Validity of a Type of Negligent Infliction of Emotional Distress Claims in Medical Malpractice Matters Called Into Question

An ongoing issue generating some conflicting decisions in the trial courts across the Commonwealth of Pennsylvania in medical malpractice cases concerns the ability of family members to pursue a claim for negligent infliction of emotional distress on the grounds that they had to witness the deterioration and eventual demise of their loves one allegedly as a result of the negligence of a medical provider.

Under the general bystander theory of negligent infliction of emotional distress, the required elements of proof mandate that the claimant (1) must have been at the scene of the incident, (2) must have suffered from a sensory and contemporaneous observance of negligent acts or omissions, and (3) that the claimant must have been closely related to the victim of the negligence.

My partner, Timothy E. Foley, Esquire and myself, along with a number of other defense counsel, were successful in having a demurrer sustained against such a claim in the recent Lackawanna County Court of Common Pleas decision of McHale vs. Community Medical Center, et.al., 2010-Civil-3496 (Lacka. Co. January 7, 2011, Thomson, S.J.).

Before I get into that case, here is some background on the issue presented.

Medical malpractice defendants have challenged these types of negligent infliction of emotion distress claims on several grounds, including by arguing that the slow demise of the decedent prevents a finding of any shocking event necessary to support the claim for negligent infliction of emotional distress. Another argument is that lay people are not able to recognize a professional misjudgment or omission by a doctor to support a showing of a sensory and contemporaneous observance of negligent acts or omissions and a resultant jolting shock to one's mental status or emotional well-being.

Several trial court decisions out of Northeastern Pennsylvania over the past year have evidenced a differing opinion by judges as to the validity of this type of a claim.

Back in April of 2010, Judge Carmen Minora of the Lackawanna County Court of Common Pleas squarely addressed the issue in Ward v. Moses Taylor Hospital, 2010 WL 4357308 (Lacka. Co. 2010 Minora, J.). In Ward, the plaintiff-husband entered the hospital to treat for a partial paralysis condition and, allegedly as a result of negligent treatment, ended up a quadriplegic. The plaintiff's wife asserted a bystander claim for negligent infliction of emotional distress in the Complaint.

Judge Minora was constrained to deny the defendant's preliminary objections to the negligent infliction of emotional distress claim. The court found that plaintiff sufficiently pled her cause of action in accordance with the appellate case law existing at the time.

The court noted that, under a literal application of the elements of this cause of action, a plaintiff would be required to observe that the acts or omissions by the medical providers constituted medical malpractice, realize the medical impact of such negligence on the victim, and suffer emotional shock contemporaneously with that realization. In this regard, Judge Minora pointed to Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986) and Tackett v. Encke, 353 Pa. Super. 349, 509 A.2d 1310 (1986) as support.

Although Judge Minora noted that an understanding the medical significance of alleged negligent medical acts or omissions required a level of medical knowledge and expertise beyond that possessed by a typical layperson, because the case law did not require such an understanding by the lay person plaintiff, the court was "mandated to suspend [its] common sense" and overrule the Defendants' preliminary objections in the form of a demurrer.

A similar decision was handed down in October of 2010 by Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas in the case of Prushinski et al v. Quilo et al., No. 11704 - Civil - 2009 (Luz. Co., Oct. 12, 2010, Cosgrove, J.).

In Prushinski, the decedent was brought to the hospital for treatment of a condition and eventually died nine days thereafter allegedly as a result of medical negligence. Family members pled negligent infliction of emotional distress claims in the Complaint.

Citing Weaver v. Univ. of Pittsburgh Medical Center, 2008 WL 2942139 (W.D.Pa. 2008), Judge Cosgrove allowed the claim to proceed as the plaintiffs had alleged that they were close family members, had been in the presence of the decedent during his treatment and witnessed his demise, all resulting in emotional injuries.

Judge Cosgrove also ruled that, contrary to the defense contentions, "Plaintiffs need not have recognized at the time of [the decedent's] treatment that Decedent was being subjected to Defendants' negligence."

