Chester County Court Addresses Post-Koken Issues of Note

Levels of Coverage in Question

In the case of Crook v. Erie Insurance Exchange, No. 2014-00867-TT (C.P. Chester Co. June 14, 2024 Binder, J.), the court addressed various Preliminary Objections filed by a carrier in a Post-Koken uninsured (UM) motorist litigation.

Among the issues raised by the second level UIM carrier defendant in this case involving two (2) levels of UIM coverage was an argument that the claim against the second level UIM carrier was premature given that it was not clear as to whether or not the Plaintiff’s alleged damages would be fully covered by the first level of UM coverage.

The court emphasized that, while the second level of UM carrier was entitled to a credit for the policy limits under the first level UIM coverage, the Plaintiff was not required to exhaust the first level of UM coverage before pursuing the secondary coverage available from the second level UM carrier.

The court also addressed the separate issue of whether the Plaintiff properly also included a claim against the uninsured tortfeasor in this matter and whether that was an improper joinder.

The court reviewed cases on this issue involving permissive joinder of tort and UIM claims under Pa. R.C.P. 2229 and found that the same were indeed permitted. In this regard, Judge Binder elected to follow the approach enunciated by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17 (C.P. Lacka. Co. 2011 Nealon, J.) and allowed the claims to proceed into discovery under the same caption.

Accordingly, the court overruled the objections to Joinder at this pre-trial stage of the case without prejudice to the rights of the parties to request a bifurcation at the trial of the tort and the UIM claims and/or to otherwise request limits on the disclosure of the identity or existence of insurance coverage at trial.

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


Source: “The Legal Intelligencer Common Pleas Case Alert” (Nov. 6, 2024).

Berks County Court Addresses UIM Credits for Non-Auto Liability Policies

In the case of Adams v. GEICO, No. 15 - 18880 (C.P. Berks Co. Aug. 7, 2017 Fudeman, J.), the Berks County Court of Common Pleas addressed issues pertaining to offsets and credits due in a UIM matter.

By way of background, the Plaintiff was working as part of a construction crew on a road project when a motorist ran over his foot.

The Plaintiff sued the driver and Traffic Control Services/Flagger Force on his third party claims, and GEICO on his UIM claim.

The Plaintiff settled his claim against the tortfeasor driver for her $100,000 liability limits.  He settled his claim against Traffic Control Services/Flagger Force for $75,000 of that company's $2 million dollar limits.

The UIM carrier asserted that any payout of UIM limits should be offset by the amount of $2.1 million dollars, the combined amount of liability coverage possessed by both tortfeasors.  The carrier asserted that, assuming that the Plaintiff's damages were below that credit, the carrier should be entitled to summary judgment.

The Plaintiff asserted that the carrier was not entitled to any set-off relative to the payment made by the flagging company's liability carrier.

The court initially rejected the Plaintiff's contention that, under the MVFRL, only motor vehicle liability policies should be considered in calculating to credits due to a UIM carrier.  In that regard, the court pointed to the case of D'Adamo v. Erie Ins., 4 A.3d 1090, 1098 (Pa. Super. 2010), in which that court held that an umbrella policy could be factored into the credit due even though it was not an auto liability policy.

The court also rejected the Plaintiff's contention that set-offs in the UIM context are void as against public policy.

Under these rulings the court held that the UIM carrier was entitled to a credit of the $100,000 paid by the driver and the $75,000 paid by the flagger company's carrier so as to prevent any double recovery by the Plaintiff for the same damages.

Under the particular UIM policy language at issue in this case, the court went on to reject the carrier's assertion that it was entitled to a credit of the flagging company's $2 million dollars in liability limits.  The applicable clause in the GEICO UIM policy at issue in this case provided that the UIM payments paid under the policy would be "reduced by all amounts...paid by or for all persons or organizations liable for the injury."

The court noted that the policy did not contain the typical exhaustion clause which typically enables a UIM carrier to claim a credit for the liability limits of all tortfeasors involved.

As such, the court ruled in this case that the UIM carrier was only entitled to a credit or offset in the amount of the sum of the payments by the tortfeasors, not the amount of their liability limits contained in their respective policies.

In the end, the carrier's motion for summary judgment was denied under the above analysis and given that the Plaintiff's entitlement to UIM benefits had not yet been determined.

