A Slew of Additional Post-Koken Cases of Note Gathered From Materials from PAAJ's 32nd Annual Pennsylvania Automobile Law CLE

Below is a recitation of additional Post-Koken cases noted in the written materials handed out at the Pennsylvania Association for Justice's 32nd Annual Pennsylvania Automobile Law CLE seminar on May 29, 2014 in Philadelphia.

These cases will be added to the Post-Koken Scorecard which can always be freely accessed by going to the Tort Talk blog at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Post-Koken Scorecard." 

Here is a quick LINK to the Post-Koken Scorecard for your easy reference now.

CASES IN FAVOR OF CONSOLIDATION OF POST-KOKEN CLAIMS

Chester County

Allen v. Schreiber, et al., No. 3787-2012 (C.P. Chester July 2, 2013 Mahon, J.)(By Order without Opinion, trial court overruled UIM carrier’s Preliminary Objections seeking to sever UIM and negligence claims.).

 

Delaware County

Gallo v. Maiale & Grange Ins. Co., No. 2012-05963 (C.P. Delaware August 12, 2013 Fizzano-Cannon, J.)(Plaintiff sued third party tortfeasor and UIM carrier under one Complaint. By Order without Opinion, trial court denied UIM carrier’s motion for summary judgment which sought dismissal on the grounds that the UIM claim was not ripe as the Plaintiff had not yet secured a settlement or verdict against the third party defendant driver.)

 

Schuylkill County

Post v. Schnerring & Liberty Mut. Ins. Co., No. S-1887-2012 (C.P. Schuylkill Oct. 22, 2013 Dolbin, J.)(By Order without Opinion, court denied UIM carrier’s motion to sever Plaintiff’s negligence and UIM claims.)

 

 

CASES IN FAVOR OF SEVERANCE OF POST-KOKEN CLAIMS

Philadelphia County

Giddings v. Poe & Metropolitan Ins. Group, Oct. Term, 2011 No. 02393 (C.P. Phila. April 26, 2012 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court granted UIM carrier’s motion to sever UIM claims from negligence claims; court also cites law that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

Nguyen v. Dorvil & Erie Ins. Exch., Oct. Term, 2011 No. 03880 (C.P. Phila. May 20, 2012 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court granted UIM carrier’s motion to sever UIM claims from negligence claims; court also cites law that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

Rios v. Parker & Allstate Prop. & Cas. Ins. Co, Nov. Term, 2011 No. 01208 (C.P. Phila. March 1, 2012 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court granted UIM carrier’s motion to sever UIM claims from negligence claims; court also cites law that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

Silver v. Wood, April Term, 2013 No. 00276 (C.P. Phila. Sept. 20, 2013 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court denied plaintiff’s Petition to Amend Complaint to Add Additional Defendant, holding that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

 

CASES IN FAVOR OF CONSOLIDATION OF BAD FAITH AND UIM CLAIMS

Western District Federal Court

Cooper v. MetLife Auto and Home, No. 687-2013 (W.D.Pa. Aug. 6, 2013 Conti, J.)(Court denied UIM carrier’s motion to sever and stay bad faith claim for failure to establish that bifurcation was appropriate.  Court found that the issues in the UIM and bad faith claims were not significantly different, many of the witnesses would be the same in both trials, and any minor prejudice that might exist was outweighed by the court’s obligation to promote the expeditious resolution of a case.).

Clinton County

Wentzel v. Swinehart & State Farm Ins. Co., No. 375-10CV (C.P. Clinton Co. June 3, 2010 Williamson, P.J.)(By Order without Opinion, court denied UIM carrier’s motion to sever bad faith claims pending resolution of UIM claims.).

 

Luzerne County

Schuckers v. Penn National Mut. Cas. Ins. Co., No. 9080 of 2011 (C.P. Luz. Co. Nov. 6, 2012 Amesbury, J.)(Court denied motion to sever and stay bad faith claims pending resolution of UIM claims by noting there would be a “severance of the case by application of law” in that the UIM case would be tried first followed by a bench trial on the bad faith claim.  Court also denied the UIM carrier’s motion to stay bad faith discovery, noting that UIM carrier had the right to protect non-discoverable information and that the UIM carrier’s conclusions or opinions regarding the strengths and weaknesses of the Plaintiff’s case would be protected from disclosure until the completion of the UIM claim; cites Judge Wettick’s decision in Gunn v. Auto. Ins. Co. of Hartford.).

