Sunday, November 20, 2011

Latest Post-Koken Decision Out of Erie County Creates Split of Authority

Back in 2010, in the case of Jordan v. White, Gonzales, and Erie Insurance Exchange, No. 15540-Civil-2009 (Erie Co. October 28, 2010, Garhart, J.), the Erie County Court of Common Pleas denied Preliminary Objections filed by the UIM/UM carrier seeking severance.  The Court did state that it would entertain a motion to sever at the time of trial, if desired by the parties.  Thus, it appeared that Erie County fell on the side of those counties in favor of the consolidation of post-Koken negligence and UIM claims under one lawsuitj, at least through the discovery phase of a case.

Now a split of authority appears to have arisen in Erie County with Judge Shad Connelly of the Erie County Court of Common Pleas recently issuing the latest post-Koken severance versus consolidation claim out of that county in the case of Brown v. Haas and State Farm, No. 11658 - 2011 (C.P. Erie Oct. 31, 2011 Connelly, J.).

In Brown, Judge Connelly granted the preliminary objections filed by the tortfeasor defendant seeking a severance of the negligence and UIM claims on the basis that the tortfeasor would be prejudiced by the introduction of evidence of insurance in violation of Pennsylvania law.  The defense also argued that the claims did not arise out of the same "occurrence" in that one action was in negligence and the other in contract. 

Judge Connelly provides a nice review of some of the cases involved in the split of authority on this issue across the Commonwealth but does not mention the prior Erie County decision in Jordan noted above.

Judge Connelly also granted State Farm's preliminary objections seeking to have the Bad Faith claim stricken.  The court found that the Plaintiff had not pled sufficient facts to proceed on a Bad Faith claim where there were no facts pled to show that State Farm's denial of UIM benefits was frivolous or without a reasonable basis (State Farm denied UIM benefits under an argument that the Plaintiff was greater than 50% liable for the accident).

The Court noted that the Plaintiff had only pled that State Farm had denied UIM benefits after an allegedly imprudent investigations--facts that the court found were not sufficient to support a Bad Faith claim under Pennsylvania law.

The prevailing defense attorney for the tortfeasor was Joanna K. Budde, Esq. of the Erie, PA law firm of Knox, McLaughlin, Gomall & Sennett and the prevailing defense attorney for State Farm was Daniel K. Rivetti of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP.  I send thanks to Attorney Mark A. Martini of Robb Leonard Mulvihill and Attorney William C. Wagner of the Erie, PA law firm of Marnen Mioduszewski Bordonaro Wagner & Sinnott, LLC for bringing this case to my attention.

Anyone desiring a copy of the decision in Brown v. Haas and State Farm may contact me at

Don't forget you can always access the Post-Koken Scorecard on the blog ( by scrolling down the right hand column and clicking on the date under the label "Post-Koken Scorecard."  That link will take you to a page where I have compiled all of the cases I have seen to date on a variety of post-Koken issues. 

Note that the list of cases on the Post-Koken Scorecard is not exhaustive and there may be other decisions out there that I have not seen--but the listing of cases is certainly thorough and could be an asset to your legal research in this area.  In fact, the Post-Koken Scorecard has been cited in Briefs filed with the courts as well as in some trial court opinions as a resource.

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