ARTICLE: Ending Post-Koken Wars of Attrition

This article of mine appeared in last week's November 10, 2015 edition of the Pennsylvania Law Weekly and is republished here with permission. Civil Litigation Ending Post-'Koken' Wars of Attrition by   Daniel E. Cummins, The Legal Intelligencer      November 10, 2015    Discovery issues continue to burden the trial courts in post-Koken auto accident lawsuits where uninsured and underinsured motorist breach of contract claims are combined with bad-faith claims. Despite the high burden of proof attendant with showing bad faith, plaintiffs often include such claims as a "hammer" in an effort to pressure on the UM/UIM carrier to settle the underlying claims, only to then drop the bad-faith claim when the UM/UIM claim is settled. Defendant insurance companies typically strike back by hiring additional big-city defense counsel to fight bad-faith discovery efforts at all costs. In such cases, the courts are often presented with a motion filed by the defendant insurance company seeking to sever the UM/UIM claims and bad-faith claims into two separate matters. These defense motions are typically combined with a request for a stay of any and all discovery on the bad-faith claims until a settlement or verdict on the separate UM/UIM claim is reached. Until recently, the trend in the trial courts was to follow a procedural framework advocated by Allegheny County Court of Common Pleas Judge R. Stanton Wettick by severing the UM/UIM claims from the bad-faith claims for purposes of the later trial of the matter, but still allowing discovery to proceed on all claims, even the bad-faith claim, in the meantime. These courts have indicated that any discovery issues, if they happen to arise, could always be addressed by way of discovery motions. As these cases thereafter proceeded beyond the pleadings stage, the norm has become that these post-Koken matters being bogged down in bad-faith discovery disputes so hotly contested that they have been described by Monroe County Court of Common Pleas Judge David J. Williamson as amounting to a "war of attrition." In two recent decisions, Williamson has bucked the trend and ruled, in the interest of judicial economy, that bad-faith discovery should instead be precluded until the conclusion of the companion UM/UIM claim so as to allow these types of cases to proceed more efficiently. The practical effect of these rulings is that the bad-faith discovery war of attrition is delayed, if not prevented altogether. Wettick's Way In the initial trend of bad-faith discovery decisions in post-Koken matters, a number of trial courts simply followed the guidance offered on this issue by Wettick in the seminal case of Gunn v. Automobile Insurance Co. of Hartford, PICS Case No. 08-1266 (C.P. Allegheny July 25, 2008). In Gunn, the court ruled that since the trial of the UM claim would be by jury and the trial of the bad-faith claim would be by a bench trial under Pennsylvania state law, there is a severance of the claims for trial purposes by operation of law. However, Wettick went on to refuse the request to stay bad-faith discovery, suggesting that issues and objections raised in that regard could be addressed by way of discovery motions. In Gunn, and again in Wutz v. Smith and State Farm, No. GD07-021766 (Alleg. Co. Sept. 9, 2009, Wettick, J.), Wettick addressed such discovery motions and noted that bad-faith discovery of the defendant UM/UIM carrier's settlement evaluation information would not be permitted during the pendency of the UIM claim. The court accepted the argument that to rule otherwise would be akin to requiring the defense in a football game to furnish its defensive formation for the upcoming play to the plaintiff before the plaintiff selected the play that it would call. Accordingly, the end result was that the most important information for the bad-faith claim could not be accessed by a plaintiff during the pendency of the UM or UIM claim. Rather, only limited, piecemeal discovery would be allowed while the UM/UIM claim is pending. Wettick's framework is set up such that, once the jury came back with its verdict on the UM or UIM claim, the defendant insurance company would then be required to immediately dump all of its now discoverable bad-faith information and documentation from its UM/UIM file upon the plaintiff's attorney. The Gunn/Wutz framework also requires that the bad-faith trial would then begin immediately with the same judge presiding. Wettick did suggest that, if the plaintiff's counsel required a continuance to review the newly produced discovery, then the court should consider delaying the start of the bad-faith trial. While clean and straightforward in theory, the procedural framework set up in the Gunn and Wutz cases for combined UM/UIM and bad-faith cases is impractical and almost impossible to follow in reality. Although excellent litigators, rare will be the plaintiffs attorney ready to digest and analyze reams of records produced by the carrier on the bad-faith claim and then immediately dive headlong into another trial on the complexities of the bad-faith claim after an exhausting trial on the UM/UIM personal injury claim. Perhaps even more importantly, the Gunn/Wutz framework of a bad-faith trial commencing immediately upon the verdict of the UIM claim does not allow for the plaintiff's completion of full