Federal Western District Court Puts the Brakes on Evidence of Certain Insurance Matters in a Post-Koken Case

In the Post-Koken federal court case of Binotto v. Geico, No. 3:22-CV-210 (W.D. Pa. May 30, 2025 Haines, J.), the court granted the Defendant UIM carrier’s Motion In Limine to preclude evidence of the UIM limits or premium paid at the trial of a post-Koken matter. 

The court addressed the argument of whether such evidence is relevant in a post-Koken trial. Included in that assessment was whether or not the probative value of such evidence was substantially outweighed by the danger of unfair prejudice or confusing of the issues presented. In this regard, the court cited to Federal Rules of Evidence 401, 402, and 403.

The court in this Binotto matter stated that its research revealed that the courts in Pennsylvania are split on this issue. This court noted that it was choosing to follow the case of Lucca v. Geico Ins. Co., 2016 WL 3632717 (E.D. Pa. July, 2016) and its progeny. 

Relying upon that case law, the Binotto court held that the “limits and premiums of Geico’s insurance policy offered no benefit to fact finder’s determinations of the value of Plaintiffs’ injuries.”

As such, the court ruled that evidence of the carrier’s policy limits and premiums paid were irrelevant. 

The court additionally held that, even if such evidence was somehow found to be relevant to the injury and damages assessments, any probative value of such evidence was substantially outweighed by the risk of unfair prejudice to the Defendant carrier.

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

I send thanks to Attorney Joseph A. Hudock, Jr. of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of image:  Photo by Instawalli on www.pexels.com.

Certain Insurance Information Ruled Inadmissible in a Post-Koken Auto Accident Lawsuit

In the case of Gilmore v. Erie Insurance Company, No. CV-2023-1140 (C.P. Wash. Co. April 23, 2025 Neuman, J.), in an Order without Opinion, the court granted a Defendant’s Motion In Limine filed in a post-Koken matter and thereby precluded the Plaintiff from introducing into evidence, any evidence or testimony regarding the amount of the tortfeasor’s liability limits, the amount of the premiums that the Plaintiff paid to his own UIM carrier, or that the Plaintiff’s UIM limits amounted to $300,000.00.

The rationale of the court was that the admission of such evidence would be overly prejudicial to the Defendant UIM carrier.

Again, there is no Opinion issued. This decision was by way of Order only.

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

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of above image: Photo by Nikitaxnikitin on www.pexels.com.

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.

Motion To Consolidate Two Separate Post-Koken Cases Denied in Lackawanna County

In the case of Pikula v. Ciabocchi, No. 18-CV-1753 (C.P. Lacka. Co. May 11, 2020 Nealon, J.), the court denied a motion by a tortfeasor Defendant to consolidate, for trial, two (2) separate post-Koken matters arising out of the same motor vehicle accident. 

According to the Opinion, the case involved a Plaintiff-driver and a Plaintiff-passenger, who were located in the same vehicle during the course of a rear-end accident. These Plaintiffs filed separate personal injury lawsuits. 

The Plaintiff-passenger filed suit against the tortfeasor Defendant as well as her own UIM carrier. 

The Plaintiff-driver, however, only sued the tortfeasor and did not present any UIM claim to date. 

The court also noted that, during the course of discovery, the tortfeasor Defendant had admitted liability for causing the accident. 

It was also noted that the Plaintiff-passenger had certified her case for trial but that the Plaintiff-driver had not yet had her separte case under a separate docket number certified as ready for trial. 

After the Plaintiff-passenger had filed a Certificate of Readiness for Trial, the tortfeasor Defendant filed a motion requesting the consolidation of both cases for a joint trial pursuant to Pa. R.C.P. 213(a).  

In his Opinion, Judge Nealon noted that, generally speaking, cases may be consolidated for trial under Rule 213(a) if they involve a common question of law or fact or arise from the same transaction or occurrence. 

The court ruled that, since the tortfeasor had admitted liability, these two (2) car accident lawsuits “no longer present any common question or law or fact and instead involve individual injuries, different items of damages, and distinct supporting evidence.” 

The court also noted that the tortfeasor’s acceptance of liability also eliminates the prospect of inconsistent verdicts regarding liability. 

The court additionally noted that, the Plaintiff-passenger’s case was scheduled for trial to take place in less than four (4) months, while the Plaintiff driver’s lawsuit has not yet been certified for trial. 

