Thursday, January 21, 2010

Post-Koken Update: Adams County Court of Common Pleas Rules in Favor of Severance of Claims

In a January 15, 2010 Opinion and Order in the post-Koken case of Megert v. Stambaugh, Erie Ins. Co., and The Hartford, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.), President Judge John D. Kuhn of the Adams County Court of Common Pleas 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.

In his Opinion, Judge Kuhn, apparently aware of at least some of the other cases previously handed down across the Commonwealth on this issue, chose to compare and contrast the rationale of the Pike County Court of Common Pleas in the case of Jannone v. McCooey and State Farm,2009 WL 18862 (Pike Co. 2009, Chelak, J.) (in favor of consolidation) and the decision of the Butler County Court of Common Pleas in 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)(in favor of severance).

In doing so, the Adams County President Judge sided with and adopted the minority rule stated in the Baptiste case in favor of severing such claims primarily on the grounds that the claims of negligence against the tortfeasor were misjoined with the contract claims against the UIM carriers in violation of Pa.R.C.P. 2229 and should therefore be severed under Pa.R.C.P. 213.

Judge Kuhn also felt that severing these claims would be consistent with the prior analogous appellate decision of Stokes v. Loyal Order of Moose Lodge #696, 466 A.2d 1341 (Pa. 1983). That case involved a plaintiff who pursued a negligence claim for injuries resulting from a chair collapsing under the plaintiff. The defendant in that matter attempted to join his own insurance carrier as an additional defendant, alleging a breach of contract action for failing to defend and indemnify him. Finding that the negligence claim and the breach of contract claim did not arise out of the same transaction or occurrence, the Supreme Court in Stokes did not allow the joinder.

President Judge Kuhn also noted that his decision to sever was also consistent with his own prior decision in the case of Michaleski v. National Indemnity Co., et al.,2009-SU-1529 (Adams Co., Dec. 22, 2009, Kuhn, P.J.). In Michaleski, Judge Kuhn again relied upon the Stokes decision to find that a plaintiff had improperly joined a motor vehicle negligence claim with the plaintiff's declaratory judgment action against the plaintiff's own insurance company.

As he did in the prior case of Michaleski, Judge Kuhn again rationalized in the Megert case that, although the claims arose out of the same car accident, the facts and the law relevant to the negligence claim and the contract claim against the carrier would be "very different" and can not be said to have arisen out of the same transaction or occurrence.

The Judge further noted that "[a]lthough there is clearly case law from other jurisdictions to support Plaintiffs' arguments [in favor of consolidation of post-Koken cases], this issue has not been conclusively decided by the appellate court in Pennsylvania." As noted, Judge Kuhn believed that "the better reasoned decision is to grant Defendant's preliminary objection" and to sever the cases.

As additional support for his decision, President Judge Kuhn also agreed with the Baptiste reasoning that the claims should be severed so as to avoid the undue prejudice to the tortfeasor defendant that may result from the introduction of insurance issues in a negligence trial. He felt that any probative value of the evidence of insurance in these matters would be outweighed by the unfair prejudice to the tortfeasor defendant in violation of the Rules of Evidence.

Accordingly, the Adams County Court granted the tortfeasor Defendant's preliminary objections to the joinder of the claims and also granted the Defendant's motion to sever.

With this update, there are now at least nineteen (19) cases across the Commonwealth in favor of consolidation of post-Koken claims. Those cases arise out of Lackawanna County, Luzerne County, Pike County, Lehigh County, Dauphin County, Beaver County, Philadelphia County, and Allegheny County.

There are now at least four (4) cases in favor of severance, with those decisions coming out of Adams County, Butler County, and York County.

I invite you to click on the "POST-KOKEN SCORECARD" down on the right-hand column of this blog to review summaries of these court decisions. Note that the review is not meant to be exhaustive; it only contains those cases I have uncovered or have been made aware of to date.

I would appreciate being advised of any other cases you may be aware of in this area so that the cases can be publicized and a consistent common law be created someday.

It also remains my hope that some trial court judge somewhere across the Commonwealth will allow one of these consolidation vs. severance Post-Koken cases to go up on an interlocutory appeal by permission so that the appellate courts can address the split of authority and provide guidance to the bar on how to handle these cases in the future.

Anyone desiring a copy of the Megert v. Stambaugh, Erie, and The Hartford decision, as well as Judge Kuhn's other referenced decision of Michaleski v. National Indemnity Co. may contact me at

I thank Attorney Candace N. Edgar of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie, & Skeel, P.C. for bringing this case to my attention.

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