depositions of the defendant insurance company's claims representatives and managers relative to bad-faith issues prior to the start of an immediate bad-faith trial. The parties may also need an opportunity and time to submit the discoverable materials to expert witnesses relative to the bad-faith claim. Moreover, it is highly unlikely in any event that a defendant carrier would simply turn over the requested bad-faith discovery without another fight or motion for a protective order. Similarly, once a plaintiff's attorney secures some initial information from the carrier on the bad-faith claim, additional requests for more discovery or motions to compel additional bad-faith discovery would most likely be required. Overall, there remains an ongoing split among the trial courts on whether or not to stay bad-faith discovery during the pendency of the UM/UIM claims. As it becomes more apparent that allowing bad-faith discovery to proceed during the UM/UIM claim results in real discovery wars of attrition that unnecessarily overburden both the courts and the litigants and drastically slow the movement of such matters through the court system, there may be a shift in thinking developing among trial court judges on this issue. Williamson's Way That shift in thinking was recently evidenced by Williamson reconsidering his own rulings on this regard in a post-Koken case that came before him. In his initial March 18 decision in the case of Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015), Williamson followed the trending Gunn/Wutz procedural framework by severing the UIM and bad-faith claims but denying a request for a stay of bad-faith discovery. In his more recent May 8 decision in the same Hakim case, Williamson noted that bad-faith discovery disputes had arisen in the matter and found that such disputes often rose to a "war of attrition" that only served to burden already overburdened court systems. Williamson then took a step back, looked at the big picture, and stated, "We have reexamined our opinion concerning the denial of the stay requested by the defendant of the bad-faith claim, while the breach of contract claim is pending. Upon further reflection, we determine that a stay of the bad-faith claim should be entered until such time as the breach of contract action is concluded." Williamson supported his reversal of his prior decision by noting that evidence of the handling of claims, while relevant in the bad-faith claim, was not relevant to the merit of the actual injury claim and that the release of the claims information would be prejudicial. The court also noted that this is particularly so where it was certainly possible that the bad-faith claims would never even come to fruition pending the results of the UIM claim—if the bad-faith claim was dropped after a settlement or verdict was reached on the UIM claim. The court also reasoned that the release of the carrier's thoughts and analysis prior to the UIM claim being fully litigated could be improperly utilized by plaintiffs as a bargaining chip in settlement negotiation. Returning to the notion of the "war of attrition," the court additionally noted that allowing bad-faith discovery to proceed during the pendency of UM/UIM claims would likely lead to more discovery requests, more motions to compel, more motions for protective orders, and more court hearings, all of which would serve to unnecessarily delay the resolution or trial of the UM/UIM claims. This, the court found, would not only be a burden on the court's resources, but would also serve to prejudice each litigant and delay the resolution of the matter. Accordingly, Williamson entered an order vacating his prior decision in Hakim and staying all discovery in the bad-faith claim pending the resolution of the UIM claim. Williamson would go on to rule in the same fashion in his more recent Oct. 1 decision in Brands v. Erie Insurance Exchange, No. 2604-CIVIL-2015 (C.P. Monroe Oct. 1, 2015). In Brands, Williamson severed a bad-faith claim from a UIM claim, but this time issued a stay order against any bad-faith discovery pending the resolution of the UIM claim. In so ruling, Williamson reiterated the same detailed rationale set forth in the Hakim decision as support for the stay of bad-faith discovery. In Brands, the court also went on to address a plaintiff's concern for a prompt and fair disposition of the bad-faith claims following the resolution of the UIM claims. Williamson stated that such concerns could be addressed by the court's control of discovery efforts and trial scheduling following the conclusion of the UIM case. Détente for the War of Attrition Whether Williamson's decisions amount to the beginning of a shift in the pendulum toward the more practical approach of both severing and staying bad-faith claims in post-Koken matters remains to be seen. Surely, staying bad-faith discovery during the pendency of the UM/UIM claims is more practical since full discovery on the bad-faith allegations is not allowed in any event until the UM/UIM claim is resolved. More importantly, a trial court order staying bad-faith discovery pending the resolution of the companion UIM claim will delay, if not prevent altogether, a discovery war of attrition and thereby further the overriding interests of judicial economy for all involved. Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.