 

VENUE IN LAWSUITS AGAINST UIM CARRIERS

Otto v. Erie Ins. Exch., No. 13-CV-06722 (E.D.Pa. March 31, 2014 Brody, J.)(Plaintiff sued UIM carrier in Eastern District.  Erie forum selection clause provides that “[s]uit must be brought in a court of competent jurisdiction in the county and state of [plaintiff’s] legal domicile at the time of the accident.”  Plaintiff resided in Montgomery County and sued in Eastern District Federal Court.  UIM carrier’s motion to dismiss pursuant to forum non conveniens doctrine arguing that only the Montgomery Court of Common Pleas was the proper venue was rejected as the Eastern District Federal Court was a court of competent jurisdiction that covered Montgomery County.).

 

 

EVIDENCE OF “INSURANCE” AT TRIAL

Pelc v. Burkell & State Farm, No. A.D. 2009 483 (C.P. Crawford Sept. 23, 2013)(Plaintiff filed suit against third party tortfeasor and UIM carrier.  Plaintiff settled with tortfeasor prior to trial and proceeded to trial against UIM carrier.  On the basis of Pa.R.E. 411, UIM carrier filed motion in limine to preclude Plaintiff from identifying UIM carrier by name at trial and to preclude evidence pertaining to the details of the Plaintiff’s auto insurance coverage, the UIM policy limits, and the Plaintiff’s settlement with the third party defendant.  Motion in Limine denied with respect to request that UIM carrier not be identified at trial.  However, the Motion in Limine as to the remaining issues was granted as the court found that the relevancy of that more specific insurance information was outweighed by the risk of unfair prejudice and the increased potential of confusing the issues and misleading the jury.).

 

  

Source:  32^nd Annual Pennsylvania Automobile Law CLE Seminar Written Materials:  “Update on Current Pennsylvania ‘Koken’ Cases” by Leonard A. Sloane, Esq., Michael J. Davey, Esq., and Matthew J. Bilker of the Media/West Chester, PA law firm of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C.

Judge Minora of Lackawanna County Denies Motion to Compel Plaintiff to Attend 4th IME

In Gilroy v. Housing and Redevelopment Insurance Exchange, No. 2009-CV-9064 (C.P. Lacka. Co.

Judge Carmen D. Minora
Lackawanna County

April 23, 2014 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas ruled that a Plaintiff was not required to undergo a fourth independent medical examination with a pain management specialist as the Defendant did not meet the burden of showing good cause to support such a request.

According to the Opinion, the Plaintiff was alleging injuries as a result of a motor vehicle accident. Without objection, the Plaintiff had previously submitted to three (3) IMEs, one by an orthopedic surgeon, one by a neurological doctor, and one by a psychological medical provider.

When the Defendant requested the Plaintiff to undergo a fourth IME with a pain management specialist, the Plaintiff refused.

The case initially came before a special discovery master in the Lackawanna County Court of Common Pleas who denied the Defendant’s Motion to Compel the fourth IME. The Plaintiff appealed and Judge Minora affirmed the decision of the special discovery master.

Anyone wishing to review this decision may click this LINK.

Attorney Presence Allowed At Independent Psychological or Neuropsychological Exam (Pa.R.C.P. 4010)

Over the past year, at least two more trial court decisions have come down upholding a Plaintiff's right to have their attorney or other representative present for an independent neuropsychological examination:

Romagnoli v. Westmoreland Reg. Hosp., No. 1514 of 2011 (C.P. Westmoreland, March 27, 2013)(Plain language of Rule 4010 supports Plaintiff's right to have counsel or representative present at independent psychological examination;  Plaintiff has right to make audio or stenographic recording of examination;  Defendant's Motion to Compel Psychological IME of Plaintiff without presence of counsel denied).


Sanderson v. Geiger, et al., No. 2011-CV-8539 (C.P. Dauphin Aug. 22, 2013)(In Order without Opinion, Court held that Plaintiff permitted to have counsel present at all aspects of independent psychological examination and vocational assessment without exception;  Plaintiff also permitted to audio record entire psychological examination, including objective testing portion).



Source: Supplement to 32nd Annual Pennsylvania Auto Insurance Law Book (2014) issued by the Pennsylvania Association for Justice.

The Future is Now: Info from Vehicle "Black Box" Is Admissible in a Pennsylvania Criminal Case

Once in a while there comes along an appellate court criminal law decision (albeit non-precedential) that could impact Pennsylvania civil litigation matters.

In its recent “non-precedential” memorandum decision in the case of Commonwealth v. Safka,  No. 1312 - WDA - 2012 (Pa.Super. June 2, 2014 Panella, J., Olsen, J., and Wecht, J.)(Non-Precedential)(Mem. Opinion by Panella, J.)(Concurring and Dissenting Op. by Wecht, J.),  a criminal court case, the Pennsylvania Superior Court ruled in a case of first impression that information retrieved from a vehicle's "event data recorder," more commonly known as the "black box," was admissible in a criminal court proceeding.

[Why the Superior Court would list this notable, trend-setting Opinion as “non-precedential” is puzzling to say the least].