For these reasons, the court found that the consolidation of these matters for a joint trial is not warranted and the Motion to Consolidate these post-Koken actions for trial was denied. 

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

Motion To Bifurcate Coverage Question From Post-Koken UM Case Granted in Part and Denied in Part in Lackawanna County

In the Post-Koken UM case of Caridad v. Caridad, No. 2014-CV-6070 (C.P. Lacka. Co. Nov. 19, 2019 Bisignani-Moyle, J.), Judge Margie Bisignani-Moyle of the Lackawanna County Court of Common Pleas addressed a defendant carrier's motion to bifurcate a trial.

In this case, the defendant carrier was asserting as a defense in this breach of contract UM claim that there was no coverage due to the Plaintiff because the Plaintiff was not a resident of the insured's household at the time of the accident. 

In addition to arguing that bifurcation was not warranted under the case presented and would not support the interests of judicial economy, the Plaintiff argued that a  separate declaratory judgment action on the issue of coverage had not been filed and that, therefore, the coverage action was not in issue in this matter.

The defense countered with the argument that there was no breach of contract as there was no coverage under the policy in the first place.

The Court granted the motion to bifurcate in part and denied it in part.  The court granted the motion to bifurcate to the extent that the court ruled that the issue of residency and coverage would be addressed first.  Although the defense asserted that the coverage question was one of law for the court to decide, the court initially ruled that the coverage question would go to the jury.  The Court appeared to rule in this fashion as there were factual issues on the question of residency to be resolved.

Anyone wishing to review the Court's Order without Opinion may click this LINK.

Postscript:  At a more recent court conference after this Order was issued, the Court agreed to decide the coverage issue after securing and agreement of counsel for the Court to decide that issue.  However, the entire case settled before the bench trial on the coverage issue took place.

Motion to Bifurcate Post-Koken Trial Denied in Luzerne County

In the Post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier.

The Court's Order only without Opinion can be viewed HERE.

Judge Nealon of Lackawanna County Denies Motion to Sever Post-Koken Claims But Foreshadows That Bifurcation of Trial May Be Warranted When Punitive Damages in Play

In the case of Martin v. Ochenduszko, No. 17-CV-3912 (C.P. Lacka. Co. Jan. 16, 2019 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the UIM carrier’s Motion to Sever the Plaintiffs’ UIM claims from the tort claims asserted against a tortfeasor Defendant against whom punitive damages claims were pled given the Defendant-driver’s alleged operation of a vehicle under the influence of controlled substances at the time of the accident.  

According to the Opinion, this Motion to Sever was filed after the tortfeasor confirmed an admission of liability for the accident and after his carrier had tendered its liability limits to the Plaintiff in settlement of the tort claims, which settlement the Plaintiff had not yet accepted.  The Plaintiff was apparently trying to strategically keep the DUI tortfeasor Defendant in the case with the UIM carrier Co-Defendant. 

The motion filed by the UIM carrier sought to sever the UIM claims from the tort claims and to stay consideration of the UIM claims until the tort claims had been concluded.

Judge Terrence R. Nealon
Lackawanna County

 

Judge Nealon reviewed the rules under Pa.R.C.P. 213(b) regarding the severance of claims and noted that, while the compensatory damages claims that are recoverable from the tortfeasor and the UIM carrier involved the same evidence and issues, the Plaintiffs’ punitive damages claims are “irrelevant to the compensatory damages determinations, and proof of the motorist’s illegal drug use could unfairly prejudice the UIM insurer by inflaming the jurors’ passions or emotions and improperly influencing the compensatory damages awards.”  See Op. at 2.

As such, although Judge Nealon noted that bifurcation of the compensatory damages and the punitive damages claims for trial appeared to be warranted under the circumstances presented, the court left that decision to be made by an assigned trial judge after discovery has been completed the case certified for trial.  

In the meantime, the court found no legitimate basis for severing the tort and UIM claims during the course of pre-trial discovery.  The court also found no basis for staying the litigation process with respect to the UIM claims as requested by the UIM carrier.

Accordingly, the UIM carrier's Motion to Sever and Stay relative to discovery and pre-trial purposes was denied and any ruling on a Motion to Bifurcate the trial was deferred to be decided by a later assigned trial judge.

