Tuesday, June 22, 2010

Post-Koken Decision Out of Northampton County in Favor of Consolidated Claims

In a June 21, 2010 Order and well-written Opinion, Judge Anthony S. Beltrami of the Northampton County Court of Common Pleas denied a third party tortfeasor defendant's motion to sever the third party liability claims from the UIM and UM claims asserted in the post-Koken case of Firoozifard v. Krome and State Farm, No. C-48-Civil-2009-14369 (Northampton Co. June 21, 2010 Beltrami, J.).

In Firoozifard, the court treated the tortfeasor defendant's Preliminary Objections as a Motion to Sever under Pa.R.C.P. 213(b) since it did not appear that the defendant was arguing that the Complaint violated the applicable permissive joinder rules under Pa.R.C.P. 2229(b).

Rather, the tortfeasor defendant was solely arguing that, by virtue of the joining of the negligence claim against him with the UM and UIM claims against the insurance company, evidence concerning the tortfeasor's automobile insurance would be introduced into the case at trial in violation of Pa.R.E. 411 (prohibiting evidence of insurance in negligence matters). The tortfeasor defendant argued that this scenario required that the claims be severed. Judge Beltrami disagreed.

Judge Beltrami wrote that while Pa.R.E. 411 states that evidence that a person did or did not have liability insurance is not admissible on the issue of whether that person acted negligently, the same rule also states that evidence of liability insurance is not required to be excluded when such evidence is "offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness." See Pa.R.E. 411.

The court in Firoozifard noted that, in this context, evidence of the tortfeasor defendant's insurance coverage would not be offered in any way to establish his negligence, but rather "to establish State Farm's contractual duty to provide UIM benefits to Plaintiff, as State Farm is entitled to a credit in the amount of [the tortfeasor's] coverage before it is required to pay damages to Plaintiff under its policy." Accordingly, the court ruled that severance was not required by an application of Pa.R.E. 411.

Judge Beltrami also rejected the tortfeasor's argument that the introduction of evidence pertaining to the tortfeasor's liability insurance would be prejudicial and would fail the balancing test required by Pennsylvania Rule of Evidence 403, pertaining to the relevancy of evidence. Rule 403 states that evidence may be excluded if its probative value is outweighed by "the danger of unfair prejudice."

The court stated that evidence of the tortfeasor's liability insurance was "clearly probative" or relevant to determining State Farm's contractual duty to pay UIM benefits to the Plaintiff.

The tortfeasor argued that the admission of evidence pertaining to his liability coverage was "prejudicial in that it may cause the jury to shirk their responsibility as finders of fact and instead recklessly award damages they presume will be paid by an insurance company."

Judge Beltrami noted that severance was still not required as the danger of any potential prejudice to the tortfeasor could be "eliminated" by steps taken by the court at trial.

For example, the judge noted that the caption could be presented to the jury in a fashion that prevents State Farm from being identified. He also noted that "the trial judge can also require evidence of [the tortfeasor's] insurance to be presented outside the presence of the jury to be used solely for the purpose of molding the jury's verdict."

The court concluded its analysis by also acknowledging that keeping all of the claims of this post-Koken case together in a consolidated fashion "will save judicial resources, avoid unnecessary delay and expense, and guard against inconsistent verdicts."

For these reasons, Judge Beltrami held that the tortfeasor defendant's motion to sever should be denied.

I will add this case to the Post-Koken Scorecard in short order. This synopsis of the post-Koken cases may be accessed at any time by clicking on the link to it down on the right hand column of this blog. Please be reminded that this compilation of post-Koken cases, while thorough, may not be an exhaustive listing of all of the decisions that may be out there. I can state that I am still unaware of any appellate decision addressing this issue.

Also, keep an eye out for my next two articles in the Pennsylvania Law Weekly which will review the cases handed down on this issue around the Commonwealth. The first article, set to appear next week will review the "ordinary" post-Koken cases involving third party claims and UIM claims. The second article will appear next month and will cover this issue in post-Koken cases involving bad faith claims.

If you are a "Tort Talker" who has been following Tort Talk all along, these articles will probably sound like old news to you and will hopefully give you a sense and good feeling that you are on top of the law in this context.


Anyone desiring a copy of the Firoozifard Opinion and Order summarized above may contact me at dancummins@comcast.net.

I thank Attorney Ed Shaughnessy of the Law Office of Edward P. Shaughnessy in Easton, Northampton County, Pennsylvania for forwarding this case to my attention.

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