Federal Court Addresses Right to Identify Insurance Carrier Defendant By Name at Post-Koken Trial; Also Compels Both Parties to Present Medical Experts as Live Witnesses

In the case of Whitlock v. Allstate Fire & Cas. Ins. Co., No. 2:20-CV-00373-KSM (E.D. Pa. Oct. 13, 2022 Marston, J.), the court addressed various Motions In Limine.

At a pre-trial conference, Allstate requested to be referred to at the trial in the name of the non-party tortfeasor as opposed to as "Allstate."  This the court refused.    

Of note, the court ruled that Federal Rule of Civil Procedure 411, regarding the admissibility of insurance evidence, applies only where negligence or other wrongful conduct is at issue. The court noted that this rule did not apply in a contract action involving an insurance company.

The court also found that evidence that the Defendant is an insurance company being sued under a policy of insurance was not unduly prejudicial under F.R.C.P. 403. The court noted that Pennsylvania law does not exclude insurance evidence under these circumstances.

As such, the court found that Allstate had not established a reason to use another name for the carrier at trial or that the carrier would be prejudiced by the use of its name at trial in front of the jury.    

In another notable ruling in this decision, the court stated that, before a witness’ recorded deposition testimony is admissible in lieu of live testimony, there must be an exceptional showing of reasons for the witness’ unavailability.

The court stated that the fact that medical witnesses are busy seeing other patients is not an exceptional circumstance. The Court stated that it is well known that doctors are almost always busy. The court stated that, to recognize a “busy witness” exception would expand the exception to swallow the rule favoring live testimony.

As such, the court compelled both parties to present their medical expert's testimonies live at trial instead of by way of video deposition.    

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


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Dog Bite Complaint Cleaned Up by Judge Williamson of Monroe County

Proving that a judge’s bite is sometimes worse than a dog’s bite, the court granted several Preliminary Objections to a Plaintiff’s dog bite Complaint in the case of MR v. Bunting, No. 6856-Civil-2019 (C.P. Monroe Co. Nov. 22, 2019 Williamson, J.).

Judge David J. Williamson of the Monroe County Court of Common Pleas granted a demurrer to a paragraph in the Plaintiff’s Complaint that mentioned a duty to maintain insurance. The court granted that demurrer and struck that allegation after finding that there is no requirement to provide insurance or any duty to do so under Pennsylvania law. 

The court also rejected a claim by the Plaintiff that the Defendants owed a duty not to own, harbor and/or keep a dog with violent and aggressive past behavior and tendency. The court noted that there was no basis in Pennsylvania law to support such a claim as Defendants cannot be negligent merely for owning a dog with past violent or aggressive behavior. As such, this allegation of the Complaint was dismissed. 

Judge Williamson also struck allegations of negligence per se stated in the Complaint which were based upon certain sections of the Pennsylvania dog law. The court noted that the sections cited by the Plaintiff dealt with registration and responsibility for a dog found to be a dangerous animal within the meaning of the dog law. However, the court found that the Plaintiffs did not allege that the Defendants’ dog was a dangerous animal within the meaning of the particular provisions of the statute. As such, there could be no negligence per se claim under the dog law under the particular Complaint. 

The court also struck the Plaintiff’s allegations for premises liability since the allegations of the Complaint confirmed that the Plaintiff was claiming that the injury arose from a dog bite and not from any claimed defeat in the condition of the land possessed by the Defendants. 

Judge Williamson also struck various references in the Complaint in which the Plaintiff had claimed certain types of liability with “including but not limited” language. The court found that the use of this phrase violated the law set forth in Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). 

The court also struck the Plaintiff’s claim for attorney’s fees as there was no statutory authority or contractual language to support the same. 

Judge Williamson struck the Plaintiff’s request for damages for interest. The court noted that, under Pennsylvania law, such a claim is not allowed in tort actions in which damages sought are unliquidated as they were in this particular case. 

The court did overrule an objection to the Plaintiff’s claim for punitive damages and allowed that case to proceed into discovery in order to afford the Plaintiff an opportunity to gather facts to support such claims. 

