Thursday, April 16, 2015

Judge Nealon Rules in Favor of Consolidation for Post-Koken Trials (And Also Rules on Appropriate Jury Instructions)

In his April 15, 2015 decision in the case of Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued another notable post-Koken decision in which he became one of the first few judges from across the Commonwealth of Pennsylvania to address the issue of whether or not a post-Koken third party/UIM matter should proceed to trial in a consolidated or bifurcated fashion - - Judge Nealon came down on the side of the consolidation and against bifurcation.  

However, Judge Nealon did rule that separate coverage issues presented with respect to the UIM claim should and would be bifurcated from the liability and damages claims presented in the negligence and UIM matters.  

According to the Opinion, the issue before the court revolved around whether a Plaintiff’s third party liability claim and underinsured motorists (UIM) claim may be tried in a single proceeding before the same jury, and if so, what jury instructions should be provided regarding the named parties and the questions to be decided by the jury.

In this matter, the tortfeasor Defendant was objecting to a consolidated trial with an insurance company as a Co-Defendant.  According to the Opinion, the UIM carrier did not object to a consolidated trial. 

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon ruled that, since the potential liabilities of the tortfeasor and the UIM carrier for damages arose out of the same factual background and involved common questions of law in fact, the Plaintiff’s liability and UIM claims would be consolidated for a single trial pursuant to Pa. R.C.P. 2229(b).  

The court also ruled that, given that the identification of the UIM carrier as a real party in interest and as a potential provider of UIM coverage did not introduce evidence of the tortfeasor’s liability insurance in violation of Pa. R.E. 411, the UIM carrier would be identified to the jury as a named Defendant who was furnishing prospective UIM coverage.  Judge Nealon noted that this identification of the UIM carrier by name as well as the reason as to why that carrier was in the case was necessary so that the jury would understand the participating UIM insurance carrier’s status as an adverse party to the Plaintiff.  

As noted above, Judge Nealon separately ruled that the UIM coverage dispute involving the Plaintiff’s residency and her entitlement to UIM benefits from the UIM carrier did not arise out of the same occurrence or involve common questions of law or fact as the parties’ liability and damages disputes.  Accordingly, the court ruled that the trial would be bifurcated on that separate issue pursuant to Pa. R.C.P. 213(b).  The court noted that the jury would first address the merits of the Plaintiff’s personal injury claims and render a verdict on the liability and damages issues.  

Judge Nealon went on to note that, if the jury awarded damages in excess of the tortfeasor’s liability insurance policy limits, such that UIM coverage was triggered, the second phase of trial would be conducted on the coverage issue to determine whether the Plaintiff was a resident of her grandparents’ home at the time of the accident so as to be entitled to UIM benefits under that UIM policy at issue.

Judge Nealon further noted that, in the event a jury awards damages in an amount less than the tortfeasor’s liability insurance limits, the issue of the Plaintiff’s residency and the applicability of her grandparents’ UIM coverage would be rendered moot.

In his thorough Opinion on the issue of joinder or bifurcation of post-Koken claims at trial, Judge Nealon confirmed that he had reviewed the law of other jurisdictions in this case as well as in his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17 (C.P. Lacka. Co. 2011 Nealon, J.), which research revealed that of the decisions on the separate, but similar, issue of consolidation/severance at the commencement of the case arising out of 33 other states, 27 jurisdictions allowed for the joinder of UM/UIM claims with civil actions against tortfeasors, while six (6) states favored severance of UM/UIM claims from tort actions.  

In ruling that liability in UIM claims may be joined for a single trial, Judge Nealon relied in part on the Pennsylvania Superior Court decision in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).

On the separate issue of the content of the jury instructions for a Post-Koken trial, the Plaintiff requested the court to utilize those instructions Judge Nealon had crafted in his prior decision in the case of Moritz v. Horace Mann Property and Casualty Insurance Company, 2014 W.L. 5817681 (C.P. Lacka. Co. 2014 Nealon, J.).  The court noted that Allstate objected to certain portions of those jury instructions set forth in the Moritz case.  

The tortfeasor Defendant was additionally arguing that neither the identity of the UIM carrier as a party, nor the question of the Plaintiff’s UIM claims, should be disclosed to the jury in the jury instructions.  

Judge Nealon agreed that the entirety of his proposed jury instructions as crafted in the Moritz case should not be read to the jury in this matter as the jury instructions drafted in the Moritz case were “appropriate only a case in which the Plaintiff has sued the UIM insurer alone after having secured payment of the tortfeasor’s insurance policy limits.”  

For this reason, Judge Nealon agreed to somewhat limit the extent of his jury instructions in this case involving both a negligence claim against the third party tortfeasor and a UIM claim against the Plaintiff’s own carrier.  The court also tailored its jury instructions in this matter in light of the separate coverage dispute that was still pending with regards to the potential UIM claim.  

Overall, Judge Nealon agreed that the jury instructions in this matter should not reference the existence or amount of the tortfeasor’s liability insurance coverage as that would prejudice the tortfeasor in violation of the mandate under Pa. R.E. 411 prohibiting any reference to a tortfeasor's liability coverage at trial.  

In this Kujawski case, Judge Nealon stated that he would instruct the jury that the Plaintiff was required by law to establish by a preponderance of the evidence that the tortfeasor was negligent, that the tortfeasor’s negligence caused harm to the Plaintiff, and that the Plaintiff suffered damages as a result of her injuries.  

The court noted that the jury would also be informed in this Post-Koken matter that the policy of the UIM carrier (referenced by name in the instructions) provided underinsured motorists coverage, which may be available to pay some of the damages that may be awarded. 

Judge Nealon also planned to instruct the jury that the UIM carrier (again, referenced by name) should not be treated “any differently than any other Defendant in a civil action simply because [name of the UIM carrier] is an insurance company.”  

Judge Nealon also ruled that, given his ruling in favor of bifurcation on the separate coverage issue, the jury would also be advised that, depending upon its verdict at the conclusion of the liability and damages portion of the trial, the jury may be required to hear additional evidence and render a second verdict with regards to the Plaintiff’s residency at the time of the accident.    

Anyone wishing to review this Opinion may click this LINK
I send thanks to Attorneys Chad DeFelice and Joseph Pulcini, Jr. of the Bethlehem, PA office of the Thomas, Thomas & Hafer law firm for bringing this case to my attention.

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