Sunday, September 9, 2018

Judge Gartley of Luzerne County County Grants Severance of Post-Koken Bad Faith Claim But Denies Stay of Discovery Efforts

Hurricane Koken continues to swirl through Pennsylvania.

In her recent Order in the case of McLaughlin v. State Auto Property and Cas. Ins. Co., No. 2017-CV-08471 (Aug. 29, 2018 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas granted in part and denied in part the UIM carrier’s Motion to Sever and Stay the Plaintiffs’ statutory and common law bad faith claims in a Post-Koken litigation.

The Court agreed to sever the bad faith claims from the breach of contract claims for trial purposes but denied the motion for a stay of any bad faith discovery.  

The Order additionally noted that any bad faith discovery disputes should be submitted to the court for a determination as to whether the information at issue is protected from discovery or warrants a redaction until the breach of contract/UIM claims have been submitted to the jury for final disposition.  

The court further ordered that the UIM carrier shall deliver any and all unredacted or withheld copies of bad faith discovery when the case is sent to the jury for deliberations on the breach of contract/UIM case.  

The court additionally noted that, upon receipt and review of the bad faith discovery, the Plaintiff may request an immediate non-jury trial on the bad faith claim or seek a continuance to conduct pre-trial preparation of that bad faith claim.   

Commentary:
 
The court’s Order in this regard follows, without citation, the decision of Judge Terrence R. Nealon in the Lackawanna County Court of Common Pleas case of Fertig v. Kelley , which followed, in part, decisions by Judge R. Stanton Wettick of the Allegheny Court of Common Pleas in the cases of Gunn v. The Automobile Ins. Co. of Hartford and Wutz v. Smith.  

It is noted, however, that other county courts have ruled to instead sever and/or stay bad faith claims from the UIM claims such that there remains a split of authority among the county trial courts of Pennsylvania without any appellate guidance to date. 


Anyone wishing to review this Order by Judge Gartley may click this LINK.

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