As noted above, last month, a contrary result was secured by my partner, Timothy E. Foley, Esquire and I, along with the other defense counsel in the McHale case out of Lackawanna County.

In his Order, visiting Senior Judge Harold A. Thomson, Jr., ruled that the Plaintiff’s claims for negligent infliction of emotional distress were “[s]tricken based upon [the Plaintiff’s] failure to state a viable claim under Pennsylvania law."

In this regard, the Court cited to Halliday v. Beltz, 514 A.2d 906 (Pa. Super. 1986). In Halliday, the Pennsylvania Superior Court held that a decedent's husband and daughter who brought medical malpractice action alleging negligent infliction of emotional distress did not meet the personal observation requirements of this cause of action where they never actually viewed any of the allegedly negligent surgery or postoperative emergency remedial measures employed thereafter, though they were present in hospital while procedures were performed.


Anyone desiring a copy of the Order issued in the Ward case or my Brief (to assist in research efforts) may contact me at dancummins@comcast.net

I also have a copy of Judge Cosgrove's decision in the Prushinski case if you need it. Judge Minora's decision in Ward is posted on Westlaw but if you do not have access to that I can get you a copy of that Opinion as well.


NOTE: Past results secured by my firm or I are no guarantee of future results and each case must be handled on its own merits.

Another Decision Setting Parameters for Bad Faith Claim in First Party Medical Benefits Context

On June 25, 2010, Judge James M. Munley of the Federal District Court for the Middle District Court of Pennsylvania issued an Opinion in the case of Hickey v. Allstate Prop. and Cas. Ins. Co., No. 3:10cv00907 (M.D.Pa. June 25, 2010, Munley, J.) in which he granted the carrier's F.R.C.P. 12(b)(6) Motion to Dismiss the Plaintiff's bad faith claim in a first party medical benefits case.

In Hickey, he Plaintiff was injured in a car accident and began to recieve first party medical benefits under his own policy with Allstate for the payment of his medical treatment. Allstate paid the benefits for about two years and then stopped the payments on the basis of an independent medical examination which led the examining doctor to conclude that the Plaintiff had reached maximum medical improvement.

In response, the Plaintiff sued Allstate in state court for breach of the insurance contract and bad faith under 42 Pa.C.S.A. Section 8371. Allstate removed the matter to Federal Court and filed a Motion to Dismiss primarily asserting that the Motor Vehicle Financial Responsibility Law, i.e. 75 Pa.C.S.A. Section 1797, provided for the exclusive remedies for the type of claim brought by the Plaintiff, thereby pre-empting any claim under the bad faith statute found at Section 8371. Judge Munley agreed with the carrier's position.

The Judge noted that, since there was no Pennsylvania Supreme Court precedent on the issue, he had to predict how that court would address this issue. Reviewing the case law from other Pennsylvania federal court decisions, Judge Munley held that "section 8371 is preempted by section 1797 where an insured alleges only that an insurer wrongly denied payment of first-party medical benefits based on a determination of the propriety of treatment and associated charges."

The Judge further explained that "[c]laims based on allegations outside this narrow scope, such as a claim involving contract interpretation, a claim of abuse of the PRO process, or a claim disputing the cause of the injury, go beyond the scope of section 1797 and may be pursued under section 8371." Citing Perkins v. State Farm, 589 F.Supp. 559 (M.D.Pa. 2008).

Reviewing the Plaintiff's allegations in this matter, Judge Munley determined that the bad faith allegations were preempted by section 1797 because the dispute over the findings of the IME doctor revolved around a dispute over whether the Plaintiff's treatment was reasonable or necesary. As such, the Plaintiff's claim was found to trigger the remedies and procedures found under section 1797 of the Motor Vehicle Financial Responsibility Law.

However, Judge Munley did allow a portion of the Plaintiff's section 8371 bad faith claim to stand. The court found that the Plaintiff's claims that the Defendant carrier "had and has a practice of attempting to terminate medical treatment by 'independent medical examination' without reasonable cause to do so," were claims that alleged an abuse of the PRO process. Judge Munley found that those types of claims stated a cause of action for bad faith under section 8371 that were not preempted by section 1797.