Anyone wishing to review this decision may click this LINK. 

I send thanks to Attorney Stephen T. Kopko for bringing this case to my attention.   

 

TRENDING: Judge Legg of Susquehanna County Rules Extraneous Insurance Information Inadmissible in a Post-Koken Trial

As recently promised, here is the Tort Talk blog post on the Susquehanna County Court of Common Pleas decision in the Phillips case on the admission of evidence of insurance issues in a Post-Koken matter.

In the case of Phillips v. National General Assurance Company, No. 2016-959 (C.P. Susq. Co. Nov. 16, 2018 Legg, P.J.), President Judge Jason J. Legg of the Susquehanna County Court of Common Pleas granted a UIM carrier’s Motion In Limine to exclude extraneous evidence relating to insurance.  

In this detailed Order, the court additionally directed the parties to prepare Proposed Jury Instructions explaining the nature of the litigation to the jury that avoids referencing the extent of the coverage limits.   In this regard, the judge cited with the signal “c.f.” (which is a "compare" signal) Judge Terrence R. Nealon’s decision in the case of Kujawski v. Fogmeg, 2015 WL 1726534 (C.P. Lacka. Co. 2015) (providing a jury instructions explaining the nature of UIM coverage and the insurance company’s potential liability).  

In rendering his decision, President Judge Legg, noting that there was no Pennsylvania state appellate court decisions on the issue of admissibility of insurance evidence at Post-Koken trials. 

The Judge pointed to recent Pennsylvania federal court decisions and, after a review of those cases, found that “there is very little, if any, probative value to the extraneous insurance contract evidence” in the Phillips case before him where there was no dispute regarding the existence of an insurance contract between the parties or the obligation of the carrier to provide UIM benefits, both of which issues had been conceded by the carrier.  

Accordingly, Judge Legg agreed with the reasoning that the extent of the coverage limits has no probative value as to the damages suffered by the Plaintiffs and the prejudice to the Defendant will be substantial as [such evidence would] provide the jury with an “anchor number” that may unduly influence the damage award.   In this regard, the court cited, among other decisions, the following:

Lucca v. GEICO Insurance Company, 2016 WL 3632717 (E.D. Pa. 2016).  The Order in Lucca can be viewed at this LINK and the Opinion at this LINK.
 

Schmerling v. LM General Insurance Company, Inc., 2018 WL 5848981 (E.D. Pa. Nov. 8, 2018).  The Order in Schmerling can be viewed HERE and the Opinion at this LINK.
 

Ridolfi v. State Farm Mutual Automobile Insurance Company, 2017 WL 3198062 (M.D. Pa. 2017 Mag. J.) (Excluding evidence of premium payments in breach of contract action between insured and insurer).  The Opinion by the Federal Magistrate Judge can be viewed at this LINK.
 

Anyone wishing to review a copy of the Phillips Order issued by President Judge Legg of the Susquehanna County Court of Common Pleas may click this LINK.

I send thanks to Attorney Gerald Connor of the Scranton, Pennsylvania office of Margolis Edelstein for bringing this decision to my attention.  
 

Notable But Non-Precedential Superior Court Post-Koken Decision Noted (From Back in 2016)

I recently came across a notable, non-precedential, post-Koken decision from back in 2016 entitled Zellat v. McCulloch, No. 1610 W.D. 2014, 2016 W.L. 312486 (Pa. Super. Jan. 26, 2016) (Bowes, Olson, and Stabile, J.J.) (Mem. Op. by Bowes, J.) (Non-precedential).   

Unfortunately, this post-Koken decision on notable issues was not published by the Pennsylvania Superior Court and was, instead, listed as a non-precedential decision.  

The hope remains that the Pennsylvania Superior Court and the Pennsylvania Supreme Court will publish any and all decisions related to post-Koken issues as any guidance on these still novel and developing issues would be of great help to both the bench and the bar in litigating these types of cases.

The case of Zellat involved a post-Koken lawsuit in which the Plaintiff sued both the third party tortfeasor on a negligence claim and her own underinsured motorist carrier on a UIM claim. 

At the trial level, the Allegheny Court of Common Pleas allowed the case to proceed in front of a jury without the UIM insurance company Defendant being mentioned.  Nor was the type of insurance involved mentioned.  

