Friday, July 30, 2010

Next Week: Philadelphia CLE Program

I will be traveling to Philly next Thursday to participate as a presenter in the following CLE seminar. I will be giving an update on the Post-Koken cases with an emphasis on the consolidation vs. severance of claims issues. Hope to see you there.
(PHILADELPHIA - AUGUST 5, 2010)
THE PENNSYLVANIA DEFENSE INSTITUTE
proudly presents a Continuing Legal Education Seminar

A League of Extraordinary Speakers: Critical and Developmental Topics in Litigation

at the

THE UNION LEAGUE
PHILADELPHIA, PENNSYLVANIA
AUGUST 5, 2010
1 pm - 5 pm
Followed by Cocktail Reception
2 Substantive and 1 Ethics CLE Credit
TOPICS:
Car Accident Medical Conditions and Radiological Issues (Dr. Brooks)
Medicare Issues
Auto Law/Post-Koken Update
Economic Issues in Personal Injury Actions
Attorney-Client Privilege Issues

Wednesday, July 28, 2010

A Post-Koken (Sort of) Decision from Lancaster County in Favor of Severance of Claims

On July 22, 2010 Judge Margaret C. Miller of the Lancaster County Court of Common Pleas issued an Opinion and Order only in the case of Burton v. Burton and USAA, No CI-09-09343 (Lanc. Co. , Miller, J.) granting a tortfeasor's preliminary objections filed by both the tortfeasor and and the first party carrier arguing a misjoinder of actions.

As a result of this decision, the negligence claim asserted against the tortfeasor was severed from the breach of contract claim asserted by the Plaintiff against his own carrier related to a denial of first party medical benefits following a peer review. The court ruled that these two separate causes of action did not arise out of the same transaction or occurrence to allow them to be joined together under one suit pursuant to Pa.R.C.P. 2229(a).

As part of the rationale of her decision, Judge Miller also noted that allowing the cases to remain together may have brought the issue of "insurance" in front of the jury during the trial of the negligence claim of the tortfeasor in violation of Pennsylvania Rule of Evidence 411.


I thank Attorney Brigid Q. Alford of the Harrisburg office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.

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

Recent Pennsylvania Supreme Court Opinion Sheds Light on Caustion Issues

The Pennsylvania Supreme Court recently issued an Opinion on July 21, 2010 in the case of Summers v. Certainteed Corp., 19 EAP 2006, 2010 WL 2850908 (Pa. July 21, 2010, Baer, J.) in which it addressed, among other issues, the issue of whether plaintiffs are precluded from recovery in asbestos-related litigation whenever their symptoms may be attributable to both asbestos-related and non-asbestos-related conditions.

The Opinion sheds some light on the Supreme Court's thinking on causation issues and pre-existing condition issues that may prove useful in other personal injury matters.

The majority Opinion can be viewed at this link: http://www.aopc.org/OpPosting/Supreme/out/J-62-2009mo.pdf





I thank Attorney Stephen Seach of Seach Law Offices in Drums, Luzerne County, Pennsylvania for bringing this decision to my attention.

Pennsylvania Supreme Court Agrees to Take Another Look at the Household Exclusion in the Stacking Context

The latest talk of the town is the Order handed down by the Pennsylvania Supreme Court on July 27, 2010 in the case of GEICO v. Ayers, 442 WAL 2008 (Pa. July 27, 2010) granting a Petition for Allowance of Appeal, limited to the following issue:

"Does the application of a household vehicle exclusion violate Section 1738 of the Motor Vehicle Financial Responsibility Law ("MVFRL"), where the same insurance company insures all vehicles owned by an insured, and where the exclusion denies inter-policy stacking to the insured who has paid for stacking and has not executed a stacking waiver."

Here's a link to the Supreme Court's Order:

http://www.aopc.org/OpPosting/Supreme/out/442wal2008Granted.pdf


By way of background, GEICO insured two motorcycles and two pickup trucks on separate policies. Mr. Ayers elected stacking and was involved in an accident while on the motorcycle.

He was denied UIM benefits under the household policy insuring the pickup trucks based upon the household exclusion.

He argued at the trial court level that the exclusion was invalid since GEICO insured all the vehicles and made him put the motorcycles on a separate policy. The trial court agreed with Mr. Ayers and invalidated the exclusion.

The Superior Court reversed in a memorandum decision. In February of 2009, Supreme Court announced that it would withhold its ruling on the petition for allowance of appeal pending its decision in the Erie v. Baker case.

For more background on the case, here's a link to the Pennsylvania Superior Court's decision on the issue in which that Court held that the household vehicle exclusion did indeed preclude stacking in such a scenario. GEICO v. Ayers, 955 A.2d 1025 (Pa.Super. 2008, Colville, J.):

http://www.aopc.org/OpPosting/Superior/out/a07007_08.pdf


As noted, the Pennsylvania Supreme Court previously addressed a similar issue in the case of Erie Ins. Exchange v. Baker, 972 A.2d 507 (Pa. 2009). Those Opinions can be viewed at these links:

Opinion announcing Decision of Court (Justice Greenspan): http://www.aopc.org/OpPosting/Supreme/out/J-124-2008oaj.pdf

Concurring Opinion (Justice Saylor): http://www.aopc.org/OpPosting/Supreme/out/J-124-2008co.pdf

Dissenting Opinion (Justice Baer): http://www.aopc.org/OpPosting/Supreme/out/J-124-2008do.pdf



I send thanks to Attorney James Albert of the West Pittston, Pennsylvania law office of Cefalo & Associates for bringing this case to my attention as well as Attorney James M. Beck of the Philadelphia Office of Dechert LLP.

I also send thanks to Attorney Joseph Hudock, of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, and GEICO's defense counsel, for the additional background info on this case.

Another Transfer of Venue Post-Koken Case (Luzerne County)

In a recently produced decision (but not so recent decision--the Luzerne County Prothonotary only recently sent out the Court's Order due to a mix-up) by Judge William Amesbury of the Luzerne County Court of Common Pleas in the case of Walls v. Erie Ins. Co. and Muneshwar, No. 15095 of 2009 (Luz. Co. Feb. 24, 2010, Amesbury, J.), the court transfered a post-Koken case to its proper venue of Columbia County.

In this case, the Plaintiff resided in Columbia County and was involved in a Luzerne County car accident. The Plaintiff filed a lawsuit in Luzerne County against the tortfeasor and the UIM carrier.

The policy of the UIM carrier, Erie Insurance, provided that all UIM claims must be filed in the county of the Plaintiff's residence which, as noted, was Columbia county in this case.

Judge Amesbury rejected the Plaintiff's argument that, for purposes of judicial economy, all of the claims should be tried together and, since suit was proper against the tortfeasor in Luzerne County because that was where the accident occurred, then Luzerne County should be considered an appropriate venue.

In his Order, without Opinion, Judge Amesbury sustained the UIM carrier's preliminary objections on the basis of improper venue and cited the rationale in the case of Central Contracting Co. v. C.E. Youngdahl & Co., 209 A.2d 810 (Pa. 1965).


