.J.)(Preliminary Objections seeking, in part, a severance of the third party claims and UIM claims denied).

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).

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

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).


Luzerne County

Doran v. Williams, Price, and Nationwide, No. 7792-CV-2009 (Luz. Co. Dec. 29, 2009) (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.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).


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).


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.).


Dauphin County

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

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

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


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).


Philadelphia County

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

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

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.

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).

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.).



TRIAL COURT DECISIONS IN FAVOR OF SEVERANCE (5 cases)

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).

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.)


York County

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).


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).


TRIAL COURT DECISIONS ON SEVERANCE OF BAD FAITH CLAIM (1 case)

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),


SUPERIOR COURT DECISIONS IN POST-KOKEN CASE ON CONSOLIDATION vs. SEVERANCE OF CLAIMS

None to date.




TRIAL COURT DECISIONS IN POST-KOKEN CASE ON DISCOVERY ISSUES

EVIDENCE OF "INSURANCE" ADMISSIBLE IN POST-KOKEN CASES (dicta)


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).

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).



EVIDENCE OF "INSURANCE" NOT ADMISSIBLE IN POST-KOKEN CASES (dicta)

Butler County

Weichey v. Marten and Allstate, 2009 WL 3869663, A.D. No. 09-10116 (Butler Co., June 11, 2009, Yeager, J.)(Court orders severance of UIM and third party claims under the general rationale that insurance is not admissible in third party negligence actions).

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


York County

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).


Adams County

Megert v. Stambaugh, Erie Ins. Co., and The Hartford, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.)(Court ruled 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; part of rationale is that "insurance" not admissible in negligence claims).

DISCOVERY OF A UIM CLAIMS REPRESENTATIVE IN POST-KOKEN CASE

Paulewicz v. Fronczkewicz, Bryan, and State Farm, 10655-CIVIL-2009 (Luz. Co. Feb. 1, 2010, Amesbury, J.)(When Plaintiff's counsel noted a desire to depose the UIM claims representative, the UIM carrier filed a Motion for a Protective Order to preclude the same. Court issued an Order denying the Motion and allowing for the deposition of the claims rep to go forward. However, the Judge specifically noted that the Plaintiffs were "precluded from deposing" the UIM claims adjuster "as to his mental impressions, conclusions, or opinions respecting the value or merit of the claim, defenses to the claim, or respecting the strategy or tactics in defense of claims by State Farm....").



TRIAL COURT DECISION ON TIMING OF DISCOVERY IN POST-KOKEN BAD FAITH CASE

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).




SUPERIOR COURT DECISIONS IN POST-KOKEN CASE ON VENUE

O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 WL 3720649, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly)(Consolidation vs. severance issue not implicated as plaintiff settled with tortfeasor and only sued UIM carrier in post-Koken case; Superior Court upholds UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident)(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.).


See also Kichline v. Erie Ins. Exchange, 2009 CIV 3052 (Lacka. Co. Feb. 16, 2010 Thomson, S.J)(Venue clause of UIM policy upheld and case transferred to proper county)

Pennsylvania Superior Court Issues UIM Benefits Sign Down Decision

In an Opinion handed down a few days ago in the case of Erie Insurance Exchange v. Larrimore, 2009 WL 4604657, 2009 Pa.Super. 236, 536 EDA 2009 (Pa.Super. Dec. 8, 2009, Freedberg, J.), the Pennsylvania Superior Court held that the execution of an insurance application form did not constitute a valid request for reduced underinsured (UIM) motorist benefits coverage. The Superior Court affirmed the Carbon County trial court decision/opinion by Judge Roger Nanovic in favor of the insured.

In addition to the above Westlaw citation, the 24 page Opinion can also be viewed online at http://www.aopc.org/OpPosting/Superior/out/a24045_09.pdf.

In Larrimore, the Erie insured originally filled out an application for a policy offering $300,000 in liability coverage but only $15,000 in UIM coverage stacked on two cars. The Erie insured was later involved in an auto accident and, when the UIM claim was instituted, the insured asserted that Erie has not secured the agreement for reduced UIM benefits under the policy in the proper manner provided under Pennsylvania law.

Erie filed a declaratory judgment action seeking a decision that the insured was only entitled to the $15,000 in UIM coverage. However, while the carrier was able to produce the Section 1791 "IMPORTANT NOTICE" form, it was unable to produce any sign down forms with regards to the insured's alleged selection of reduced UIM coverage at an amount below the liability coverage.