I note that Judge Munley decision in Hickey, i.e. that where a Complaint specifically alleges culpable misconduct both within and beyond the coverage of the specific statutes of the MVFRL, then the remedies under the general bad faith statute at §8371 (i.e., punitive damages, costs and interest) may additionally apply as well, is consistent with two recent decisions out of the Lackawanna County Court of Common Pleas by Senior Judge Harold A. Thomson, Jr. and Judge Carmen D. Minora. See Skiro v. Erie Ins. Exchange, No. 09-CV-7077 (Lacka Co. May 19, 2010 Thomson, S.J.); Veltri v. Travelers Commercial Insurance Company, 08-CIVIL-8534 (Lacka. Co. September 2, 2009 Minora, J.)

Click on this link to go to my June 11, 2010 synopsis of those Lackawanna County decisions
on Tort Talk: http://www.torttalk.com/2010/06/bad-faith-claim-allowed-to-proceed-in.html.

Latest Compilation of Post-Koken Cases

The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.

All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.

I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.

If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I also invite anyone needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.

The post-Koken cases that I am aware of to date are, as follows:

Decker v. Nationwide Ins. Co., 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage).

Gunn v. Auto. Ins. Co. of Hartford, Conn., GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).

Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).

Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).

Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).

Jannone v. McCooey and State Farm, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).

Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).

Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).

Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).

Status of the Prohibition of the Seat Belt Defense in Pennsylvania

Seat Belt Defense Ban Wearing Thin

A Superior Court panel upholds the ban but illustrates its weaknesses

By Daniel E. Cummins
Special to the Law Weekly
DanCummins@comcast.net

Although a Superior Court panel in Gaudio v. Ford Motor Co., PICS Case No. 09-0927 (June 1, 2009), voted 2-1 to uphold the legislative prohibition against the seat belt defense found under 75 Pa.C.S.A. Section 4581(e), the constrained tone of the majority opinion -- and the strong dissent by Senior Judge James J. Fitzgerald -- can be viewed as another assault on what had been previously viewed as an ironclad ban on use of the defense in civil litigation matters.

Gaudio involved a strict products liability action in which the plaintiff attempted to prove that the vehicle's airbag system was defective and caused the plaintiff's decedent's injuries in a single-car crash. During the accident, the decedent's vehicle slid off a road and landed in a ditch. The unbelted decedent was later found in the vehicle by emergency personnel along with an exposed and deflated airbag.

Ford Motor Co. defended the case by asserting that the airbag system was not defective and that the decedent's injuries were caused by other pre-accident factors including the fact that the decedent was not wearing his seat belt, was unnecessarily closer to the steering wheel, and was also reaching down to the floor area at the time the airbag was deployed.

The trial court, in an opinion issued by Pike County Common Pleas Judge Harold A. Thomson Jr., acknowledged the general legislative prohibition against mentioning a plaintiff's non-use of a seat belt during a civil trial. However, the trial court judge, striking a blow against the rarely questioned prohibition against the seat belt defense, held that defendants should be allowed to use the defense in very limited circumstances, such as the Gaudio case, where the plaintiff was seeking a monetary recovery in a matter where the issue of the lack of seat belt use by the injured party was a key factor in the resolution of the central question of whether the airbag system was defective. More specifically, the trial court felt that, as long as the defense was not being used to assert contributory negligence on the part of a plaintiff, it could perhaps be used for other limited purposes relevant to the case.

Thomson's decision was originally analyzed in my Oct. 1, 2007, Pennsylvania Law Weekly column titled "Time to Unbuckle the Seat Belt Defense?" That article noted Thomson's finding that the seat belt defense should be allowed in a limited fashion in certain cases "raises a question as to the continuing validity of the legislative bar against the use of the 'seat belt defense' in all civil matters."