I thank the Erie Insurance defense attorney Robert T. Panowicz, of Panowicz Law Offices in Wilkes-Barre, Pennsylvania for bringing this case to my attention.

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

Saturday, July 24, 2010

Conahan Enters Formal Plea of Guilty; Ciavarella Forges Ahead in His Own Defense

On July 23, 2010, former Luzerne County judge Michael T. Conahan entered a formal plea of guilty and, when asked point blank by Federal Middle District Judge Edwin Kosik, admitted on the record that certain charges being brought against him were "substantially correct."

Conahan is facing up to 20 years in prison, fines, and restitution orders. Judge Kosik gave no indication as to what the sentence would be an referred the matter to a pre-sentencing investigation in that regard.

So far, there has been no confirmation as to whether Conahan will be testifying against former judge Mark Ciavarella in the other related criminal case.

To review the various articles by Terrie Morgan-Besecker, Jerry Lynott, and Jennifer Learn-Andes on this topic from the July 24, 2010 Times Leader newspaper, which are the sources for this post, click on these links:

http://www.timesleader.com/news/Conahan_pleads_guilty_to_plot_07-23-2010.html

http://www.timesleader.com/news/Ciavarella_not_swayed_by_Conahan_07-23-2010.html

http://www.timesleader.com/news/Mericle_rsquo_s_role_in_scandal_begins_to_loom_larger_07-23-2010.html

Friday, July 23, 2010

Another Post-Koken Case Transferred Out of Philadelphia Due to Improper Venue

Philadelphia County Court of Common Pleas Judge Allen L. Tereshko has issued yet another Post-Koken decision.

On July 14, 2010, Judge Tereshko issued an Order, without Opinion, in the case of Pippett v. Radu and State Farm, March Term 2010, No. 3305 (Phila. Co. July 14, 2010, Tereshko, J.), in which considered a motion for reconsideration of the court's prior overruling of the tortfeasor's preliminary objections on the issue of improper venue.

According to Attorney Philip A. Ryan of the Philadelphia law firm of German, Gallagher & Murtagh, defense counsel for the tortfeasor, this litigation arose out of a Delaware County motor vehicle accident and all of the individuals involved resided in Delaware County as well.

The Plaintiff joined State Farm in the litigation on a UIM claim (State Farm's policy language requires that the UIM lawsuit be pursued in the same suit as the claim against the tortfeasor). The Plaintiff filed in Philadelphia County presumably due to State Farm's presence in that county.

Generally speaking, under Pennsylvania Rule of Civil Procedure 1006, proper venue for a lawsuit involving a motor vehicle accident is in the county where the accident happened or where the defendant resides.

After the Plaintiff filed suit in Philadelphia in the Pippett matter, Defense counsel for the tortfeasor filed preliminary objections asserting improper venue and argued that Pennsylvania Rule of Civil Procedure 1006(c), pertaining to proper venue in cases involving multiple defendants, only allowed venue in the different counties for the different defendants if such defendants were potentially jointly and severally liable. which is not the case with a tortfeasor and a UIM carrier named as defendants in the same suit.

Defense counsel more specifically asserted that since State Farm was not potentially a joint tortfeasor with the defendant driver and could not be found by the jury to be jointly liable with the defendant for the full amount of the verdict. As such, even if State Farm did business in Philadelphia County, venue was still not proper in Philadelphia County for the defendant driver who resided in Delaware County and was involved in an accident that occurred in Delaware County.

Although Judge Tereshko originally denied the tortfeasor defendant's Preliminary Objections, upon revisiting the matter via the motion for reconsideration, the Judge issued this July 14, 2010 Order granting the Preliminary Objections and ordered the matter transferred to Delaware County.

Tort Talkers may recall that Judge Tereshko previously faced this issue in the case of Thomas v. Titan Auto Ins., Nationwide Ins, Jones, and Briel, March Term 2010, No. 03050 (Phila. Co. May 10, 2010, Tereshko, J.). In Thomas, the judge severed the third party liability claim filed against an owner and operator of a vehicle from the uninsured (UM) motorist claim against one of the carrier defendants and also transferred both claims out of Philadelphia County and to Montgomery County on an improper venue argument.

The Thomas case is on its way up to the Superior Court but I believe it is still in the stage whereby the trial court has to issue a Rule 1925 Opinion to explain how it came to its decision. Accordingly, we may get an Opinion on this issue in the near future after all.


I send a nod of thanks to Attorney Philip A. Ryan of the Philadelphia office of German, Gallagher & Murtagh for bringing this case to my attention.

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

Thursday, July 22, 2010

Judge Terrence Nealon of Lackawanna County Court of Common Pleas Issues Interesting Decision on Duty of Care

Judge Terrence R. Nealon issued an interesting decision on July 19, 2010 in the case of David J. Sedor, M.D. et al v. Community Medical Center et al, No. 05 CV 2143 (Lacka. Co. July 19, 2010, Nealon, J.). In this Opinion, Judge Nealon reviewed the relevant factors that governs every duty analysis in a thorough manner and with a writing style that I submit would have made Dean Prosser and Justice Cardozo proud.

This case arose out of an incident during which a noted local neurosurgeon was struck by a hospital bed as it was being pushed through the hallway of a hospital with the gratuitous assistance of an orthopedic implant sales representative. The Plaintiff, Dr. Sedor alleges that his injuries from this event and associated infections required him to eventually undergo a mid-thigh amputation of his right leg.

Judge Robert Mazzoni of the Lackawanna County Court of Common Pleas previously granted the Defendant implants distributor partial summary judgment finding that it could not be found vicariously liable for the actions of the sales representative as a master-servant was not established in that regard.

The latest Opinion, from Judge Nealon, addressed the implants distributor's follow-up motion for summary judgment which asserted that the Plaintiff was also unable to establish the duty and causation elements of a negligence cause of action for direct liability.

Judge Nealon reviewed in great detail the five factors involved in the question of whether a duty exists in a particular case: (1) the relationship between the parties; (2) the social utility of the defendant's conduct; (3) the nature of the risk and the foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the defendant; and (5) the overall public interest in the proposed solution.

The application of the above factors to the case at hand led Judge Nealon to conclude that the record did not support any finding that the implants distributor had any duty to instruct an independent contractor's sales representative who was involved in the incident to refrain from handling another party's equipment. More specifically, the Court found that the Plaintiff neurosurgeon had not established that the distributor owed a duty to train a non-employee not to handle or transport beds in a hospital as alleged in the Complaint.

As such, the motion for summary judgment filed by the implants manufacturer and distributor was granted.


Anyone desiring to read a copy of this interesting Opinion may contact me at dancummins@comcast.net

Sackett III Decision Handed Down by Superior Court Yesterday

Yesterday, the Superior Court handed down its opinion in Sackett v. Nationwide Mutual Insurance Company, 2010 WL 2837867, 943 WDA 2009 (Pa.Super. July 21, 2010 Allen, J., Colville, S.J., Cleland, S.J.), which will likely become to be known as Sackett III.

