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).

Upper Level UIM Carrier Entitled to Credit for Liability Limits and First-Level UIM Limits

In the case of State Farm Mut. Auto. Ins. Co. v. Griffiths, No. C.A. 20-202 Erie (W.D. Pa. Aug. 23, 2022 Baxter, J.), the court granted the Plaintiff insurance company’s Motion for Summary Judgment. In this case, the injured party was seeking underinsured motorist benefits after settling with both the third party tortfeasors.

The court found that the non-duplication provision found in the liability policy that covered one of the tortfeasor drivers was unenforceable as against public policy.

The court additionally found that the UIM insurance carrier was entitled to a credit in the full amount of the available policy limits against any UIM benefits to which the injured party might be entitled to pursue under the UIM policies at issue.

In its decision, the court noted that Boyle v. Erie Ins. Co., 656 A.2d 941 (Pa. Super. 1995), governed the amount of the bodily injury credit a UIM carrier was entitled to claim when an injured party settles a liability claim against the tortfeasor.  That decision holds that a UIM carrier is entitled to a credit in the full amount of the liability limits.

The court also noted that a secondary UIM carrier is entitled to a credit of not only the liability limits but also for the full amount of the UIM limits of the primary UIM carrier regardless of the terms of an underlying settlement.

As such, the court found that the UIM insurance company in this matter was entitled to a credit of the third party liability limits and the first level UIM limits.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 8, 2022).

"Innocent Plaintiff" Fair Share Act Argument Gains Steam (Via More Dicta)

In the case of Anderson v. Motorists Mut. Ins. Co., No. 2:21-CV-00493-CCW (W.D. Pa. June 22, 2022 Wiegand, J.), the court addressed the issue raised by the parties as to the amount of the credit to which the UIM carrier was entitled in this particular claim.  As part of the analysis the Court addressed novel arguments raised under the Fair Share Act.

According to the Opinion, this case arose out of a fatal motor vehicle accident. 

After the accident, the Plaintiffs sued the third party tortfeasor and settled those claims. The Plaintiffs then filed a claim for UIM benefits with Motorists Mutual.

Motorists Mutual denied the claim on the basis that the value of the claim did not exceed the combined $5.1 million liability limits of the various third party tortfeasors.

With regards to the coverages at issue in the third party liability side, the Plaintiff was a passenger in a vehicle in which the operator of that vehicle was covered under a liability policy providing $100,000.00 in liability coverage.

The other vehicle involved in the accident was owned by a trucking Defendant who had liability limits of $1 million dollars as well as an umbrella policy with an additional $4 million dollars in coverage.

The Plaintiff settled the third party claim securing the $100,000.00 policy limit that covered the vehicle in which the Plaintiff was located at the time of the incident. The Plaintiff also settled against the trucking company for $55,000.00. Motorist Mutual consented to those settlements.

The court noted that, under the Motorist Mutual UIM endorsement, it was provided that the carrier would pay UIM benefits if “[t]he limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgements or settlements….”

In this matter, Motorists Mutual contended that it should receive a credit of $5.1 million dollars, which was the sum of all of the liability limits at issue (accepting a City of Pittsburgh policy limit, which was handled by the parties and the Court separately).

The Plaintiff was seeking a partial summary judgment under an argument that, unless Motorists Mutual could prove that the trucking Defendants’ percentage of fault equaled or exceeded 60%, Motorists Mutual should only be entitled to a credit equaled only to the amount the Plaintiff was legally entitled to recover from the joint tortfeasors, that is, $650,000.00, which was the sum of the amounts actually paid in settlement on the third party side by the operator of the vehicle in which the Plaintiff is located and the trucking Defendants. 

More specifically, the Plaintiff was contending that the UIM carrier must prove that the trucking Defendants’ liability equaled or exceeded 60% in order for the UIM carrier to claim the full credit of $5 million dollars under that third party Defendants’ policies. The Plaintiff went on to argue that, if the UIM carrier was unable to establish this proof, then the UIM carrier should only be entitled to a credit of the amount paid pursuant to the settlements because the Plaintiff would have been unable to recover the full amount of damages from the trucking Defendants under the Pennsylvania Fair Share Act.

