Eastern District Federal Court Addresses Statute of Limitations For UM Claims

In the recent case of Liberty Mutual Fire Ins. Co. v. Weisbaum, No. 10-3869 (E.D. Pa. 2011 Schiller, J.), Judge Berle M. Schiller handed down a decision on the rarely seen statute of limitations issue with respect to an uninsured (UM) motorists benefits claim.

In this matter, Liberty Mutual filed a declaratory judgment action seeking a declaration that the claimant was not entitled to UM coverage because the claimant failed to bring his claim before the statute of limitations expired.

The court reaffirmed principle that "[u]nder Pennsylvania law, a UM claim is subject to the four-year statute of limitations for contract claims."  In this regard, the court cited State Farm Mut. Auto. Ins. Co. v. Rosenthal, 484 F.3d 251 (3d Cir. 2007), Boyle v. State Farm Mut. Auto. Ins. Co., 456 A.2d 156, 160-162 (Pa. Super. 1983), and 42 Pa.C.S.A. Section 5525(a)(8).

The court in Liberty Mutual v. Weisbaum also stated that "[a] UM claim accrues when the insured:  (1) is involved in a motor vehicle accident, (2) is injured in the accident, and (3) knows or reasonably should have known of the uninsured status of the owner or operator of the other vehicle involved in the accident." (Citing Clark v. State Farm Mut. Auto. Ins. Co., 599 A.2d 1001, 1005 (Pa. Super.  1991).

In his Opinion, Judge Schiller noted that  the statute of limitations can be officially tolled by the filing of a Petition to Compel Arbitration (citing Boyle, 456 A.2d 162-163).

Interestingly, Judge Schiller stated that the appointment of arbitrators by the parties was not sufficient to automatically toll the statute of limitations (citing with "see" signal Walker v. Providence Ins. Co., Civ. A. No. 97-7455, 1998 WL 195652, at *3 (E.D. Pa. March 31, 1998)(holding that appointment of arbitrator did not toll statute of limitations on underinsured motorist claim)[other citation omitted].

The court separately found that the statute could be tolled where the carrier "fraudulently or deceptively lulled" the insured into inaction on the claim presented.  No such fraud or deception was found to exist in this matter.  Rather, the court found that the facts presented established that the carrier actively sought information from the insured on the UM claim presented and received little cooperation in response.

In ruling in favor of the carrier on the statute of limitations argument in this matter, the court also rejected the claimant's argument of the tolling of the statute of limitations based upon an implied contract to arbitrate as there was no authority to support such an argument.

Anyone desiring a copy of this decision in Liberty Mutual v. Weisbaum, may contact me at dancummins@comcast.net.

Source:  "Case Digests."  Pennsylvania Law Weekly

Judge Mazzoni and Judge Geroulo Retained in Lackawanna County

Voters in Lackawanna County voted to retain Judge Robert A. Mazzoni, 63, and Judge Vito P. Geroulo, 64, on the bench.

The mandatory retirement age for Common Pleas judges is 70. That means neither Judge Geroulo nor Judge Mazzoni will be able to serve out a 10-year term as a full-time judge.  They can take senior status and continue working part-time after the age of 70.


Photo: Lackawanna County Courthouse
Source of Photo:  lackawannacounty.org

A NEW ERA DAWNS: Luzerne County Has Six New Judges (And a New D.A.)

Here is a link to an article in today's Times Leader by Sheena Delazio outlining the Luzerne County Judicial elections yesterday:

http://www.timesleader.com/news/_lsquo_Humbled_rsquo__Rogers__five_other_new_judges_complete_county_court_11-09-2011.html

According to the unofficial results, the six new Luzerne County Judges, in order of top vote-getters, are:

Jennifer Rogers

Fred Peirantoni

Joseph Sklarosky, Jr.

Michael Vough

Dick Hughes

Lesa Gelb

According to the article, 'Hughes, 50, of Mountain Top, and Vough, 47, of West Pittston, are both longtime assistant district attorneys with their own private practices in which they concentrate on civil law.'

The article states that "Sklarosky, 42, of Mountain Top, has worked as a part-time assistant public defender and also has his own private practice."

The article additionally notes that 'Pierantoni, 53, of Dupont, has served for the past 20 years as a magisterial district judge in Pittston, while Gelb, 50, and Rogers, 44, have primarily worked as civil litigators, focusing on complex cases."


