PRACTICAL CONSIDERATIONS OF AUTO LAW IN DAUPHIN COUNTY

Dauphin County Bar Association Lunch and Learn

December 10, 2013

Presented by David L. Lutz, Esquire of Angino & Rovner, P.C.

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OUTLINE

Recent Auto Law Decisions

11. Dauphin County Arbitrations

III. Dauphin County "Rule 1311" Jury Trials

IV. Dauphin County Jury Trials

Central Pennsylvania "Koken" Verdicts V.

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I. Recent Auto Law Decisions

Limited Tort

DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED - QUESTION OF FACT WHETHER PLAINTIFF SUSTAINED A SERIOUS IMPAIRMENT OF BODILY FUNCTION.

Peterman v. Sakalauskas. No. 11-6265 (E.D. Pa. Oct. 9, 2013).

The Plaintiff elected the limited tort option. After discovery was completed, the

Defendants filed a motion for partial summary judgment.

The District Court reviewed the record and discussed the Plaintiffs life before the subject

motor vehicle collision and compared it with her limited activities afterward. For example, the

Plaintiff was employed as an occupational therapist and worked long hours before the subject

collision. She ran several days a week and enjoyed socializing with her friends and going out for

dinner, drinks, and dancing. Following the collision, the Plaintiff alleged her injuries were

permanent and that according to her doctor, "the accident caused sprain injuries to [Plaintiffs]

neck (cervical spine), upper back (thoracic spine) and lower back (lumbar spine) which are now

permanent, and represent another generator of chronic pain." Slip Op. at p. 5.

Importantly, according to the Plaintiff, her injuries resulted in impairments causing

significant decrease in her employment options and that she had to take a number of "limited

duty" positions, most of them temporary. In short, the Plaintiff asserted that her motor vehicle

accident injuries adversely affected "virtually every aspect of her life." Slip Op. at p. 8.

The District Court then analyzed Pennsylvania law discussing the hurdles for a Plaintiff

to overcome the limited tort threshold. Specifically, the Court examined the standards set forth

in Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998) as follows:

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What bodily function, if any, was impaired because of injuries sustained in a

motor vehicle accident.

2. Was the impairment of the bodily function serious?

The District Court noted that the Pennsylvania Supreme Court in Washington listed

several factors to consider, such as "the extent of the impairment, and the length of time the

impairment lasted, the treatment required to correct the impairment, and any other relevant

factors." Slip Op. at p. 13, citing, Washington, 719 A.2d at p. 740.

The District Court then examined the key Pennsylvania Superior Court opinions

discussing limited tort. See e.g., McGee v. Muldownev, 750 A.2d 912 (Pa. Super. 2000); Kelly

v. Ziolko, 734 A.2d 893 (Pa. Super. 1999); and Graham v. Campo, 990 A.2d 9 (Pa. Super. 2010).

The District Court concluded that the Plaintiffs alleged impairments are "clearly greater than

those of the Plaintiff in Washington, McGee and Kelly." Slip Op. at pp. 22-23. The District

Court held that the Plaintiff presented sufficient evidence "that the finder of fact could determine

that the resulting impairments have been significant and have severely limited her professional

and personal activities." Slip Op. p. 21.

As such, the Defendants' motion for partial summary judgment was denied. See also.

Cadena v. Latch. No. 1891 MDA 2012 (Pa. Super. Sept. 13, 2013). (Trial court abused its

discretion in granting summary judgment for Defendant where reasonable minds could differ

whether Plaintiff sustained a serious impairment of bodily function.)

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Peer Review and Attorney's Fees

JUDGE DOWLING AWARDS $27,930 IN ATTORNEY'S FEES IN A PIP CASE.

Levine v. Travelers Property Casualty Ins. Co., 69 A.3d 671 (Pa. Super. 2013).

The Plaintiff was injured in a rear-end motor vehicle collision. Initially, her bills were

paid by Travelers, her first-party benefit carrier. Travelers submitted physical therapy bills to

Perspective Consulting, a peer review organization (PRO). The PRO concluded that the

physician's treatment was reasonable and necessary, but that the physical therapy he ordered was

not. Travelers denied payment for the physical therapy.

Travelers also sought an independent medical examination. The Plaintiff underwent an

evaluation by Dr. Bruce Goodman; he reported to Travelers that the Plaintiffs carpal tunnel was

not related to the motor vehicle collision and that she reached maximum medical improvement

for her accident-related injuries as of the date of the examination. Based on the IME and the

earlier peer review results, Travelers denied payment for further treatment.

A complaint was filed and the case was eventually settled. The release executed by the

parties provided that the Plaintiff was not prevented from submitting further medical bills to

Travelers for payment. Similarly, Travelers retained the right to request additional IMEs and

conduct future peer review evaluations.