The court applied Pennsylvania law and noted that there was no controlling Pennsylvania Supreme Court precedent on the issue of the enforcement of exhausting clauses concerning UIM benefits. However, it was noted that the Pennsylvania Superior Court had decided a number of cases in this regard, including the case of Boyle v. Erie in which the Superior Court held that a UIM carrier was entitled to the full amount of any liability limits that were available on the third party side.

The Plaintiff attempted to assert that the Boyle decision was inapplicable, in part, due to the underlying policy concerns and Boyle being no longer applicable due to the passage of the Pennsylvania Fair Share Act.

The court in this matter held that it did not need to decide whether the Pennsylvania Fair Share Act altered Boyle’s holding.

The court more specifically stated that, even assuming that the enactment of the Pennsylvania Fair Share Act altered Boyle’s holding, the Plaintiff’s argument was still noted to fail because “it is not clear that the Pennsylvania Fair Share Act applies where the Plaintiff’s negligence is not in question, as is the case here.” See Op. at 13. 

In this regard, the court in this matter pointed to the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). The court in this Anderson case stated that, in the Spencer case, the Pennsylvania Superior Court found, “as an alternative holding,” that for the “Fair Share Act to apply, the Plaintiff’s negligence must be an issue in the case.” See Op. at p. 13, citing Spencer at 559.

The court additionally pointed to another Pennsylvania Superior case on that similar issue and citing to the Spencer case. See Snyder v. Hunt, No. 851 EDA 2020, 2021 Pa. Super. Unpub. LEXIS 2993, at *14-15 (Pa. Super. Nov. 10, 2021).

The court in this Anderson case predicted that “because the decedent’s negligence is not at issue in this case, the Pennsylvania Supreme Court would find that the Fair Share Act does not apply in cases such as this one, where the Plaintiff’s negligence is not an issue, and, as a result, that the traditional principles of joint and several liability would control."  See Anderson Op. at 14.

Under this analysis, the court in Anderson held that it did not need to decide whether the Fair Share Act altered Boyle’s holding. 

The court went on to find that the language of the exhaustion clause in this case compelled the court to rule that the UIM carrier was indeed entitled to a credit for the full amount of the liability limits available in the underlying third party case (excepting those liability limits possessed by the City of Pittsburgh).

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 McDonald Hudock Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of image:  Photo by Ekaterina Bolovtsova on www.pexels.com.

UIM Carrier Only Entitled to Credit of Tortfeasor's Liability Limits and Not Amount of Excess Verdict Paid

The Pennsylvania Superior Court issued a notable but "Non-precedential" decision on May 28, 2019 in the case of IDS Prop. Cas. Ins. Co. v. Piotrowski, No. 2546 EDA 2018 (Pa. Super. Ct. May 28, 2019 Lazarus, J., Colins, J., Kunselman, J.) (Non-Precedential Mem. Op. by Kunselman, J.), involving the amount of the credit due to a UIM carrier.

In this underinsured motorist claim there was a dispute over how much of a credit the underinsured motorist carrier was entitled to on a policy which had $100,000 of liability coverage but where there was a jury verdict of over $1 million against the third party tortfeasor.

Before trial the third party insurance carrier offered $36,001.00 which was rejected.  The third party insurance carrier agreed to pay any amount of a verdict even if it exceeded the liability limits.  

The jury returned a verdict of over $1 million and then the case was settled for $485,000 before the trial court’s decision on the defendant’s post-trial motions.  

A UIM claim was pursued and the insured argued the UIM carrier was entitled to a credit on the third party policy limit of $100,000.  

The UIM carrier argued that it was entitled to a $485,000 credit.  The trial court allowed a credit of $100,000 and the carrier appealed.  

On appeal, the Superior Court held that the carrier was entitled to a credit of only the $100,000 limits set forth in the tortfeasor’s liability policy. The Superior Court adopted the trial court’s rationale that the additional $385,000 “was not made because of Piotrowski’s bodily injury, but rather to avoid a potential bad faith claim, including punitive damages.’” 

As such, the trial court’s decision that the UIM carrier was entitled to a credit in the amount of the tortfeasor’s policy limits was affirmed.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law office of Schmidt Kramer for bringing this case to my attention.