In that previous article, it was also proposed that, in this day and age, now over 20 years after the seat belt law went into effect in 1987, the time had come to allow for the seat belt defense as an additional incentive to those last remaining non-compliant drivers to use seat belts, particularly given all of the scientific evidence existing today confirming that seat belts serve to prevent or minimize injuries in motor vehicle accidents.

However, the previous article concluded with the notion that, in light of the clear statutory mandate prohibiting the seat belt defense in civil litigation matters, it appeared that the change in the law would have to come from the Legislature as opposed to the courts of Pennsylvania.

A Constrained Superior Court

As anticipated, the judges in the majority of the Superior Court's decision in Gaudio opted to follow the letter of the law of the statutory prohibition against the seat belt defense and "construe[d] the legislative intent of the provision to be a blanket exclusion of evidence of seat belt usage in civil actions for any purpose, including to prove not only contributory negligence but also defect, causation and/or damages."

The majority in Gaudio also noted that it was not a proper function of the court to insert its judgment as to the propriety of the prohibition against the seat belt defense where the Legislature had already resolved the issue by a clearly worded statute. Thus, the majority opinion, including the emphasis that any change in the law would have to come from a Legislative amendment, appears to indicate that the court felt constrained to follow the law in this regard. This apparent dissatisfaction of the Superior Court with the scope of the prohibition against the seat belt defense can be viewed as another chipping away of the strength of that prohibition.

Fitzgerald's Dissent

The ironclad prohibition against the seat belt defense was also dented by Fitzgerald's clear dissent on the seat belt issue and his confirmation that the state's appellate courts have struggled with some of the issues involved and would benefit from guidance from the Pennsylvania Supreme Court on the question of the continuing validity and breadth of the prohibition.

In his dissenting opinion, Fitzgerald cited Daddona v. Thind, 891 A.2d 786 (Pa. Commw. 2006), and Foley v. Clark Equipment Co., 523 A.2d 379 (Pa. Super. 1987), in support of his decision that the trial court judge had properly allowed Ford Motor Co. to introduce evidence of the decedent's seat belt use, or lack thereof. Since contributory negligence was not a valid defense in this products liability case, the use of the seat belt defense in that regard was not squarely addressed by the Gaudio court. However, Fitzgerald noted that those prior appellate decisions supported allowing the seat belt defense to be utilized at least for the purposes of showing the lack of a defect (with respect to the airbags) and attempting to defeat any causation argument put forth by the plaintiff.

Time for Change

The time has come for a change in the law. As noted in my previous article on this topic, in more than 20 years since the passage of the law prohibiting the seat belt defense, scientific evidence has clearly established that using seat belts minimizes the chances of death and can minimize the extent of injuries in motor vehicle accidents. This evidence is so well-established that the wearing of seat belts for safety purposes is now deemed as common sense by the general public.

Compared to the few people who routinely used seat belts more than 20 years ago when the seat belt law was first passed, a large majority of motorists now use seat belts on such a routine basis that a seat belt defense at trial would likely only be applicable to that small number of non-law-abiding motorists lacking common sense and still foolish enough to break the law by riding in motor vehicles without belting up.

Fears by the plaintiff's bar that unbelted parties injured or killed through no fault of their own in a motor vehicle accident may be completely and unfairly barred from recovery by virtue of the injured party's failure to wear a seat belt can be tempered by Legislative limitations on the breadth of the seat belt defense. For example, the Legislature may mandate that an injured party's recovery may be limited up to a certain percentage but not entirely barred by the seat belt defense. Plaintiff's fears in this regard may also be addressed by their ability to secure expert witnesses to defeat the seat belt defense by showing that, even if the Plaintiff had been wearing a seat belt, the forces of the impact would have resulted in the same or similar injuries.

Realistically speaking, the allowance of the seat belt defense in automobile cases would really be no different than the currently allowed defense in premises liability cases that people have a duty to exercise due care in protecting themselves from injury by watching where they are walking. Also, in almost every situation, a plaintiff has a duty to mitigate his damages. What better way is there for a motor vehicle occupant to mitigate his potential damages and injuries than by simply clicking on a seat belt? Click. Done.

