Wednesday, June 26, 2013

Additional Post-Koken Decisions From Around the Commonwealth

I recently purchased the excellent written materials from the Pennsylvania Association for Justice Annual Auto Law Update, which includes an "Update on Current Pennsylvania 'Koken' Cases" written by Leonard Sloane, Esq. and Michael J. Davey, Esq. both of the Media/West Chester, PA law firm of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander.

Comparing those written materials against the Tort Talk Post-Koken Scorecard reveals the below additional cases.  These cases have been added to the Scorecard.

I have secured copies of the decisions of Shipers v. Brown (Allegh. Co.), Vecchio v. Tunison (Allegh. Co.), and Skrocki v. Erie Ins. Co. (Phila. Co.) from Attorney Bill Mabius of the PAAJ and I thank him for that.

Attorney Mabius advised that any of the Philadelphia County decision may be secured online at http://www.courts.phila.gov/ for a small fee.


Below are the additional cases I noted from the comparison of the PAAJ materials against the Post-Koken Scorecard:
 
 
CASES ALLOWING JOINDER OF THIRD-PARTY AND UIM CLAIMS

Bomentre v. Alifano and Nationwide, Nov. Term, 2009 No.: 447 (C.P. Phila. April 7, 2010 Glazer, J.) (Without Opinion, trial court denied third-party Defendant’s Preliminary Objections to joinder of claims against third party Defendant and UIM carriers, Nationwide and State Farm.  The court noted that the claims against third party Defendant and UIM carriers “may be properly joined as they arise out of the same occurrence and have common questions of law or fact….the joinder will save resources, time and expense.  There is no mis-joinder and the claims will be tried together in this court”).  

 
Spano v. Carney and Nationwide, March Term, 2008 No.: 5707 (C.P. Phila. July 3, 2008 New, J.) (Without Opinion, trial court denied Preliminary Objections of tortfeasor Defendant arguing improper joinder and that the inclusion of the UIM claim with the third party claim would impermissibly allowed evidence of insurance to be introduced in violation of Pa. R.E. 411.  The court also denied tortfeasor Defendant’s Preliminary Objection on improper venue; since court denied Preliminary Objections on mis-joinder of actions, venue issue raised by Defendant was also denied.)
 

Shipers and Thompson v. Brown and Safe Auto, No.: GD-13-002037 (C.P. Allegheny April 26, 2013 O’Reilly, J.) (In Order without Opinion, trial court overruled Preliminary Objections of tortfeasor Defendant seeking severance and allowed Plaintiffs’ negligence and UIM claim to remain join.   The trial court also noted in its Order that evidence of the third party Defendant’s insurance coverage would be admissible at trial in order to determine the extent of the UIM carrier’s liability).  

 
 

CASES NOT ALLOWING FOR JOINDER OF THIRD-PARTY AND UIM CLAIMS

Vecchio v. Tunison and Erie Insurance Exchange, No.: GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.) (In Order without Opinion, trial court granted Motion to Bifurcate filed by UIM carrier in the combined negligence/UIM action, which motion was filed less than two (2) months before this scheduled date of the trial listing.  The trial court ordered that the Plaintiffs’ third party negligence claim would be tried before the jury first, with the UIM claim tried separately thereafter.)  


Ryan and Neilson v. Hatala and Allstate, No.: 12-004323 (C.P. Delaware Nov. 12, 2012 Proud, J.) (In Order without Opinion, the trial court sustain the third party Defendant’s Preliminary Objections under arguments that the presence of the UIM carrier in action would cause the tortfeasor Defendant undue prejudice and would violate Pa. R.E. 411.   The third party Defendants also argued that the causes of action were impermissibly joined together under Pa. R.C.P.  2229(b) because the issues and proofs at issue in the Plaintiffs’ negligence claims were different from the issues and proofs at issue in their claims against the UIM carrier.   The court granted the Preliminary Objections of the third party Defendants and dismissed them from the action without prejudice to the Plaintiffs’ right to institute a separate action against them).  
 

Levin v. Grandinetti and Progressive, March Term 2010, No.: 0080 (C.P. Phila. June 14, 2010 Tereshko, J.).   (Without Opinion, court granted Preliminary Objections of the UIM carrier based upon improper joinder of causes of action and improper venue.   The court severed Plaintiff’s claims against the third party Defendant and the UIM carriers without prejudice to the Plaintiff’s right to file their UIM claims in Montgomery County or the US District Court for the Eastern District of Pennsylvania).
 

Matteo v. Andeno and Progressive, February Term, 2012 No.: 0193 (C.P. Phila. Aug. 2, 2012, Aug. 30, 2012 Tereshko, J.). (By Order without Opinion on August 12, 2012, the trial court sustained the UIM carrier’s Preliminary Objection based upon improper joinder and severed Plaintiff’s negligence and UIM claim.  By subsequent Order dated August 30, 2012, the trial court further ordered that the Plaintiffs’ negligence and UIM claims be severed in their entirety for purposes of discovery and trial).  
 