While there is no specified Section 1734 sign down form provided under the law, the law mandates that certain information may be contained therein. The Court rejected Erie's assertion that the insured's signature on the insurance application and the Section 1791 form was sufficient to cover the requirement of obtaining the appropriate selection of lower coverages by the insured. Also rejected was Erie's argument the insured's payment of the premium over the many years leading up to the accident essentially evidenced the insured's acceptance of the coverages under the policy. The court also rejected Erie's argument that, even if the carrier was in the wrong, there was no remedy provided for the insured under Pennsylvania law.

In ruling in favor of the insured, the Superior Court affirmed that where there is no proper written request for lower limits produced that conforms with the requirements of Section 1734, the UIM coverage should instead be in the amount equal to the liability coverage under the policy, i.e. $300,000. Since the policy offered stacking on the two cars under the policy, the coverage was found to be $600,000.


I thank Attorney Christine S. Lezinski, of the Scranton firm of Lenahan & Dempsey for bringing this recent decision to my attention.

Claim Rep Pet Peeves

I am thinking of devoting a future article for the Pennsylvania Law Weekly to a recitation of Claims Rep pet peeves. Any ideas?

What do you dislike in terms of what your defense counsel do or don't do? What don't you like in terms of Plaintiff's attorneys? What don't you like in terms of dealing opposing claims reps from other carriers? I will keep all who respond anonymous in the article.

If you care to comment, please click on the word "Comment" below this post and type in what your pet peeves are or how your life can be made easier in the claims process. When you get to the "Comments" page you will see that you can post the comment anonymously if you so choose.

Maybe this article will serve to eradicate or at least lesson the number of times your pet peeves arise if attorneys are educated as to what really irks you.

Governor Rendell Appoints Attorney Joseph Cosgrove to Fill Ciavarella Vacancy in Luzerne County Court of Common Pleas

Governor Rendell has nominated Forty Fort, Luzerne County, Pennsylvania attorney Joseph Cosgrove,52, to fill the vacancy left on the Luzerne County Court of Common Pleas by the departure of former Judge Ciavarella. Attorney Cosgrove must now go through the process of being approved by the Pennsylvania Legislature. The nominee has agreed not to run for this seat on the bench when it goes up for election in 2011.

Attorney Cosgrove graduated from Notre Dame University with a B.A. degree, a master's degree, and a law degree.

Mr. Cosgrove primarily practice in the field of criminal defense matters. He is also known to have handled civil rights cases, and municipal/governmental matters. Attorney Cosgrove is a past President of the Luzerne County Bar Association and is well-respected.

Cosgrove's nomination to the Luzerne County Bench is a welcomed development in a county where the civil trial list backlog is 12-18 months. The county is authorized to have 10 judges but is down to seven with the suspension of Michael Toole, who has agreed to plead guilty to felony charges and resign as part of the county corruption probe.

The number of judges in the county will be reduced to six at the start of 2010 because three judges are leaving the bench (Michael Toole resigning, Muroski retiring, and Mundy moving to senior status) and only two newly elected judges – Tina Polachek Gartley and William Amesbury – will be taking office.

In other Luzerne County news, it was announced that Judge Joseph Augello would take over the spot as President Judge at the beginning of 2010 given Judge Muroski's retirement at age 70 at the end of the year and given that Augello would be the member of the bench with the most seniority. It is expected that the President Judge position will be put up for a formal vote before the end of January. Judge Thomas Burke has publicly expressed an interest in securing the position.

Post-Koken Article: "Two Roads Diverged"

As promised, here is a copy of my article from this week's Pennsylvania Law Weekly on the post-Koken cases I have been made aware of to date. Click on the label "Koken" down on the right hand column of this blog for continuing updates.

This article is reprinted here with permission from the November 30, 2009 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.


Monday, November 30, 2009

INSURANCE

Two Roads Diverged

Trial courts split over joinder of UIM and third-party claims in post-Koken cases
By Daniel E. Cummins
dancummins@comcast.net

There are signs of a growing rift in trial court opinions on the issue of how consumers should bring third party claims against defendant-drivers when they also have a claim for uninsured or underinsured motorist benefits against their insurance carriers.

The discord appears between courts that have ruled insureds should be allowed to proceed in a consolidated fashion with a single action naming both the tortfeasor and the uninsured/underinsured motorist insurance carrier and those that have favored bifurcation.