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Copyright 2015. ALM Media Properties, LLC. All rights reserved.

Villanova Law Review Article (Online Edition) on Social Media Discovery In Pennsylvania

 

Tolle Lege, the online edition of the Villanova Law Review, has published my Article entitled "'NEW WINE IN AN OLD BOTTLE':  THE ADVENT OF SOCIAL MEDIA DISCOVERY IN PENNSYLVANIA CIVIL LITIGATION MATTERS," 60 Vill. L. Rev. Tolle Lege 31 (2015).

Here is a LINK to view the Article online.  (When you get to that site, click on the "DOWNLOAD" button to get to the article).

I send great thanks to Hayley Lenahan, a Villanova University School of Law J.D. Candidate for 2015 and Managing Editor of Tolle Lege/Villanova Law Review for accepting my Article for publication.  I also send thanks to the Editorial Board of the Villanova Law Review for their excellent edits to the Article.

The Article outlines those Pennsylvania trial court decisions to date on the issue of Facebook discovery and other similar issues.   As of January, 2015, there have been no Pennsylvania appellate court decisions on these emerging issues.

The Article is considered to be innovative in that, if you click on the bolded case names in the Article, it will link and take you to the actual Opinions or Orders online.

The same can be said with respect to the listing of the cases on the Tort Talk Blog Facebook Discovery Scorecard, which can always be viewed by (1) going to www.TortTalk.com, (2) scrolling down the right hand column, and (3) clicking on the date under "Facebook Discovery Scorecard."

As cited in the very first footnote in the Article, the title, "New Wine in an Old Bottle," was taken from the Opinion written by Judge Terrence R. Nealon in the Brogan case, which is an excellent decision to study to obtain a thorough analysis of this area of the law.

If you wish to secure a copy of this Villanova Law Review Article in PDF format, please use this LINK.

Should you happen to come across any other Social Media/Facebook Discovery decisions, and if you are willing, please email me a copy of the decision in order that the Facebook Discovery Scorecard on Tort Talk may be updated for the benefit of all.

Source of image:  lawweb2009.law.villanova.edu

Judge Wettick: Attorney-Client Privilege Does Not Continue For Defunct Companies

In his recent decision in the case of Red Vision Systems, Inc. et al. v. National Real Estate Information Services, L.P, et al., No. GD - 13 - 008572 (C.P. Allegh. Co. Feb. 26, 2014 Wettick, J.), Judge Wettick dealt with the novel issue of the application of the attorney-client privilege in the context of a request for the production of documents propounded upon a dissolved/non-operating company. 

After a thorough review of the scope of the attorney-client privilege, Judge Wettick ultimately ruled that the privilege did not extend to corporations that were no longer in business.  Accordingly, a former in-house counsel for several defunct companies was ordered to turn over documents in discovery related to status of the companies' assets.

Judge R. Stanton Wettick
Allegheny County

Judge Wettick rejected an effort to compare the situation of a dissolved corporation to that of a deceased person -- the attorney-client privilege is deemed to continue once a person passes away.  The court noted that the same concerns of confidentiality do not exist in the corporate setting as corporate officials can not expect the same level of privacy or confidentiality once a corporation goes out of business as the new management of the company or a trustee in bankruptcy may be entitled to access to the information at issue.

It is noted that Judge Wettick's decision was recently appealed up to the Superior Court.