Although the courts struck many allegations from the Plaintiff’s Complaint, the case was allowed to proceed on certain other claims. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 7, 2020).

TRENDING: Evidence of UIM Limits and the Amount of the Third Party Settlement Ruled Inadmissible At Post-Koken Trial by Eastern Federal District Court of PA

In the Post-Koken case of Schmerling v. LM General Ins. Co., No. 17-3659 (E.D. Pa. Nov. 8, 2018 DuBois, J.), Judge Jan E. Dubois of the Eastern District Federal Court of Pennsylvania the court addressed the carrier's motion regarding the manner in which this UIM case was to be presented to the jury.

The court ruled that the Plaintiff was prohibited from presenting evidence on the UIM benefits coverage as well as evidence on the settlement negotiations with the underlying tortfeasor defendant and the settlement agreement with the tortfeasor defendant.

After reviewing conflicting Pennsylvania Federal Court decisions on the issue, the Schmerling court entered these rulings under an application of general principles of relevance.  The court noted that the evidence was irrelevant to the jury's determination of the Plaintiff's alleged damages, and that any probative value of such evidence was substantially outweighed by the danger of unfair prejudice to the Defendant. 

In terms of the unfair prejudice of this information, the court noted that the evidence of the amount of the UIM limits, could supply the jury with an "anchor number" that does not reflect the Plaintiff's actual damages. 

The court ruled with similar reasoning in excluding evidence of the Plaintiff's settlement negotiations and settlement agreement with the tortfeasor as irrelevant to the jury's proper assessment of damages and unfairly prejudicial to the defense.

The Schmerling  Court's Order can be viewed HERE.  The Opinion by the Court can be viewed at this LINK.


This recent Schmerling decision has already been cited in a similar ruling by President Judge Jason J. Legg of the Susquehanna County Court of Common Pleas on November 19, 2019 in the case of Phillips v. Nat'l Gen'l Assur. Co. which case was brought to my attention by Attorney Gerald Connor of the Scranton, PA office of Margolis Edelstein.

A Tort Talk post on the Phillips case is forthcoming.......

Pennsylvania Superior Court Rules Jury Cannot Award Damages That Were Neither Sought or Proven

In the case of Stapas v. Giant Eagle, Inc., 2016 Pa. Super. 303 (Pa. Super. Dec. 23, 2016 Stabile, J. Bowes, J. Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reversed, in part, the trial court’s denial of post-trial motions in a personal injury matter arising out of a shooting incident. 

Of note was the fact that the court found that the amount of $1.3 million dollars awarded the Plaintiff for future income loss was not supported by the evidence and was not even sought by the Plaintiff.  As such, the court ruled, under the rationale that a verdict must bear a reasonable resemblance to the proven damages, that a jury cannot award damages that were neither sought nor proven.   In so ruling, the court also stated that, even though the jury was not required to itemize its award of damages, it chose to do so, and those findings revealed the unsupported award.   

This decision is also notable in the Superior Court’s decision that the brief mention of the Plaintiff’s lack of health insurance did not require a new trial.  The court noted that this testimony was immediately stricken by the trial court.   The Superior Court also reasoned that the prohibition against the mentioning of insurance in civil litigation matters under Pa. R.E. 411 generally applies to a Defendant’s possession of liability insurance.  

The Stapas court also addressed the assumption of risk defense raised in this matter and stated that getting into a fight should not be considered the assumption of the risk of being shot.   The court emphasized that, in the case before it, the Plaintiff did not know that his attacker was armed.  

 The court returned the case to the trial court for a new trial on damages only.  

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.    

First On Point Post-Koken Appellate Decision Handed Down by Superior Court Answers Some Questions, Leaves Others Open

The Pennsylvania Superior Court has finally had a chance to weigh in on a Post-Koken issue of importance--whether or not it is a denial of due process to a Plaintiff in a Post-Koken case not to identify the UIM carrier as a Defendant to the jury.

In the Superior Court's decision yesterday in the case of Stepanovich v. McGraw and State Farm, No. 1239 WDA 2013, No. 1296 WDA 2012 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), the court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant.