Thereafter, the Plaintiff underwent additional medical treatment and rehabilitation

services. Without explanation, Travelers refused to pay for additional charges.

Following a non-jury trial before Judge Dowling, he concluded that the Plaintiff proved

that the charges were reasonable and necessary and that Travelers breached its contract. Relying

upon 75 Pa.C.S.A. §1797(b) and the Superior Court's decision in Herd Chiropractic Clinic, P.C.

v. State Farm Mutual Auto Ins. Co.. 29 A.3d 19 (Pa. Super. 2011), reversed 64 A.3d 1058 (Pa.

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2013). Judge Dowling also awarded reasonable attorney's fees of $27,930. Thereafter, the

Pennsylvania Supreme Court reversed the Herd decision.

Travelers appealed to the Superior Court challenging the propriety of the award of the

attorney's fees. The Superior Court noted that the Pennsylvania Supreme Court in Herd held that

75 Pa.C.S.A. § 1797(b)(4) authorizes the award of attorney's fees only in the event that an insurer

did not invoke the peer review process. In other words, under Herd, the Plaintiff would not be

entitled to recover attorney's fees pursuant to §1797 if the treatment at issue was submitted to a

PRO. On the other hand, if Travelers did not challenge before a PRO the reasonableness and

necessity of the physical therapy bills, the Superior Court could affirm Judge Bowling's award

of attorney's fees.

Travelers made the argument that an IME is similar to a PRO and that Travelers' reliance

on the IME was the equivalent of a PRO review under §1797. The Superior Court rejected the

argument and concluded that "an IME is not a peer review as defined in §1797 of the MVFRL."

Levine. 69 A.3d at 675. The purpose of the peer review is determine whether medical bills are

reasonable and necessary based upon a records review. An IME subjects a person to a physical

or mental examination, the purpose of which is to determine whether the injuries are causally

related to the collision. Levine. 69 A.3d at 679.

In conclusion, the Superior Court affirmed Judge Dowling, holding that the charges and

treatments at issue were not peer reviewed. Therefore, Judge Dowling did not err in awarding

attorney's fees.

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Facebook Discovery

JUDGE NEALON DENIES PLAINTIFF'S REQUEST FOR SOCIAL MEDIA DISCOVERY.

Brogan v. Rosenn, No. 08-CV-6048 (C.P. Lackawanna April 22, 2013).

In this legal malpractice action, the Plaintiffs filed a motion seeking the Facebook log-in

name, user name, and password for a paralegal in the Defendant's claims department. The

Defendant objected. Judge Nealon thoroughly analyzed a number of trial court opinions and

noted that no Pennsylvania appellate court had addressed the discovery of private information

contained on Facebook and other social networking sites.

In general, a party seeking discovery of private social media information must

demonstrate a threshold showing of relevance by articulating facts, gleaned from the public

accessible portion of the user's social networking account. See, Hoy v. Holmes. 107 Schuylkill

L. Rev. 19 (2013); Simms v. Lewis. 2012 WL 6755098 (C.P. Indiana 2012); Trail v. Lesko. 2012

WL 2864004 (C.P. Allegheny 2012); Area v. Fields. No. 2008-2430 (C.P. Franklin 2011);

Largent v. Reed. 2011 WL 5632688 (C.P. Franklin 2011); Zimmerman v. Weis Markets. Inc..

2011 WL 2065410 (C.P. Northumberland 2011); and McMillen v. Hummingbird Speedway.

Inc.. 2010 WL 4403285 (C.P. Jefferson 2010).

Judge Nealon also referred to Federal Court decisions that allow discovery of private

information contained on a social networking site. There must be a threshold showing that the

requested information is calculated to lead to discovery of admissible evidence based on the

information available to the public. See e.g.. Potts v. Dollar Tree Stores. Inc.. 2013 WL 1176504

(M.D.Tenn. 2013).

As such, Judge Nealon held that the movant in the case at bar can only satisfy the

relevancy requirement by showing "that publically accessible information posted on the user's

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Facebook page controverts for challenges the user's claims or defenses in the pending litigation.

To that extent, the resolution of social media discovery disputes pursuant to existing Rules of

Procedure is simply new wine in an old bottle." Slip Op. at p. 15.

Judge Nealon concluded that the Plaintiffs had not established that the Defendant's

published information on the publically viewable portion of her Facebook account refutes or

questions the veracity of her assertions in the case and therefore, the Plaintiffs' discovery motion

was denied. See also, Perrone v. Rose City HMA. LLC.. No. CI-11-14933 (C.P. Lancaster May

3, 2013). (Judge Cullen orders parties to hire a "neutral forensic computer expert to conduct an

examination of the relevant material on plaintiffs computer.")

