Friday, January 7, 2011

Pennsylvania Superior Court Skirts Post-Koken Consolidation vs. Severance Issue

Tort Talkers may recall that I previously reported on the Allegheny trial court decision in Richner v. McCance and Erie Insurance Group, GD 09-2578, 2045 WDA 2009 (Alleg. Co. Feb. 17, 2010)(Third party claim against defendant driver and separate declaratory judgment action on UIM coverage issue allowed to proceed in a consolidated fashion; court leaves the door open to bifurcate at time of trial, if necessary.).

See http://www.torttalk.com/2010/08/slightly-different-scenario-post-koken.html.

That decision went up on appeal and, a couple of days ago on January 6, 2010, the Pennsylvania Superior Court issued a decision reversing the trial court decision and holding that the injured party could not join his tort claim with a count in the Complaint for a declaratory judgment raising the coverage question surrounding the applicability of an exclusion in the Erie Insurance Company's policy. Richner v. McCance and Erie Insurance Group, 2011 WL 32499, 2011 Pa.Super. 4, No. 2045 WDA 2009 (Pa.Super. Jan. 6, 2011, Stevens, Donohue, and Ott, JJ.).

The Superior Court applied Pa.R.C.P. 2229(b), pertaining to the joinder of actions, and found that the requirements of that rule were not met to allow for a joinder of a tort claim with a declaratory judgment action on a coverage question. More specifically, the court found that, although the tort allegations and the coverage question essentially both arise out of the same accident, the liabilities of the respective defendants arise from different circumstances, i.e. one in tort and the other in contract law.

The court also found that the questions of law at issue were not common to both actions. As such, the second requirement of Pa.R.C.P. 2229(b), i.e. common questions of law or fact, was not met to allow for a joinder of a tort claim with a declaratory judgment request on a coverage issue.

In so ruling the Superior Court rejected the trial court's reliance on post-Koken cases ruling in favor of the consolidation of tort claims and claims for UIM benefits under Pa.R.C.P. 2229(b), as the analysis in those types of cases was "inapposite" to the issue in this case involving the separate and different question of the combination of a tort claim with a request for a declaratory judgment in response to a coverage question. Id. at p. 17, n. 4.

In that same footnote, the Superior Court also stated, "We emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefit claims." Id.

Despite this proviso by the Superior Court, this Richner decision is the closest the court has come to addressing the all-important consolidation vs. severance post-Koken issue and this opinion is sure to be referenced once that issue is ever squarely before the Superior Court.

As such, the Superior Court's decision in Richner appears to be a must-read for practitioners handling post-Koken automobile litigation matters. Tort Talk provides you with this link to the opinion online:

http://www.aopc.org/OpPosting/Superior/out/A25025_10.pdf

I send a note of congrats to Attorney Phillip R. Earnest of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP as the prevailing attorney in this appeal.

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