Wednesday, October 5, 2011

Judge Burke of Luzerne County Dismisses Cross-Claim by UIM Defendant Against Tortfeasor Defendant in Post-Koken Case

Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas recently sustained a tortfeasor defendant’s preliminary objections (filed by me) and dismissed a cross-claim for contribution and/or indemnification filed by the underinsured motorist (UIM) carrier defendant against the tortfeasor defendant in the post-Koken case of Emery v. Culver and Nationwide, No. 6764 – CIVIL – 2010 (C.P. Luz. Co. Sept. 28, 2011 Burke, J.).

Regular readers of Tort Talk may recall that I previously reported on the Post-Koken issue of whether or not the underinsured motorist (UIM) carrier defendant could assert a cross-claim against the tortfeasor defendant seeking the recovery on the UIM carrier’s potential subrogation rights (i.e., if the UIM carrier pays out money to the injured party, the UIM carrier has a right to recover the amount of that payment from the tortfeasor who caused the plaintiff’s injuries).

Judge Linda Wallach Miller of the Monroe County Court of Common Pleas addressed this issue her post-Koken decision of Bridgeman v. Cruz and Nationwide,, PICS Case No. 11-0238 (Monroe Co., Jan. 7, 2011, Wallach, Miller, J.). In Bridgeman, 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.

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.

In addition to citing Judge Miller’s on point decision in Bridgeman in support of the preliminary objections filed in the Emery case before Judge Burke, I also cited cases asserting that the cross-claim was improper because the UIM carrier and the tortfeasor defendants could not be considered to be joint tortfeasors (the claim against the UIM carrier is in contract, and the claim against the tortfeasor sounds in negligence). See Sehl v. Neff and State Farm, No. 3438 EDA 2009, 2011 WL 2990902 (Pa.Super. July 25, 2011 Olson, Freedburg, Colville, JJ.)(opinion by Freedburg); Bingham v. Poswistilo, Ritz, and Erie Ins., No. 10 - CV - 6020 (Lacka. Co., April 8, 2011, Nealon, J.).

Anyone desiring a copy of Judge Burke’s Order without Opinion and/or my preliminary objections and supporting brief in the Emery v. Culver case may contact me at

Disclaimer: Past results by Foley, Cognetti, Comerford, Cimini & Cummins are no guarantee of future results and each case must be handled on its own merits.

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