Anyone wishing to review a copy of this case 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.

Western Federal District Court Reviews Whether UIM Carrier Allowed an Offset on Wage Loss Claim by Social Security Benefits Paid to Plaintiff

In a recent decision out of the U.S. District Court for the Western District of Pennsylvania, the court denied a UIM carrier’s Motion for Partial Summary Judgment in a breach of contract and bad faith case in which the carrier was seeking an offset under 75 Pa. C.S.A. §1722 of the Motor Vehicle Financial Responsibility Law for Social Security Disability benefits received by the Plaintiff. 

In the case of Smith v. Progressive Specialty Insurance, No. 2:15-CV-528 (W.D. Pa. Feb. 17, 2016 McVerry), the court rejected the UIM carrier’s “novel theory that, under Tannenbaum, any award to Plaintiff for lost wages must be reduced to the extent that she received Social Security disability benefits. 

The Smith v. Progressive case arose out of an incident during which a pedestrian Plaintiff was struck by a motorist in a supermarket parking lot.   The Plaintiff alleged serious injuries and an inability to work.  The Plaintiff applied for and received Social Security Disability Benefits that totaled $1,174.00 per month.  

With respect to this litigation, the Plaintiff brought an underinsured motorist claim against Progressive Insurance for damages, including lost wages.  

With its Motion for Partial Summary Judgment, Progressive argued that the Plaintiff was precluded from recovering UIM benefits for lost wages in the amount of the Social Security benefits that the Plaintiff was receiving.  The Plaintiff countered with an argument that the disability benefits were a collateral source that could not be utilized to reduce the UIM benefits that she was owed under the policy.  

In his decision, Judge McVerry reminded the reader that, in Tannenbaum v. Nationwide Ins., 992 A.2d 859 (Pa. 2010), Pennsylvania Supreme Court ruled that income loss benefits are subject to an offset if they fall under §1722’s definition of “‘any program, group contract or any other arrangement for payment of benefits.’”   Judge McVerry noted that, in Tannenbaum, the court was faced with the issue of whether Social Security Disability benefits qualify as a group, program, or arrangement under §1722.  

Judge McVerry noted that, in the Tannenbaum decision, the Pennsylvania Supreme Court reviewed the previous Pennsylvania Superior Court decision in the case of Browne v. Nationwide Mutual Insurance, 674 A.2d 1127 (Pa. Super. 1996) in which that court held that Social Security Disability Benefits did not fall within the purview of §1720 and 1722 of the Motor Vehicle Financial Responsibility Law because such Social Security Disability Benefits were never subject to subrogation.   It was also noted that the Browne court explained that the Pennsylvania legislature could have specifically named disability benefits as falling within the §1722 preclusion.  McVerry noted that, instead, as the Superior Court indicated in Browne, §1722 was designed to refer only to benefits that are specifically recoverable as first-party benefits under the MVFRL.  

Judge McVerry went on to note in this Smith v. Progressive case that Tannenbaum did not expressly diavow this rationale.   Moreover, Judge McVerry indicated that the Tannenbaum court otherwise disapproved of the Browne court’s holding that, where benefits were paid for or earned by an insured through his employment, there should be no offset.

Based upon this review of the law, Judge McVerry denied the UIM carrier’s Motion for Partial Summary Judgment and rejected the UIM carrier’s novel theory that, under Tannenbaum, any award to the Plaintiff for lost wages must be reduced to the extent that a Plaintiff received Social Security Disability Benefits. 

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

Source:  Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog which can be viewed HERE.

Pennsylvania Supreme Court Rules That UIM Offset Clause Entitles UIM Carrier to Offset Amount of All Damages Recovered by Plaintiff From All Parties Sued

In its January 21, 2014 Opinion in the UIM offset case of AAA Mid-Atlantic Ins. Co. v. Ryan, No. 12 MAP 2013 (Pa. 2014)(Opinion by Todd, J.), the Pennsylvania Supreme Court addressed the issue of whether, under a UIM policy of insurance, the amount of the insured injured party's recovery may be offset by the amount of all damages paid in satisfaction of the underlying judgment, or by only the amount of compensation paid under the auto insurance policy of the underinsured third party tortfeasor defendant who caused the accident.