In the opinion written by Judge Cheryl Lynn Allen, the Superior Court held that the trial court correctly decided on remand that a vehicle was not added under a newly/after acquired vehicle clause in an insurance policy and the insurer should have therefore had the insured sign a new rejection of stacking form, in order for non-stacking to apply. According to the opinion the insured should have received a new stacking rejection waiver when adding a single car to a two car policy. Since the insured was not required by the carrier to sign such a rejection form, the Superior Court agreed that Mr. Sackett should be considered to have stacked UIM coverage.

By way of background, Mr. Sackett was injured as a passenger while occupying another person's vehicle. He secured the tortfeasor's liability limits as well as the underinsured motorist (UIM) benefits limits on the vehicle he was occupying at the time of the accident.

Mr. Sackett then sought to recover the additional UIM benefits available under his own policy with Nationwide.

Mr. Sackett's originally purchased Nationwide policy had two vehicles under it but no stacking because Mr. Sackett had executed a valid waiver declining to stack coverage on these two vehicles. Prior to the subject accident, Mr. Sackett added a third vehicle to the policy at which point no new forms were signed regarding UIM or UM coverage or stacking.

Throughout the process of going up and now back down the appellate ladder, it was asserted by Mr. Sackett's attorneys that he should be deemed to have had stacked limits because no forms in this regard were executed when the third car was added, i.e. he never rejected stacking.

In Sackett I, i.e. Sackett v. Nationwide Mut. Ins. Co., 919 A.2d 194 (Pa. 2007), the Superior Court, as did the trial court, held that the Supreme Court precedent required that a new rejection form was required whenever a new vehicle is added to a policy.

In Sackett II, i.e. Sackett v. Nationwide Mut. Ins. Co., 940 A.2d 329 (Pa. 2007), the Supreme Court modified the Superior Court's decision and held that requirement of a new stacking rejection form does not apply if a vehicle is added under a newly acquired vehicle clause and such a clause is present under the facts of the case.

In the Sackett III decision handed down yesterday, the Superior Court agreed with the latest trial court decision on the matter and found that Mr. Sackett did not add any vehicles under the newly-acquired vehicle clause contained in the insurance policy. As such, additional rejection stacking forms were required and this requirement was not met in the case presented because Nationwide never had Mr. Sackett sign off on any new rejection of stacking forms when the vehicle was added to the policy.

Accordingly, the ultimate holding of the Superior Court in the latest decision on this matter was that Mr. Sackett was entitled to stacking.

The Sackett III decision can be viewed online at http://www.aopc.org/OpPosting/Superior/out/a14005_10.pdf.


I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for publicizing this Opinion and to Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.

Wednesday, July 21, 2010

Group Page for Pennsylvania Defense Institute Created on LinkedIn.com

A Group page for the Pennsylvania Defense Institute has been created on LinkedIn.com. The Group is open to all members of the Pennsylvania Defense Institute (PDI) and members are encouraged to join.

With good involvement, it is hoped that the Group page for the PDI may be come a good place to network, share information on new cases or expert witnesses, etc., and to engage in helpful online Discussions.

Check it out at: http://www.linkedin.com/groups?mostPopular=&gid=3183344.

JDSupra Hooks Up with LinkedIn

In other LinkedIn news, JDSupra, a website that allows attorneys to upload their written product (articles, briefs, etc.) to create an online portfolio open for others to review when looking up an attorney online, has teamed up with the professional networking site, LinkedIn, to allow for the portfolio to be displayed on one's LinkedIn profile page.

I use both sites and have found them to be excellent ways to market my services. To view my JDSupra profile and documents posted, go to: http://www.jdsupra.com/profile/danielcummins_docs/.

To view my LinkedIn profile and see how the JDSupra portfolio is highlighted on that profile, go to: http://www.linkedin.com/in/danielcummins and click on the yellow box that says, "View Full Profile."


Also, here is a link to a July 16, 2010 Amercian Bar Association article by Rachel M. Zahorsky regarding the union of JDSupra and LinkedIn:
http://www.abajournal.com/news/article/jd_supra_and_linkedin_create_words_largest_legal_social_network

Saturday, July 17, 2010

UPCOMING CLE SEMINARS/ NETWORKING EVENTS OF NOTE

Here are a few upcoming CLE Seminars of note that are also open to Claims Professionals at a nominal rate of $25.00 (rates for attorneys are higher due to availability of CLE credits).

Each seminar is expected to provide excellent updates on the law, great opportunities to network, and refreshing cocktail receptions at which members of the judiciary from the region are expected to attend.

I will be presenting the Auto Law/Post-Koken Update at both the Philadelphia and the Scranton/Wilkes-Barre events. Hope to see you there!

Anyone wishing to attend any of these seminars may contact me for more information or a registration form at dancummins@comcast.net.

(PHILADELPHIA - AUGUST 5, 2010)

THE PENNSYLVANIA DEFENSE INSTITUTE
proudly presents a Continuing Legal Education Seminar

A League of Extraordinary Speakers:
Critical and Developmental Topics in Litigation

at the

THE UNION LEAGUE
PHILADELPHIA, PENNSYLVANIA
AUGUST 5, 2010
1 pm - 5 pm
Followed by Cocktail Reception

2 Substantive and 1 Ethics CLE Credit
TOPICS:

Car Accident Medical Conditions and Radiological Issues (Dr. Brooks)
Medicare Issues
Auto Law/Post-Koken Update
Economic Issues in Personal Injury Actions
Attorney-Client Privilege Issues

_________________________________________________


(WILKES-BARRE/SCRANTON - AUGUST 18, 2010)

THE PENNSYLVANIA DEFENSE INSTITUTE
and
THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

Proudly Present
“CIVIL LITIGATION DEVELOPMENTS 2010”
at the
MOHEGAN SUN CASINO at POCONO DOWNS
WILKES-BARRE, PENNSYLVANIA
Wednesday August 18, 2010
1 p.m. to 5 p.m.

Cocktail Hour (5-7 p.m.) at Breakers in the Mohegan Sun
(Claims professionals and at least 15 Judges from the Federal and State Courts all across Northeastern Pennsylvania are expected to attend the Cocktail Hour)

2 Substantive and 1 Ethics CLE Credit

TOPICS:

Auto Law/Post-Koken Update
Bad Faith Update
Panel Discussion on Ethics with Members of the Federal and State Judiciary

Again, anyone desiring more information or a registration form may contact me at dancummins@comcast.net.

UIM Carrier Permitted To Join Third Party Tortfeasor Into Post-Koken Lawsuit

Addressing an apparently novel scenario in the post-Koken context, Federal Middle District Court Judge A. Richard Caputo allowed a UIM carrier to join the third party tortfeasor into a Federal post-Koken lawsuit as a third party defendant in the case of Oswald v. State Farm, No. 3:09-CV-2578.

By way of background, this case arose out of a motor vehicle accident that happened on June 30, 2007, in New Jersey. The Plaintiffs, who were residents of Pennsylvania, brought a third party suit against the tortfeasor in New Jersey.