Surely, it is only a matter of time before this rule of admissibility is also applied in the civil litigation context.

Once that happens (or even already), the issue becomes whether a party may assert a spoliation, or destruction of evidence, defense against an opposing party for failing to preserve such black box information after a car accident.  

If such a defense is found to be warranted, a court may grant a party an adverse inference jury instruction at trial stating that the jury may infer from the opposing party's failure to preserve the black box information that such information would have been adverse to that party's position. 

As such, it may be wise to consider developing procedures to preserve such information after an accident, particularly where a party denies that he or she was speeding or driving carelessly at the time of an accident.

To view the majority Opinion in Commonwealth v. Safka, please click HERE.

To view Judge Wecht's concurring and dissenting Opinion, please click this LINK.

Sources:  Article by Zack Needles in June 4, 2014 The Legal Intelligencer entitled "Vehicle Speed Information From 'Black Box' Ruled Admissible."  Also thanks to Attorney Walt A. McClatchy, Jr. of the Philadelphia law insurance defense firm of McClatchy and Associates for this tip.

Link To Yera v. Travelers Bad Faith Decision

Here is a LINK to the decision of Yera v. Travelers Ins. summarized in yesterday's Tort Talk post, "Here's a Thought:  If There Ain't No Coverage, There Ain't No Bad Faith."

Here's a Thought: If There Ain't No Coverage, There Ain't No Bad Faith

In their recent "non-precedential" decision (why do they mark them "non-precedential" on occasion?!) in the bad faith case of Yera v. Travelers Ins. Co., of Am., 1398 EDA 2013 (Pa. Super. April 22, 2014)(Ford Elliott, P.J.E., Ott, J., Strassburger, J.) (Opinion by Ott, J.)(Concurring and Dissenting Op. by Strassburger, J.), the Pennsylvania Superior Court affirmed a trial court’s finding that the homeowner’s insurance  carrier for the Plaintiff did not act in bad faith by waiting six (6) months to deny the Plaintiff’s fire loss claim as there could be no bad faith claim where there was an underlying decision that the carrier need not afford any coverage under the policy in any event.  

By way of background, the Plaintiff owned an apartment building that was insured by Travelers.   The building was destroyed by fire.   Travelers denied the claim because there was not automatic sprinkler system in the building at the time of the fire as required by a protective safeguard endorsement in the policy of insurance. 

After the Plaintiff filed a lawsuit seeking to recover insurance benefits from Travelers under the policy and alleging bad faith, the trial court ruled that no coverage was required as the building did not have a sprinkler system as required by the terms of the insurance policy.   Travelers was granted summary judgment.  

On appeal, the Plaintiff argued that the trial court had erred because the policy provision was ambiguous and therefore unenforceable.  Further, the Plaintiff asserted that Travelers’ actions supported the Plaintiff’s bad faith claims.  

The Superior Court rejected the Plaintiff’s arguments on appeal.  The court found that because Travelers did not improperly deny the Plaintiff’s claim under the policy provisions at issue, the general definition of bad faith was not met.   Stated otherwise, the Superior Court more specifically ruled that Travelers’ investigation practices did not result in an improper delay in the payment of the Plaintiff’s claim because no payment was due under the application of the policy provisions to the facts presented.   Accordingly, the lower court’s decision in favor of the carrier was affirmed.  

Anyone wishing to review this decision, may click this LINK.

PA Superior Court Affirms Right of Defendant to Ask Plaintiff's Doctor at Trial if Plaintiff's Attorney Referred Plaintiff (Non-Precedential)

Tort Talkers may recall a previous blog post on the Philadelphia County trial court's decision in the case of Fullam v. Miller Bros., et al. in which that court upheld a Defendant's right in a personal injury matter to cross-examine the Plaintiff's doctor on the fact that the Plaintiff was referred to the doctor by Plaintiff's attorney.  To review that blog post, click HERE.


UPDATE:  In its April 30, 2014 "non-precedential" Memorandum Opinion, the Pennsylvania Superior Court affirmed the trial court's decision.  See Fullam v. Miller Bros, et al., No. 106 EDA 2014 (Pa.Super. 2014 Bender, P.J, Ott, J., Strassburger, J.)(mem. op. by Ott, J.)(dissenting op. by Strassburger, J.).

Concisely, the Pennsylvania Superior Court agreed  that cross-examination of the Plaintiff's doctor as to the source from which the Plaintiff obtained the name of the doctor was relevant to the potential bias of the doctor.

The Superior Court's majority non-precedential memorandum opinion may be viewed HERE.  Judge Strassburger's dissenting opinion may be viewed HERE.


Source:  Supplement to 32nd Annual Pennsylvania Auto Insurance Law Book (2014) issued by the Pennsylvania Association for Justice.