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Expert Discovery

JUDGE COATES ORDERS A SIMULTANEOUS EXCHANGE OF ANY AND ALL EXPERT REPORTS.

Sanderson v. Geiger. No. 2011-CV-8539-CV (C.P. Dauphin Aug. 22, 2013).

Following a discovery conference, Judge Coates ordered the parties to have a

"simultaneous exchange of any and all expert reports, underlying test documents, questions,

instructions, answers, data, raw data, score sheets, and every other paper generated during Dr.

Badgio, Dr. Walker, Mr. Sleber, and Dr. Royer's examinations of the Plaintiff SHALL OCCUR

between Plaintiff's experts and Defendant's experts." Slip Op. at p. 1.

Judge Coates also ordered that "Plaintiffs attorney or representative shall be permitted to

be present during all aspects of the examination, without exception, by Dr. Badgio, Dr. Walker,

Plaintiff, at her expense, shall be permitted to audio record the entire IME, and Dr. Fultz.

including the objective testing portion." Slip Op. at p. 2.

Lastly, Judge Coates ordered that Erie Insurance (the Defendant's insurer) shall pay for

Plaintiffs room overnight for the defense examinations. But see, Marion v, Lukaitis, No. 2011-

CV-7451 (C.P. Lack. August 15, 2013) (Plaintiffs counsel, or a designated representative, can

be present during history taking and background information parts but cannot be present during

the actual standarized testing, nor can there be an audio or video recording during the testing.)

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Causation Defense Verdict

JUDGE SAYLOR GRANTS A NEW TRIAL WHERE THE JURY SHOULD HAVE AWARDED DAMAGES.

Hoskie v. Nicholas Meat Packing Co., 85 Northumberland L.J. No. 24 (2013).

In a motor vehicle collision trial, the jury returned a verdict of zero. After a sidebar, the

jury was instructed to go back and deliberate and return a verdict for a specific sum of money.

After the jury retired to deliberate again, the jury returned a verdict in favor of the Plaintiff in the

amount of $10,000.

The Defendant filed a motion for post-trial relief asserting that the jury was free to return

a verdict of zero as the Plaintiffs injuries were subjective.

Judge Saylor used the Standard Civil Jury Instruction 7.50 - Damages in Cases of

Undisputed Negligence and Injury and noted that the Defendant did not object to the Court

instructing the jury that they had to award something given the fact that the Plaintiff received

medical treatment immediate following the motor vehicle collision. Moreover, there was

evidence from photographs depicting the severe impact sustained by the Plaintiffs vehicle and

photographs taken of the Plaintiff showing bruising and swelling that she had suffered to her

back and right hip.

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Causation Defense Verdict

JUDGE HERMAN DETERMINES THAT BECAUSE THE DEFENSE EXPERT DID NOT UNEQUIVOCALLY ADMIT THAT THE PLAINTIFF WAS HARMED IN THE MOTOR VEHICLE COLLISION, PLAINTIFF'S MOTION FOR A NEW TRIAL DENIED.

Helmick v. Pace. 30 Franklin Co. L. J. 392 (2013).

As a result of a motor vehicle collision trial, the jury returned a verdict in favor of the

Defendant, finding no factual causation between the collision and Plaintiffs claimed injuries.

Plaintiff filed a motion for post-trial relief.

Plaintiff argued that there was uncontradicted evidence at trial that Plaintiff sustained an

injury in the collision and that because the Defendant's medical expert admitted that the Plaintiff

suffered soft tissue damage, the verdict was against the weight of the evidence.

Judge Herman analyzed the law and determined that in the case at bar the defense expert

testified that the Plaintiff "could have" or "may have" been harmed in the subject collision; but

the defense doctor did not unequivocally admit that the Plaintiff was harmed in the accident.

Judge Herman held that there is a critical distinction between the cases that hold that the

defense expert unequivocally testified that the Plaintiff was harmed and the case at bar. See.

Holland v. Zelnick. 478 A.2d 885 (Pa. Super. 1984).

The Plaintiffs motion for post-trial relief was denied.

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General Release

RELEASING TORTFEASOR IN AN AUTOMOBILE COLLISION CASE RELEASES MEDICAL PROVIDERS IN A SUBSEQUENT MEDICAL MALPRACTICE CASE.

Masusock v. Yablon, No. 293 EDA 2013 (Pa. Super. July 29, 2013) - Memorandum Opinion,

The Plaintiff was injured in a motor vehicle collision and settled her claim with the driver

involved in the collision. A general release was signed and thereafter the Plaintiff brought a

medical malpractice action alleging that a surgeon was negligent in performing surgery.

