Tuesday, January 18, 2011

More Post-Koken Decisions in Favor of Consolidation

Below are summaries of three more recent Post-Koken decisions, all of which come down in favor of the consolidation of the claims against a tortfeasor and the UIM carrier under one caption.

By my count under the updated Post-Koken Scorecard (which is thorough but may not be exhaustive) there are at least 34 decisions from around the Commonwealth in favor of consolidation of claims and at least 20 decisions in favor of severance. Click here to view the Post-Koken Scorecard here on Tort Talk: http://www.torttalk.com/2009/12/new-and-improved-updated-list-of-post.html

To date, there still has been no appellate decision on point.

Dauphin County

I was notified of a post-Koken Order that came down in Dauphin County back on September 10, 2010. In the case of Schaeffer v. Bonny and Donegal Group, No. 2010 - Civil - 4547 (Dauph. Co., Sept. 10, 2010, Coates, J.), Judge Bernard L. Coates, Jr. denied preliminary objections filed by tortfeasor defendants and the UIM carrier and allow the claims filed by the Plaintiff against the tortfeasor to remain consolidated under one caption with the claims against the UIM carrier.

This is at least the fourth decision out of Dauphin County in favor of consolidation.

The prevailing attorney in the Schaeffer case was Attorney Matt Crosby of Handler, Henning & Rosenberg, LLP in Harrisburg, PA.

Cambria County

With its recent decision in two matters, the Cambria County Court of Common Pleas makes its first appearance on the Post-Koken Scorecard.

On January 10, 2010, an en banc opinion was issued in the Cambria County post-Koken case of Link v. Eckenrode and State Farm, No. 2009- Civil - 1312 (Cambria Co., Jan. 10, 2011)(Opinion by President Judge Timothy P. Creany, Concurrence by Judge David J. Tulowitzki, and Dissenting Opinion by Linda Rovder Fleming). The issue presented was whether negligence claims should be allowed to proceed in a consolidated fashion with UIM claims under one caption.

In its Opinion, the en banc panel of the Court of Common Pleas of Cambria County also addressed the same issue as presented in the separate case of Lydick v. Keilman, No. 2010- Civil - 1700 (Cambria Co., Jan. 10, 2011, Creany, J.).

The majority opinion essentially relied upon the interests of judicial economy in holding that it would allow the plaintiff to join the third party and UM or UIM claims in the same proceeding particularly where the cases involve the same or similar questions pertaining to the liability and damages issues.

The majority noted that the issues attendant with introducing insurance into the trial setting, including the potential implication of the collateral source rule, can be "overcome by cautious trial management in presenting insurance evidence to the jury so as not to taint either party.

The court also stated that the jury could be instructed that, in the event the plaintiff recovers, contractual relationships would then determine whether the plaintiff's own insurance company is liable as well.

In her dissenting Opinion, Judge Fleming pointed to the current split of authority among the trial courts across the Commonwealth and indicated that a collection of these decisions was "compiled through the diligent efforts of Daniel E. Cummins, Esquire" in a recent Pennsylvania Law Weekly article. See Link at p. 2, n. 1.

Judge Fleming noted that, in her assessment of the question presented, the potential prejudice to a tortfeasor defendant by the introduction of insurance issues at trial outweighed any interest of judicial economy and, as such, she would have erred on the side of caution, in favor of a severance of claims.


Anyone desiring a copy of the above-noted decisions may email me at dancummins@comcast.net.

I send thanks to Attorney Steve T. Mahan a third year law student at Widener and a law clerk at the Harrisburg law firm of Handler, Henning & Rosenberg, LLP, Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer, and Attorney Paul Oven of the Moosic, Pennsylvania law firm of Dougherty, Leventhal & Price for bringing these cases to my attention.

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