To paraphrase Robert Frost’s poem, "The Road Not Taken," auto law litigators, who were initially wandering in the woods without guidance on how to approach these cases are now, with the newly created split in authority created by the current decisions, faced with "two roads diverged in a yellow wood” this fall.

It has now been nearly five years since the Pennsylvania Supreme Court handed down its decision in the case of Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken), 889 A.2d 550 (Pa. 2005), holding that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of uninsured and underinsured motorist benefits claims.

After that decision was handed down, many carriers quickly rid their policies of the expensive UM/UIM arbitration clauses, thereby requiring such claims to instead proceed by way of a lawsuit. The novel issue became whether these UM/UIM lawsuits were required to be pursued on a consolidated basis with the claim against the defendant-driver and any of the other types of claims that may arise out the same occurrence, i.e., the same motor vehicle accident.

While the first number of trial courts known to have addressed this issue ruled consistently in favor of the consolidation of these claims, recently, three court of common pleas decisions have come down, two from Butler County and one in York County, mandating the severance of the UIM claim from the third party liability claim when such claims are initially filed together in a single lawsuit.

Note that following review of the cases to date, while thorough, may not be exhaustive. Given this changing area of the law it is imperative that members of the bar do all they can to publicize any post-Koken decisions they may secure. One way to get the word out on new cases would be to notify the Pennsylvania Defense Institute or the Pennsylvania Association for Justice.

A CONSISTENT INITIAL LINE OF CASES

A number of the first decisions addressing this issue of consolidation of claims initially came out of the Lackawanna County and Allegheny County courts of common pleas. In Lackawanna County, Judge Carmen Minora allowed for the consolidation of a Koken-type case under Pa.R.C.P. 213, pertaining to consolidation or severance of cases, in Decker v. Nationwide Insurance Co., 83 Pa.D.&C.4th 375, 2007 WL 6853118 (2007)[see also companion decision: Decker v. Nationwide, 2008 WL 6653069 (Lacka. Co. 2008)]. Senior Judge Harold A. Thomson, Jr., then sitting in Lackawanna County, offered a similar opinion in the case of Moyer v. Harrigan and Erie Ins. Exchange, No. 1684-CV-2008 (2008). Lackawanna County Judge Robert Mazzoni also allowed for a UIM claim to proceed in a consolidated fashion with a bad faith claim in Augustine v. Erie Ins. Exchange, 2006-CV-416 (2008).

Similarly, in Allegheny County, consolidation of various first party and third party claims was approved by Judge Eugene B. Strassburger in Collins v. Zieler and State Farm, No. G.D. 08-014817 (2008) and by Judge R. Stanton Wettick in the case of Gunn v. Automobile Ins. Co. of Hartford, 2008 WL 6653070 (2008).

These cases were reviewed in detail in prior Law Weekly columns headlined "Here Comes Hurricane Koken,` 31 PLW 1165 (Oct. 27, 2008) and "Nothing to Fear But Fear Itself," 31 PLW 1214 (Nov. 10, 2008), the 2008 year-end review of auto cases in "Negligence is in the Air ... and on the Road," 31 PLW 1380 (Dec. 22, 2008), and "A Change of Habit," 32 PLW 566 (May 25, 2009). Updates on these issues also regularly appear on my blog, Tort Talk at www.torttalk.com (click on "Koken` under the Labels down on the right-hand column of the blog).

Generally speaking, a review of the above cases indicated that many of the trial courts of Pennsylvania were allowing for the joinder of these separate claims under Pa.R.C.P. 213 ("Consolidation") or Pa.R.C.P. 2229(b) ("Permissive joinder"). The underlying rationale was that since these post-Koken claims arose out of the same "transaction or occurrence," i.e., the same motor vehicle accident and involved similar factual and legal issues, they should be consolidated under one lawsuit. It also appeared that an overriding factor behind these first decisions was the principle of judicial economy, which favored streamlined, as opposed to piecemeal, litigation to handle the glut of anticipated new UIM lawsuits after Koken.

This initial trend of cases continued in other counties across the commonwealth. In Jannone v. McCooey and State Farm, 2009 WL 2418862, 2320-2008-Civil (C.P. Pike April 1, 2009), Pike County Judge Gregory H. Chelak denied the preliminary objections filed by the third party defendant-driver to the joinder of third party liability claim with the UIM claim under one caption or lawsuit. This court also went so far as to note, in what must be termed as dicta, that evidence of insurance may be introduced at trial for limited purposes as necessary in these types of consolidated cases.