The Plaintiffs also filed a Federal lawsuit in the Middle District of Pennsylvania asserting a contractual UIM claim, together with a bad faith claim, against defendant State Farm, the Plaintiffs' UIM carrier.

State Farm sought to join the tortfeasor as a third party defendant in the Federal UIM and bad faith claim in order to seek subrogation for any payment that State Farm might be contractually bound to pay.

The Plaintiff objected to State Farm's Motion to Join the tortfeasor as a third party defendant on the basis that an insurance company may not intervene in an action between the insured and the tortfeasor.

Judge Caputo rejected that argument on the ground that State Farm was not seeking to intervene in an action between the insured and a third party. Rather, State Farm was already a party to this suit and is seeking to join a non-party, the tortfeasor, into the UIM-bad faith action.

The Plaintiff also argued that allowing State Farm to join the tortfeasor would lead to confusion of issues for the jury. This argument was rejected by the Court.

The Plaintiff also argued the danger of potentially inconsistent verdicts in light of the separate New Jersey action claimed against the tortfeasor. The Oswald Court also rejected this argument on the ground that collateral estoppel or the claim preclusion doctrine would protect against any attempt to re-litigate any issue previously decided in whichever forum was litigated first.

Accordingly, the Court granted the UIM carrier's motion to join the tortfeasor as a third party defendant.

My partner, Attorney Timothy E. Foley is the defense counsel on the UIM portion of the claim. Attorney Jordan Koko of Bennett, Bricklin & Saltzburg, LLC, of Philadelphia, was retained to represent State Farm in the bad faith action. The Motion to Join the tortfeasor was prepared and filed by Attorney Koko.

I thank my partner, Attorney Tim Foley of Foley, Cognetti, Comerford, Cimini & Cummins, for bringing this decision to my attention and providing the explanatory background noted above.


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

Motion for Reconsideration of Post-Koken Decision in Lackawanna County Denied

Followers of Tort Talk's Post-Koken Scorecard may recall that there is a split of authority within Lackawanna County on the issue of consolidation vs. severance of post-Koken claims.

Judge Carmen D. Minora, Judge Robert A. Mazzoni, and Senior Visiting Judge Harold A. Thomson, Jr. have all come down on the side of allowing for the consolidation of such claims in the past.

Then, in the case of Mehall v. Benedetto and Erie Ins. Exchange, 09-CV-744 (Lacka. Co. 2010 Thomson, S.J.), Judge Thomson ordered that third party claims should be severed from UIM claims into two separate lawsuits.

I was advised recently that Mehall case came back before Judge Thomson on a Motion for Reconsideration but he chose to issue another Order on July 8, 2010, without an explaining Opinion, reaffirming his prior decision in favor of severance.

As such, the split of authority remains within Lackawanna County on this issue.


I send thanks to Attorney Robert L. Goodman of the Scranton office of Forry Ullman for bringing this decision to my attention.

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

Saturday, July 10, 2010

Compelling Commercial In Favor of Seatbelt Use

It should be well known from my prior blog posts and articles that I am a proponent of the argument that the ban against seat belt defense in civil litigation matters should be repealed under Pennsylvania law as a possible means of getting the last small percentage of non-compliant drivers and passengers to obey the law and protect themselves from greater injury or death.

I came across this ad on seatbelt use from the U.K. that was forwarded to me by an old college roommate of mine at Villanova who is a fomer cop himself who used to write out tickets to people for failing to use a seatbelt.

Hopefully this ad, which is getting good play on YouTube, also makes its way to the U.S. airwaves as it is pretty compelling and may cause people to think twice about going without buckling up:

http://embracethis.co.uk/

Friday, July 9, 2010

Another Decision Setting Parameters for Bad Faith Claim in First Party Medical Benefits Context

On June 25, 2010, Judge James M. Munley of the Federal District Court for the Middle District Court of Pennsylvania issued an Opinion in the case of Hickey v. Allstate Prop. and Cas. Ins. Co., No. 3:10cv00907 (M.D.Pa. June 25, 2010, Munley, J.) in which he granted the carrier's F.R.C.P. 12(b)(6) Motion to Dismiss the Plaintiff's bad faith claim in a first party medical benefits case.

In Hickey, he Plaintiff was injured in a car accident and began to recieve first party medical benefits under his own policy with Allstate for the payment of his medical treatment. Allstate paid the benefits for about two years and then stopped the payments on the basis of an independent medical examination which led the examining doctor to conclude that the Plaintiff had reached maximum medical improvement.

In response, the Plaintiff sued Allstate in state court for breach of the insurance contract and bad faith under 42 Pa.C.S.A. Section 8371. Allstate removed the matter to Federal Court and filed a Motion to Dismiss primarily asserting that the Motor Vehicle Financial Responsibility Law, i.e. 75 Pa.C.S.A. Section 1797, provided for the exclusive remedies for the type of claim brought by the Plaintiff, thereby pre-empting any claim under the bad faith statute found at Section 8371. Judge Munley agreed with the carrier's position.

The Judge noted that, since there was no Pennsylvania Supreme Court precedent on the issue, he had to predict how that court would address this issue. Reviewing the case law from other Pennsylvania federal court decisions, Judge Munley held that "section 8371 is preempted by section 1797 where an insured alleges only that an insurer wrongly denied payment of first-party medical benefits based on a determination of the propriety of treatment and associated charges."

The Judge further explained that "[c]laims based on allegations outside this narrow scope, such as a claim involving contract interpretation, a claim of abuse of the PRO process, or a claim disputing the cause of the injury, go beyond the scope of section 1797 and may be pursued under section 8371." Citing Perkins v. State Farm, 589 F.Supp. 559 (M.D.Pa. 2008).

Reviewing the Plaintiff's allegations in this matter, Judge Munley determined that the bad faith allegations were preempted by section 1797 because the dispute over the findings of the IME doctor revolved around a dispute over whether the Plaintiff's treatment was reasonable or necesary. As such, the Plaintiff's claim was found to trigger the remedies and procedures found under section 1797 of the Motor Vehicle Financial Responsibility Law.

However, Judge Munley did allow a portion of the Plaintiff's section 8371 bad faith claim to stand. The court found that the Plaintiff's claims that the Defendant carrier "had and has a practice of attempting to terminate medical treatment by 'independent medical examination' without reasonable cause to do so," were claims that alleged an abuse of the PRO process. Judge Munley found that those types of claims stated a cause of action for bad faith under section 8371 that were not preempted by section 1797.


I note that Judge Munley decision in Hickey, i.e. that where a Complaint specifically alleges culpable misconduct both within and beyond the coverage of the specific statutes of the MVFRL, then the remedies under the general bad faith statute at §8371 (i.e., punitive damages, costs and interest) may additionally apply as well, is consistent with two recent decisions out of the Lackawanna County Court of Common Pleas by Senior Judge Harold A. Thomson, Jr. and Judge Carmen D. Minora. See Skiro v. Erie Ins. Exchange, No. 09-CV-7077 (Lacka Co. May 19, 2010 Thomson, S.J.); Veltri v. Travelers Commercial Insurance Company, 08-CIVIL-8534 (Lacka. Co. September 2, 2009 Minora, J.)

