Monday, April 20, 2015

Bifurcation/Consolidation of Post-Koken Trials Uncovered To Date

In follow up to Friday's Tort Talk post on Lackawanna County Judge Terrence R. Nealon's decision in the case of Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.), in which Judge Nealon ruled in favor of consolidated Post-Koken trials, below is a listing of other cases on the Bifurcation/Consolidation of Trial issue uncovered to date.
 
This list is copied over from the Tort Talk Post-Koken Scorecard that is always freely accessible at www.TortTalk.com (scroll down the right hand column until you get to the "Post-Koken Scorecard" label and click on the date thereunder).
 
This list, which is updated as of April 16, 2015, is detailed but is not represented to be exhaustive and one should conduct their own additional research in an effort to uncover any other cases.
 
I welcome receiving copies of any decisions any Tort Talkers may come across in order that this list may be updated from time to time.
 
The list below confirms that there is a split of authority among the trial courts of Pennsylvania.  It is noted that the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm supports an argument that favors the consolidation of Post-Koken trials.  However, the Stepanovich decision has been read by others as suggesting that a consolidated trial is permissible, but not finally deciding the issue. 
 
To date, the Pennsylvania Supreme Court has not had an opportunity to address the issue.
 
 
 
MOTION TO BIFURCATE TRIAL

FEDERAL COURT DECISIONS (Split of Authority)

SEPARATE TRIALS ALLOWED


Eastern District Federal Court

Moninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.),(Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation).


REQUEST FOR BIFURCATED TRIAL DENIED


Western District Federal Court

Cracker v. State Farm Mut. Auto. Ins. Co., No. 11-0225, 2012 U.S. Dist. Lexis 109357 (W.D. Pa. Aug. 3, 2012 Lancaster, C.J.)(United States District Court for the Western District of Pennsylvania denied State Farm’s Motion In Limine to bifurcate a breach of contract and bad faith post-Koken lawsuit.).




STATE COURT DECISIONS ON BIFURCATION

State Appellate Court Decision

Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), appeal denied 11 WAL 2014 (Pa. April 22, 2014)  (Superior Court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant.  Yet, the Court did rule that Pa.R.E. 411, pertaining to preclusion of mention of liability insurance at trial, does not apply in context of references to UIM insurance at trial.   However, open issue remains on whether common law prohibition of mentioning other forms of insurance at trial serves to preclude evidence of insurance in this context;  Pennsylvania Supreme Court denied Petition to Appeal.).
 

(Split of Authority at trial court level)


SEPARATE TRIALS ALLOWED


Allegheny County

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.) .


Lehigh County

Purta v. Blower and Erie Ins. Exch., No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.)(Court addressed the seemingly novel issue presented by a Motion to Severance filed by the UIM carrier Defendant to bifurcate jointly filed third party and underinsured motorist (UIM) claims into separate trials. In a detailed Order, Judge Reibman granted the UIM carrier's Motion for Severance and ordered that the case proceed to trial with only the Plaintiffs and Defendant tortfeasor being involved in the first trial.).




REQUEST FOR BIFURCATED TRIAL DENIED
 
Lackawanna County

Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.)(In an Order, Court denies tortfeasor Defendant's motion for bifurcation;  court also outlines appropriate jury instructions for a Post-Koken trial involving both a third party tortfeasor and UIM carrier defendants).
 
 

Luzerne County

Loefflad v Nauks &Allstate Fire & Casualty Ins. Co., No. 8673 of 2010 (C.P. Luz. Co. June 20, 2012) (By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).


Price v Price, Auto Glass Unlimited & State Farm, No. 13625 of 2010(C.P. Luz. Co. June 20, 2012)(By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).

Borthwick v. Webb, No. 2735-Civil-2010 (C.P. Luz. Co. Sept. 7, 2012 Vough, J.)(Court ruled at consolidated Post-Koken trial that “Plaintiff is limited to informing the jury that he had an underinsured policy with Defendant, GEICO Insurance Company.  There shall be no other evidence presented to the jury regarding insurance.”).


Schuylkill County

Post v. Schnerring and Liberty Mut. Ins. Co., No. S-1887-12 (C.P. Schuylkill Co. Oct. 22, 2013 Dolbin, J.)(Judge Cyrus Palmer Dolbin of the Schuylkill County Court of Common Please denied Motions to Bifurcate the trial filed by both the UIM carrier, Liberty Mutual Insurance Company and the third party Defendant.).
 


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