Friday, September 17, 2010

A New Twist in a Post-Koken Case

Tort Talkers may recall that I reported on the Philadelphia County Post-Koken proper venue case of Thomas v. Titan Auto Ins. Co., and Nationwide, et al., March Term 2010, No. 03050 (Phila. Co. May 10, 2010 Tereshko, J.). Here's the link to that July of 2010 blog post:

The case was transferred by the court from Philadelphia County to Montgomery County 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 Plaintiff had attempted to file in Philadelphia County under the argument that the insurance carriers did business in that jurisdiction, thereby allegedly giving rise to proper venue. 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.

That case is going up on appeal and, on September 16, 2010, Judge Tereshko issued his Rule 1925 Opinion, explaining the rationale for his decision and revealing a surprising twist.

In the court's original Order dated May 10, 2010, the trial judge "ordered that this matter is transferred to Montgomery County." Judge Tereshko further ordered that the uninsured motorist claims asserted in Counts V and VI of the Complaint (against Titan/Nationwide) were "severed and will be tried separately."

It is my understanding that both the defense counsel and the plaintiff's counsel read the original Order to mean that the entire matter was transferred out of Philadelphia and over to Montgomery County.

However, in the court's Rule 1925 Opinion, the Judge ruled that ONLY the third party liability case against the tortfeasors should be transferred to Montgomery County.

Judge Tereshko upheld his severance of the claims but ruled that the uninsured motorist claims against Titan/Nationwide, although severed from the third party case, would stay in Philadelphia County as that was a proper venue for claims against those defendants.

Judge Tereshko's Opinion is also of note in that he agrees that Post-Koken third party cases and UM/UIM claims should not be tried together in part because the introduction of "insurance" issues into the jury trial violate Pennsylvania Rule of Evidence 411 and would be unduly prejudicial to the tortfeasor defendant under the relevancy test found under Pennsylvania Rule of Evidence 403.

The Judge also rejected the Plaintiff's argument that the claims should be allowed to stay together under the Joinder Rules found in Pa.R.C.P. 2229 that allow claims arising out of the same transaction or occurrence to be joined together in a single lawsuit. Judge Tereshko viewed the third party claims as being grounded in negligence and the uninsured motorist claims being grounded in contract law and cited a line of non-Post-Koken cases to support his conclusion that a joinder of these claims would be inappropriate.

Anyone desiring a copy of Judge Tereshko's Rule 1925 Opinion and/or his original May 10, 2010 Order may contact me at

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