Thursday, September 2, 2010

Another Trial Court Decision Upholding Denial of UIM Claim Under Exclusivity Provision of Worker's Compensation Act (Judge Terrence Nealon)

In my last posting on Tort Talk, I publicized Judge Hertzberg's decision in the Allegheny County case of Erie Ins. Exchange v. Conley, No. GD 09-21471 (Alleg. Co. Aug. 27, 2010, Hertzberg, J.), in which the court granted a motion for judgment on the pleadings in favor of the carrier in a post-Koken lawsuit for UIM benefits on the basis that the exclusivity provision of the Worker's Compensation Act.

Yesterday, I also learned that Judge Terrence Nealon issued his own decision on the same issue on the same day--and with the same result--in the case of Petrochko v. Nationwide, No. 07 CV 7113 (Lacka. Co. Aug. 27, 2010, Nealon, J.). In granting the motion for summary judgment in favor of the UIM carrier, Judge Nealon noted that the issue presented had not been previously addressed by any appellate court in Pennsylvania.

In Petrochko, the injured party was struck by a vehicle operated by her co-worker while both individuals were within the scope and course of their employment. The injured party obtained worker's compensation benefits and then turned to her own personal automobile insurance policy with Nationwide in an effort to secure an additional recovery for her personal injuries.

Judge Nealon's analysis of the issue presented led him to conclude that the exclusivity provision of the Worker's Compensation Act precluded a claim for UIM benefits where the party that injured the Plaintiff was the Plaintiff’s employer (or co-employee). The court held that worker’s compensation benefits were the exclusive remedy for such injured parties.

The basic rationale of both Judge Nealon and Judge Hertzberg in their respective Opinions was aptly put by Judge Nealon in Petrochko, as follows:

"Pennsylvania law and the insurance policy at issue limit UIM coverage to insureds who “are legally entitled to recover damages” from the underinsured tortfeasor. Since the negligent motorist in this case is immune from negligence liability to the insured employee due to the exclusive remedy provision of the Workers’ Compensation Act, the employee is not entitled to recover compensatory damages from the underinsured tortfeasor. As such, the employee is ineligible to collect UIM benefits under 75 Pa. C.S. §1731(c) and the applicable policy."

Both Judge Nealon and Judge Hertzberg have noted in their respective decisions that, where the tortfeasor is a third party not associated with the injured party's employment, UM/UIM benefits may be pursued under appropriate circumstances.

Anyone desiring a copy of Judge Nealon's decision in Petrochko v. Nationwide or Judge Hertzberg's decision in Erie Ins. Exchange v. Conley may contact me at

As an aside, I note that this blog post truly shows the beauty of Tort Talk--a quick publication of two important decisions from trial courts on opposite ends of the Commonwealth within days of them being handed down.

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