Click on this link to go to my June 11, 2010 synopsis of those Lackawanna County decisions
on Tort Talk: http://www.torttalk.com/2010/06/bad-faith-claim-allowed-to-proceed-in.html.

Superior Court Rejects Violations of Rental Car Agreement as Support for Carrier to Deny Coverage

In the recent case of Viking Insurance Company of Wisconsin v. Spells, No. 809 WDA 2009 (Pa.Super. May 28, 2010), marked by the court as a "non-precedential decision," the Superior Court rejected attempts by an insurance company to utilize violations of a rental car agreement to avoid coverage to its insured for liability arising out of a motor vehicle accident involving the rental car.

In the Viking case, the Viking Insurance Company insured a man by the name of Ned Spells and his vehicle. Mr. Spells rented another vehicle from Enterprise under a contract that stated "no other driver permitted."

Thereafter, Mr. Spells let another individual drive the Enterprise rental car and that person became involved in a high speed chase with the police and crashed into another vehicle, injuring the driver of that vehicle.

The injured party went on to sue Mr. Spells and the individual he let drive the rental car. Neither defendant reported the lawsuit to Viking Insurance until after a default judgment was entered against them.

When they were notified of the suit later, Viking Insurance defended the defendants under a reservation of rights and pursued a declaratory judgment action on the coverage issue, which gave rise to this decision.

The primary issue addressed by the Superior Court was Viking Insurance's position that, by allowing the other individual to drive the rental vehicle, Mr. Spells no longer had permission to use the rental vehicle and, therefore, could not be considered an "insured person" under his own policy with Viking. The insurance company relied upon its own policy language and the rental agreement with Enterprise in its position.

More specifically, the Viking insurance policy provided that "No person shall be considered an insured person if the person uses a car...without the permission of the owner."

The Enterprise rental agreement additionally provided that a person who violates any provision in the rental agreement causes an automatic termination of the renter's right to use the vehicle.

The court noted that Viking Insurance Company was basically arguing that Mr. Spells stole the rental vehicle by permitting the other person to operate the vehicle and, as a result, Viking should be excused from providing coverage.

The court rejected this argument as an impermissible attempt against public policy to utilize a rental agreement's terms to preclude insurance coverage under the driver's personal policy.

The Viking court also emphasized that, while the policy of insurance did not cover the rental vehicle it did cover Mr. Nells himself for his actions.

The court also found that public policy did not preclude a finding of coverage for liability imposed under 75 Pa.C.S.A. Section 1574, which mandates that the owner of a vehicle shall be jointly and severally liable with any unlicensed driver the owner lets drive the vehicle if that driver is involved in an accident.

Ultimately, this case is another example of a decision establishing that the courts will not be reluctant to let carriers avoid coverage to its insureds with respect to rental vehicles on the basis of violations of a rental car agreement.



I send thanks to fellow Pennsylvania Defense Institute Board Member, Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel for bringing this case to my attention.



Anyone desiring a copy of this (non-precedential) Opinion may contact me at dancummins@comcast.net.

Another Post-Koken Decision Out of Luzerne County In Favor of Consolidation

On June 25, 2010, Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas entered an Order overruling a tortfeasor's Preliminary Objections in the post-Koken case of Rinker v. Kellar and State Farm, No. 11036 of 2009 (Luz. Co. June 25, 2010, Burke, J.) thereby allowing the third party liability claims and the UIM claim to proceed in a consolidated fashion.

The Post-Koken Scorecard has been updated with this case. To view the Post-Koken Scorecard, scroll down the right-hand column and click on the link.

I thank the prevailing Plaintiff's attorney, Neil O'Donnell of the O'Donnell Law Offices in Kingston, Pennsylvania for bringing this case to my attention.

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

Effort at Offensive Collateral Estoppel Rebuffed Again In UIM Case

In a recent June 21, 2010 Opinion and Order in the case of Metallo v. USAA Cas. Ins. Co., No. 2009-Civil-1329 (Lacka. Co. June 21, 2010, Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas denied a Plaintiff’s Motion for Summary Judgment against a UIM carrier asserting that the carrier could not contest liability in the UIM claim because liability had been admitted by the Defendant/driver in the separate third party negligence action by virtue of the absent tortfeasor Defendant’s failure to answer Requests for Admissions.

This matter involved two separate lawsuits arising out of an incident during which the Plaintiff, who was on a bicycle, was struck by a motor vehicle being driven by the tortfeasor Defendant. The Plaintiff filed a separate lawsuit against the Defendant/driver who, according to the police report, was an illegal immigrant with a Mexico driver’s license. Also filed was a separate UIM lawsuit against the UIM carrier, USAA Casualty Insurance Company.

During the course of the third party matter, the Defendant driver was served with Requests for Admissions on the liability issues and failed to respond. As such, those Admissions were deemed admitted.

After the third party claim was concluded, the Plaintiff proceeded with the UIM claim and filed a Motion for Summary Judgment arguing that USAA could not contest liability because that issue had already been admitted by the Defendant-driver in the separate third party action.

In denying the Plaintiff’s Motion for Summary Judgment, Judge Minora emphasized that, under Pa. R.C.P. 4014 pertaining to Requests for Admissions, it is provided that such requests and admissions are intended to apply only for “purposes of the pending action only.” The rule also provides that such admissions by a party are not to be considered admissions by the party “for any other purpose nor may [they] be used against the party in any proceedings.”

Judge Minora initially noted that, under Pennsylvania law, conclusions of law, as opposed to admissions of fact, are not within the permissible legal scope of a Request for Admission. See Christian v. Pennsylvania Financial Responsibility Assigned Claim Plan, 686 A.2d 1 (Pa. Super. 1986) re-argument denied, appeal denied, 699 A.2d 733 (Pa. 1996); Brindley v. Woodward Village Restaurant, Inc., 652 A.2d 865 (Pa. 1995).

In his Opinion, Judge Minora additionally noted that the deposition testimony of other witnesses in the claim created genuine issues of material fact with regard to the liability issues.

As such, the Motion for Summary Judgment was denied.

I thank defense attorney, Robert Smith, Esquire of the Moosic office of Marshall, Dennehey, Warner, Coleman & Goggin for forwarding this case to my attention.

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

Thursday, July 8, 2010

A Few More Post-Koken Cases Brought to My Attention

Clinton County: Consolidation of Post-Koken claims favored

On June 3, 2010, Judge J. Michael Williamson, President Judge of the Clinton County Court of Common Pleas issued an Order, without opinion, in the post-Koken case of Wentzel v. Swinehart and State Farm, No. 375-10 CV (June 3, 2010, Williamson, P.J.) in which he denied both the UIM carrier’s Motion to Sever the Plaintiff’s bad faith claim and the request that the bad faith claim be stayed pending the resolution of the underinsured motorist action. In so ruling, Judge Williamson cited the Gunn v. Hartford, 2008 W.L. 6653070, GD 07-Civil-002888 (Alleg. Co. July 25, 2008, Wettick, J.).