The doctor filed a motion for summary judgment. The trial court granted the motion

concluding that the general release executed by the Plaintiff with the Defendant in the motor

vehicle accident claim discharged all claims and parties from liability arising from the subject

motor vehicle collision.

On appeal, the Plaintiff contended that the language in the general release referring to the

location of the motor vehicle collision constituted a specific release. The Superior Court rejected

the argument.

In Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Pa. 1989), the Supreme Court held

that a general release discharged all claims pertaining to a motor vehicle accident collision and

must be read to include any and all individuals, including future medical malpractice claims. In

the present case, the Superior Court ruled that the language in the general release was

unambiguous, clear and broad in scope, and similar to the language of the release in Buttermore.

The Superior Court affirmed the trial court's grant of summary judgment.

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Future Medical Bills

COURT DENIES DEFENDANT'S MOTION IN LIMINE TO LIMIT THE ADMISSION OF PLAINTIFF'S FUTURE MEDICAL BILLS.

Hall v. Rite Aid. 61 Chester County L.R. 306 (2013).

The question presented to the Court was whether the Plaintiff was permitted to present

evidence of the amount of the potential future medical bills. The Defendant filed a motion in

limine.

In a footnote, the Court recognized that the Supreme Court "dramatically altered the law

concerning the recoverability of medical bills in Moorhead v. Crozer Chester Medical Center.

765 A.2d 786 (Pa. 2001)." Hall. 60 Chester County L.R. at 307. In Moorhead. the Supreme

Court held that where medical bills are paid by an insurer or a government program and the

healthcare provider accepts the payment in full, then the Plaintiff is precluded from recovering

more than the amount accepted by the provider. However, in the case at bar, the Court

recognized that the Moorhead decision did not discuss the recoverability of future medical bills.

As such, the Court noted that a fact finder is "free to determine the amount of future

medical bills." Hall. 61 Chester County L.R. at 306. The Court wrote that until an appellate

court provided guidance with the recoverability of future medical bills, the Court was of the

opinion that the Moorhead decision did not affect the recoverability of future medical bills:

In other words, the law is as it always has been; for unpaid and for future bills the fair market value of such services is the measure of damages. The Civil Instruction Subcommittee, in the last paragraph of tis commentary to the Pennsylvania Suggested Standard Civil Jury Instruction at 7-170 recommends this approach.

Hall. 61 Chester County L.R. at 308.

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Failure to Report a Phantom Vehicle

FAILING TO TIMELY REPORT A "PHANTOM" VEHICLE IN A UM CLAIM CAN CREATE SUFFICIENT PREJUDICE FOR UM INSURER TO DENY COVERAGE.

Vanderhoff v. Harlevsville. No. 98 MAP 2012 (Supreme Court Oct. 30, 2013).

Eight months after a motor vehicle collision, the insured filed a claim for UM benefits

alleging that the motor vehicle collision was caused by a phantom vehicle pulling in front of

another vehicle, causing him to stop suddenly. The UM insurer denied the claim. At a non-jury

trial, the insurer contended that the phantom vehicle did not exist and that the Plaintiff failed to

comply with the statutory requirement of notifying the insurer of the phantom vehicle within 30

days.

The trial court determined that the phantom vehicle existed and that the Plaintiff reported

the phantom vehicle to the insurer as soon as practical.

The Superior Court reversed the trial court and the Supreme Court granted allocatur to

address the following issue, "[wjhether an insurance carrier should be required to prove

prejudice relative to the late reporting to the carrier of an accident involving an unidentified

vehicle when such an accident was timely reported to law enforcement officials." Slip Op. at p.

The Supreme Court discussed its holding in Brakeman v. Potomac Ins, Co., 371 A.2d 193

(Pa. 1977) wherein the Court determined that an insurance company intending to deny coverage

based upon lack of notice required by its policy had to demonstrate prejudice resulting

therefrom.

However, in the present case, the Supreme Court held that cases involving unidentified

motor vehicle operators "must be addressed on a case-by-case basis where the Court balances the

extent and success of the insurer's investigation with the insured's reason for the delay." Slip

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Op. at p. 11. The Supreme Court also stated that the 30-day notice requirement "is there for a

reason. It is reasonable that insureds must alert the insurer within a month's time period." Slip

Op. at p. 11.

The Supreme Court concluded that while insurers will not be permitted to deny coverage

absent prejudice caused by an insured's delay, the insurers showing prejudice does not require

proof of what the insurer would have found had timely notice been provided. In other words,

where an insured's delay "results in an inability to thoroughly investigate the claim and thereby

uncover relevant facts, prejudice is established." Slip Op. at p. 11.

The Supreme Court emphasized the practical necessity of prompt notice and that it

advances the goals of the Motor Vehicle Financial Responsibility Law. The Superior Court

decision was affirmed.

