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In the meantime, it remains to be seen whether the carriers will move to limit their exposure by revising their policy language to expressly provide that delay damages will not be paid in underinsured or uninsured litigation matters or, in the alternative, will only be paid up to the amount of the available policy limits.
The Marlette v. State Farm and Jordan case may be viewed online by clicking this link:
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.