Saturday, July 17, 2010

UIM Carrier Permitted To Join Third Party Tortfeasor Into Post-Koken Lawsuit

Addressing an apparently novel scenario in the post-Koken context, Federal Middle District Court Judge A. Richard Caputo allowed a UIM carrier to join the third party tortfeasor into a Federal post-Koken lawsuit as a third party defendant in the case of Oswald v. State Farm, No. 3:09-CV-2578.

By way of background, this case arose out of a motor vehicle accident that happened on June 30, 2007, in New Jersey. The Plaintiffs, who were residents of Pennsylvania, brought a third party suit against the tortfeasor in New Jersey.

The Plaintiffs also filed a Federal lawsuit in the Middle District of Pennsylvania asserting a contractual UIM claim, together with a bad faith claim, against defendant State Farm, the Plaintiffs' UIM carrier.

State Farm sought to join the tortfeasor as a third party defendant in the Federal UIM and bad faith claim in order to seek subrogation for any payment that State Farm might be contractually bound to pay.

The Plaintiff objected to State Farm's Motion to Join the tortfeasor as a third party defendant on the basis that an insurance company may not intervene in an action between the insured and the tortfeasor.

Judge Caputo rejected that argument on the ground that State Farm was not seeking to intervene in an action between the insured and a third party. Rather, State Farm was already a party to this suit and is seeking to join a non-party, the tortfeasor, into the UIM-bad faith action.

The Plaintiff also argued that allowing State Farm to join the tortfeasor would lead to confusion of issues for the jury. This argument was rejected by the Court.

The Plaintiff also argued the danger of potentially inconsistent verdicts in light of the separate New Jersey action claimed against the tortfeasor. The Oswald Court also rejected this argument on the ground that collateral estoppel or the claim preclusion doctrine would protect against any attempt to re-litigate any issue previously decided in whichever forum was litigated first.

Accordingly, the Court granted the UIM carrier's motion to join the tortfeasor as a third party defendant.

My partner, Attorney Timothy E. Foley is the defense counsel on the UIM portion of the claim. Attorney Jordan Koko of Bennett, Bricklin & Saltzburg, LLC, of Philadelphia, was retained to represent State Farm in the bad faith action. The Motion to Join the tortfeasor was prepared and filed by Attorney Koko.

I thank my partner, Attorney Tim Foley of Foley, Cognetti, Comerford, Cimini & Cummins, for bringing this decision to my attention and providing the explanatory background noted above.

Anyone desiring a copy of this Opinion may contact me at

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