It is also noted that, in a stunning upset, incumbent District Attorney Jackie Carroll Musto, who had over 20 years experience as a prosecutor, apparently became another victim of the Luzerne County judicial scandal.   Stephanie Salavantis, who is only two years out of law school and who has never prosecuted a criminal case, prevailed in the election for District Attorney.


Photo:  Luzerne County Courthouse
Source of Photo:  wilkes-barre.org

Lehigh County Court of Common Pleas Orders Bifurcation of Post-Koken Case at Trial Stage

In the Lehigh County Court of Common Pleas post-Koken case of Purta v. Blower and Erie Ins. Exch., No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.), the Honorable Edward D. Reibman addressed the seemingly novel issue presented by a Motion to Severance filed by the UIM carrier Defendant to bifurcate jointly filed third party and underinsured motorist (UIM) claims into separate trials.

In a detailed Order, Judge Reibman granted the UIM carrier's Motion for Severance and ordered that the case proceed to trial with only the Plaintiffs and Defendant tortfeasor being involved in the first trial.

Judge Reibman held that "pursuant to the criteria set forth in Pa.R.C.P. 213(b), and so as to avoid confusion of the threshold issues of alleged liability and damages caused by the Defendant Blower as the tortfeasor, the claims against Erie will be severed and addressed in a subsequent trial if necessary."

I have also been informed that a review of the docket indicates that the jury did not award any damages to the plaintiff in the trial against the third party tortfeasor.  Accordingly, the UIM claim is moot unless the verdict set aside or reversed on appeal.

Thus, it appears that another argument in favor of the bifurcation of post-Koken claims at trial is one of judicial economy in that the bifurcation of the claims, with the third party negligence case going first, not only streamlines that trial, but may also render a second trial on the UIM claim moot depending on the results of the first trial.

Anyone desiring a copy of this detailed Order in the case of Purta v. Blower and Erie Ins. may contact me at dancummins@comcast.net.

I send thanks to Scott Cooper, Esq. of the Harrisburg law firm of Schmidt Kramer for brining this case to my attention.

New Jury Verdict Roundup Launched on Lawyers.com Blog

I have been advised of a New Jury Verdict Roundup Launched on Lawyers.com Blog.  This FREE weekly feature will cover the latest news in personal injury awards.  Click the link below for more information, including how to have any verdicts, plaintiff or defense, you generate listed in this news source:

http://www.lexisnexis.com/media/press-release.aspx?id=1320683906528601

Clarification on Recurring Issue of Challenges to Late Joinder of Additional Defendants

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently issued an Opinion on a recurring issue in the case of  Chelland v. Siegfried v. Solomon, No. 2010 - CV - 6113 (C.P. Lacka. Co. Nov. 1, 2011 Nealon, J.), which involved an additional defendant's challenge to an original defendant's untimely joinder of the additional defendant.

The additional defendant primarily argued that the defendant had not provided reasonable justification or excuse for its delay of several months in seeking to join the additional defendant.

Judge Nealon pointed out that Pa.R.C.P. 2253 was amended in 2005 and now only permits the plaintiff to raise the "reasonable justification for delay" objection, whereas all parties (plaintiff and additional defendants) may still object on the ground of prejudice.

Thus, it appears that an assertion by an additional defendant that there was no "reasonable justification" to explain away the original defendant's late joinder is no longer valid.  Rather, the additional defendant must show the more difficult element of prejudice in order to prevail on a preliminary objection to a late joinder.

Anyone desiring a copy of Judge Nealon's detailed Opinion on this issue in the case of Chelland v. Siegfried v. Solomon may contact me at dancummins@comcast.net.

Pennsylvania Defense Institute News

I am pleased to report that I have been named as Co-Chairperson of the Auto Law Committee as well as Co-Chairperson of the Transportation/Trucking Law Committee in the Pennsylvania Defense Institute.

It is hoped that the members of these Committees will assist the PDI in generating informative articles for the PDI publication Counterpoint, writing periodic blog posts for the PDI Blog Counterpoint Plus on the PDI website (http://www.padefense.org/), as well as serving as speakers for any upcoming PDI sponsored CLE seminars. 

The Committees also hope to generate increased opportunities for members of the groups to network with other members in the field of Auto Law and Transportation/Trucking Law at the Annual Meeting of the Pennsylvania Defense Institute and other meetings.