By way of further background, the injured party plaintiff filed a third party lawsuit against the defendant tortfeasor driver, along with a separate lawsuit against the City of Philadelphia and PennDOT asserting a defective design of a roadway.

The case against PennDOT was dismissed prior to trial by agreement. 

The third party tortfeasor driver settled by tendering his $25,000 liability limits.

The remaining case against the City of Philadelphia proceeded to an arbitration in which the arbitrator awarded the Plaintiff a gross award of $500,000 but apportioned liability among the parties as 50% against the defendant tortfeasor driver, 35% against the injured party plaintiff, and 15% against the City.

Taking away 35% apportioned to the injured party plaintiff from the gross award entered resulted in a net award of $325,000.

Pursuant to the doctrine of joint and several liability which applied in this matter, the City paid the plaintiff $300,000 and, as noted, the defendant driver paid his $25,000 liability limits.  Thus, the plaintiff was paid the full amount awarded.

Thereafter, the injured party plaintiff turned to her own auto insurance carrier, AAA Mid-Atlantic Insurance Company for UIM coverage.

The UIM carrier denied coverage under its "Limit of Liability" clause which provided, in pertinent part, that "[t]he limit of liability shall be reduced [] by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible."

The "Limit of Liability" clause further provided that "[n]o one will be entitled to receive duplicate payments for the same elements of loss."

After a UIM arbitration panel awarded the injured party plaintiff a UIM recovery that only considered the defendant tortfeasor driver's liability limits in terms of any offset, the UIM carrier litigated the issue up the appellate ladder to the Pennsylvania Supreme Court. 

Throughout the appeal process, the conflicting public policy interests of (1) cost containment and (2) compensating those injured by a tortfeasor who lacks adequate coverage, were hotly debated.

As noted, by the time the case reached the Pennsylvania Supreme Court, that Court framed the question presented as involving whether a UIM recovery may be offset against all damages paid in satisfaction of an underlying third party judgment, or may such a UIM recovery only be offset by the amount paid out under the defendant tortfeasor driver's automobile liability insurance policy.

After thoroughly analyzing the variety of cogent arguments raised on both sides of the issue, the Pennsylvania Supreme Court in the case of AAA Mid-Atlantic Ins. Co. v. Ryan ruled that the "Limit of Liability" clause in the UIM policy did not violate the public policy of affording compensation to parties injured by underinsured drivers since, under the facts of this case, the injured party was fully compensated for his injuries by receiving the entire amount of damages awarded by the underlying third party arbitration panel through payments by the defendant tortfeasor driver and the City of Philadelphia.

In addition to there being no violation of the public policy noted under the circumstances presented in this case, the Pennsylvania Supreme Court also noted that the application of the "Limit of Liability" clause also upheld the long-standing rule against allowing a plaintiff a "double recovery" for the same injuries.

Stated otherwise, as the injured party plaintiff was found to have been fully compensated for her injuries in this matter, the underlying purposes of Pennsylvania's Motor Vehicle Financial Responsibility Law would not be furthered by allowing for an additional recovery against the UIM carrier for the same injuries claimed.

Anyone wishing to review the Pennsylvania Supreme Court's decision in the case of AAA Mid-Atlantic Ins. Co. v. Ryan may click this LINK.

Source of Image: www.strategies360.com

Crawford County Court Addresses Priority of UIM Coverages

In the Crawford County Court of Common Pleas case of State Farm Mut. Auto. Ins. Co. v. Donegal Mut. Ins. Co., XXX Crawford Co. L. J. 52 (2013 Vardaro, P.J.), President Judge Anthony J. Vardaro recently issued an Opinion deciding a dispute between insurers regarding their respective pro rata share obligations for an underinsured (UIM) motorists benefits payment.

In the State Farm v. Donegal case, the injured victim/insured resided with her parents and was operating their vehicle with their permission when she was struck by the tortfeasor defendant driver.

According to the Opinion, there were two vehicles on parents' State Farm policy under which there was $25,000 in stacked UIM coverage.

The injured victim also had her own policy with Donegal that had $100,000 in UIM coverage, but no stacking,

After obtaining the tortfeasor's liability limits, the UIM claims made against State Farm and Donegal settled for 90,000 of which State Farm paid 50,000 and Donegal paid 40,000.