Judge Wettick's decision may be viewed HERE.

I send thanks to Attorney Roy Leonard of the Stonecipher Law Firm in Pittsburgh for bringing this case to my attention.


Source of top image:  www.legalfinancejournal.com

Judge Wettick Precludes Discovery of Documents Under Peer Review Protection Act

In his recent decision in the case of Scrima v. UPMC Mercy, PICS Case No. 13-2704 (C.P. Allegheny Co. Sept. 9, 2013 Wettick, J.), Judge R. Stanton Wettick ruled that the documents Plaintiff sought to discover which documents were prepared for purposes of reviewing the quality of medical services that were provided by a Defendant hospital were protected by the Pennsylvania Peer Review Protection Act (Pa. P.R.P.A.), 63 P.S. §425.1-425.4 and, therefore, not discoverable. 

Judge R. Stanton Wettick

Judge Wettick noted that, under the Pa.P.R.P.A., records and proceedings of a review committee established for the purpose of reviewing information related to the evaluation and improvement of patient care are considered confidential.  

However, documents or records that are otherwise available from other original sources are not to be construed as protected from discovery or for use in any civil action merely because they were presented during proceedings held by such a committee (known as the "original sources" exception).

After reviewing the record before him, Judge Wettick found that the original sources exception of the Rule did not apply.   Accordingly, the court ultimately ruled that the Plaintiffs remained free to examine the hospital staff concerning their knowledge of the circumstances surrounding the Plaintiff’s injuries, but that the Plaintiffs were precluded from inquiring about conclusions or recommendations resulting from the investigation into the matter. 

Anyone wishing to review a copy of this decision may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee for a copy.  

Source:  Pennsylvania Law Weekly “Digest of Recent Opinions (October 1, 2013).   

ARTICLE: Accident-Prone Plaintiffs Face Quandary Over Multiple Trials

The below article of mine recently appeared in the July 23, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media. 

Accident-Prone Plaintiffs Face Quandary Over Multiple Trials

By

Daniel E. Cummins

Pennsylvania Law Weekly

07-23-2013

 

On occasion, a plaintiff comes along who has separate claims for personal injuries arising out of different accidents that occurred close in time.

The dilemma for such a plaintiff becomes whether or not to attempt to pursue both claims under one complaint, or if the cases were filed under two separate complaints, whether to move to consolidate those matters into one trial.

Recent cases handed down confirm that while a plaintiff is not permitted to plead claims for two entirely separate accidents under a single complaint, once two separate complaints are filed by the plaintiff, the plaintiff may be able to consolidate those two actions for purposes of a single trial.

Joinder of Claims Not Permitted in Complaint

Under Pennsylvania Rule of Civil Procedure 2229(b), it is provided that a "plaintiff may join as defendants persons against whom the plaintiff asserts any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action."

According to the case of Richner v. McCance, 13 A.2d 950 (Pa.Super. 2011), each element of this test must be met in order for separate claims to be stated under the caption of one complaint, i.e., joinder is permitted only if both (1) the lawsuits arose out of the same series of transactions or occurrences and (2) a common question of law or fact exists.

For example, in the Pennsylvania Superior Court case of Kalker v. Moyer, 921 A.2d 21 (Pa.Super. 2007), a plaintiff attempted to plead in one complaint claims arising out of separate motor vehicle accidents that occurred in different counties seven months apart. Turning to Pa.R.C.P. 2229(b), the Kalker court ruled that this joinder of claims was not permissible because the two accidents did not arise out of the same occurrence.

Such a joinder under a single complaint will not be allowed even where the plaintiff alleges an injury to the same body part from both accidents. In the Philadelphia case of Alpher v. Yellow Cab, 12 Pa.D.&C.3d 355 (C.P. Phila. 1979), a plaintiff attempted to plead claims in one complaint from two separate motor vehicle accidents that occurred 14 months apart on the basis that both accidents resulted in injuries to the same body part. The court in Alpher found that the two causes of action should not be joined because there was no common question of law or fact and because the claims did not arise out of the same transaction or series or occurrence.

