Wednesday, July 28, 2010

A Post-Koken (Sort of) Decision from Lancaster County in Favor of Severance of Claims

On July 22, 2010 Judge Margaret C. Miller of the Lancaster County Court of Common Pleas issued an Opinion and Order only in the case of Burton v. Burton and USAA, No CI-09-09343 (Lanc. Co. , Miller, J.) granting a tortfeasor's preliminary objections filed by both the tortfeasor and and the first party carrier arguing a misjoinder of actions.

As a result of this decision, the negligence claim asserted against the tortfeasor was severed from the breach of contract claim asserted by the Plaintiff against his own carrier related to a denial of first party medical benefits following a peer review. The court ruled that these two separate causes of action did not arise out of the same transaction or occurrence to allow them to be joined together under one suit pursuant to Pa.R.C.P. 2229(a).

As part of the rationale of her decision, Judge Miller also noted that allowing the cases to remain together may have brought the issue of "insurance" in front of the jury during the trial of the negligence claim of the tortfeasor in violation of Pennsylvania Rule of Evidence 411.


I thank Attorney Brigid Q. Alford of the Harrisburg office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.

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

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