At trial, the jury found that the tortfeasor’s negligence was not the factual cause of any harm. The Plaintiff appealed.  

Among the many arguments listed on appeal by the Plaintiff was that she was denied due process because the UIM carrier was not mentioned or identified at trial.   In this regard, the Plaintiff relied upon the prior decision of Stepanovich v. State Farm, 78 A.3d 1147 (Pa. Super. 2013).  

Similar to its previous decision in the Stepanovich case, the Superior Court held in Zellat that it was not per se reversible error not to identify the insurance company when the insurance company Defendant is in a joint trial with the third party tortfeasor.  

The court in Zellat found this Stepanovich decision to be on point on the issue whether a Plaintiff is able to establish prejudice when the insurance company is not identified or mentioned.   The court in Zellat stated that, similar to as to the Stepanovich decision, prejudice was not established by the failure to identify the UIM carrier at trial.  

As such, the Zellat court found that the trial court did not abuse its discretion in not identifying the UIM carrier during the joint trial with the tortfeasor.  

In this appeal, the Plaintiff also presented a secondary contention that she was unfairly “tagged-teamed” by the participation of two (2) defense lawyers, one of whom represented the tortfeasor and the other who defended the case for the UIM carrier.   

This argument was rejected by the Superior Court in Zellat given that the Plaintiff did not request a new trial as part of her appeal process with respect to the participation of both defense counsel at trial. As such, this argument was rejected.  

Anyone wishing to read this case, may click this LINK.

ARTICLE: A Plea to the Appellate Courts From a Post-Koken Litigator

Below is a copy of my latest article published in my column in the Pennsylvania Law Weekly imploring appellate court judges to tackle Post-Koken issues whenever they can and, when they do so, to publish such Opinions so that much needed appellate guidance in this area of the law can be developed:

A Plea to the Appellate Courts From a Post-Koken Litigator

Daniel E. Cummins, The Legal Intelligencer

June 10, 2014

Dear Pennsylvania appellate court judges:

This respectful yet cogent plea for appellate guidance in post-Koken civil litigation matters is prompted by the Pennsylvania Supreme Court's surprising and disappointing recent denial of the petition to appeal in the notable case of Stepanovich v. McGraw, PICS Case No. 13-2987 (Pa.Super. Oct. 15, 2013).

As noted in my recent Pennsylvania Law Weekly article, "Superior Court Leaves Big Post-Koken Question Unanswered," from Nov. 19, 2013, the Pennsylvania Superior Court tackled, but did not fully resolve, the all-important issue of how trials involving third-party defendant drivers and co-defendant underinsured motorist insurance companies should be handled. With the appeal of that case to the Supreme Court, the state's highest court was poised to address one of the most important issues facing the courts and civil litigators in recent times, but it chose not to.

The denial of the petition for appeal in Stepanovich did nothing to lessen the void of appellate guidance on the many novel and troublesome issues in the brave new post-Koken world of automobile accident litigation.

A Missed Opportunity

If it accepted the Stepanovich appeal, the Supreme Court could have finally determined a number of important post-Koken trial issues at a time when a tsunami of post-Koken trials are bearing down upon trial courts all across Pennsylvania. Such issues include whether, in the first instance, the third-party negligence claim against the alleged tortfeasor should be tried in the same courtroom and at the same time as the breach of contract case against the plaintiff's own insurance company for UIM benefits. If so, appellate guidance could have been garnered on the consequent issue of how to address the general preclusion against the mentioning of insurance issues in third-party negligence trials in a case where the co-defendant is an insurance company.

Stepanovich also offered our highest court the opportunity to provide practical advice to trial court judges on how to conduct a post-Koken trial where there are typically two defense attorneys, one for the third-party tortfeasor on the negligence claim and one for the UIM carrier defendant on the breach of contract claim, double-teaming against a lone plaintiffs counsel.

The struggle with that issue is evident in the Stepanovich case, where the trial court judge initially allowed the trial to proceed with the two-against-one scenario without advising the jury why there were two defense attorneys involved, but then later reversed himself during the post-trial proceedings following the defense verdict by granting a new trial under the rationale that the double-teaming of the plaintiff through two openings, two sets of questioning of witnesses and two closing arguments by the defense was not fair. Moreover, the Superior Court reversed on this issue but did not include in its decision concrete practical guidance on how a post-Koken trial should be handled.