Judge Carol K. McGinley of the Lehigh County Court of Common Pleas ruled similarly in the case of Serulneck v. Kilian and Allstate, 2008-Civil-2859 (C.P. Lehigh April 7, 2009). In that case, McGinley denied the motion of the tortfeasor defendant seeking a severance of the claims against him from the UIM claims that were set forth by the plaintiff under one caption. McGinley noted that "[t]he entire cause of action, whether sounding in tort or contract, arises from the same set of facts. Defendant Allstate will be prejudiced if excluded in any litigation which fixes its liability." As such, the Lehigh County court allowed the claims to proceed in a consolidated fashion.

In the Beaver County case of Six v. Phillips and Nationwide Ins. Co., 2009 WL 2418861, 12227-Civil-2008 (C.P. Beaver June 30, 2009), Judge C. Gus Kwidis overruled preliminary objections filed by the tortfeasor to the joinder of the third liability party claims and UIM claim in a single lawsuit. Similar to the Pike County decision in Jannone, this court also noted, in dicta, that evidence of insurance may come into evidence at trial for limited purposes.
In so ruling, Kwidis rejected arguments that the combined lawsuit would prejudice the defendant-driver by impermissibly allowing evidence of the insurance amounts in violation of Pa.R.C.P. 411 (prohibiting evidence of insurance during civil trials). Kwidis noted that, while evidence of insurance is ordinarily not permitted under Rule 411 to show that a defendant had coverage, the rule does allow evidence of insurance when it is offered for a separate, relevant purpose such as, in his opinion, for assisting the jury in determining whether or not a tortfeasor was underinsured in a post-Koken case.

Yet another decision in favor of allowing for the consolidation of post-Koken claims was issued by Judge Thomas Burke in Luzerne County. In the case of Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (C.P. Luzerne July 24, 2009), Burke rejected preliminary objections filed by the third party defendant driver seeking to sever the liability claim from the consolidated UIM claim filed in the same lawsuit.

More recently, Judge Todd Hoover issued a one-line order in the Dauphin County case of Gingrich v Esurance and Susan Graci, No. 08795-CV-2009 (C.P. Dauphin Nov. 2, 2009), denying the third party liability defendant’s preliminary objections to a complaint which joined the negligence and UIM causes of action under one caption.

Along the way, decisions were also handed down in the following cases where the trial court held that these types of post-Koken claims should proceed in a consolidated fashion under one caption: Richard Hess v. Cosgrove, C.P. Philadelphia, July Term, 2008, no. 3708; Kelly Hess v. Dickel, C.P. Philadelphia, October Term, 2008, no. 3220; Fuhrman v. Frye and State Farm, C.P. Dauphin Co., 2008 CV 17687; and Sellers v. Hindes and State Farm, C.P. Dauphin, 2009 CV 1989.

Thus, by last month there had been at least 15 post-Koken trial court decisions uncovered, all of which consistently ruled, or suggested that they would rule, in favor of allowing the liability claims and the UIM claims to proceed in a consolidated fashion under in a single lawsuit. Again, a common rationale of these decisions continued to be that claims arising out of the same occurrence should be litigated together as a means of furthering the interests of judicial economy and the avoidance of piecemeal litigation.

Concisely, those decisions came out of Lackawanna, Allegheny, Pike, Lehigh, Beaver, Luzerne, Philadelphia, and Dauphin Counties.

Then, within four days of each other in early November, entirely independent of each other, and without citing any of the above cases, three decisions were handed down by other Pennsylvania trial courts ruling, for the first time, that the claims presented in these post-Koken cases should be severed and handled as two entirely separate matters. There was now a split of authority on the issue and Pennsylvania auto law litigators were suddenly faced with "[t]wo roads diverged in a wood,” uncertain as to which road to follow.

THE ROAD LESS TRAVELED

First, Butler County Court of Common Pleas Judge Marilyn J. Horan issued an opinion and order Nov. 5, 2009, in the post-Koken case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (C.P. Butler Co. Nov. 5, 2009) that went against the trend of the number of prior trial court opinions from around the Commonwealth of Pennsylvania allowing third party claims against the tortfeasor to proceed in a consolidated fashion with the UIM claim under one lawsuit.