As such, the law of Pennsylvania requires a plaintiff to bring claims arising out of separate motor vehicle accidents under separate complaints. The question remains whether that plaintiff who has filed separate lawsuits may thereafter successfully move to consolidate those separate complaints into one trial.

Consolidation of Separate Claims for Trial

Judge R. Stanton Wettick Jr. of the Allegheny County Court of Common Pleas recently addressed this very issue and allowed the consolidation of two separately filed motor vehicle accident lawsuits brought by the same plaintiff in the case of Jackson v. Drew, PICS CASE No. 13-1015, No. GD-12-008737 (C.P. Allegheny April 24, 2013 Wettick, J.).

In Jackson, the plaintiff was involved in two separate car accidents in Allegheny County with similar injuries resulting. The plaintiff filed separate complaints against the drivers.

Thereafter, the plaintiff filed a motion under Pa.R.C.P. 213 to consolidate the cases. The plaintiff asserted a concern that each defendant would try to blame the other for any of the injuries asserted.
Under Pa.R.C.P. 213(a), it is provided that "when actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all of the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay."

In Jackson, Wettick granted the motion pursuant to Pa.R.C.P. 213(a) and consolidated the cases under the rationale that both accidents arose out of a common question of law, i.e., the common question of fact as to what injuries were caused by which accident.

In his decision, Wettick distinguished the separate standards applicable to the permissive joinder of separate claims in a complaint under Pa.R.C.P. 2229 and to a motion for consolidation under Pa.R.C.P. 213(a). Whereas, the joinder Rule 2229(b) required both elements of the test — that is, actions arising out of the same occurrence and a common question of law or fact — the consolidation Rule 213(a) only mandated that one or the other elements of the test exist.

In the context of the Jackson case, although the separate actions arose out of separate occurrences, where the cases involved the common questions of fact as to which injury caused which accident, Wettick allowed for the consolidation.

Another example of a trial court opinion in which separate complaints were allowed to be consolidated for purposes of trial is Scoggins v. Hardy, 10 Pa.D.&C.4th 64 (C.P. York 1991). In Scoggins, the plaintiff allegedly sustained similar injuries as a result of two separate motor vehicle accidents that occurred several months apart.

The Scoggins court felt that the chances of the plaintiff receiving a fair trial would be enhanced by the consolidation, as one jury would hear the totality of the case and neither defendant would be able to point the finger at a missing defendant. The court also noted that with consolidation, the plaintiff would only need to call her medical experts to testify once and thereby avoid excessive fees. The court additionally noted that if the cases were not consolidated, there was the risk that the plaintiff might be able to collect twice for the same injuries. In granting the motion to consolidate, the Scoggins court pointed to the case of O'Meara v. Wilson, 12 Mercer L.J. 292 (1973), in support of its decision.

In the case of Hamilton v. Gallo, 334 A.2d 692 (Pa.Super. 1975), the Superior Court affirmed a trial court's consolidation of cases arising out of separate motor vehicle accidents that occurred several months apart. The Hamilton court adopted the trial court's reasoning that consolidation prevented the defendants from pointing the finger at the other defendant in separate trials and also prevented the plaintiff from downplaying the injuries from the one accident while emphasizing the other during separate trials.

While the decisions handed down to date all appear to favor the consolidation of separate complaints for separate accidents resulting in similar injuries, such consolidation is not automatic. Rather, under Rule 213, the courts retain broad discretion to consider whether or not to grant such requests to consolidate.

Moreover, as indicated in dicta in the Kalker decision referenced above, a consolidation request may be denied if the accidents arose in different counties, as venue issues may possibly serve to prevent the joinder of the two actions.

Damned If You Do, Damned If You Don't

Regardless of whether or not a decision is made to consolidate the claims, plaintiffs pursuing a recovery for injuries arising out of two separate accidents face challenges.

If separate trials occur, the plaintiff faces the greater risks attendant with the defendant blaming a missing defendant and another accident in the trial at hand. The same problem still exists in a consolidated trial but perhaps to a lesser degree, as the jury may be turned off by defendants casting blame at each other and refusing to accept responsibility for their own actions.