State Farm then sought a pro rata contribution from Donegal by arguing that the second vehicle on the parents' State Farm policy should be considered "secondary" and therefore of equal priority with the  Donegal policy.

After review the policy language and applicable law, the court rejected State Farm's argument.  After  citing to 75 Pa.C.S.A. Section 173, other case law, and the Pennsylvania Association for Justice's Pennsylvania Motor Vehicle Insurance book by James. R. Ronca, Esq., et al., the court held that both vehicles under State Farm's policy are to be considered first priority and the Donegal policy is solely second priority.  As such, the court rejected State Farm's pro rata request and granted defendant Donegal's motion for summary judgment.

Anyone wishing to review this Crawford County Court of Common Pleas decision in the case of State Farm v. Donegal may click this LINK.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.

PUSL OVERTURNED!!

In its September 28, 2012 decision in the case of Smith v. Rohrbaugh, No. 91 MDA 2010, 2012 Pa. Super. 208 (Pa.Super. Sept. 28, 2012 Stevens, P.J., Bender, J., Panella, J., Donohue, J., Allen, J., Mundy, J., Olsen, J., Ott, J., and Wecht, J.)(Opinion by Ott, J.), the Pennsylvania Superior Court held that its previous decision in the case of Pusl v. Means, 982 A.2d 550 (Pa.Super. 2009) was wrongly decided and therefore overruled.

In its prior decision in the case of Pusl v. Means, the Superior Court basically held that, where a Plaintiff first obtained a UIM recovery in a motor vehicle accident case, the defendant tortfeasor in the third party case was entitled to a credit against the verdict of the UIM amounts already received by the Plaintiff so as to prevent a double recovery in violation of Pennsylvania's Motor Vehicle Financial Responsibility Law.

In this Smith v. Rohrbaugh case, the trial court applied that Pusl UIM credit against a verdict entered against the tortfeasor defendant driver after a trial on the liability side of the case. 

On appeal, the Superior Court noted that the Pusl v. Means decision had been based, in part, on the Superior Court's prior decision in the case of Tannenbaum v. Nationwide Ins. Co., 919 A.2d 267 (Pa.Super. 2007), which decision had since been overruled by the Pennsylvania Supreme Court.  See 992 A.2d 859 (Pa. 2010).

The Smith v. Rohrbaugh court noted that Pusl correctly decided that the MVFRL, 75 Pa.C.S.A. Section 1722, prevents a double recovery of first party benefits.  The Smith v. Rohrbaugh court states, however, that the Pusl decision then equated UIM benefits with first party benefits and, as a result, incorrectly concluded that Section 1722 applied to UIM payments.

Looking at the provisions and definitions noted in the MVFRL, the Smith v. Rohrbaugh court concluded that UIM benefits were not listed among those first party benefits subject to this prohibition against a double recovery.  The court noted that while UIM benefits are usually referred to as first party benefits, since the legislature did not specifically list UIM benefits in this regard in the MVFRL, Pusl was incorrect in its analysis that a credit was due to the tortfeasor defendant for previously paid UIM benefits to a Plaintiff as a means to prevent a double recovery of first party benefits.  To rule otherwise, would represent an impermissible rewriting of the MVFRL.

As such, the Pusl credit no longer exists and it appears that a Plaintiff may now secure UIM benefits prior to proceeding on a claim against the third party tortfeasor on the liability side.

It remains to be seen whether this case will be appealed up to the Pennsylvania Supreme Court and, if so, whether that court will grant allocatur to hear the appeal.  It is noted that the Pennsylvania Supreme Court denied allocatur in the Pusl case when that case appeared at their door.

Anyone wishing to review the Smith v. Rohrbaugh decision may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price, and Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for publicizing this decision.

Appellate Ruling That UIM Offset Includes Umbrella Policy Limits Stands

The Pennsylvania Supreme Court has denied allocatur in the two companion underinsured motorist cases of D'Adamo v. Erie Ins. Exchange and Holocher v. Erie Ins. Exchange, thereby allowing to stand a Superior Court panel's ruling that benefits collected under a tortfeasor's umbrella insurance policy can serve as an offset against the amount of recoverable underinsured motorist benefits in a given matter.

