ARTICLE: POST-KOKEN UPDATE

Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at www.TortTalk.com.  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.

POST-KOKEN UPDATE

By

Daniel E. Cummins

Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.


Bifurcation of Trial

In the Post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier. The decision was issued by Order only.

Effect of Third Party Release

In the case of Bonk v. American States Ins. Co., No. 3:18-CV-2417 (M.D. Pa. Oct. 1, 2019 Caputo, J.), the court declined to preclude a Plaintiff from pursuing a UIM claim based upon the language of the Release that the Plaintiff executed in the companion third party case.

The UIM carrier in this case argued that, because the third party Release referred to a release of liability in favor of “any and all persons” that Release amounted to a blanket barring of all claims given that the UIM claim was not exempted out.

More specifically, the Release at issue confirmed that the Plaintiff “release[d] and forever discharge[d] [the tortfeasor] and any other person, firm, or corporation charged or chargeable with responsibility of liability” from any and all claims and causes of actions arising out of the subject incident.

While the court agreed that the UIM carrier was indeed a firm or corporation, the court felt that the UIM carrier had not established how it had been “charged or chargeable with responsibility of liability” with respect to the third party matter. The court emphasized that the UIM carrier did not cover the tortfeasor. The language in the Release was read by the court as applying only to those parties that would be held accountable for causing the accident.

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).

The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

Effect of Third Party Release

In the case of Lane v. USAA General Indem. Co., NO. 18-537 (E.D. Pa. Oct. 18, 2019 Surrick, J.), the UIM carrier argued that a general release signed in a third party claim can be used by the underinsured motorist carrier to release an underinsured motorist claim, even when the UIM carrier paid no consideration.

The Plaintiff executed a release in the third party action which included language releasing “any other person, firms or corporations liable or who might be claimed to be liable.” The Court noted that the Release did not identify the UIM insurer directly.

In rejecting the carrier's position , the District Court relied, in part, upon the Pennsylvania Superior Court's decision in Sparler v. Fireman’s Ins. Co. of Newark, N.J., 521 A.2d 433 (Pa. Super. 1987), allocator denied, 540 A.2d 535 (Pa. 1988). The District Court noted that, “[u]nder Sparler, Plaintiff’s general release…..will not preclude Plaintiff from pursuing the present action against Defendant for UIM benefits because the executed release did not contain language unequivocally discharging Defendant from its contractual obligation to provide UIM benefits to Plaintiff.”

The District Court finds that the carrier's reliance on Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989) to be distinguishable because Buttermore did not involve UIM benefits.

The Court also rejected the UIM carrier's reliance on the Philadelphia Court of Common Pleas case of Crisp v. ACE Am. Ins. Co., 2017 Phila Ct. Com. Pl. LEXIS 125 (Phila. Cnty. C.C.P. 2017) is because that case was not binding precedent.

Household Exclusion

The Pennsylvania Supreme Court's decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which served to invalidate the Household Exclusion in automobile insurance policies, was relied upon in a recent Lebanon County case to deny a Defendant carrier's Preliminary Objections.

In the case of Loose v. Pennsylvania National Mutual Insurance, No. 2019-00664 (C.P. Leb. Co., Oct. 23, 2019 Kline, J.), the court denied Penn National’s Preliminary Objection in a case in which a Plaintiff sought to a ruling to find the household exclusion invalid under the Gallagher decision.

In the Loose case, the Plaintiff was injured after being in an accident while on her husband’s Geico insured motorcycle. The Plaintiff received the underinsured motorist (UIM) coverage on the motorcycle.

The Plaintiff then made a claim on her personal UIM policy with Penn National that had stacked coverage.

Penn National attempted to limit Gallagher to the facts of the case, i.e., efforts to recover UIM coverage under two separate policies that had been issued by the same carrier. The trial court in Loose rejected the carrier's efforts to limit the scope of the Gallagher case.

Rather , the trial court in Loose held “that Gallagher's conclusion invalidating the Household Vehicle Exclusion as violative of the Motor Vehicle Financial Responsibility Law shall be permissibly extended and applied as precedent to the issue at bar.”

It therefore appears, at least in Lebanon County where the Loose case was handed down, that having different companies providing UIM coverage under a given set of facts does not change the result that the Household Exclusion is invalid as a being violative exclusion is not valid. The trial court is now following the federal courts on this issue.

Household Exclusion

The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania’s eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.  Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him. Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother. As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court. After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

Future Medical Expenses

For the first time in a precedential Opinion, the Pennsylvania Superior Court addressed, in the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., and Colins, J.)(Op. by Colins, J.), the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions under Act 6 (75 Pa.C.S.A. Section 1797) of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million dollars, of which $900,000 was an award for future medical expenses.

In the end, the Court in Farese held that future medical expenses did not need to be reduced in accordance with Act 6 before being presented to the jury. See p. 21-26 of Opinion.

Overall, the Court is Farese concluded that the limitations placed upon medical providers in terms of what they could charge for treatment of motor vehicle accident injuries (i.e., Act 6 reduced amounts) simply did not apply to claims for future medical expenses.

It is noted that this decision did not affect the rule of law that past medical expenses have to be reduced in accordance with Act 6 before being presented to a jury.