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Punitive Damages

JUDGE RAMBO ALLOWS AMENDMENT OF COMPLAINT TO ADD PUNITIVE DAMAGES IN A TRACTOR-TRAILER COLLISION.

Stemrich v. Zabiyaka, No. 1:12-CV-1409 (M.D. Pa. July 2, 2013).

In this tractor-trailer collision case, the Plaintiff submitted an expert report offering the

opinion that the Defendants violated numerous trucking regulations and that the Defendant truck

driver operated his tractor-trailer in a "reckless disregard" for the safety of the Plaintiff. Slip Op.

Thereafter, the Plaintiff filed a motion to amend the complaint to include punitive at p. 3.

damages.

Judge Rambo noted that the expert was prepared to testify about numerous violations of

the Federal Motor Carrier Safety Regulations and as such provided a sufficient basis to advance

a punitive damage claim against both the truck driver and trucking company. The motion to

amend was granted.

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Punitive Damages and Sleep

JUDGE MANNION DENIES DEFENDANT'S MOTION TO DISMISS WHERE PLAINTIFF ALLEGED PUNITIVE DAMAGES BASED ON TRACTOR-TRAILER DRIVER FALLING ASLEEP.

Coello v. Frac Tech Services. No. 3:13-534 (M.D. Pa. Oct. 10, 2013).

In this tractor-trailer collision case, the Plaintiff filed a complaint seeking compensatory

and punitive damages and the Defendant filed a motion to dismiss the punitive damages. The

punitive damage claim was based on the allegation that the truck driver drove too many hours,

was exhausted, and fell asleep at the time of the collision.

Judge Mannion reviewed Pennsylvania law and cited Burke v. Maassen. 904 F.2d 178

(3d Cir. 1990) where the Defendant was driving a tractor-trailer for over 14 hours when he

crashed into a person on the shoulder of the Pennsylvania Turnpike. The driver was aware that

he was violating a Federal regulation prohibiting driving a truck for more than 10 hours, he did

not know the reasoning behind the regulation. Burke. 904 F.2d at 183. The Third Circuit held

that there was insufficient evidence from which a jury could find that the Defendant driver

"appreciated the risk of fatigue and the potential for fatal accidents that [company] driving for

more than ten hours." Burke, 904 F.2d at 179.

However, Judge Mannion noted that in the case at bar the complaint contained sufficient

factually allegations that, if proven, could establish that the Defendant had a subjective

appreciation of the risk of a collision given his sleep deprivation. More specifically, the Plaintiff

alleged that the Defendant driver worked as many as 60 hours in the days leading up to the

collision and had worked 19 out of the prior 24 hours before the collision. Lastly, the truck

driver admitted to falling asleep at the wheel at the time of the collision and accordingly the

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Plaintiff alleged that he "knew or should have known that he posed a high risk of harm to others

by driving with sleep deprivation." Slip Op. at p. 6.

The Court concluded there were factual allegations regarding the Defendants' knowledge

of the dangers of driving with sleep deprivation caused by an intense work schedule and that

further discovery was necessary. The Defendants' motion was denied.

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Punitive Damages and GPS

JUDGE NEALON GRANTS SUMMARY JUDGMENT BASED ON LACK OF EVIDENCE THAT THE DEFENDANT WAS DISTRACTED BY LOOKING AT HIS GPS.

Rockwell v. Knott, No. 12-CV-l 114 (C.P. Lackawanna Aug. 13, 2013).

The Plaintiff filed a complaint seeking punitive damages because the Defendant was

utilizing a GPS. The Plaintiff alleged that the Defendant had "began fidgeting with his GPS unit,

taking his eyes off of the road, diverted his attention from oncoming traffic for a substantial and

significant amount of time." Slip Op. at pp. 2-3. Plaintiff alleged that as he rode his motorcycle

through an intersection, the Defendant abruptly made a left turn and hit him.

The Defendant testified that he was using a GPS application on his cell phone to find the

bus station and had placed the phone in the lower central console of his van with the screen

angled toward him as he drove. In his Motion for Partial Summary Judgment, the Defendant

argued that the Plaintiff failed to submit any evidence showing that he was looking down at his

GPS at the time of the collision.

Judge Nealon noted that no Pennsylvania appellate court has ruled on whether punitive

damages can be brought against a driver for using an interactive wireless device at the time of

the collision, but numerous trial courts have considered the issue in the case of a Defendant

talking or texting on cell phones. See, Kondash v. Latimer. No. 09-CV-8622 (C.P. Lackawanna

Nov. 19, 2012).

