Tuesday, August 2, 2011

Post-Koken UIM Decision on Discovery Handed Down in Dauphin County

An article entitled "Dauphin County Judge Allows Discovery of UIM Claim Evaluation" and written by Ben Present that came out in the August 2, 2011 Pennsylvania Law Weekly is causing a stir across the Pennsylvania Auto Law Bar.

The article reports on a Order handed down by Dauphin County Judge Richard Lewis in the case of Welcomer v. Donegal Mut. Ins. Co., No. 2011-CV-474 (Dauphin Co. June 27, 2011 Lewis, J.) in which the court allowed the Plaintiff to pursue, over the defendant's objection, discovery from the UIM carrier in a post-Koken case regarding the UIM carrier's evaluation of the claim presented.  The court also allowed the Plaintiff to complete the deposition of the claims representative on the same issues.

The court ruled against the defense's primary position that the claims representative's notes on the evaluation were protected from disclosure under Pennsylvania Rule of Civil Procedure 4003.3 that precluded discovery of the mental impressions, conclusions, and opinions of a representative of the defendant regarding the merit or value of a claim or defense.  Finding that the information was relevant to the claims presented, the court allowed for the discovery.  It was reported that this case settled shortly after the Order was issued.

It is noted that the issue did not come before the court by way of any formal motion and was addressed informally by the parties in letter briefs and without any oral argument.

It is noted that a review of the letter briefs filed confirms that neither of the parties involved in the Welcomer case cited to any of the other decisions noted below on this issue from around the Commonwealth, which while not binding in Dauphin County, could have been relied upon by the Judge as persuasive authority on the issue of whether discovery of the bases of a carrier’s evaluation, as well as the carrier’s reserve information, was permissible.

For example, in the post-Koken case of Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008, Wettick, J.), and again in Wutz v. Smith and State Farm, 2009 WL 2920956, No. GD07-021766 (Alleg. Co. Sept. 9, 2009, Wettick, J.), both of which involved the different context of a breach of contract claim for UIM benefits combined with a bad faith claim, Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas, who is considered to be the expert on the application of the rules of discovery to civil litigation matters in Pennsylvania, the court precluded the plaintiff’s efforts in discovery to secure the UIM carrier’s settlement evaluation information and reserve information until after the jury came back and issued a verdict in the initial trial on the UIM claim, which would then be followed by a bench trial on the bad faith claim.

In my estimation, a fair reading of Judge Wettick’s decisions leads to the conclusion that, if faced with only a breach of contract claim for UIM benefits that was not combined with a bad faith claim, Judge Wettick would likely rule that the discovery at issue was not permissible as the information sought was protected under the Rules of Civil Procedure which states that the mental impressions, opinions, and conclusions of representatives of a party are not discoverable, but rather, are privileged.

In a case out of Luzerne County, which I believe only involved a post-Koken breach of contract claim for UIM benefits and no bad faith claim, Judge Lewis W. Wetzel of the Luzerne County Court of Common Pleas also precluded this type of discovery in the case of Migatulski v. Eberis, et al., No. 7269-Civil-2006 (Luz. Co. Sept. 7, 2010, Wetzel, J.).

The viewpoint that there is ample authority against the allowance of discovery of a claims representative's notes on the UIM carrier's evaluation of the claim presented in post-Koken matters is also supported by those cases in which the trial courts have allowed the deposition of a claims representative to go forward with the proviso that the deposition questions may not pertain to those areas protected by the Rules of Civil Procedure pertaining to discovery, i.e. questions may not pertain to the representative's mental impressions, conclusions, or opinions regarding the merit or value of any claim or defense (Pa.R.C.P.4003.3).  See Paulewicz v. Fronczkewicz and State Farm, No. 10655 of 2009 Civil (Luz. Co. Feb. 1, 2010, Amesbury, J.)(In Order only, Court allows deposition of claims representative but precludes questions regarding mental impressions, conclusions or opinions regarding value of claim);  Liszka v. Ferro and GEICO, No. 109 - 2010 - Civil (Pike Co. March 20, 2011 Chelak, J.)(In an Opinion, Court denies motion for protective order by GEICO seeking to stop Plaintiff's deposition of claims representative; however, court cautions that deposition may only cover those areas allowed by Rules of Civil Procedure pertaining to discovery).

Anyone needing a copy of the above decisions may contact me at dancummins@comcast.net.  It is noted that there may also be other decisions out there on this issue that have not yet been publicized.

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