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. 5
th 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.
