Monday, February 4, 2013

Judge Williamson of Monroe County Addresses Several Post-Koken Issues At Once

In his recent decision in the case of Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed several issues, including a Motion for Severance filed by the Defendant insurance company, Penn National Insurance, in a post-Koken matter involving claims of underinsured motorist benefits and bad faith.  

In its Motion, Penn National requested a severance of the underinsured motorist claims from the breach of contract and bad faith action.  In the alternative, Penn National requested a special procedure to be employed by the Court to ensure a fair operation of the justice system under the facts presented.   In another motion, Penn National sought the preclusion of the introduction of any evidence of insurance at trial.  

Judge Williamson granted Penn National’s request for severance of the breach of contract and bad faith claims from the UIM claim.  The judge agreed with the carrier’s request that the breach of contract and bad faith claims be heard after the UIM case is concluded. The Court agreed that discovery of attorney/client communications that may be relevant in a bad faith action, but not in a UIM claim, could be better protected, and the interest in justice would be served if the matter was severed.  

Judge Williamson reasoned that while the bad faith claim would be decided by the Court, the remaining claims involved jury issues.  The Court noted that, if the cases remained consolidated, evidence admitted before the jury in the bad faith claim for the Court only to consider would likely only serve to confuse the jury and its role in the proceedings.   The Court also noted that the disclosure of certain information for purposes of the bad faith claim could serve to prejudice the jury against the insurance company Defendant.   Furthermore, if the cases were severed, the jury could be shielded from any improper mentioning of insurance.   While agreeing with that argument, the Court did note that it understood that members of the jury must be, in this day in age, aware that automobile insurance issues are raised in automobile accident matters.

The Court also noted that, in this case, the Plaintiff’s underlying third party liability claim against the tortfeasor and the breach of contract UIM claim would be heard together and that the verdict and amount of damages entered in that matter could ultimately make the companion bad faith claim moot.  The Court noted that if the Plaintiff’s underlying claims are settled, or if a jury returned a verdict for less than the policy limits of the UIM coverage, the bad faith claim would then have no merit.   Accordingly, the Court found the interest of justice, fairness, and judicial economy mandated that the breach of contract  and bad faith claims be severed from the UIM claim.  

While the Court granted Penn National’s severance request, it denied the request of the carrier that all proceedings in the bad faith case, including discovery, be stayed pending the resolution of the UIM claim.    The Court found that to grant such a request would unfairly delay the possible conclusion of all of the proceedings.  Judge Williamson also noted that the Plaintiff had a right to move their cases to trial.   The Court also noted that the fact that the UIM claim may be settled or resolved for less than the policy limits, thereby making the bad faith claim moot, was not sufficient reasons to freeze discovery in the bad faith claim.   The Court additionally noted that the carrier did not show any actual prejudice that would outweigh the Plaintiffs’ right to move this case along and have the bad faith claim heard immediately, or as soon as possible, once the UIM claim is tried to verdict.  

Judge Williamson stated that, while he saw no actual prejudice at present, he did reserve the power to order restrictions on discovery if and when prejudice is shown by way of a motion filed after discovery was served.  Judge Williamson stated that there were different ways that the Court could handle a situation where prejudicial information of the carrier may be potentially exposed through discovery efforts.   He rejected the request for a blanket “freeze” of all matters in the bad faith claim until the UIM claim is concluded.   In so ruling, the Court recognized that there may be some information contained in the carrier’s files that the carriers should not be required to furnish until the resolution of the UIM claim, “including statements regarding settlement strategy.”  

Lastly, the Court granted Penn National’s additional request that the UIM claim be consolidated with the underlying tortfeasor claim.   This request was granted in the interest of judicial economy.  

The Court also granted the carrier’s additional Motion to Preclude the Introduction of any Insurance during the course of trial.   The Court also agreed that Penn National’s name should not be mentioned during the course of the trial.   However, the Court did agree that it would be unfair not to identify counsel for Penn National who might appear at trial.   The Court stated that, not identifying Penn National’s defense attorney could allow a jury to infer that both defense counsel represents a tortfeasor.   The Court felt that this would be improper as was previously held in the Allegheny Court of Common Pleas case of Stepanovich v. McGraw.  

As such, Judge Williamson felt that it would not be fair to the Plaintiff to grant the carrier’s request for consolidation and then not explain why the Penn National is defending the matter and is present in addition to the tortfeasor.   Accordingly, Judge Williamson noted that, if Penn National intended to participate in the jury trial with the tortfeasor and the tortfeasor’s attorney, then Penn National would be identified at trial as an additional party.  However, if Penn National’s plan was not to participate at trial than that carrier would not be identified.  
I send thanks to Attorney Pete Speaker of the Harrisburg office of Thomas, Thomas & Hafer for forwarding this case to my attention. 

Anyone desiring a copy of this decision by Judge Williamson in the case of Orsulak v. Windish may contact me at

I have updated the Post-Koken Scorecard with this case.  That Scorecard can also always be reached at the Tort Talk website at by scrolling down the right hand column of the blog and clicking on the date under the label, "Post-Koken Scorecard."

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