Thursday, June 16, 2011

Latest Post-Koken Decision Out of Lackawanna County

On June 10, 2011, Judge Robert A. Mazzoni issued the latest Lackawanna County post-Koken decision on the issue of severance versus consolidation in the case of Richards v. McPhillips and Progressive Insurance Company, 2010-CIV-7020 (Lacka. Co. June 10, 2011, Mazzoni, J.).

A wrinkle in this case separating the facts from previous post-Koken cases on this issue is that there were punitive damages allegations asserted against the third party tortfeasor on the basis that the tortfeasor was operating his vehicle allegedly under the influence of heroin and/or as otherwise impaired.

As defense counsel for Progressive, I asserted the various reasons supporting a finding of a misjoinder of actions and a need for severance as set forth in the various post-Koken cases that have come down before. It was additionally emphasized that Progressive, as the UIM carrier in this matter, would be prejudiced at trial by the danger of an increased verdict from a jury inflamed by the tortfeasor’s allegedly driving under the influence of heroin and/or other substances. Nevertheless, being aware that the majority rule in Lackawanna County was in favor of consolidation, we advised the court that we were not opposed to the case remaining consolidated for discovery purposes and that our focus was primarily on securing a severance of the claims for trial purposes.

In his decision in Richards, Judge Mazzoni provided a nice summary of the case law to date and additionally relied upon Judge Terrence R. Nealon’s recent and thorough decision in this regard in the case of Bingham v. Poswistilo and Erie Insurance, 2010-CIV-6026 (Lacka. Co. April 8, 2011, Nealon, J.), to come to a ruling that this case will remain consolidated for purposes of discovery.

Judge Mazzoni noted in his opinion that the fact that the Plaintiff has alleged a claim for punitive damages against the third party tortfeasor did not require a change the result. The court felt that the claims against the tortfeasor and the UIM carrier are separate and distinct and, “[i]n in carefully managed trial, the Trial Judge can minimize and/or eliminate the potential for prejudice or confusion.”

However, Judge Mazzoni did agree to leave the door open for a bifurcation of the third party negligence claims and the UIM claims at the time of trial. Judge Mazzoni concluded his opinion with the following paragraph:

“It is important to note that this Court shares Judge Nealon’s concern over the scope of decisions in the post Koken cases.  It is important to note that the intent of this Court’s Memorandum and Order is simply to direct and guide the parties through the Pre-Trial stage. This opinion is not intended to strip the trial
judge of his or her discretion. Accordingly, for purposes of trial, this opinion should only be instructive and not binding upon the Trial Judge. This Court will defer to the judgment of the Trial Judge who may avail himself/herself to a variety of options including severance as comprehensively discussed in Judge Nealon’s decision in Bingham.”

Anyone desiring a copy of this opinion my contact me at

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