Wednesday, October 20, 2010

Mercer County Post-Koken Decision Favors Severance of Claims

On October 15, 2010, Mercer County Court of Common Pleas President Judge Francis J. Fornelli issued a decision in the post-Koken case of Gravatt v. Smith and Unitrin Auto and Home Ins. Co., 2010-Civil-2155 (Mercer Co. Oct. 15, 2010 Fornelli, P.J.), in which he granted the tortfeasor's Preliminary Objections/Motion to Sever Negligence Action from Underinsured Motorist Claim.

In his Opinion, Judge Fornelli noted that his research confirmed that the appellate courts of Pennsylvania still have not addressed the issue of consolidation vs. severance of claims yet.

Judge Fornelli's Opinion confirms that his rationale in favor of severance largely dealt with Pa.R.E. 411 which precludes the mentioning of insurance during the trial of negligence claims. The court noted that allowing the claims to remain together would impermissibly allow the insurance issues pertinent to the UIM claim come into evidence on the negligence aspect of the claim.

Judge Fornelli felt that the introduction of evidence of the UIM insurance and the tortfeasors insurance would serve to confuse the jury and/or cause the jury to ignore the issue of whether the tortfeasor was negligent and instead focus on the fact that there were two insurance companies available to compensate the plaintiff.

The court more specifically noted that the joinder of these claims presents the problem of, in order to prove the UIM claim, the plaintiff would have to introduce evidence of insurance that, in a normal negligence claim, "would result in a mistrial." With some of the strongest language seen to date on this issue, Judge Fornelli further stated that "[i]t is simply not possible for either Defendant to get a fair trial unless these claims are tried separately."

Accordingly, the Court sustained the Preliminary Objections filed by the tortfeasor and dismissed the UIM claim without prejudice to the right of the plaintiff to re-file the UIM claim under a separate docket number.

I thank Attorney John Robb of the Pittsburgh, Pennsylvania office of Robb, Leonard & Mulvihill for bringing this case to my attention. The prevailing attorney from his office who handled this matter was Attorney Diana Frank.

Anyone desiring a copy of this decision may contact me at

I note that I have updated the Post-Koken Scorecard and that can be accessed by clicking on the date noted under "Post-Koken Scorecard" down on the right hand column of the blog.

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