Judge Nealon of Lackawanna County Rules in Favor of Consolidation of Post-Koken UIM and Third Party Claims

Lackawanna County Courthouse

On the heels of Lackawanna County Judge Mark Powell's decision in favor of the consolidation of claims in Post-Koken automobile accident cases that was summarized in yeasterday's Tort Talk Blog post comes the decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Bello v. Smith and Progressive Ins. Co., No. 2024-CV-6105 (C.P. Lacka. Co. March 6, 2026 Nealon, J.).

In Bello, Judge Nealon addressed Preliminary Objections filed by a UIM carrier in a post-Koken matter involving combined third party claims against a tortfeasor and UIM claims against the Plaintiff’s own insurance carrier. This case also involved the additional fact that the tortfeasor Defendant was allegedly operating his vehicle under the influence at the time of the accident.

The UIM carrier filed Preliminary Objections under Pa. R.C.P. 1028(a)(5) asserting the “misjoinder of a cause of action,” and arguing that the tort and UIM claims should be severed for pre-trial and trial purposes.

Here, Judge Terrence R. Nealon, of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law on issue of the joinder of third party tortfeasor claims and UIM claims under a single caption, much of which prior case law was developed through his own judicial Opinions, to come to conclusion that the Preliminary Objections should be denied and the cases allowed to proceed, at least through the pleadings and discovery phases, in a consolidated basis.

Of note, the Court also referenced, on multiple occasions, the Pennsylvania Bar Quarterly article written by Daniel E. Cummins entitled "Hurricane Koken Rages On:  Uncertainty Continues in Motor Vehicle Accident Litigation In The Stormy Post-Koken Era," 90 Pa. B.A.Q., 108, 111 & n. 15-19 (July 2019). 

Judge Terrence R. Nealon
Lackawanna County 

In support of this decision, Judge Nealon noted that the damages that might be recoverable both the tortfeasor and the UIM carrier present common questions of law and fact and involve the same evidence and issues.

One additional issue involved in this matter was the fact that there were claims for punitive damages asserted against the tortfeasor Defendant due to the DUI allegations and other allegations.  The court acknowledged would be irrelevant to the compensatory damages determination given that the UIM coverage barred the recovery of any punitive damages under that policy.

Relative to the allegations that the tortfeasor Defendant was operating his vehicle while under the influence of alcohol and controlled substances, the court noted that such evidence “could unfairly prejudice the UIM insurer by inflaming the jurors’ emotions and influence the compensatory damages award.”

Judge Nealon noted that, while, in such instances, bifurcation of the compensatory damages and punitive damages claims for trial may be warranted, that decision should be left to be made later by the assigned trial judge after discovery has been completed and the case has been certified for trial.

However, after review copious case law in support of the same, the court ruled that, in the meantime, no legitimate basis existed for severing the tort and UIM claims for purposes of discovery and pre-trial matters.

Accordingly, the court overruled the UIM carrier’s Preliminary Objection asserting a misjoinder of a cause of action under Rule 1028(a)(5).  With this decision, the court denied the request to sever the tort claim from the UIM claims.

Judge Nealon did note that his decision was without prejudice to the right of any Defendant to later seek a bifurcation of the claims for compensatory damages and punitive damages for trial.

Anyone wishing to review a copy of this decision may click this LINK.