Plaintiffs claiming similar injuries in two separate accidents that occurred close in time may also have serious problems attempting to prove through expert testimony which accident caused which injury.
Where a plaintiff's medical expert fails to offer an unequivocal opinion, to a reasonable degree of medical certainty, as to which accident was responsible for which portion of the alleged injury, the plaintiff may be faced with a pretrial motion in limine seeking to preclude the testimony of the plaintiff's expert or a motion for nonsuit at the close of the plaintiff's case-in-chief at trial.

The courts of Pennsylvania have routinely held that an expert's opinion must be unequivocal, as in Hamil v. Bashline, 392 A.2d 1280, 1285-1286 (Pa. 1980). Stated otherwise, an expert's opinion that amounts to a mere guess or conjecture is not admissible in evidence, as in Laubach v. Haigh, 252 A.2d 683 (Pa. 1969), and Collins v. Hand, 246 A.2d 398, 403 (Pa. 1968).

Thus, the defense argument will be that if the plaintiff's medical expert witness is unable to unequivocally conclude which injuries and symptoms are related to which accident as required by law, it logically and necessarily follows that a jury of laypeople will likewise be unable to render such a decision.

Burden of Proof

As was attempted in the case of Pennfield v. Meadow Valley Electric, 413 Pa. Super 187, 604 A.2d 1082, 1085 (1992), a plaintiff may attempt to shift the burden of proof on the apportionment of the damages to the defendants under the Restatement (Second) of Torts, Section 433B, which pertains to the burden of proof of multiple defendants who have combined to cause an injury.

Similarly, in Smith v. Pulcinella, 656 A.2d 494 (Pa.Super. 1995), the court noted that since "most personal injuries are by their very nature incapable of division," a plaintiff should not be burdened with attempting to apportion the damages among multiple defendants. The court in Smith essentially treated the two separate defendants as joint tortfeasors in a case where the first defendant had rear-ended the plaintiff's vehicle and, shortly thereafter, the second defendant came along and rear-ended both vehicles as they were pulled off the side of the road.

However, defendants may counter with the argument that the rules pertaining to the apportionment of damages amongst multiple defendants only applies to joint tortfeasors, which generally cannot be so in the context of a matter two entirely distinct accidents separated by time.

Such was the finding of the court in a case involving two car accidents in Shamey v. State Farm Mutual Automobile Insurance, 331 A.2d 498 (Pa.Super. 1974). In Shamey, the plaintiffs had been driving up a hill when their vehicle became stuck in snow and ice. The plaintiff's vehicle was then struck in quick succession by two other vehicles.

As to the potential liability of the driver of the first vehicle that hit the plaintiff's vehicle, the Shamey court stated that it would be inappropriate to hold him liable for damages that were not the result of his negligence. Rather, where there were two separate collisions by two allegedly negligent drivers, each could only be found to be responsible for the injuries caused by his negligence.

In McGuire v. Hamper Coal Mining, 49 A.2d 396, 397 (Pa. 1946), the plaintiff suffered an injury to the same spot on his head as a result of two separate accidents two weeks apart.

On the apportionment of damages, the Supreme Court in McGuire reasoned that, since each defendant was only responsible for his own negligence, "it was incumbent upon plaintiff to individuate the injuries and damages" sustained from each accident. In this regard, the court found that the plaintiff was required to offer proof on the damages issues "not with absolute exactitude, but at least with reasonable approximation" so as to prevent impermissible conjecture on the part of the jury in their deliberations.

Ultimately, the Supreme Court in McGuire stated that "it might seem at first blush as though an injustice is being visited upon plaintiff in denying him a recovery from defendant of damages to which he might otherwise be entitled merely because he was unlucky enough to have a second accident and cannot now apportion his injuries between two occurrences. On more mature reflection, however, it should be apparent that it would be at least equally unjust to impose upon defendant a liability for damages which it was not shown to have caused."

Thus, the plaintiff who has the misfortune of having been injured in multiple accidents will have many issues to consider in addressing the quandary of whether to seek recovery at one trial or two.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.

