Friday, October 8, 2010

Another Philadelphia County Post-Koken Case Transferred Out for Improper Venue

In the post-Koken case of Kochergina v. Liberty Mutual Ins. Co., et al., August Term 2010, No. 2880 (Phila. Co. October 1, 2010 Moss, J.), the court granted the tortfeasor's defendant's Preliminary Objections based upon an allegation of improper venue. The court ordered case transferred to Bucks County with all cost to be borne by Plaintiff. Judge Moss also ruled that the decision on the remainder of the Defendants' Preliminary Objections were deferred and left to be decided by the Bucks County Court of Common Pleas.


By way of background, the Plaintiff, Tatyana Kochergina, instituted this lawsuit to recover for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on or about August 22, 2008.

The Plaintiff and the tortfeasor Defendant both resided in Bucks County, the auto accident occurred there, and the Defendant was served in Bucks County. Nevertheless, the Plaintiff filed suit in Philadelphia, asserting that venue was proper there because the UIM carrier Defendant, Liberty Mutual, conducted business in Philadelphia.

The following issues were a few of those presented in in the Preliminary Objections filed by the tortfeasor Defendant in this matter:

a. Whether venue in Philadelphia County is inappropriate because the only basis for venue in this County is that plaintiff instituted a UIM claim against Liberty Mutual Insurance Company and alleges that Liberty Mutual conducts business in Philadelphia County, but Liberty Mutual and driver Evan Thaler are not “joint tortfeasors,” thus Pa.R.C.P. 1006 (c)(1) is not applicable, and defendant Thaler cannot be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier, but not against him?

b. Whether defendant Thaler will be unfairly prejudiced when plaintiff seeks to prove her entitlement to “Underinsured Motorist Benefits” when the finder of fact is asked insurance coverage questions to determine if UIM coverage exists, is payable, and if Mr. Thaler was indeed “underinsured,” and if so, does Pa.R.C.P. 213 (b) mandate severance of the litigation between contractual and tort claims?

c. Whether, if the UIM claim against Liberty Mutual is transferred to Bucks County in response to Liberty Mutual’s Preliminary Objections based upon a forum selection clause, and the remaining claims against the driver, Thaler, is severed, the venue for the remaining claim against Thaler should be transferred to the Court of Common Pleas of Bucks County where plaintiff and defendant reside and was served, in which the cause of action arose, and where another action involving the same accident and same parties is pending?


It is also noted that Liberty Mutual filed Preliminary Objections as well based upon a forum selection clause in the policy.

As noted above, the Philadelphia Court of Common Pleas granted the improper venue Preliminary Objection and transferred the case to Bucks County. The decision was by Order only.

It is also noted that there is another lawsuit in Philadelphia pending filed by the passenger in the Plaintiff'’s vehicle. Another set of Objections are pending in that case.

I thank Anthony Damiano, Esquire, of West Chester, Pennsylvania, the prevailing defense attorney for the tortfeasor Defendant, for bringing this decision to my attention.

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

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