Judge Nealon ruled that a motorist may engage in reckless indifferent conduct and can be

potentially liable for punitive damages if the operator completely diverts his or her attention from

the roadway to observe a GPS device and nevertheless continues to travel on the roadway until

there is a collision. However, in the present case, the record did not contain evidence proving

that the Defendant driver was viewing his GPS device at the time of the collision. As such,

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Judge Nealon held that the Plaintiffs proffered proof of the Defendant driver's alleged

outrageous conduct was insufficient as a matter of law. The Defendant's Motion for Partial

Summary Judgment was granted.

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Bad Faith

JUDGE RAMBO DENIES DEFENDANT'S MOTION TO DISMISS A BAD FAITH COUNT IN A UIM CASE.

Shaffer v. State Farm. No. 1:13-CV-01837 (M.D. Pa. Oct. 15,2013).

The case before Judge Rambo involved an action against State Farm for alleged bad faith

handling of a UIM claim. The Plaintiff submitted a demand to State Farm requesting a UIM

settlement in the amount of $150,000. Although the Plaintiff provided State Farm with medical

documentation, an authorization to obtain medical records, and a statement under oath, "State

Farm has never made an offer of settlement." Slip Op. at p. 2.

After discussing the relevant law, Judge Rambo noted that there are bad faith claims

involving long periods of time between a demand and settlement and while delay does not in and

of itself constitute bad faith, delay can be a factor:

While the Court is mindful of the fact that State Farm may be conducting a comprehensive investigation into the claim thereby providing what may be a reasonable basis for any delay, these facts may also indicate questionable investigation and communication practices, especially considering that the underlying automobile accident involved a "clear liability head-on collision." . . . Thus, the Court concludes that this is a case in which discovery is needed regarding State Farm's handling of Plaintiffs UIM claim, and therefore, dismissal is not proper at this stage of the proceeding.

Slip Op. at p. 5.

See also. Pauling v. State Farm. No. 1:13-CV-01348 (M.D. Pa. Sept. 26, 2013) (Judge

Conner denies UM insurer's motion to dismiss bad faith count.); Grossi v. Travelers. No. 769

WD A 2012 (Superior Court Nov. 1, 2013) (Superior Court affirms trial court verdict of more

than $1.4 million dollars, finding that the UIM insurer acted in bad faith.).

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Insurer Can be Identified in a UIM Koken Case

SUPERIOR COURT HOLDS NOT A VIOLATION OF PA. R. E. 411 FOR A UIM INSURER TO BE IDENTIFIED AT KOKEN TRIAL.

Stepanovich v. McGraw/State Farm. 2013 Pa. Super. 275.

State Farm appealed an order of the trial court granting the Plaintiffs post-verdict motion

for a new trial in a "Koken case." The trial court determined that the Plaintiff was entitled to a

new trial because the Plaintiff was not permitted to identify State Farm as the Plaintiffs UIM

insurer.

The Superior Court reversed the order granting a new trial and remanded for an entry of

judgment in favor of all Defendants. The Superior Court held that the jury's determination that

the Defendant driver was not negligent was not dependent upon or connected with the identity of

the UIM carrier. However, the Court noted that insurance companies can be named and

identified as Defendants in Koken cases and doing so does not prejudice the other Defendants,

nor is it a violation of Pa. R.E. 411.

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Koken Trial Evidence

JUDGE MUNLEY HELD THAT JURY IS TO BE TOLD OF THE TORTFEASOR'S LIABILITY INSURANCE LIMITS, THE AMOUNT PLAINTIFF HAS RECEIVED FROM THAT INSURANCE, AND THE AMOUNT OF UIM COVERAGE THE PLAINTIFF PURCHASED.

Noone v. Progressive, No. 3:12-cv-1675 (M.D. Pa. May 28, 2013).

In this Koken case, the insurer filed a motion in limine seeking to preclude the Plaintiff

from introducing into evidence the amount of the premiums the Plaintiff paid on the UIM policy,

the amount of the tortfeasor's liability insurer's limits, and the amount of liability insurance

coverage recovered by the Plaintiff from the tortfeasor.

Judge Munley denied the Defendant's motion ruling that the evidence at issue is relevant.

First, the Court held that it was important for the jury to understand the limits of the tortfeasor's

liability insurance and the amount the Plaintiff received from that insurance. Moreover, because

the case was involving a contract, it was not overly prejudicial to the Defendant for the jury to

know the amount of UIM coverage the Plaintiff purchased.

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Severance in Koken Cases

JUDGE EVANS DENIES DEFENDANT'S PRELIMINARY OBJECTIONS SEEKING SEVERANCE BASED ON A FORUM SELECTION CLAUSE.

Werner v. Jamison/Erie. No. 2011-CV-3221-CV (C.P. Dauphin March 7, 2012).

