Friday, March 4, 2011

Judge Miller of Monroe County Rules on Post-Koken Pleading Issue Pertinent to Defendants

In the post-Koken decision of Bridgeman v. Cruz, PICS Case No. 11-0238 (Monroe Co., Jan. 7, 2011, Wallach, Miller, J.), the Court sustained the tortfeasor Defendant’s Preliminary Objections and struck the Co-Defendant UIM carrier’s cross-claim for contribution or indemnification after finding that such claim was not yet ripe for judicial review.

In this matter, the Plaintiff sued the tortfeasor and the UIM carrier under one caption. The UIM carrier, Nationwide, filed a cross-claim for contribution and indemnification of any amounts Nationwide had to pay to Plaintiff under Plaintiff’s uninsured and underinsured motorist coverage. Nationwide claimed that any amount it would be required to pay was caused by the tortfeasor Defendant’s actions.

In response, the tortfeasor Defendants filed Preliminary Objections asserting that Nationwide had no right to contribution or indemnification because they were brought into the case on an UM/UIM theory of recovery. In order for such claims for contribution or indemnification to be justiciable, the litigant must have standing, the claim must not be moot, and the claim must be ripe for judicial review.

Judge Wallach Miller concluded that under the UM/UIM policy, the carrier did not have to pay the injured party until a determination was made that the Plaintiff’s damages exceeded the liability policy limits. The Court also noted that, under the UM/UIM policy, Nationwide retained the right to recover any amounts it had to pay to its injured party insured only after Nationwide had actually compensated the insured for damages in excess for the tortfeasors’ applicable liability limits.

The Court found that the UIM carrier may not recover on any claim for contribution or indemnification until the Plaintiff was awarded damages in excess of the liability policy and, therefore, Nationwide’s cross-claim, was found to be procedurally and substantively improper because it was not ripe for judicial review under the ripeness doctrine.

The Court concluded its Opinion by indicating that Nationwide will not suffer any undue hardship if the Court struck Nationwide’s cross-claim at this time. Judge Wallach Miller stated that, if the Plaintiff recovered less than the liability limits, then the tortfeasors would not have to defend themselves in any subrogation suit because Nationwide would have no losses to recover in such a scenario.

Anyone desiring a copy of this Opinion may contact the Pennsylvania Law Weekly Instant Case Service by calling 1-800-276-7427 and paying a small fee.

I am attempting to obtain a copy so you can contact me at as well if you would like a copy.

Source: Case Digest in February 15, 2011 Pennsylvania Law Weekly

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