Saltzburg v. Hayes and State Farm, November Term, 2010 No.: 03227 (C.P. Phila. Jan. 19, 2011 Tereshko, J.) (Without Opinion, a trial court sustained the Preliminary Objections of the third party Defendant seeking severance of the Plaintiff’s third party and UIM claims.   The court dismissed Plaintiff’s claims against the third party Defendant without prejudice to the Plaintiff’s right to refile those claims in Montgomery County).  
 

Skrocki v. Erie Insurance and Row, February Term, 2012, No.: 03826 (C.P. Phila. Feb. 12, 2013 Tereshko, J.) (Following an automobile accident in Berks County, Plaintiff filed a combined negligence/UIM action against the third party Defendant, a resident of Berks County, and the Plaintiff’s UIM carrier.   The UIM carrier filed Preliminary Objections seeking severance of the Plaintiff’s negligence in UIM claims and also filed a Motion to Transfer Venue in the basis of forum non conveniens.   The trial court granted the carrier’s Preliminary Objections and severed the actions but denied the UIM carrier’s Motion to Transfer Venue.   The trial court also ordered that the Plaintiff’s claims against the third party Defendant will be tried first followed by a trial of the Plaintiff’s claims against the UIM carrier and that both trials would be held before different juries.   In this matter, the third party Defendant had also filed Preliminary Objections to improper venue, seeking a transfer of the matter from Berks County.   The trial court sustained the third party Defendant’s Preliminary Objections and ordered the entire matter transfer to Berks County.   The trial court held that because the UIM claim had been severed from the negligence claim, the accident occurred in Berks County, and that the third party Defendant was served with process in Berks County, there is simply no connection with this case to support proper venue in Philadelphia County. 


 

VENUE IN LAWSUITS AGAINST UM/UIM CARRIER

Johns v. Jones and Erie Insurance Exchange, January Term, 2011, No.: 1395 (C.P. Phila. Mar. 17, 2011 Moss, J.) (A Delaware County resident Plaintiff was injured in a motor vehicle accident in Philadelphia County, which accident was allegedly caused by a tortfeasor who resided in Philadelphia County who was operating a vehicle owned by a third party Defendant owner who resided in Delaware County.   At the time of the accident, the Plaintiff maintained a UIM policy with Erie, which contained a venue clause that required all suits against Erie for UIM benefits to be filed in the insured’s legal domicile at the time of the accident.   The Plaintiff filed suit in Philadelphia County against third party tortfeasors and the UIM carrier.   Erie filed Preliminary Objections to improper venue citing the venue clause.   Without Opinion, the trial court entered an Order transferring the entire matter to the Court of Common Pleas of Delaware County).  
 

Levin v. Grandinetti and Progressive, March, Term 2010, No.: 0080 (C.P. Phila. June 14, 2010 Tereshko, J.) (Montgomery resident Plaintiffs were involved in an accident in Philadelphia County.  Two of the third party Defendants resided in  New Jersey and a third was resident of Montgomery County. Without Opinion, the trial court granted the Preliminary Objections of the UIM carrier and severed the Plaintiff’s claims against the third party Defendants and the UIM carriers, without prejudice to the Plaintiffs’ right to file their UIM claims in Montgomery County or in the U.S. District Court for the Eastern District of Preliminary Objections.  
 

Morroney v. Allstate, November Term, 2011, No.: 0931 (C.P. Phila. Dec. 28, 2011 Moss, J.) (Montgomery County resident Plaintiff was injured in a motor vehicle accident.   The Plaintiff maintained a UIM policy with Allstate that contained a venue clause requiring all lawsuits against Allstate for UIM benefits to “be brought, heard, and decided in the county in which your [the insureds] address shown on the policy declarations is located.”  Following the accident, the Plaintiff filed suit in Philadelphia County given that Allstate regularly conducted business in that county.  Allstate filed Preliminary Objections to improper venue, citing the venue clause.   Without Opinion, the trial court sustained Allstate’s Preliminary Objections and transferred the entire matter to the Court of Common Pleas in Montgomery County).  
 

Spano v. Carney and Nationwide, March Term, 2008, No.: 5707 (C.P. Phila. July 3, 2008 New, J.) (Bucks County resident Plaintiff was injured in a car accident in Bucks County caused by a third party Defendant who resided in Bucks County.   Plaintiff filed suit against the third party Defendant and the UIM carrier in Philadelphia County on the basis that Nationwide conducted business in Philadelphia.   The third party Defendant filed Preliminary Objections to improper joinder and improper venue.   Without Opinion, the trial court denied both Preliminary Objections).
 

Taylor v. Nationwide and Natale, August Term, 2008, No.: 3204 (C.P. Phila. Dec. 14, 2009 Abramson, J.) (Plaintiff and third party Defendants were residents of Chester County and were involved in a motor vehicle accident in Chester County.  Plaintiff filed a lawsuit against the third party Defendants and the UIM carrier of Philadelphia County.   Without Opinion, the trial court denied third party Defendant’s Motion to Transfer Venue from Chester County on grounds of forum non conveniens).  
 
 
 
 

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