Thursday, July 8, 2010

A Few More Post-Koken Cases Brought to My Attention

Clinton County: Consolidation of Post-Koken claims favored

On June 3, 2010, Judge J. Michael Williamson, President Judge of the Clinton County Court of Common Pleas issued an Order, without opinion, in the post-Koken case of Wentzel v. Swinehart and State Farm, No. 375-10 CV (June 3, 2010, Williamson, P.J.) in which he 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. In so ruling, Judge Williamson cited the Gunn v. Hartford, 2008 W.L. 6653070, GD 07-Civil-002888 (Alleg. Co. July 25, 2008, Wettick, J.).

I thank Attorney Stuart Hall, from Lock Haven, Pennsylvania for forwarding the case to my attention.

Anyone desiring a copy of the Wentzel Order may contact me at dancummins@comcast.net.



Philadelphia County: Another decision by Judge Tereshko in favor of severance

In another post-Koken decision I have been made aware of, Judge Allan L. Tereshko issued an Order back on May 10, 2010 in the case of Thomas v. Titan Auto Ins., Nationwide Ins. Co., Jones, and Briel, March Term 2010 No. 03050 (May 10, 2010, Tereshko, J.). Consistent with his prior rulings in the same context (see Post-Koken Scorecard), Judge Tereshko 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.

The case was transferred under Pa. R.C.P. 1006 (pertaining to proper venue) as the place of the accident was in Montgomery County and the Plaintiffs and the individual Defendants all resided in Montgomery County at the time of the motor vehicle accident. The decision to transfer was not based upon any forum selection clause as I have been informed that the Nationwide policy does not contain any form selection clause.

I have also been informed that the Plaintiff has filed an appeal from this decision. Currently, the case is still at a stage where the Plaintiff is required to file their concise statement of matters complained of on appeal.

I thank Attorney Victor Verbeke of the Conshohocken law firm of Snyder & Verbeke, in-house counsel for Nationwide, for forwarding this case to my attention.

Anyone desiring a copy of the Court Order issued in the Thomas case may contact me at dancummins@comcast.net.


Montgomery County: forum selection clause upheld

On June 30, 2010, Judge Bernard A. Moore of the Montgomery County Court of Common Pleas issued an Order without Opinion granting the Preliminary Objections of Progressive Direct Insurance Company in the case of Dunne v. Closs, Progressive, et al., No. 09-38446 (Montg. Co. June 39, 2010, Moore, J.), which involved both a post-Koken severance issue and a claim of improper venue.

In Dunne, the Plaintiffs were allegedly injured in an accident that occurred in Northampton County. The Plaintiffs, who were residents of Monroe County, filed a lawsuit in Montgomery County, where the owner and operator tortfeasor defendants resided.

The lawsuit included negligence claims against the alleged tortfeasors and a claim for underinsured motorist (UIM) benefits against Plaintiffs' carrier, Progressive.

Both the alleged tortfeasors and the UIM carrier filed motions to sever the tort claims from the contract claims against the UIM carrier. Progressive also moved for enforcement of the forum selection clause contained in its policy. The Progressive forum selection clause required that any legal action brought against the carrier on behalf of an insured person must be brought in the state or federal court serving the county of residence of the insured (in this case, Monroe County).

In pursuing the forum selection clause argument, Progressive relied primarily on the case of O’Hara v. The First Liberty Insurance Corp., 984 A.2d 938 (Pa.Super. 2009), appeal denied, 995 A.2d 354 (Pa. May 3, 2010), for its position that its forum selection clause supercedes the venue rules.

Judge Moore granted Progressive's Preliminary Objections and dismissed all claims against Progressive without prejudice to the Plaintiffs' right to re-file in Monroe County or the Middle District.

A tip of the hat to the prevailing defense attorney, Chuck Stokes, Esquire of the Bethlehem/Scranton office of the Forry Ullman law firm for bringing this case to my attention.

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.


With the addition of these two decisions to the Post-Koken Scorecard, there are now at least 24 decisions in favor of the consolidation of post-Koken claims and 18 in favor of severance. The Post-Koken Scorecard may be viewed by scrolling down the right-hand column of the blog and clicking on the date under the "Post-Koken Scorecard" link.

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