Monday, November 17, 2014

Monumental Opinion on Post-Koken Trial Jury Instructions From Judge Terrence R. Nealon of Lackawanna County

In his recent decision in the case of Moritz v. Hora ce Mann Insurance, 2014 WL 5817681, No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014 Nealon, J.), Judge Terrence R. Nealon addressed important issues with respect to a post-Koken automobile accident matter that is headed towards trial.  

In what appears to be the first reported decision on the issue, Judge Nealon set forth the instructions that he would provide to the jury in a UIM jury trial.  

According to the Opinion, the defense wanted minimalist instructions to the jury that this matter involved an admitted liability accident for which the jurors were to decide the amount of damages recoverable.   In contrast, the Plaintiff was requesting some explanation of the UIM coverage and claims presented.  

Judge Nealon noted that there are no standard jury instructions for UIM trials that have been promulgated to date.  Accordingly, he reviewed jury instructions from other states and then formulated his own instructions.  

Judge Terrence R. Nealon
Lackawanna County
In so ruling, Judge Nealon referred to his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17, 44 (C.P. Lacka. Co. 2011, Nealon, J.) for the proposition that not only made Pennsylvania trial courts join and try tort UIM claims in a single action without running afoul of Pa. R.E. 411, pertaining to “Liability Insurance,” and that a trial court may consider evidence of insurance as being offered for another purpose under Rule 411 such that a UIM carrier was allowed to be identified to the jury and the tort and UIM issues could be tried jointly as guided by “carefully crafted instructions to the jury.”  

Judge Nealon noted that the Pennsylvania Superior Court more recently addressed the application of Pa. R.E. 411 in a jury trial where a liability and UIM claim are joined for a single trial and held that “a course of action identifying [the UIM insurer] as a party would not necessarily run afoul of…. Rule 411” in such a trial.  Moritz, citing  Stepanovich v. McGraw, 78 A.3d 1147, 1150 (Pa. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).  

In Moritz, Judge Nealon stated that he would instruct the jury, as follows:

(1)  Plaintiffs have brought this action against their own insurance company under coverage known as underinsured motorist coverage, which served to provide compensation to a Plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the Plaintiff’s damages from an accident;

(2) To recover against the Defendant, the Plaintiff must prove that the other driver was negligent, that the negligence caused harm to the Plaintiff, and that the other driver did not have adequate liability insurance;

(3) The Defendant had stipulated that the Plaintiffs’ insurance policy provides underinsured motorist coverage and that the policy was in effect at the time of the accident, such that the jurors need not concern themselves with the specifics of the policy;

(4) The Defendant has also agreed that the other driver was negligent and caused the accident, such that the jury need only determine whether the Plaintiff suffered harm as a result of the accident and, if so, what amount of money damages will fairly and adequately compensate the Plaintiff;

(5)  The fact that the Plaintiffs are suing the Defendant for underinsured motorist benefits suggests that the other driver had some insurance which was recovered by the Plaintiff;

(6) The Plaintiffs will not receive compensation twice for the same damages since any jury award of damages in this case will be reduced by any amount that the Plaintiffs have already received from the other driver and her insurer;  and,

(7)  The jury should determine an amount of money damages that will fairly and adequately compensate the Plaintiff for all the physical and financial injuries they have sustained as a result of the accident, without consideration of any amount that the Plaintiff may have received from the other driver or her insurer, since any such amount will be deducted by the court from the total sum that the jury may award.  

In his Opinion, Judge Nealon went on to more specifically apply the above to the facts of the case presented in terms of the jury instructions to be provided.  


The Moritz decision by Judge Nealon is also notable with respect to a Motion In Limine filed by the Plaintiff seeking to introduce evidence that the same insurance company paid for the  Plaintiff’s total treatment and surgery under the first party medical benefits coverage as a means of rebutting the carrier’s argument, as a UIM Defendant, that the Plaintiff’s shoulder injury and surgery were not accident related.

The court sustained the UIM carrier’s objections to that evidence and ruled it inadmissible.   In support of this ruling, Judge Nealon relied upon the case of Pantelis v. Erie Insurance Exchange, 890 A.2d 1063 (Pa. Super. 2006).  

In Pantelis, the same argument was raised by the Plaintiff.  However, the Superior Court noted that “[t]he statutory framework and applicable case law establishes that payment of UM/UIM claims is subject to a different analysis then payment of first party benefits.”  Pantelis, 890 A.2d at 1068.  

Accordingly, the Pantelis court ruled that “the trial court directly determined that  payment of first party benefits does not preclude an insurer and later denying third party UM/UIM benefits” since “an insurer’s payment of first party benefits does not, without more, constitute a binding admission of causation under either the statute or case law.”  Id. at 1067-68.   Judge Nealon cited a number of other federal courts reaching the same conclusion.  

Judge Nealon also ruled that, even if this evidence is found to arguably be relevant, its probative value was outweighed by the danger of unfair prejudice since the admission of that evidence could sway the jury to render a verdict on an improper basis.   The court noted that the admission of the fact that the insurance company had paid medical expense benefits could be equally prejudicial to both the injured party Plaintiff and the insurance company Defendant.  For example, the jury could conclude that those medical expense payments, like the payment that the Plaintiff already received from the liability carrier, should likewise be deducted from its award of damages and thereby reduce its verdict without prompting or suggesting by the court.  

As such, Judge Nealon denied the Plaintiff’s request to utilize the evidence at issue. 

Anyone wishing to review this decision of first impression in Pennsylvania by Judge Terrence R. Nealon in Moritz may utilize the above Westlaw citation or click this LINK.

It is noted that the prevailing Plaintiff's attorney in this Moritz case is Attorney John Mulcahey of the Scranton office of the Munley Law Firm.

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