Thursday, March 24, 2011

Another Luzerne County Post-Koken Decision in Favor of Consolidation

On March 16, 2011, Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas issued an Order denying the tortfeasor Defendant’s Preliminary Objections on the issue of consolidation of claims in the post-Koken case of Kush v. Rogowski and Progressive, No. 12760-Civil-2010 (Luz. Co., March 16, 2011, Burke, P.J.).

In Kush, the tortfeasor Defendant filed Preliminary Objections and the UIM carrier simply filed an Answer to the Complaint. I was advised that the tortfeasor Defendant raised the usual arguments of misjoinder and prejudice but also made this objection:

PRELIMINARY OBJECTIONS/FAILURE TO PLEAD PERFORMANCE OR OCCURRENCE OF CONDITION PRECEDENT

Under that preliminary objection, the tortfeasor Defendant asserted that the Plaintiff should not be permitted to join her underinsurance action in the underlying tort action unless and until Plaintiff has established that any and all preconditions to payment have been satisfied under the terms and conditions of her personal policy of insurance issued by Progressive.

As noted, the Court overruled the tortfeasor Defendant’s Preliminary Objections. In doing so, Judge Burke cited with a “See” signal, the case of Borthwick v. Webb and GEICO, 100 Luz. Reg. Reports 135 (2010).

As such, this Kush decision represents another Luzerne County decision in favor of the consolidation of post-Koken claims.

All of the cases compiled to date, can be viewed on the post-Koken scorecard by scrolling down the right hand column of this blog and clicking on the date under “Post-Koken scorecard.”

Note that the Post-Koken scorecard, while thorough, is not represented to be an exhaustive listing of all of the cases that may be out there. There could be other cases that I am not aware of and it is recommended that you conduct your own additional research in your own county.

I send thanks to prevailing Attorney Ann O’Donnell Farias of the O’Donnell Law Offices in Kingston, Pennsylvania for forwarding this case to my attention.

Anyone desiring a copy of this Order (without Opinion) in the case of Kush v. Rogowski and Progressive may contact me at dancummins@comcast.net.

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