Before Horan's decision in Baptiste, her counterpart on the Butler County Court of Common Pleas, Judge S. Michael Yeager, likewise issued a decision severing the UIM claim from the third party claim in the case of Weichey v. Marten and Allstate, A.D. No. 09-10116 (C.P. Butler June 11, 2009). The rationale for that decision was that, generally, evidence of insurance was not admissible in negligence actions. Horan would later expound on that rationale in much greater detail in her opinion in Baptiste.

In Baptiste, the defendant driver was allegedly drunk driving at the time of the accident and it was the UIM carrier, State Farm, that filed preliminary objections against the joinder, presumably to avoid having to face a jury inflamed by the DUI status of the tortfeasor. The court granted the UIM carrier’s preliminary objections filed under Pa.R.C.P. 1028(a)(5), "misjoinder of a cause of action" and severed the claims from each other. The UIM carrier’s additional request that the UIM claim be stayed pending the resolution of the third party action was also granted by Horan.

In its opinion, the court in Baptiste did not cite or review any of the above number of prior trial court opinions from around the commonwealth that have essentially all held that a third party claim and a UIM claim can and should be consolidated under one caption.

In granting the UIM carrier’s preliminary objections, the court accepted argument that keeping an insurance company in as a defendant in a negligence action also involving the third party tortfeasor would violate Pennsylvania Rule of Evidence 411, which generally precludes the admission of evidence of insurance in civil litigation matters.

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

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

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

In Baptiste, the plaintiff’s argument for the permissive joinder of claims under Pa.R.C.P. 2229(c), pertaining to the joinder of claims arising out of the same transaction or occurrence, was rejected by the Butler County Court of Common Pleas. The court again indicated that the joinder of these claims would improperly inject irrelevant and prejudicial insurance issues in the negligence portion of the case against the tortfeasors. The court felt that, even though the severance would require a second trial on the same issues of liability and damages, undue prejudice to the tortfeasor defendant would be avoided by severing the cases into two separate matters.

Horan also rejected the plaintiff's arguments in favor of judicial economy and the goal of avoiding inconsistent verdicts. The court felt that the consideration of whether the joinder would interfere with a just determination of the matter for all parties was of a higher priority than those other interests.

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

Accordingly, the court felt that a severance of the third party liability claim from the UIM claim was appropriate and, consequently, the court granted the UIM carrier’s preliminary objections in this regard as well. Not only were the UIM claims were severed by the court in Baptiste, but Horan took the additional step of staying the UIM claim pending the resolution of the third party liability negligence claims.

ANOTHER DECISION IN FAVOR OF SEVERANCE

A few days after Baptiste was handed down in Butler County, York County Judge John H. Chronister issued a similar decision in a Nov. 9, 2009 opinion and order in the case of Grove v. Uffelman and Progressive Ins. Co., 2009 WL 3815756, No. 2009-SU-2878-01 (C.P. York Nov. 9, 2009).

In that case, the third party tortfeasor objected to the plaintiff’s complaint on the grounds that the joinder of these two types of claims was improper in that they did not arise out of the same transaction and given that the introduction of insurance issues would prejudice the defendant-driver on his side of the case.

The plaintiff countered with the argument that the claims did indeed arise out of the same transaction or occurrence and also asserted that judicial economy would be furthered and inconsistent verdicts prevented by a litigation of these claims in a single lawsuit. The plaintiff also argued that the insurance problem could be avoided at trial by simply not mentioning insurance and referring to the issue by some other name.

Chronister chose to side with the third party tortfeasor's arguments in Grove and, as a result, ordered a severance of the cases.

Chronister viewed the two claims as involving separate transactions — a tort claim based on negligence against the defendant-driver and a contract claim against the UIM carrier to enforce the plaintiff's rights under the policy.

The York County judge also emphasized that his decision was largely influenced by the insurance issue. He noted that, by advising the jury that the plaintiff was pursuing an UIM claim, it followed by definition that the jury may conclude that the defendant-driver had insufficient liability insurance, which would be "a violation of the prohibition against the jury knowing about the Defendants' insurance coverage."

Chronister also noted that, "[e]ven worse," the claim for UIM benefits advises the jury that there is a second insurance company involved as a source for payment, "potentially causing the jury to award an increased amount of damages." He also cautioned that such information about the availability of additional UIM insurance coverage to take care of the plaintiff’s verdict may also leave the jury with the incorrect assumption that the tortfeasor defendant would not remain personally responsible for any verdict in excess of the tortfeasor's liability limits.