In Fuhrman v. Frye and State Farm Ins., No. 2008-CV-17687 (C.P. Dauphin, July 14, 2009)

(Judge Clark); Sellers v. State Farm Ins. Co. and Hindes, No. 2009-CV-1989 (C.P. Dauphin, July

14, 2009) (Judge Clark); Gingerich v. ESurance, Inc. Brown and Graci, No. 08795-CV-2009 (C.P.

Dauphin, November 2,2009) (Judge Hoover); Schaeffer v. Bonny and Donegal. No. 2010-CV-4547

(C.P. Dauphin, September 22, 2010) (Judge Coates); and Wolfe v. Hans and Progressive. No. 2010-

CV-11199 (C.P. Dauphin, March 21, 2011) (Judge Evans), the Court denied the various motions for

severance.

In Werner. Judge Evans denied the insurer's motion for a change of venue based on a

Foram Selection Clause.

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Koken Discovery

JUDGE LEWIS RULES PLAINTIFF'S REQUEST TO DISCOVER THE BASIS OF DEFENDANT'S UIM EVALUATION IS GRANTED.

Welcomer v. Donegal. No. 201 l-CV-474 (C.P. Dauphin June 27, 2011).

In a Koken case Judge Lewis ruled on the Plaintiffs request to discover the basis of the

Defendant's evaluation of the Plaintiffs UIM claim. The Court granted the Plaintiffs request to

depose the Defendant's claims representative concerning the evaluation of the Plaintiffs UIM

claim.

See also. Coniar v. Erie. No. 2012-CV-4664-CV (C.P. Dauphin September 11, 2012)

(Judge Cherry granted Plaintiffs motion and ordered Erie to provide full and complete answers

to Plaintiffs interrogatories and request for production of documents, including Erie's UIM file

before Erie retained counsel.).

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II. Dauphin County Arbitrations

Pa.R.C.P. 1305 and Arbitration Memorandums

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ANGINO & ROVNER, P.C. David L. Lutz, Esquire Attorney ID# : 35956 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: dlutz@angino-rovner.com

IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PA Plaintiffs

NO. v.

CIVIL ACTION-LAW JURY TRIAL DEMANDED Defendant

PLAINTIFFS' ARBITRATION MEMORANDUM

Facts

On August 1, 2009, Plaintiff!

Hcrsheypark Drive. Mr. was approaching the intersection of Hersheypark Drive and

Laudermilch Road (a/k/a Route 743). Plaintifl

s was operating a Jeep Liberty traveling west-

on

was a front seat passenger in her

husband's Jeep.

At the same time, Defendant was operating a 2003 Chrysler traveling'

east on Hersheypark Drive. Ms: planned to turn left from Hersheypark Drive and travel

north on Laudermilch Road.

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turned her vehicle left from Hersheypark Drive directly into the path of Mr..

^ J J ^ g Q p J e e p , causing a collision. Attached as Exhibit A are the Defendant's Answers to the

Plaintiffs' Request for Admissions - Set No. 1.

Shown on the next 3 pages are photographs of the damaged Jeep Liberty. On the

following 2 pages are photographs of the damaged Chrysler.

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II. Damages

Pursuant to Pa.R.C.P. 1305, et seq., the Plaintiffs have provided the Defendant with the

Plaintiffs' medical records and therefore, said medical records are admissible.

At the point of impact, Mr. left knee struck the dash and his left forearm struck

the inside of the vehicle. Emergency medical technicians were dispatched to the scene. Mr.

vitals were taken. Mr.fNMNfe's son? came to the scene and offered to transport

his mother and father to the Hershey Medical Center.

1. Hershey Medical Center

Upon admission to the Hershey Medical Center, it was noted that Mr. sustained

injuries to his left forearm, left knee, seatbelt burns across his chest, and a forehead contusion.

X-rays taken of his left forearm, chest, and left knee were negative. A CT Scan taken of his head

was also negative.

was discharged and he received no further medical care for his accident-

related injuries. Attached as Exhibit B are the applicable Hershey Medical Center emergency

room records.

Shown on the next two pages are photographs of the slight scar on Mr.' s left

forearm.

8 462209

III. Dauphin County "Rule 1311" Jury Trials

Rule 1311.1(a) - Plaintiff to stipulate to $25,000 as a maximum amount of damages

recoverable. The "Election to Limit Monetary Recovery" form must be served upon defense

counsel "at least thirty days from the date appeal was first listed for trial."

Rule 1311.1(b) - The "Notice of Intent to Offer Documentary Evidence" form provides

the format for the listing of documents to be offered at trial. Written notice must be given to the

opponent "at least twenty days from the date the appeal was first listed for trial."