Last but certainly not least, it would also appear that the abolishment of the prohibition against the seat belt defense would further the now currently recognized policy of cost containment with respect to spiraling automobile insurance costs by limiting the damages recoverable by those few injured parties who continue to break the law by still refusing to wear seat belts after all of these years.

Only the Legislature Can Act

Treatises have noted that a substantial minority of jurisdictions allow for the seat belt defense given the obvious effectiveness of seat belts in reducing fatalities and injuries. See ""onuse of seatbelt as reducing amount of damages recoverable," 62 A.L.R.5th 537 (1998) by Christopher Hall. In those jurisdictions, defendants are permitted to point to the injured party's failure to use the seat belt to support contributory negligence or mitigation of damages defenses in automobile accident cases.

Pennsylvania should join those jurisdictions. However, it appears that any such change in the law will have to come from the Legislature. Public support may be secured for this change by asserting that an amendment doing away with the prohibition against the seat belt defense could, as noted, ultimately serve to contain the spiraling costs of automobile insurance rates for the law abiding citizens of Pennsylvania who do wear their seat belts as required.


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins.


This article is reprinted here with permission from the June 29, 2009 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

Continuing Consolidation of Post-Koken Cases

It has now been about four years since the Pennsylvania Supreme Court handed down its decision in the case of Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken), 889 A.2d 550 (Pa. 2005), holding that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of underinsured and uninsured motorists claims.

Some carriers that have altered the language of their arbitration clauses to require the consent of both parties to submit the case to arbitration include AMICA, GEICO, Allstate, Harleysville, and Progressive. Carriers that appear to have totally eliminated the arbitration clause altogether include Nationwide, Erie, Liberty Mutual, Donegal, Keystone, and USAA, requiring claims against those carriers to be resolved by way of a lawsuit. State Farm has changed its arbitration clause to specifically mandate that all underinsured and uninsured motorist claims be resolved by way of a lawsuit filed in the court of common pleas.

Now as these cases involving many different types of claims that can arise out of a single car accident (third party, UIM, UM, first party benefits claims, bad faith, etc.) begin to work their way through the court system in Pennsylvania, many novel issues are arising and causing great uncertainty for the courts and the bar.

At least one issue has been clarified. Based on numerous decisions by various courts of common pleas in different counties, it can be safely stated that the trial courts will favor, and allow to stand, the consolidation of UIM claims with any bad faith claims against the involved insurance company along with any claims against the individual defendants who actually caused the accident, all under one lawsuit.

A number of the cases addressing this issue of consolidation of claims have come out of the Lackawanna County and Allegheny County Courts Court of Common Pleas. In Lackawanna County, Judge Carmen Minora allowed for the consolidation of a Koken-type case under Rule 213 in Decker v. Nationwide Insurance Co., 83 Pa.D.&C.4th 375 (2007). Senior Judge Harold A. Thomson, Jr., then sitting in Lackawanna County, offered a similar opinion in the case of Moyer v. Harrigan and Erie Ins. Exchange, No. 1684-CV-2008 (2008). Judge Robert Mazzoni also allowed for a UIM claim to proceed in a consolidated fashion with a bad faith claim in Augustine v. Erie Ins. Exchange,2006-CV-416 (2008).

Similarly, in Allegheny County, consolidation of various first party and third party claims has been approved by Judge Eugene B. Strassburger in Collins v. Zieler and State Farm, No. G.D. 08-014817 (2008) and Judge R. Stanton Wettick in the case of Gunn v. Automobile Ins. Co. of Hartford, PICS No. 08-1266 (2008).

These cases were reviewed in detail in my prior columns that appeared in the Pennsylvania Law Weekly entitled “Here Comes Hurricane Koken,” 31 PLW 1165 (October 27, 2008), and the 2008 year-end review of auto cases in “Negligence is in the Air…and on the Road,” 31 PLW 1380 (December 22, 2008).