I thank Attorney Stuart Hall, from Lock Haven, Pennsylvania for forwarding the case to my attention.

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



Philadelphia County: Another decision by Judge Tereshko in favor of severance

In another post-Koken decision I have been made aware of, Judge Allan L. Tereshko issued an Order back on May 10, 2010 in the case of Thomas v. Titan Auto Ins., Nationwide Ins. Co., Jones, and Briel, March Term 2010 No. 03050 (May 10, 2010, Tereshko, J.). Consistent with his prior rulings in the same context (see Post-Koken Scorecard), Judge Tereshko granted the Petition to Sever filed by Titan/Nationwide the third party claims from the UIM claims and also granted the request that the case be therefore transferred to Montgomery County.

The case was transferred 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 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.

I have also been informed that the Plaintiff has filed an appeal from this decision. Currently, the case is still at a stage where the Plaintiff is required to file their concise statement of matters complained of on appeal.

I thank Attorney Victor Verbeke of the Conshohocken law firm of Snyder & Verbeke, in-house counsel for Nationwide, for forwarding this case to my attention.

Anyone desiring a copy of the Court Order issued in the Thomas case may contact me at dancummins@comcast.net.


Montgomery County: forum selection clause upheld

On June 30, 2010, Judge Bernard A. Moore of the Montgomery County Court of Common Pleas issued an Order without Opinion granting the Preliminary Objections of Progressive Direct Insurance Company in the case of Dunne v. Closs, Progressive, et al., No. 09-38446 (Montg. Co. June 39, 2010, Moore, J.), which involved both a post-Koken severance issue and a claim of improper venue.

In Dunne, the Plaintiffs were allegedly injured in an accident that occurred in Northampton County. The Plaintiffs, who were residents of Monroe County, filed a lawsuit in Montgomery County, where the owner and operator tortfeasor defendants resided.

The lawsuit included negligence claims against the alleged tortfeasors and a claim for underinsured motorist (UIM) benefits against Plaintiffs' carrier, Progressive.

Both the alleged tortfeasors and the UIM carrier filed motions to sever the tort claims from the contract claims against the UIM carrier. Progressive also moved for enforcement of the forum selection clause contained in its policy. The Progressive forum selection clause required that any legal action brought against the carrier on behalf of an insured person must be brought in the state or federal court serving the county of residence of the insured (in this case, Monroe County).

In pursuing the forum selection clause argument, Progressive relied primarily on the case of O’Hara v. The First Liberty Insurance Corp., 984 A.2d 938 (Pa.Super. 2009), appeal denied, 995 A.2d 354 (Pa. May 3, 2010), for its position that its forum selection clause supercedes the venue rules.

Judge Moore granted Progressive's Preliminary Objections and dismissed all claims against Progressive without prejudice to the Plaintiffs' right to re-file in Monroe County or the Middle District.

A tip of the hat to the prevailing defense attorney, Chuck Stokes, Esquire of the Bethlehem/Scranton office of the Forry Ullman law firm for bringing this case to my attention.

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


With the addition of these two decisions to the Post-Koken Scorecard, there are now at least 24 decisions in favor of the consolidation of post-Koken claims and 18 in favor of severance. The Post-Koken Scorecard may be viewed by scrolling down the right-hand column of the blog and clicking on the date under the "Post-Koken Scorecard" link.

Rumors Regarding Nominations to Middle District Federal Bench in Scranton

According to an article in today's Scranton"s The Times - Tribune by Borys Krawczeniuk, the names of Lackawanna County Court of Common Pleas Judge Terrence R. Nealon, Lackawanna County Court of Common Pleas Judge Carmen D. Minora, and Scranton attorney Robert D. Mariani will be submitted to President Obama as the choices of Senators Robert Casey and Arlen Spector to nominate to fill three openings on the bench of the U.S. District Court for the Middle District of Pennsylvania.

The openings were created by Judge A. Richard Caputo and Judge James M. Munley taking senior status and Judge Thomas I. Vanaskie moving up to the Third Circuit Court of Appeals.

Here's a link to the article: http://thetimes-tribune.com/sources-nealon-minora-mariani-to-be-submitted-for-nomination-to-federal-bench-1.880953.

Pennsylvania Supreme Court: UM Carrier Must Show Prejudice to Deny for Late Notice of Claim

On July 6, 2010, the Pennsylvania Supreme Court handed down its decision in the case of Vanderhoff v. Harleysville Ins. Co., 2010 W.L. 2653247 (Pa. 2010, Baer, J.), in which it considered the issue of “Whether an insurance carrier should be required to prove prejudice relative to the late reporting to the carrier of an accident involving an unidentified vehicle when such accident was timely reported to law enforcement officials?”

In this uninsured motorist case, the Pennsylvania Supreme Court held that an insurance company is indeed required to prove prejudice relative to the late reporting to the carrier even where the accident involving an unidentified vehicle was timely reported to law enforcement officials.

The majority opinion by Justice Baer, which was joined by Chief Justice Castille, Justice Todd and Justice McCaffery, noted that the Court’s decision was controlled by the case of Brakemen v. Potomac, Ins. Co., 371 A.2d 193 (Pa. 1977) in which the Court held that, in order to deny uninsured motorist benefits, a carrier must establish prejudice resulting from the insured’s failure to provide notice.

The Supreme Court chose not to follow its more recent opinion in the case of State Farm Ins. Co. v. Foster, 889 A.2d 78 (Pa. 2005), which centered around the issue of the requirement that an accident in this context be reported to law enforcement officials within thirty days of the accident.

In Vanderhoff, the subject accident was allegedly reported to law enforcement officials within thirty days of the accident as required. However, the insurance company did not receive notice of the accident until about eight (8) months after the accident. The Supreme Court ruled that, since the accident was reported to law enforcement officials within the thirty day requirement, the case would be remanded back to the trial court to determine whether or not the insurance company can establish prejudice from its later receipt of notice.

Justice Eakin, joined by Justice Saylor, dissented under the argument that the Motor Vehicle Financial Responsibility Law (75 Pa. C.S.A. §1702) does not contain a prejudice requirement in this context.

The prevailing Plaintiff's attorney in Vanderhoff was Attorney Brian Corcoran, a solo practitioner out of Kingston, PA.


A copy of the Vanderhoff majority opinion by the Pennsylvania Supreme Court can be viewed at this link:
http://www.pacourts.us/OpPosting/Supreme/out/J-43-2008mo.pdf.


I thank Attorney Paul Oven of the Moosic office of Dougherty, Leventhal & Price for bringing this case to my attention.

Wednesday, July 7, 2010

Ciavarella and Conahan Pre-Trial Motions Denied

In two Orders handed down yesterday, July 6, 2010, Judge Edwin M. Kosik of the Federal Middle District Court denied pre-trial Motions filed by former Luzerne County judges Mark Ciavarella and Michael Conahan in the federal criminal case. The Order primarily affects Ciavarella since Conahan previously pled guilty.