Source:  Article in August 9, 2011 Pennsylvania Law Weekly entitled "High Court Won't Mull Umbrella Policy Offsets in UIM Cases."

Here is a link to my prior Tort Talk post on an article of mine in which the D'Adamo case is summarized:  http://www.torttalk.com/2011/01/2010-year-end-review-article-on.html

Pennsylvania Superior Court Holds That Excess/Umbrella Policies Are To Be Included in Calculating Credit Due In UIM Cases

In a monumental Opinion handed down on April 30, 2010, the Pennsylvania Superior Court ruled in D'Adamo v. Erie Insurance Exchange, 2010 PA.Super. 77 (Pa.Super. 2010 Gantman, J.), that both a tortfeasor's automobile insurance liability coverage as well as his separate personal umbrella policy should be considered in determining the credit due to an underinsured motorist benefits (UIM) carrier in a UIM claim.

In D'Adamo, a consolidated case involving two injured husband and wife couples who were in the same vehicle at the time of the accident, the UIM Arbitration panel determined that each of the couples was entitled to a gross award of $850,000.00 per couple.

At issue before the court was the denial by Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas of the injured parties' motion to vacate/modify the arbitration award to disallow the credit in the amount of the umbrella policy limits. The injured parties attempted to argue that the offset or credit due to the UIM carrier should not include the tortfeasor's coverage from non-automobile insurance policies such as the umbrella policy owned by the tortfeasor.

According to the Opinion, the applicable Erie policy had an exhaustion clause that provided, in pertinent part: as follows:
"When the accident involves underinsured motor vehicles, we will not pay until all other forms of insurance under all bodily injury liability bonds and insurance policies and self-insurance plans applicable at the time of the accident have been exhausted by payment of their limits or have been resolved by settlement or by final resolution of the court."

The Pennsylvania Superior Court rejected the arguments by the injured parties that (1) the Erie insurance exhaustion clause was ambiguous when compared to the mandates of Pennsylvania's Motor Vehicle Financial Responsibility Law, and (2) the argument that including umbrella policies as part of the exhaustion clause would violate the public policy of Pennsylvania in this context.

In D'Adamo, each couple had already received the $250,000.00 limits under the tortfeasor's automobile policy and $500,000.00 in limits from the tortfeasor's personal umbrella policy, i.e. a total of $750,000.00 in available limits for the tortfeasor.

The Superior Court therefore ruled that, pursuant to the exhaustion clause, the arbitration panel was correct in applying a $750,000.00 credit to the $850,000.00 gross award. As such, the trial court's denial of the motion to vacate/modify the arbitration award was affirmed.


Anyone desiring a copy of the decision may contact me at dancummins@comcast.net. Thanks to Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for bringing this case to my attention.

Monumental UIM Decision Issued by Pennsylvania Superior Court

On September 23, 2009, the Pennsylvania Superior Court handed down a monumental UIM decision in the case of Pusl v. Means, 2009 WL 3065089 (Pa.Super. 2009, Judges Bowes, Freeburg, and Popovich).

Under the opinion written by Judge Popovich, the Superior Court held that, where a plaintiff first obtains a UIM recovery prior to the conclusion of her suit against the third party defendant tortfeasor, the third party defendant is entitled to have any verdict entered against him reduced by a credit or set-off in the amount of the underinsured motorist (UIM) benefits previously secured by the Plaintiff.

By way of background, the plaintiff in Pusl had recovered $75,000.00 in UIM policy limits under his own automobile insurance policy from State Farm prior to the completion of the the trial against the tortfeasor defendant. The opinion indicated that the UIM recovery was by settlement.

At the later trial against the defendant tortfeasor, the jury entered an award in favor of the plaintiff in the amount of $100,000.00. In post-trial motions, the defense requested a molding down of the verdict to $25,000.00 after the application of a credit or set-off of the $75,000.00 UIM benefits already previously received by the plaintiff. The trial court granted the defendant's request and, on appeal, the Superior Court affirmed.

In so ruling, the Superior Court weighed two conflicting public policies against each other. The first was a recognized public policy against double recoveries by plaintiffs. The second policy was that a tortfeasor should be liable for the all of damages he caused.

