ARTICLE: A Plea to the Appellate Courts From a Post-Koken Litigator

Below is a copy of my latest article published in my column in the Pennsylvania Law Weekly imploring appellate court judges to tackle Post-Koken issues whenever they can and, when they do so, to publish such Opinions so that much needed appellate guidance in this area of the law can be developed:

A Plea to the Appellate Courts From a Post-Koken Litigator

Daniel E. Cummins, The Legal Intelligencer

June 10, 2014

Dear Pennsylvania appellate court judges:

This respectful yet cogent plea for appellate guidance in post-Koken civil litigation matters is prompted by the Pennsylvania Supreme Court's surprising and disappointing recent denial of the petition to appeal in the notable case of Stepanovich v. McGraw, PICS Case No. 13-2987 (Pa.Super. Oct. 15, 2013).

As noted in my recent Pennsylvania Law Weekly article, "Superior Court Leaves Big Post-Koken Question Unanswered," from Nov. 19, 2013, the Pennsylvania Superior Court tackled, but did not fully resolve, the all-important issue of how trials involving third-party defendant drivers and co-defendant underinsured motorist insurance companies should be handled. With the appeal of that case to the Supreme Court, the state's highest court was poised to address one of the most important issues facing the courts and civil litigators in recent times, but it chose not to.

The denial of the petition for appeal in Stepanovich did nothing to lessen the void of appellate guidance on the many novel and troublesome issues in the brave new post-Koken world of automobile accident litigation.

A Missed Opportunity

If it accepted the Stepanovich appeal, the Supreme Court could have finally determined a number of important post-Koken trial issues at a time when a tsunami of post-Koken trials are bearing down upon trial courts all across Pennsylvania. Such issues include whether, in the first instance, the third-party negligence claim against the alleged tortfeasor should be tried in the same courtroom and at the same time as the breach of contract case against the plaintiff's own insurance company for UIM benefits. If so, appellate guidance could have been garnered on the consequent issue of how to address the general preclusion against the mentioning of insurance issues in third-party negligence trials in a case where the co-defendant is an insurance company.

Stepanovich also offered our highest court the opportunity to provide practical advice to trial court judges on how to conduct a post-Koken trial where there are typically two defense attorneys, one for the third-party tortfeasor on the negligence claim and one for the UIM carrier defendant on the breach of contract claim, double-teaming against a lone plaintiffs counsel.

The struggle with that issue is evident in the Stepanovich case, where the trial court judge initially allowed the trial to proceed with the two-against-one scenario without advising the jury why there were two defense attorneys involved, but then later reversed himself during the post-trial proceedings following the defense verdict by granting a new trial under the rationale that the double-teaming of the plaintiff through two openings, two sets of questioning of witnesses and two closing arguments by the defense was not fair. Moreover, the Superior Court reversed on this issue but did not include in its decision concrete practical guidance on how a post-Koken trial should be handled.

Thus, the hope was that the Supreme Court would step in on the matter and finally give clarity on the important questions presented. Unfortunately and inexplicably, the Supreme Court punted, leaving this issue for another day (or year).

To the extent the Supreme Court punted under the belief that the Stepanovich issues are not troublesome and recurring ones for trial court judges or civil litigators, or were not important enough to review, such is not the case. Moreover, appellate guidance is needed on a number of other novel post-Koken issues as well.

Appellate Guidance Needed

Needless to say, but apparently still necessary to emphasize, appellate guidance would be welcomed on any post-Koken issue that should make its way up the appellate ladder for review.

According to the "Post-Koken Scorecard" on my Tort Talk blog, which may not be exhaustive but is certainly comprehensive, 19 different county courts have ruled that post-Koken cases should be allowed to proceed through the pleadings and discovery phases in a consolidated fashion, while at least 20 other county courts have ruled in favor of the severance of the claims at the pleadings stages.


Notably, in some counties, such as Philadelphia, Allegheny and Lackawanna, there is even a split of
authority on this issue among the trial court judges of the same bench.

A review of the scorecard also confirms that many novel post-Koken issues have also arisen in the context of the discovery phase of this new form of civil litigation of automobile accident claims.


Questions abound as to the extent to which an insurance company's claims file is discoverable, particularly when bad-faith claims are included in the swirling vortex of issues being litigated. Trial courts also continue to struggle with motions to quash the requested depositions of UIM claims representatives and the scope of allowable questions when such depositions are allowed.

Collateral estoppel has become a hot topic in post-Koken litigation that, to date, has only been addressed by the state and federal trial courts. The issue in that regard is whether a plaintiff's participation in a mediation or binding arbitration on the third-party side of the case collaterally estops the plaintiff from pursuing a UIM claim where the monetary result of the third-party litigation came in at less than the tortfeasor's liability limits, thereby indicating that the tortfeasor was not "underinsured" so as to support the pursuit of a companion UIM claim.

Even after the Superior Court's decision in Stepanovich, the all-important issue of whether or not post-Koken trials should be bifurcated into two separate trials, one against the defendant tortfeasor with no mention of "insurance," and a separate one against the UIM insurance company defendant, remains unsettled.

While Stepanovich suggests, but does not hold, that the cases can be tried in a consolidated fashion, at least two trial courts have ruled in favor of a bifurcated trial: the Northampton County Court of Common Pleas in Purta v. Blower, No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.), and the Allegheny County Court of Common Pleas in Vecchio v. Tunison, No.: GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.).

Other trial court judges, such as Judges Michael T. Vough and Lesa S. Gelb of the Luzerne County Court of Common Pleas and Judge Cyrus P. Dolbin of the Schuylkill County Court of Common Pleas, who have ruled in several cases that the cases should proceed to trial in a consolidated fashion are, in the absence of appellate guidance, still forced to craft appropriate ways to conduct voir dire, to allow for the admission of evidence of insurance matters, to phrase jury instructions at a layperson's level, and, overall, determine the extent to which two defense attorneys should be permitted to gang up against a plaintiff's case at a post-Koken trial.

Appellate guidance on all of these issues would be beneficial so as to allow for the more orderly and efficient litigation of post-Koken cases. Such guidance would negate the need for trial courts to repeatedly visit these issues as long as appellate decisions are lacking. Moreover, the appellate resolution of post-Koken issues in a final manner could serve to foster the settlement of many cases in which litigants face unfavorable prospects of success in light of such Superior Court or Supreme Court decisions.

Published, Precedential Decisions Welcomed

This is not to say that the appellate courts have not yet tackled troublesome post-Koken issues. Both the Superior Court and the Supreme Court have addressed important issues such as proper venue and the extent to which the delay damages statute can be applied after a post-Koken trial.

And so, appellate court judges, if you have not yet taken up the opportunity to tackle a post-Koken issue, this is the day and age to do so, for you will be remembered and thanked for it later. For those of you who have already taken on such issues, thank you.

Last but certainly not least, it is respectfully requested that when you are faced with post-Koken issues on appeal, you publish your opinions and not list them as nonprecedential, which would, of course, eradicate the power of any guidance the decisions are designed to create.

Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.