In his Order, Judge Kosik denied Ciavarella's motion for a change of venue as well as the motion for Judge Kosik's recusal, i.e. a request that Judge Kosik not handle the case. The Order also denies Ciavarella's efforts to keep the taped recordings of the former judge and his co-Defendants from the jury.

Ciavarella awaits trial on the 48 criminal counts levied against him.

Here's a link to the July 6, 2010 Times Leader article by Terri Morgan-Besecker entitled "Judge Denies Motion To Dismiss Indictment Against Conahan and Ciavarella: http://www.timesleader.com/news/hottopics/judges/Judge-denies-motion-to-dismiss-indictment-againt-Conahan-and-Ciavarella.html


Here are links to Judge Kosik's Orders-

Memorandum and Order Denying Motion to Dismiss: http://media.timesleader.com/documents/Dismissal_ruling1.pdf


Memorandum and Order Denying Recusal Motion: http://media.kjonline.com/documents/Recusal_ruling1.pdf

Monday, July 5, 2010

Summary Judgment in Favor of Carrier in Recent Eastern District Court Bad Faith Decision

The Eastern District of Pennsylvania handed down a recent bad faith decision in the case of 3039 B Street Associates, Inc. v. Lexington Insurance Company, PICS Case No. 10-1892 (E.D. Pa. May 3, 2010, Robreno, J.).

In this case, the Plaintiffs' commercial real estate and personal property was damaged by water after a sprinkler pipe burst. The Plaintiffs alleged bad faith conduct on the part of the carrier and requested punitive damages based on defendant Lexington Insurance Company's delay in payment of its claims by conducting a protracted investigation. Lexington moved for summary judgment requesting that plaintiffs' claim be dismissed.

Applying Pennsylvania law, the court ruled that the Plaintiffs could not make a claim under the Unfair Insurance Practices Act since the statute does not provide for a private right of action.

In terms of the 42 Pa.S.C.A. §8371 bad faith claim, relying upon the factors in Polselli v. Nationwide Mut. Fire Ins. Co. , 23 F.3d 747 (3d Cir. 1994), the court found that the carrier had a reasonable basis for denying the claim. The policy set out a procedure for adjusting claims, which was followed by the carrier. The parties were in close communication from the date the claim was submitted and the carrier was responsive to the insured's inquiries.

The court also noted that the Plaintiffs failed to provide defendant with information material to the satisfaction of their claim. Plaintiffs' did not file a proof of loss within the 30 days provided in the policy; rather, four months passed until the proof of loss was submitted. The court also noted that the carrier acted promptly after this information was received.

Believing the carrier had acted reasonably in investigating the claim, the court granted the carrier's summary judgment motion and dismissed the claims presented.

Latest Article - Consolidation vs. Severance Issue in Post-Koken Cases

The below article of mine originally appeared in the June 29, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(c) 2010 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.



A Growing Need for Guidance
Trial courts struggle with consolidation vs. severance issue in post-Koken cases


by


Daniel E. Cummins
Pennsylvania Law Weekly/The Legal Intelligencer
June 29, 2010

The gale-force winds of change brought on by "Hurricane Koken" continue to wreak havoc in the common pleas courts across the state as trial court judges struggle, without any appellate guidance, to determine whether a variety of post- Koken automobile accident litigation claims should proceed in a consolidated fashion under one caption.

This first part of a two-part column will review those "ordinary" post- Koken cases involving the issue of whether the third party claims against the responsible party defendant may proceed to a jury in a consolidated fashion with the companion underinsured or uninsured motorists benefits claims against the injured party's own automobile insurance carrier.

In next month's column, the trial courts' struggles over the same issue in post- Koken cases that involve bad faith claims will be analyzed.

In all scenarios involving this consolidation versus severance issue, there is a growing split of authority in Pennsylvania trial courts that is creating an increasing need for appellate guidance.

In fact, as noted below, there are even splits of authority within some county common pleas courts. This lack of a consistent common law on the issue leaves the bar and trial court judges with great uncertainty on the issue.

The Initial Preference

It has been about five years since the automobile accident litigation landscape was changed by a 2005 state Supreme Court case, Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken).

In Koken , the high court ruled for the first time that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of disputed uninsured and underinsured motorist benefits claims.

Thereafter, many carriers got rid of the arbitration clauses in their policies, leaving UIM and UM claims to be litigated by way of lawsuits filed in the trial courts.

One of the first issues that repeatedly came to the attention of the trial courts, typically by way of preliminary objections, was whether these new UIM or UM claims could be pursued in the same lawsuits and under the same captions as the third party claims against the defendant tortfeasors who caused the accidents.

As noted in my November 2009 article on this topic, "Two Roads Diverged," the first number of trial court judges to address this issue ruled in favor of allowing for the consolidation of these UIM and third party claims. By November 2009, there were at least 15 trial court decisions addressing the issue, all of which had ruled, or suggested they would rule, in favor of keeping these claims together under one caption to proceed to a jury trial in a consolidated fashion.

Concisely, these initial decisions were handed down in Lackawanna, Luzerne, Pike, Lehigh, Dauphin, Beaver, Allegheny and Philadelphia counties.

Among those judges who were the first to hand down opinions on this issue were Lackawanna County Common Pleas Court Judge Carmen Minora and Allegheny County Common Pleas Court Judge R. Stanton Wettick.

The common and overriding rationale of the consolidation decisions is that the claims arising out of the same "transaction or occurrence," i.e the same motor vehicle accident, should be tried together as a means of furthering the interests of judicial economy for the already overburdened trial courts. Another factor noted is the avoidance of piecemeal litigation with the possibility of inconsistent verdicts.

These post- Koken claims arising out of a single accident have been allowed to stay together under the permissive joinder of actions provision found in the Pennsylvania Rules of Civil Procedure at Rule 2229 or, in the alternative, under Rule 213(a) which allows for the consolidation of actions arising out of the same occurrence.

The judges in favor of consolidation seem unfazed by the fact that keeping the third party liability claims together with the UM/UIM claims will bring the topic of "insurance" in front of the jury at trial.

Although Pennsylvania Rule of Evidence 411 and its supporting caselaw precludes the mentioning of any form of insurance at personal injury trials, these judges have generally noted that the statute precluding a mention of "insurance" at trial expressly provides that insurance issues may be mentioned at trial where that topic may be relevant. Here, the mentioning of "insurance" is relevant to the litigation of the uninsured or underinsured motorist claim, the judges ruled.

Since those initial decisions, however, the storm has shifted course.

Other trial court judges, some of whom are even members of the bench in the aforementioned counties, have ruled in favor of severing the third party liability claims from the UM/UIM claims.

A Run The Other Way

Led by two Butler County Common Pleas judges, S. Michael Yeager and Marilyn J. Horan, judges who support the severing third party liability claims from UM/UIM claims have created run of decisions in favor of their rulings.

Yeager and Horan appear to have written the first opinions in favor of severance. Other judges, from York and Adams counties, have followed suit.

The main rationale put forth in those severance decisions is primarily that evidence of "insurance" is not admissible in personal injury civil litigation matters under Pa.R.E. 411. These courts have also referred to Pa.R.E. 403, which allows a trial court to preclude relevant evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…."