The Court in Pusl noted that the first public policy, against double recoveries, was essentially codified in 75 Pa.C.S.A. Section 1722, "Preclusion of recovering required benefits." That statute provides that "[i]n any action for damages against a tortfeasor...arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter....shall be precluded from recovering the amount of benefits paid or payable under this subchapter...."

The Court went on to note that Section 1722 "was obviously designed" to refer to first party benefits under the Motor Vehicle Financial Responsibility Law (MVFRL). The plaintiff's UIM benefits were found to "fall within Section 1722's first-party benefits because the UIM benefit was paid to her from her personal insurance policy with State Farm." Therefore, according to the court, the plaintiff's receipt of both the full jury award from the defendants and the pre-trial UIM settlement with State Farm would constitute a "double recovery" that the MVFRL was specifically designed to prevent.

As such, the trial court's molding of the verdict was found to comport with Section 1722 and the public policy of preventing double recoveries by plaintiffs for the same injuries.

The Court disagreed with the plaintiff's argument that the reduction of the verdict amount violated the second noted public policy requiring that a tortfeasor defendant to pay for all of the damages he or she caused. Also rejected was the plaintiff's argument that the defendant was not entitled to a "set-off" of the UIM benefits previously received under the collateral source rule because the UIM benefits were collateral source benefits.

Judge Popovich wrote that by molding the verdict down by the $75,000.00 previously received in UIM benefits, "it appears, at first glance, that the public policy underlying the collateral source rule was ignored in favor of Section 1722 by lessening the amount of damages that the jury attributed" to the defendants.

However, the Court went on to reason that the tortfeasor's liability was not lessened or reduced at all because, State Farm, the carrier that paid the UIM benefits, still had the right to pursue a subrogation claim against the defendants to recover the $75,000.00 in UIM benefits back from the defendants. In other words, even though the verdict was reduced by $75,000.00, and the defendants did not have to pay that portion to the plaintiff, the defendants were still technically liable to State Farm to pay back that amount if State Farm elected to proceed on its subrogation rights. Thus, according to this opinion, the second public policy was not violated by the molding of the verdict.

The Pusl Court reiterated that the "result of molding the verdict ensures that the [Plaintiff] will receive the full amount of damages the jury determined would make her "whole," i.e. , $100,000. To allow [plaintiff] to recover $75,000 in UIM benefits from State Farm and $100,000 in damages from [defendants] flies in the face of the established policy of this Commonwealth that an injured person is entitled to only one satisfaction for the harm incurred...."

Prior to the Pusl opinion, the issue of molding a plaintiff's jury award to reflect the pre-trial receipt of UIM benefits had only been addressed in the Delaware County Court of Common Pleas opinion in Shankweiler v. Regan, 60 Pa.D&C.4th 20 (2002). That opinion, previously viewed by some as an anomoly or in error, was cited with approval by the Pusl Court.

The Court Pusl concluded its opinion by restating that it found no error in the trial court's decision to mold down the verdict by the amount of the $75,000 in previously secured UIM benefits "in light of the clear intention of the jury that [the plaintiff] would receive a total damage award of $100,000 for her injury."

It is noted that the plaintiff's attorney in this matter was Michael John Koehler of the Erie, PA law firm of Nicholas, Perot, Smith, Koehler and Wall. Defense counsel was Craig R. F. Murphy from the Erie, PA law firm of MacDonald, Illig, Jones & Britton. Furthermore, amicus curiae briefs were also submitted by the Pennsylvania Association for Justice on the plaintiff's side as well as by the Pennsylvania Defense Institute on the defense side.

There has been no indication to date as to whether an appeal to the Pennsylvania Supreme Court will be filed.

PRACTICE TIPS:

Although the Pusl opinion specifically holds that defense counsel is not required to do so, it may be wise to now in automobile accident matters to include a standard paragraph in the New Matter portion of an Answer and New Matter that asserts a right to a credit or set-off in the amount of any previous UIM benefits secured by a plaintiff against any jury verdict that may be entered against the defendant.

Also, the Pusl opinion teaches that the inclusion of a motion to mold the verdict in post-trial motions is a proper vehicle to bring this issue before the court.


I thank Attorney Matt Dempsey for bringing this case to my attention.