Thus, the hope was that the Supreme Court would step in on the matter and finally give clarity on the important questions presented. Unfortunately and inexplicably, the Supreme Court punted, leaving this issue for another day (or year).

To the extent the Supreme Court punted under the belief that the Stepanovich issues are not troublesome and recurring ones for trial court judges or civil litigators, or were not important enough to review, such is not the case. Moreover, appellate guidance is needed on a number of other novel post-Koken issues as well.

Appellate Guidance Needed

Needless to say, but apparently still necessary to emphasize, appellate guidance would be welcomed on any post-Koken issue that should make its way up the appellate ladder for review.

According to the "Post-Koken Scorecard" on my Tort Talk blog, which may not be exhaustive but is certainly comprehensive, 19 different county courts have ruled that post-Koken cases should be allowed to proceed through the pleadings and discovery phases in a consolidated fashion, while at least 20 other county courts have ruled in favor of the severance of the claims at the pleadings stages.


Notably, in some counties, such as Philadelphia, Allegheny and Lackawanna, there is even a split of
authority on this issue among the trial court judges of the same bench.

A review of the scorecard also confirms that many novel post-Koken issues have also arisen in the context of the discovery phase of this new form of civil litigation of automobile accident claims.


Questions abound as to the extent to which an insurance company's claims file is discoverable, particularly when bad-faith claims are included in the swirling vortex of issues being litigated. Trial courts also continue to struggle with motions to quash the requested depositions of UIM claims representatives and the scope of allowable questions when such depositions are allowed.

Collateral estoppel has become a hot topic in post-Koken litigation that, to date, has only been addressed by the state and federal trial courts. The issue in that regard is whether a plaintiff's participation in a mediation or binding arbitration on the third-party side of the case collaterally estops the plaintiff from pursuing a UIM claim where the monetary result of the third-party litigation came in at less than the tortfeasor's liability limits, thereby indicating that the tortfeasor was not "underinsured" so as to support the pursuit of a companion UIM claim.

Even after the Superior Court's decision in Stepanovich, the all-important issue of whether or not post-Koken trials should be bifurcated into two separate trials, one against the defendant tortfeasor with no mention of "insurance," and a separate one against the UIM insurance company defendant, remains unsettled.

While Stepanovich suggests, but does not hold, that the cases can be tried in a consolidated fashion, at least two trial courts have ruled in favor of a bifurcated trial: the Northampton County Court of Common Pleas in Purta v. Blower, No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.), and the Allegheny County Court of Common Pleas in Vecchio v. Tunison, No.: GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.).

Other trial court judges, such as Judges Michael T. Vough and Lesa S. Gelb of the Luzerne County Court of Common Pleas and Judge Cyrus P. Dolbin of the Schuylkill County Court of Common Pleas, who have ruled in several cases that the cases should proceed to trial in a consolidated fashion are, in the absence of appellate guidance, still forced to craft appropriate ways to conduct voir dire, to allow for the admission of evidence of insurance matters, to phrase jury instructions at a layperson's level, and, overall, determine the extent to which two defense attorneys should be permitted to gang up against a plaintiff's case at a post-Koken trial.

Appellate guidance on all of these issues would be beneficial so as to allow for the more orderly and efficient litigation of post-Koken cases. Such guidance would negate the need for trial courts to repeatedly visit these issues as long as appellate decisions are lacking. Moreover, the appellate resolution of post-Koken issues in a final manner could serve to foster the settlement of many cases in which litigants face unfavorable prospects of success in light of such Superior Court or Supreme Court decisions.

Published, Precedential Decisions Welcomed

This is not to say that the appellate courts have not yet tackled troublesome post-Koken issues. Both the Superior Court and the Supreme Court have addressed important issues such as proper venue and the extent to which the delay damages statute can be applied after a post-Koken trial.

And so, appellate court judges, if you have not yet taken up the opportunity to tackle a post-Koken issue, this is the day and age to do so, for you will be remembered and thanked for it later. For those of you who have already taken on such issues, thank you.

Last but certainly not least, it is respectfully requested that when you are faced with post-Koken issues on appeal, you publish your opinions and not list them as nonprecedential, which would, of course, eradicate the power of any guidance the decisions are designed to create.

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

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.