Ongoing Split of Authority on Whether to Mention UIM Carrier Defendant at Post-Koken Trial

Yesterday a synopsis was posted here of the December 10, 2012 Allegheny County trial court decision in Stepanovich in which Judge O'Reilly of that Court ruled that it was not fair to allow the defense attorney for the underinsured motorist benefits (UIM) carrier Defendant to participate at the trial without identifying the UIM carrier to the jury.

An opposite result was handed down in the previous November 16, 2012 Allegheny County Court of Common Pleas decision by Judge Michael E. McCarthy in the case of Zubeck v. Yogan and State Farm, No. GD 09-014254, 1380 WDA 2012 (C.P. Alleg. Co. Nov. 16, 2012 McCarthy, J.), in which the court ruled that it was permissible to hold a Post-Koken trial without identifying the UIM carrier particularly where it appears from the Opinion that the Plaintiff was in agreement with that scenario going into the trial.

In this matter, the Plaintiff initially sued the tortfeasor defendant for injuries allegedly arising out of a motor vehicle accident.

About two months before the listed trial date, the Plaintiff separately sued State Farm as the UIM carrier Defendant.

The Plaintiff then filed a motion for continuance of the trial in the first action pending against the tortfeasor.  The Plaintiff listed the reasons for the need for the continuance as (1) involving the need for more time to assess the Plaintiff's medical prognosis for the accident-related injuries, and (2) allowing for the second filed case against the UIM carrier to be consolidated for trial with the first filed case against the tortfeasor.  The request for the continuance of the trial on the first matter was granted.

Thereafter, the motion to consolidate the two matters was also granted.  That consolidation Order also mandated, as had been requested by the Plaintiff that the consolidated case would be tried in accordance with the rulings from the case of Collins v. Zeiler and State Farm.  The rulings of Collins case mandated that insurance would not be mentioned at a Post-Koken trial.

When this matter proceeded to trial, both a defense attorney for the tortfeasor and a defense attorney for the UIM carrier Defendant participated and each presented expert witnesses.  There was no reference to the jury regarding the involvement of the UIM carrier Defendant.  A defense verdict was entered in this rear end accident matter.

The Plaintiff filed post-trial motions asserting, in part, that the Plaintiff was prejudiced by the court allowing the participation of two defense counsel without disclosure of the the identity of the UIM carrier Defendant to the jury.  The Plaintiff asserted that that prejudice could only have been cured by identifying the UIM carrier Defendant to the jury.

In this Opinion, the trial judge disagreed and noted that the jury was given standard instructions regarding numbers of exhibits and witnesses, as well as standard expert witness depositions.  The court also distinguished those decisions from other jurisdictions and other Pennsylvania courts on this issue or similar issues.

Judge McCarthy also reiterated that consolidation was allowed in this case in the first place at the request of the Plaintiff and after the Plaintiff affirmatively agreed that there would be no mention of insurance at the trial in accordance with prior Allegheny County precedent.

Like the Stepanovich case, the Zubeck case is also on its way up to the Pennsylvania Superior Court on appeal.

Anyone wishing to review this case of Zubeck v. Yogan and State Farm, may click this LINK.

I send thanks to Attorney Robert Loch of the Pittsburgh law firm of Robb Leonard Mulvihill for bringing this Opinion to my attention.