The court in Grove also did not think it was feasible to allow the claims to remain consolidated and somehow keep the insurance issue away from the jury as suggested by the plaintiff.

Chronister noted that the very fact that the insurance company is named in the caption triggers the concerns that prevent insurance from being mentioned in civil litigation matters as a matter of law. He also noted that "it is always best to tell the jury exactly what is happening, and not camouflage the situation unless it can't be avoided."

The judge also noted, "[m]ost importantly," that if the plaintiff's procedure of consolidated claims was adopted as a general rule, UIM carriers may potentially be forced to unnecessarily participate in pleadings, discovery, and trials in cases where the UIM coverage is never reached either because a defense verdict is entered in favor of the defendant-driver or an award is given that is below the defendant-driver's liability limits.

As such, the court granted the defendant-driver's preliminary objections and severed the two claims presented.

NO APPELLATE GUIDANCE TO DATE

To date there does not appear to be any appellate decisions providing guidance on the consolidation issue in a post-Koken case.

In its April 15, 2009, opinion in Gunn v. Auotomobile Ins. Co. of Hartford, 2009 WL 1001029 (Pa.Super. 2009), the Superior Court refused an opportunity to address a post-Koken UIM case for the first time on the grounds that the appeal before them had to be quashed given that the trial court order appealed from was not a collateral order that was subject to a permissible appeal.

The underlying case in Gunn, involved a plaintiff pursuing a combined UIM claim and bad faith claim under a single caption in a post-Koken case. Allegheny County Court of Common Pleas Judge R. Stanton Wettick had ruled in favor of consolidation.

As for any other appellate decisions in a post-Koken case, it is parenthetically noted that on Nov. 9, 2009, the Pennsylvania Superior Court did issue an opinion upholding Liberty Mutual Insurance Group's forum selection clause in the post-Koken underinsured (UIM) case of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 Pa.Super. 214 (Nov. 9, 2009, Judges Freedberg, Cleland and Kelly).

In O’Hara, a Delaware County resident was injured in a Delaware County accident but brought suit against the UIM carrier in Philadelphia County. The Superior Court upheld the trial court’s transfer of that case to Delaware County. The consolidation issue was not involved or addressed in this case as the plaintiff had already previously settled out with the defendant-driver and, therefore, the tortfeasor was not included in this suit that was solely filed against the UIM carrier.

Unfortunately, it appears unlikely that any appellate decisions may be forthcoming in the near future to address this split of authority in the Pennsylvania trial courts. In order to get to the Superior Court on the consolidation issue, typically raised in preliminary objections, it appears that the trial court would have to grant permission for such an interlocutory appeal. Securing such permission is difficult.

As such, with these two recent post-Koken cases going the other way on the issue, "two roads diverged in a wood” and Pennsylvania litigators are unable to "travel both and be one traveler.” Rather, they must, instead, choose to continue down the one road which supports the position advocated. Until appellate guidance is provided, counsel will have to hope they have correctly chosen the road "that has made all the difference” in terms of enabling them to prevail on the issue of consolidation versus severance of claims in post-Koken cases.


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com.

Luzerne County Judge Michael Toole to Plead Guilty and Resign from Bench

According to an article by Dave Janoski in the Citizens Voice, Luzerne County Court of Common Pleas Judge Michael Toole will be pleading guilty to fraud charges and will resign from the bench. Toole faces up to 23 years in prison.

According to an announcement from the U.S. Attorney's office earlier today, Toole has agreed to plead guilty to federal charges of honest services fraud and filing a false income tax return.

The criminal complaint against Toole alleges that Toole secretly communicated with an attorney to detemine who that attorney wished to have appointed as a netural arbitrator in an underinsured motorist case. The attorney, who is identified only as participant #1, had allegedly given Toole free use of a New Jersey beach house. Toole allegedly failed to disclose that information to other parties involved in the arbitration case.

Toole is also charged with failing to report in his 2006 income tax return approximately $30,000 he allegedly received as a referral fee from another attorney.

Toole is the third Luzerne County Judge and 20th person overall to be charged in the ongoing corruption probe by the U.S. Attorney's Office.

