Wednesday, December 1, 2010

A RECENT RUN OF POST-KOKEN DECISIONS

Sehl v. Neff and State Farm (Philadelphia County)

Tort talkers may recall that I previously reported on the Philadelphia County Court of Common Pleas case of Sehl v. Neff and State Farm, May Term 2009 No. 2487 (Phila. Co. Oct. 22, 2009, Allen, J.). In that case, the issue of proper venue of a post-Koken case was raised. Although the accident and the residents of the third party tortfeasor were located in Montgomery County, the Plaintiff filed suit in Philadelphia under an argument that the UIM carrier, State Farm, regularly conducted business in Philadelphia County.

In its Order, the Sehl court sustained the tortfeasor Defendant’s Preliminary Objections on the basis of improper venue. Now, the Court has just handed down its Rule 1925 Opinion outlining its rationale in support of this Order.

In its Rule 1925 Opinion, the Sehl court noted that, while the venue Rule 1006 (c) provides, in relevant part, that “an action to enforce a joint or joint and several liability against two or more Defendants… may be brought against all Defendants in any county in which the venue may be laid against anyone of the Defendants…,” the post-Koken case before the Sehl court did not involve an action to enforce a joint or joint and several liability.

The Sehl case is on its way up to the Pennsylvania Superior Court. Note also that the same issue is going up on appeal in the separate cases of the Philadelphia County matter of Thomas v. Titan Auto Ins., Nationwide Ins. Co., Jones, and Briel, March Term 2010 No. 03050 (May 10, 2010, Tereshko, J.) and the Luzerne County case of Wissinger v. Brady, Laubach, and State Farm, No. 3792-Civil-2010 (Luz. Co. Aug. 16, 2010, Van Jura, J.).

Anyone desiring a copy of the Rule 1925 Opinions in the Sehl case or the Wissinger case may contact me at dancummins@comcast.net.

I thank Attorney John McGrath of the Philadelphia law firm of Palmer & Barr, P.C. for bringing this Opinion to my attention.


Loiacono v. Moraza and Selective Ins. Co. (Pike County)

On October 25, 2010, the Honorable Joseph F. Kameen, P.J. of the Pike County Court of Common Pleas issued a post-Koken Order on the issue of severance in the case of Loiacono v. Moraza and Selective Insurance Company, No. 902-2010-Civil (Pike Co. Oct. 25, 2010, Kameen, P.J.).

In this post-Koken case, the Plaintiff filed a single lawsuit containing third party negligence claims against the tortfeasor Defendant and a claim for uninsured and/or underinsured motorist benefits against Selective Insurance.

The tortfeasor Defendant filed Preliminary Objections in the form of a Motion to Sever the Claims against him from the claims against the UM/UIM carrier. The Plaintiff responded by filing Preliminary Objections to the tortfeasor’s Preliminary Objections asserting that they were untimely.

Judge Kameen granted the Plaintiff’s Preliminary Objections to the tortfeasor’s Preliminary Objections noting that the Pike County Court of Common Pleas “has an established general policy of granting Preliminary Objections to untimely Preliminary Objections.”

However, the Court went on to note that, under Pa. R.C.P. 213(b) the Court by its own motion, or on the motion of any other party, may order separate trials of different causes of actions or issues.

Judge Kameen emphasized that under Pa. R.E. 411 evidence of insurance is generally not admissible in a civil trial. The court stated that, allowing this case to proceed to trial on a consolidated fashion may impermissibly bring the issue of insurance into play at trial. As such, Judge Kameen “reserve[d] [the] right to severe Plaintiffs’ claims against [the tortfeasor Defendant] from Plaintiffs’ claim against Selective to a future date upon motion of either party or sua sponte."

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



Jordan v. White, Gonzales, and Erie Insurance (Erie County)

I also recently learned of a post-Koken case out of Erie County in which the Court denied a request for severance and kept the UIM/UM claims consolidated with the third party claims. In the case of Jordan v. White, Gonzales, and Erie Insurance Exchange, No. 15540-Civil-2009 (Erie Co. October 28, 2010, Garhart, J.), the Court denied Preliminary Objections by the UIM/UM carrier in this regard.

Although the Preliminary Objections were overruled at this stage, the Court did note in its Order that it was “reserving ruling on whether to sever those claims from the tort claims until after the completion of discovery.” As such, the Erie County Court of Common Pleas was at least allowing this case to proceed in a consolidated fashion through discovery.

Anyone desiring a copy of this Order (without Opinion) case may contact me at dancummins@comcast.net

I send thanks to Plaintiff’s attorney Sue A. Beck, Esquire of the Erie, Pennsylvania law firm of Shapira, Hutzelman, Berlin, Ely, Smith & Walsh for forwarding this Order to my attention.



Joseph v. Perrotta and State Farm (Lawrence County)

I have been made aware of a post-Koken case out of Lawrence County, Pennsylvania which can be cited as Joseph v. Perrotta and State Farm, No. 10457 of 2010 (Lawrence Co. Nov. 19, 2010, Cox, J.).

This case actually involved the novel issue of a Motion to Consolidate filed by the UIM carrier, State Farm Insurance Company.

It is noted that the State Farm automobile insurance policy typically requires the Claimant to join the third party tortfeasor in any litigation being pursued against State Farm as the UIM carrier.

This case was originally instituted by the Plaintiff as two separate lawsuits under separate docket numbers, one against the tortfeasor Defendant and one against the UIM carrier. State Farm filed a Motion to Consolidate the cases.

In an Order dated November 19, 2010, Judge J. Craig Cox of the Lawrence County Court of Common Pleas granted the Motion to Consolidate. The Order noted that the cases shall be consolidated at least through discovery. The Court noted that any party could move at a later time to sever the matter for trial if desired.

I thank the prevailing defense attorney, Joseph R. Guthridge of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP, for bringing this case to my attention.

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

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