 

Judge Wettick Rules on Facebook Discovery Issues

Allegheny County Court of Common Pleas Judge R. Stanton Wettick, a renowned expert on discovery issues, has handed down a July 3, 2012 decision denying Facebook discovery in the case of Trail v. Lesko, 2012 WL 2864004, No. GD-10-017249 (C.P. Alleg. Co. July 3, 2012 Wettick, J).

Judge Wettick

After providing a detailed review of the issue over a 22 paged Opinion, which includes a background on Facebook itself and a review of decisions from both within Pennsylvania and from outside jurisdictions, Judge Wettick ruled that both the Plaintiff's and the Defendant's motions to compel access to the other's Facebook pages would be denied in this motor vehicle accident litigation.


In this matter, the Defendant initially denied being a driver of a vehicle involved of the accident at the time of the accident.  The Plaintiff wanted access to the Defendant's Facebook postings around the time of the accident to seek information to confirm the Defendant's whereabouts at the time of the accident or to possibly uncover witnesses who could shed light on this issue.

In response, Judge Wettick noted that the Defendant had admitted in the filings of the case, more than once, that he was indeed the driver of the vehicle at the time of the accident.  Accordingly, the court found that the Plaintiff's request for access to the Defendant's Facebook pages should be denied in this regard.

The defense in this matter sought access to the Plaintiff's Facebook pages to seek out evidence related to the Plaintiff's claims of injury and impairment.  In support of their request, the defense provided the court with two photos from the Plaintiff's public Facebook pages which depicted the Plaintiff at a bar socializing and drinking at a party.

Judge Wettick noted that the Plaintiff did not allege that he was bedridden and found that the photos produced were not inconsistent with the Plaintiff's claims in this matter.

Judge Wettick denied the defense request for discovery of the private pages of the Paintiff's Facebook  profile and ultimately reasoned that, under Pa.R.C.P. 4011, such a request was unreasonably intrusive in that, in this particular case, "the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case."  Trail at p. 20.


Anyone wishing to view this decision may click this LINK.

Anyone wishing to review the Tort Talk Facebook Discovery Scorecard can always scroll down the right hand column of the Tort Talk website (http://www.torttalk.com/) and click on the date under "Facebook Discovery Scorecard" to access that listing of the cases uncovered to date.  Note that when you go to that page and click on the case names, you will be linked to a copy of that Opinion.  Here is a shortcut link to that Scorecard--click HERE.

I send thanks to Pittsburgh Attorney Matt Rancunas for forwarding this decision to my attention.

Judge Wettick Discusses Discovery Issues in Consolidated Post-Koken Case

In his recent Opinion in the case of Wutz v. Smith and State Farm Ins. Co., No. GD07-21766 (Allegheny Co., Sept. 9, 2009, Wettick, J.), Judge R. Stanton Wettick established a discovery timetable for the production of the UIM claims file in a case involving both a breach of contract claim against State Farm for failure to pay underinsured motorist benefits and a bad faith claim against State Farm based on allegations that the carrier's failure to handle the UIM claim in good faith violated 42 Pa.C.S. §8371. The case was, therefore, essentially a UIM claim and a bad faith claim brought under one caption.

As part of his bad faith discovery efforts, the plaintiff filed a motion to compel the carrier to produce its UIM claims file. The plaintiff was seeking information in terms of how the UIM carrier was formulating its evaluation of the claim presented.

Judge Wettick noted that the information which plaintiffs sought was only relevant to the bad faith claim.

Referring to his own prior decision in Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008), Judge Wettick noted that he had stated therein "that a court, in its discretion, will not necessarily permit discovery of all information in the files of the insurance company relevant to the bad faith claim. The insurance company should have the opportunity to show that discovery of certain information relevant to the bad faith claim will unduly prejudice the insurance company in its defense of the UIM claim."