This Post-Koken third party/UIM matter proceeded to a jury trial in Allegheny County identified to the jury as "Stepanovich v. McGraw" and without reference to State Farm as a UIM carrier Defendant even though a defense counsel for the third party tortfeasor and a defense counsel for the Defendant UIM carrier, i.e., two defense attorneys, were allowed to participate in all aspects of the trial from Voir Dire to Closing Arguments.

The trial court noted that both defense attorneys could participate so long as there was no duplication in the questioning of the witnesses.  All parties were precluded from mentioning insurance during the course of the trial.

This matter involved a Plaintiff-pedestrian who was struck by the tortfeasor's Defendant's vehicle while cross at an intersection.  The Plaintiff contended that the tortfeasor Defendant was speeding and ran a red light thereby caused the accident.  The defense contended that the Plaintiff attempted to walk across the intersection against the light and outside of the crosswalk area and thereby caused the accident.

The jury returned a 10-2 defense verdict in favor of the tortfeasor Defendant, McGraw, after a finding that the tortfeasor was not negligent.  The verdict was molded to reflect a verdict in State Farm's favor as well as the UIM carrier.

At the Post-Trial Motions stage, the trial court judge, Judge Timothy P. O'Reilly, found that his own handling of the trial in this regard resulted in a Due Process violation to the Plaintiff in light of the failure to identify State Farm as a party Defendant in the matter.

For prior Tort Talk blog posts on this case at the trial court level and to view the trial court's Rule 1925 Opinion explaining its rationale, click HERE and HERE.

As noted, on appeal the Superior Court reversed the trial court decision allowing for a new trial and remanded the case with the direction that judgment be entered in favor of all Defendants.

The Stepanovich court noted that references to Pa.R.E. 411's prohibition against the mentioning of insurance at trial in this case was misplaced as that Rule specifically refers to the preclusion of any mentioning of the availability liability insurance, and does not reference UIM insurance as was at issue in this case.  As such, the court noted that a course of action identifying State Farm as the UIM carrier would not "run afoul" of Pa.R.E. 411.

The Superior Court went on to note that, even accepting for purposes of argument that the Plaintiff was entitled to inform the jury of State Farm's participation in the trial, the Plaintiff was still not entitled to the relief requested of a new trial as neither the Plaintiff nor the trial court provided any legal support for the finding of a due process violation in this regard was per se prejudicial.  Op. at p. 8.

The court found that the was no showing of prejudice as required by Pennsylvania law before a due process violation could be found and relief granted.  Accordingly, it was held that the failure to identify State Farm as a Defendant at trial, in and of itself, was not reversible error that would require the granting of a new trial.  Op. at p. 8-9.

Rather, in order to prove prejudice, the Plaintiff would have to show that "but for the jury's ignorance of State Farm's identity, it would have found McGraw negligent." Op. at p. 9.  The Superior Court in Stepanovich found that neither the Plaintiff nor the trial court established a legal or logical connection between the two.  Op. at p. 9.  Stated otherwise, the mere possibility that the Plaintiff could secure UIM benefits from his own carrier did not dictate a finding that the tortfeasor Defendant was liable.  Id.  Therefore, the Superior Court concluded, the jury's verdict that the tortfeasor Defendant was not negligent cannot be said to have been dependent upon or connected to the identity of the UIM carrier.

Interestingly, in footnote 5, the Superior Court noted that the State Farm policy required any UIM claims against it be tried in the same trial as the trial against the third party tortfeasor.  The Superior Court noted that it "[t]herefore,..assume[d] that State Farm, and other insurers who have a similar provision, have considered how to proceed in this circumstance without causing prejudice to the alleged third party tortfeasor."  Op. at p. 8.

In her concurring and dissenting Opinion, President Judge Emeritus Kate Ford Elliott joined in the majority's reasoning that Pa.R.E. 411's prohibition against the mentioning of liability insurance was inapplicable in this UIM context.

President Judge Ford Elliott however dissented from the ultimate ruling and felt that the trial court's decision to grant the Plaintiff a new trial should have been affirmed.  President Judge Ford Elliott reasoned that it was the trial court judge who was the one who sat through the trial and who had determined that the "double-teaming" of the Plaintiff by the defense counsel was prejudicial and that, on a re-trial, he would structure the trial differently.  President Judge Ford Elliott felt that this exercise of discretion by the trial court judge should not be disturbed and that his decision to allow for a new trial should have, therefore, been affirmed.

