Wednesday, March 24, 2010

Pennsylvania Supreme Court Rejects Appeal in Pusl v. Means

Here is a link to the March 23, 2010 Order of the Supreme Court denying the Petition for Allowance to Appeal in the case of Pusl v. Means: http://www.aopc.org/OpPosting/Supreme/out/512wal2009.pdf.

Pusl was the case in which the Superior Court held that, where an injured party from an automobile accident secures a UIM recovery first, the third party tortfeasor defendant is entitled to a credit against any verdict entered him or her in the amount of any UIM recovery received by the injured party so as to prevent a double recovery by the injured party at trial.

For example, in Pusl, the plaintiff settled the UIM claim prior to trial for $75,000 and went on to secure a jury verdict of 100,000 against the tortfeasor. Since there was no evidence of whether subrogation was waived by the plaintiff when the UIM claim was resolved, the Superior Court molded the verdict to 25,000.

For further analysis of the Superior Court's decision in Pusl, here is a link to my prior posting summarizing that opinion: http://www.torttalk.com/2009/10/monumental-uim-decision-issued-by.html.

It is anticipated that plaintiff's attorneys will now take the strategy of either accepting an assignment of the UIM subrogation rights for consideration or will refrain from getting consent and waiver of the UIM carrier. Plaintiff's attorneys may also be seeing the Pusl case as an additional reason that one would need to join the third party and UIM carrier in the same case, especially where the same carrier is involved on both sides.

Here's a tip for defense counsel. Although the Superior Court in Pusl indicated it was not required, out of an abundance of caution, it may be wise to plead in the New Matter the entitlement to a credit against the jury verdict in the amount of any UIM award previously secured by the Plaintiff.

This is the language I have been using recently:

"The answering Defendant(s) is/are entitled to a credit or offset in the amount of any uninsured (UM) or underinsured (UIM) settlement, award, or recovery secured by the Plaintiff relative to the same motor vehicle accident that is the subject of this litigation in the above-captioned action."

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