In this case, counsel for State Farm argued that the carrier would be prejudiced in terms of the negotiations and the trial on the UIM side if it was required to preliminarily produce its UIM claims file for review by the plaintiff. State Farm argued that allowing for such discovery "would be akin to requiring the defense in a football game to furnish its defensive formation for the upcoming play to the plaintiff before the plaintiff selected the play that it would call."

Judge Wettick agreed with the State Farm argument and held that the UIM claims file need not be produced in these types of cases until after the UIM portion of the claim is submitted to the jury. Once the case is submitted to the jury, the UIM carrier would be required to produce the discovery for an in camera review by the court. As held in the Gunn case, Judge Wettick again noted that once the jury came back with a verdict on the UIM claim, the case could move right into the non-jury bad faith proceedings before the same trial judge.

Judge Wettick also noted that a plaintiff could move for a stay of the trial under Pa.R.C.P. 213 in those cases where the plaintiff had insufficient time to review the carrier's UIM file and prepare for the immediate bad faith trial or where the plaintiff can otherwise establish to the court that the case cannot be tried immediately.

At the conclusion of his opinion, Judge Wettick also held that that carrier need not produce those documents protected by the attorney-client privilege as long as the carrier was not raising advice of counsel as a defense to the bad faith claim.


Anyone wishing to secure a copy of this case may email me at dancummins@comcast.net.

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).

Superior Court Quashes Chance to Review its first Post-Koken case

In its recent April 15, 2009 opinion in Gunn v. Auotomobile Ins. Co. of Hartford, 2009 WL 1001029 (Pa.Super. 2009), the Superior Court refused an opportunity to address a post-Koken UIM case for the first time on the grounds that the appeal before them had to be quashed given that the trial court order appealed from was not a collateral order that was subject to a permissible appeal.

In the underlying case, the Plaintiff was pursuing a combined UIM claim and bad faith claim under a single caption in a post-Koken case where the Plaintiff's UIM policy called for a lawsuit to pursue that claim as opposed to an arbitration.

Allegheny Court of Common Pleas Judge R. Stanton Wettick Jr. implicitly held in his related trial court opinion in this matter that underinsured motorist coverage and separate bad faith claims may be consolidated under one caption but that courts faced with such joined claims should have the UIM case decided first by a jury followed by a bench trial on the bad faith claim. In the trial court's opinion, found at Gunn v. Automobile Insurance Co. of Hartford, PICS Case No. 08-1266 (C.P. Allegheny July 25, 2008), Wettick denied Hartford's motion to stay discovery related to the bad faith claim until the plaintiff's UIM claim could be decided.

In essence, the court ruled that a piecemeal approach of the various claims arising out of a single motor vehicle accident would not be tolerated by the already overburdened state trial court system.

In quashing the appeal, the Superior Court in Gunn acknowledge the carrier's argument that the appeal should be heard in light of the fact that "the insurance industry is pervasively dropping the mandatory arbitration clause from the standard insurance policy" and, as a result, "the courts in the Commonwealth of Pennsylvania are very likely to be inundated with cases in which insureds who have yet to demonstrate any entitlement to [UIM] benefits, will join their UIM claim with statutory bad faith claims."

Yet, in weighing this public policy argument against the cost to the Superior Court in having to undertake piecemeal reviews of non-final orders from the trial courts, the Court felt that the public policy argument was not sufficiently compelling enough to tip the balance in favor of allowing this appeal to go forward. As such, the Court entered an Order quashing the appeal for this reasons and for various other related reasons noted in the opinion.

It therefore appears that the trial courts will have to continue to work, without appellate guidance, in their efforts to address the novel issues arising in these post-Koken cases currently working their way through the system.

For a more detailed discussion of the issues faced by the trial courts in this regard, please see my Pennsylvania Law Weekly article from October of 2008 entitled "Here Comes Hurricane Koken" and my follow-up November of 2008 Pennsylvania Law Weekly article "Nothing to Fear But Fear Itself: Prior decisions in consolidated cases provide guidance for post-Koken issues."

Other articles of mine may also be found by clicking on their title in the JDSupra box on the right side of this blog or by visiting my profile at http://www.jdsupra.com/profile/danielcummins.

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.