27 538802

mm mm ACCT#^ T. JSCRIBBD DATE=12/05/2 00 8 12 UDN= 2516371

RM# : MRN: CASE : DOB : ADM;

11/27/1948 12/04/2008

PinnacleHealth System P.O. Box 8700 Harrisburg, PA 17105-8700

EMERGENCY DEPARTMENT

Patient seen at 1041 hours.

Neck pain. CHIEF COMPLAINT:

This is a 60-year-old Hispanic woman who was accident rear-ended yesterday.

The pain in her neck has gotten worse. She also reports some pain

area to the region of the deltoid muscle. She had no loss

There was no airbag deployment.

HISTORY OF PRESENT ILLNESS: the driver in a motor vehicle pain in her neck initially. reports increased pain with any movement. radiating down her left trapezius She denies any motor weaknesses or any sensory deficits, of consciousness. She was restrained. She denies other injuries.

She had some She

REVIEW OF SYSTEMS: She denies headache or visual change. She denies any facial injury. The pain in he neck is primarily left-sided in the paraspinal region and radiating down the trapezius to the region of her deltoid. She denies any thoracic region pain, any chest pain, difficulty breathing or palpitations. She denies any lumbar region pain, nausea, vomiting, or abdominal pain. She has had no incontinence of urine or stool. She reports no lower extremity injury. She does report a bruise on the lateral aspect of her left calf. She has no other complaints. The remainder of the review of systems unless stated above including HEENT, lungs, heart, abdomen, genitourinary system, musculoskeletal system, skin and neurologic systems are negative or noncontributory.

The allergies and medications are documented in the Past medical history is

PAST HISTORY: medical record and have been reviewed by me. notable for morbid obesity, diabetes mellitus and hypertension.

There is a prevalence of diabetes and hypertension in her FAMILY HISTORY: family.

She denies drugs or alcohol. She is a smoker. SOCIAL HISTORY:

PHYSICAL EXAMINATION:

The vital signs are documented•in the nursing record. Vital signs: have been reviewed by me.

They

On physical examination, she is awake, alert, oriented and appropriate. She was ambulatory to the emergency department. She appears in no acute distress. Mental status/Psychiatric: Judgment and insight appropriate for age. Oriented to time, place and person. No recent memory loss. Affect appropriate for age. HEENT: Normocephalic and atraumatic. Pupils are equal and reactive to light. Extraocular movements are intact. Her sclerae are anicteric. She has spasm of the paraspinal muscles on the cervical region on the left and some pain and tenderness in the trapezius muscle. There is no tenderness over the spinous processes of the cervical thoracic or lumbar spine. There is no deformity of the clavicles or shoulders. There is no tenderness over the sternum. Lungs: Breath sounds are present bilaterally. Heart is regular rate without murmuj^^inibs, or

PLAINTIFF 'S b EXHIBIT

tvWVA. b . P a g e 1 o f 2

2-b

IV. Dauphin County Jury Trials

See next page. See also, www.ReptileKeenanBall.com

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BAR ASSOCIATION PAGE - Continued

MISCELLANEOUS SECTION

DAUPHIN COUNTY COURT OF COMMON PLEAS

As a service to members of the Dauphin County Bar Association, a brief synopsis of verdicts f rom each civil trial term will be printed.

Summary of Verdicts from the August 2013 Civil Jury Term

The Judges have completed the AUGUST 2013 civil jury term. One civil case reached verdict during the August civil term and the summary is as follows:

AMANDA RAHMAN v. RALPH DAYHOFF (2012 CV 2973)

On January 24, 2011, Defendant's pick-up truck struck the passenger side of Plaintiff 's Honda Accord broadside after failing to stop at a red light. Defendant admitted negligence. Following the accident, Plaintiff declined medical care but went to the ER later in the day. Plaintiff, a recent college graduate, delayed seeking medical care due to cost concerns but went to a family doctor two months later. She attempted to attend a master's degree program but dropped out due to constant headaches and cervical neck pain. Defendant asserted an MRI showed no evidence of disc or soft-tissue injury and that Plaintiff 's injuries were otherwise limited. Plaintiff sought pain and suffering damages; she did not seek any out-of-pocket medical care, future medical treatment, lost income or diminished earning capacity. The jury awarded Plaintiff $40,000.

Counsel for Plaintiff: David Lutz Counsel for Defendant: John Stengal Judge: Jeannine Turgeon Verdict: Plaintiff - $40,000

V. Central Pennsylvania "Koken" Verdicts

Rose v. Westfield. No. 2009-Cv-7076-CV (C.P. Dauphin September 11, 2013).

Jury verdict for Defendant on September 11, 2013. Judge Bratton.

29 538802

IT HAS BEEN SAID THAT DEMOCRACY IS THE WORST

FORM OF GOVERNMENT EXCEPT ALL OTHERS THAT

BEEN TRIED.

30 538802