Anyone wishing to review the majority Opinion in the Stepanovich case may click this LINK.  President Judge Emeritus Ford Elliott's Concurring and Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Mark A. Martini of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP for bringing this decision to my attention.


Commentary:  At least two things can be gleaned from a reading of the Pennsylvania Superior Court's decision in the Stepanovich case.  First, Pa.R.E. 411, which precludes the referencing of liability insurance at trial, cannot be relied upon to support an argument that references to UIM insurance should be precluded. 

Secondly, the Stepanovich decision stands for the proposition that the failure to identify a UIM carrier as a Defendant at trial is not, in and of itself, prejudicial or reversible error that would require the granting of a new trial.

As to the first issue finding that Pa.R.E. 411 does not serve to preclude the mentioning of a UIM carrier at a Post-Koken trial, it is noted that there is caselaw (i.e. common law), however, that can be referenced in support of an ongoing and viable argument for the continuing preclusion of the mentioning of other forms of insurance at such trials as being prejudicial to the defendant as distracting the jury from the central issues of liability and damages.  See Henery v. Shadle, 661 A.2d 439 (Pa.Super. 1995); see also Price v. Guy, 735 A.2d 668, 671-72 (Pa. 1999); DeVita v. Durst, 167 Pa.Cmwlth. 105, 647 A.2d 636 (1994); Bonavitacola v. Cluver, 619 A.2d 1363, 1370 (Pa.Super. 1993);  Greenwood v. Hildebrand, 515 A.2d 963, 968 (Pa.Super. 1986).  

Such evidence of insurance issues may also arguably be precluded under the more general argument that any alleged probative value of such evidence is outweighed by the danger of prejudice. See Nigra v. Walsh, 797 A.2d 353, 360 (Pa. Super. 2002) citing Pa.R.C.P. 403.

For a decision at the opposite end of the spectrum entirely disagreeing with the above commentary and finding that essentially any and all insurance information should be allowed in a Post-Koken case so as to have a jury fully informed on all of the issues presented, see Federal Middle District Court Judge James M. Munley's decision in the case of Noone v. Progressive Direct Ins. Co., No. 3:12CV1675 (M.D.Pa. May 28, 2013 Munley, J.).  To view the Tort Talk post on that case along with a link to that decision, click HERE.  

Seemingly, while the Stepanovich  decision appears to answer some questions, it still unfortunately leaves open, and provides little, if any, concrete guidance on the main question of how Post-Koken trials should be handled in terms of whether or not to identify the presence of the insurance company defendant to the jury.

It remains to be seen if the Stepanovich case will proceed forward in the appellate process.

 

Recent Post-Koken Decision Out of Allegheny County Court of Common Pleas

Judge Ronald W. Folino of the Allegheny County Court of Common Pleas issued one of the most recent Post-Koken decisions in his June 28, 2011 Order without Opinion in the case of Stepanovich v. McGraw and State Farm, No. GDI10-016523 (Alleg. Co. June 28, 2011, Folino, J.).

This case involved a Plaintiff who sued the tortfeasor for negligence as well as the UIM carrier for UIM benefits and asserted various bad faith claims.  The third party tortfeasor filed preliminary objections seeking a severance of the claims against him from the claims against State Farm.

In his Order on the tortfeasor Defendant's Preliminary Objections, Judge Folino basically combined Judge Strassburger’s holding in Collins v. State Farm with Judge Wettick’s Opinion in Wutz v. State Farm by ruling that the tort and UIM case would proceed to trial first without reference to insurance, and that the bad faith/UTPCPL claims would be presented in a non-jury proceeding immediately thereafter.

Anyone desiring a copy of the Order without Opinion in the case of Stepanovich v. McGraw and State Farm may contact me at dancummins@comcast.net.

I thank Attorney Mark A. Martini of the Pittsburgh law firm of Robb Leonard Mulvihill LLP for forwarding this case to my attention.