Generally speaking, a review of the above cases indicated that the trial courts of Pennsylvania would be allowing for the joinder of these separate claims under Pa.R.C.P. 2229(b) (“Permissive joinder”) or Pa.R.C.P. 213 (“Consolidation….”). The underlying rationale is that since these post-Koken claims arise out of the same “transaction or occurrence,” i.e. the same motor vehicle accident and involve similar factual and legal issues, they should be consolidated under one lawsuit. It also appeared from these cases that the overriding principle of judicial economy, i.e. how the already overburdened trial courts would need to handle the impending glut of these new types of claims, would be an additional driving force influencing the courts’ decisions in the post-Koken cases.

More recently, on April 1, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas, issued a three page Order that reads like an opinion in the case of Jannone v. McCooey and State Farm, 2320-2008-Civil in which he joined the growing number of decisions allowing for the consolidation of the multiple claims available in a post-Koken automobile accident case.

In Jannone, the Plaintiff was involved in a motor vehicle accident in a school parking lot on February 15, 2008. At the time, the Plaintiff was covered by a post-Koken automobile insurance policy issued by State Farm. As noted above, that carrier had done away with the UIM arbitration clause and instead required the filing of a lawsuit for the pursuit of a UIM claim.

As such, the Plaintiff filed suit against the third party tortfeasor and State Farm as the UIM carrier under as single caption in the Pike County Court of Common Pleas. The third party tortfeasor, not wanting to be lumped in the same case with an insurance company in front of a jury, filed preliminary objections.

Judge Chelak quickly dismissed the defendant tortfeasor’s first assertion that the claims asserted against her should be dismissed in that they were “misjoined” with those claims asserted against the UIM carrier. Noting that there did “not appear to be any controlling appellate case law specifically addressing whether claims against a tortfeasor and UIM insurer may be joined in the same cause of action pursuant to Rule 2229(b),” Judge Chelak stated that the joinder of the claims would be allowed to stand under that Rule as the court was satisfied that the causes of actions against the defendant tortfeasor and State Farm arose out of the same occurrence of a single motor vehicle accident and involved similar factual questions. In denying this preliminary objection,, the Jannone court also alluded to the overriding principle of judicial economy and noted that the joinder of these claims would save judicial resources and avoid delays and expenses to the litigants.

Judge Chelak also rejected the alternative argument of the defendant tortfeasor that the claims against her should be dismissed because trying them along with the Plaintiff’s claims against State Farm would be unduly prejudicial as it would require the introduction into evidence of her own insurance policy.

In support of her argument, the defendant tortfeasor cited to Pennsylvania Rule of Evidence 411 which provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”

Judge Chelak used Pa.R.E. 411 to instead support his decision to deny this preliminary objection. Judge Chelak found that, under the scenario presented in this Koken case, the defendant tortfeasor’s insurance policy would be relevant for the separate purpose of showing of State Farm’s liability, since State Farm’s UIM liability was dependent upon the amount of the defendant tortfeasor’s liability coverage. Note that it is settled law under Pennsylvania law, the UIM carrier is entitled to a credit in the amount of the tortfeasor’s liability policy before the UIM carrier has to pay out under its own policy.

According to Judge Chelak, it therefore followed that the defendant tortfeasor’s policy was “not inadmissible pursuant to Pa.R.E. 411” and, as such, he denied the defendant tortfeasor’s preliminary objection that it was unduly prejudicial to allow for this joinder of claims.

With this new area of law developing it is important that the courts and the bar attempt to publicize post-Koken decisions whenever possible. Surely, there have been other similar orders and opinions addressing important post-Koken issues handed down by other courts of common pleas across Pennsylvania that have gone unpublished or have not been otherwise publicized for the benefit of the bar. Perhaps the courts and counsel can bring these cases to the attention of others by submitting copies of the opinions to statewide organizations such as the Pennsylvania Bar Association (PBA), the Pennsylvania Association for the Advancement of Justice (PAAJ), and the Pennsylvania Defense Institute (PDI). In this way, the common law associated with post-Koken cases can be developed in a more uniform and consistent fashion under the doctrine of stare decisis.