The fact that the third party tortfeasor defendant may be unduly prejudice by having the UM/UIM insurance company as a co-defendant in front of a jury in violation of the Rules of Evidence seems to be the main reasoning of the courts in favor of severing the claims for the protection of the tortfeasor's right to a fair trial.

Some of the courts in favor of severance have also noted that the act of severing and staying the UM/UIM claim pending the resolution of the third party liability claim furthers the interest of judicial economy.

For example, in those cases where the jury comes back with a verdict in the liability lawsuit that is less than the tortfeasor's liability policy limits, there would be no need to litigate the UIM claim.

In total, there have been at least 16 decisions in favor of severance and at least 22 decisions in favor of consolidation.

This split of authority on the consolidation versus severance of post- Koken cases cries out for appellate guidance to bring certainty on the issue to the bench and bar.

Further compounding the need for appellate guidance on this issue is the fact that there are now splits of authority in a few counties. In both Lackawanna County and Philadelphia, for example, there have been decisions handed down on both sides of the issue.

A Little Help Here?

While the need for appellate guidance on this issue is great, the likelihood that such appellate guidance may be forthcoming anytime soon is not so great.

In order to get to the Superior Court to address the consolidation versus severance issue, which is typically raised by way of preliminary objections, permission to appeal on an interlocutory basis must be secured by the litigants from the trial court.

Understandably, most plaintiffs attorneys will not want to delay their client's claim for a year or more in order to take the case to the appellate arena. Similarly, defense counsel seeking permission to pursue such an appeal have an uphill battle in securing permission from trial court judges who do not want to delay an injured party's recovery or want cases languishing on their docket.

The only other way this issue might go up the appellate ladder is on the merits after a trial and on an appeal from post-trial motions. With many post- Koken cases still only in discovery, the chances for this type of review on appeal remains far off.

Therefore, until appellate guidance on this issue is secured, members of both sides of the motor vehicle accident bar will have to weather the storm on a county by county basis.

To reiterate, there are currently at least 22 decisions in favor of the consolidation of these claims with those decisions coming out of Lackawanna, Luzerne, Pike, Lehigh, Dauphin, Beaver, Allegheny, Philadelphia and Northampton counties. There are now at least 16 decisions in favor of the severance of claims with those decisions coming out of Butler, York, Adams, Lackawanna and Philadelphia counties.

Hopefully, one wise trial court judge will soon grant a party permission to file an interlocutory appeal on the consolidation versus severance issue in post- Koken cases so that this important issue can be addressed and settled by the Superior Court and, perhaps, even the Pennsylvania Supreme Court, once and for all.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins. He handles insurance defense matters all across Northeastern Pennsylvania as far west as Williamsport, PA, as far north as the New York border, as far east as the New Jersey border, and as far south as the Easton - Allentown - Jim Thorpe line of towns (i.e. Northampton, Lehigh, and Carbon Counties). His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com. It features a "Post-Koken Scorecard," which provides a synopsis of trial court post-Koken decisions uncovered to date.

Hoping You Can Take A Few Moments to Put a Plug in For Tort Talk

I have been advised by the LexisNexis Insurance Law Community that Tort Talk is one of the nominated candidates for the LexisNexis Top 50 Insurance Blogs of 2009.

I understand that comments in support of Tort Talk can be made up through July 9, 2010 when the comment period closes. Thereafter, with input from the LexisNexis Insurance Law Center Advisory Board, LexisNexis will select the Insurance Law Community's Top 50 Insurance Blogs for 2009. After the Top 50 Insurance Blog honorees are announced, LexisNexis will ask its Community to vote for Top Insurance Blog of the Year.

If you are willing and able, I am hoping you might be able to take a few moments to register at LexisNexis (it's free and quick) and post a comment in favor of Tort Talk if you deem it worthy of such commentary--these plugs may assist Tort Talk in securing more votes and possibly reaching the Top 50 list. Here's the link to post your comment(s): http://www.lexisnexis.com/Community/insurancelaw/blogs/topblogs/archive/2010/06/22/insurance-law-community-s-top-50-insurance-blogs-for-2009.aspx


Thanks very much--I really appreciate it.

Thursday, July 1, 2010

Upcoming CLE Seminars of Note

Here are a few upcoming CLE Seminars of note that are also open to Claims Professionals at a nominal rate of $25.00 (rates for attorneys are higher due to availability of CLE credits).

Each seminar is expected to provide excellent updates on the law, great opportunities to network, and refreshing cocktail receptions at which members of the judiciary from the region are expected to attend.

I will be presenting the Auto Law/Post-Koken Update at both the Philadelphia and the Scranton/Wilkes-Barre events. Hope to see you there!

Anyone wishing to attend any of these seminars may contact me for more information or a registration form at dancummins@comcast.net.


(PITTSBURGH - JULY 15, 2010)

THE PENNSYLVANIA DEFENSE INSTITUTE
Proudly Presents Our Fourth Annual
“Key Insurance Law Developments 2010"

SHERATON STATION SQUARE HOTEL
PITTSBURGH, PENNSYLVANIA
Thursday, July 15, 2010
1 pm - 4:45 pm
Followed by Cocktail Reception

3 Substantive CLE Credits
TOPICS:
Compliance with Medicare and DPW Liens
Auto UIM/UM Law
Insurance bad faith Law
Federal and State ADR
_______________________________________

(PHILADELPHIA - AUGUST 5, 2010)

THE PENNSYLVANIA DEFENSE INSTITUTE
proudly presents a Continuing Legal Education Seminar

A League of Extraordinary Speakers:
Critical and Developmental Topics in Litigation

at the

THE UNION LEAGUE
PHILADELPHIA, PENNSYLVANIA
AUGUST 5, 2010
1 pm - 5 pm
Followed by Cocktail Reception

2 Substantive and 1 Ethics CLE Credit
TOPICS:

Car Accident Medical Conditions and Radiological Issues (Dr. Brooks)
Medicare Issues
Auto Law/Post-Koken Update
Economic Issues in Personal Injury Actions
Attorney-Client Privilege Issues
______________________________________

(WILKES-BARRE/SCRANTON - AUGUST 18, 2010)
THE PENNSYLVANIA DEFENSE INSTITUTE
and
THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

Proudly Present
“CIVIL LITIGATION DEVELOPMENTS 2010”
at the
MOHEGAN SUN CASINO at POCONO DOWNS
WILKES-BARRE, PENNSYLVANIA
Wednesday August 18, 2010
1 p.m. to 5 p.m.
Cocktail Hour (5-7 p.m.) at Breakers in the Mohegan Sun
(Claims professionals and at least 15 Judges from the Federal and State Courts all across Northeastern Pennsylvania are expected to attend the Cocktail Hour)

2 Substantive and 1 Ethics CLE Credit

TOPICS:

Auto Law/Post-Koken Update
Bad Faith Update
Panel Discussion on Ethics with Members of the Federal and State Judiciary

Again, anyone desiring more information or a registration form may contact me at dancummins@comcast.net.