The Citizen's Voice website (http://www.citizensvoice.com/) has posted the charges and the plea agreement. The can be accessed by clicking on these links:

Read the charges
Read the plea agreement

Luzerne County Judge Michael Toole to Plead Guilty and Resign from Bench

Toole will plead guilty to fraud, resign from bench
BY DAVE JANOSKI, PROJECTS EDITOR Published: December 2, 2009 Font size: [A] [A] [A]
e-mail this share this
';
newdiv.innerHTML = imgContent;
document.body.appendChild(newdiv);
//-->
}


Toole
$(function() {
$('a.1273016_gallery_1_266612').lightBox({
imageLoading: '/img/lightbox/lightbox-ico-loading.gif',
imageBtnClose: '/img/lightbox/lightbox-btn-close.gif',
imageBtnPrev: '/img/lightbox/lightbox-btn-prev.gif',
imageBtnNext: '/img/lightbox/lightbox-btn-next.gif',
imageBlank: '/img/lightbox/lightbox-blank.gif'
});
});

Luzerne County Judge Michael T. Toole has agreed to plead guilty to fraud and resign from the bench for concealing a financial relationship with an attorney who appeared before him and ruling in that attorney's favor, federal officials announced today. Toole will also plead guilty to failing to report more than $30,000 in income, they said.
Toole, 49, faces up to 23 years in prison on the charges.
Read the charges
Read the plea agreement
The U.S. Attorney's Office alleged Toole ruled in the unnamed attorney's favor in a case involving a vehicle insurance arbitration. Toole is also accused of concealing a $30,000 cash referral fee in 2006 and failing to report it on his tax return.
Toole, who announced last month that he would take vacation for the first half of December, could not immediately be reached for comment.
Toole is the third county judge and 20th person charged in an ongoing federal corruption probe.

New Westlaw Citation for Recent Post-Koken Case

Westlaw has published and provided a citation for the following recent post-Koken case:

Weichey v. Marten and Allstate, 2009 WL 3869663, 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).


Thanks to Attorney James Beck of the Philadelphia office of the Dechert Law Firm for securing this citation from Westlaw.

Judge Wettick Discusses Discovery Issues in Consolidated Post-Koken Case

In his recent Opinion in the case of Wutz v. Smith and State Farm Ins. Co., No. GD07-21766 (Allegheny Co., Sept. 9, 2009, Wettick, J.), Judge R. Stanton Wettick established a discovery timetable for the production of the UIM claims file in a case involving both a breach of contract claim against State Farm for failure to pay underinsured motorist benefits and a bad faith claim against State Farm based on allegations that the carrier's failure to handle the UIM claim in good faith violated 42 Pa.C.S. §8371. The case was, therefore, essentially a UIM claim and a bad faith claim brought under one caption.

As part of his bad faith discovery efforts, the plaintiff filed a motion to compel the carrier to produce its UIM claims file. The plaintiff was seeking information in terms of how the UIM carrier was formulating its evaluation of the claim presented.

Judge Wettick noted that the information which plaintiffs sought was only relevant to the bad faith claim.

Referring to his own prior decision in Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008), Judge Wettick noted that he had stated therein "that a court, in its discretion, will not necessarily permit discovery of all information in the files of the insurance company relevant to the bad faith claim. The insurance company should have the opportunity to show that discovery of certain information relevant to the bad faith claim will unduly prejudice the insurance company in its defense of the UIM claim."

In this case, counsel for State Farm argued that the carrier would be prejudiced in terms of the negotiations and the trial on the UIM side if it was required to preliminarily produce its UIM claims file for review by the plaintiff. State Farm argued that allowing for such discovery "would be akin to requiring the defense in a football game to furnish its defensive formation for the upcoming play to the plaintiff before the plaintiff selected the play that it would call."

Judge Wettick agreed with the State Farm argument and held that the UIM claims file need not be produced in these types of cases until after the UIM portion of the claim is submitted to the jury. Once the case is submitted to the jury, the UIM carrier would be required to produce the discovery for an in camera review by the court. As held in the Gunn case, Judge Wettick again noted that once the jury came back with a verdict on the UIM claim, the case could move right into the non-jury bad faith proceedings before the same trial judge.

Judge Wettick also noted that a plaintiff could move for a stay of the trial under Pa.R.C.P. 213 in those cases where the plaintiff had insufficient time to review the carrier's UIM file and prepare for the immediate bad faith trial or where the plaintiff can otherwise establish to the court that the case cannot be tried immediately.

At the conclusion of his opinion, Judge Wettick also held that that carrier need not produce those documents protected by the attorney-client privilege as long as the carrier was not raising advice of counsel as a defense to the bad faith claim.


Anyone wishing to secure a copy of this case may email me at dancummins@comcast.net.