Post-Koken case- Philadelphia County

/ 12.Apr, 2011
In Pennsylvania, mandatory arbitration of UM and UIM claims was eliminated by the Koken decision.  Following the Koken decision, most insurers eliminated mandatory arbitration clauses from their policies.  As such, uninsured and underinsured motorist claims are no longer subject to extra-judicial arbitration.  Instead, claims are now often litigated in courts of competent jurisdiction.           As a result, a new type of claim is being litigated in the Pennsylvania Courts.  Uninsured and underinsured motorist claims, where the defendant in the personal injury litigation is the insurer, are being brought in courts and litigated.  Few of these post- Koken cases have been litigated to a verdict.  Recently, Jim Haggerty, Esquire of Swartz Campbell LLC tried a post- Koken case to verdict.           In Johnson v. Nationwide Mutual Insurance Company, Court of Common Pleas of Philadelphia County, June Term, 2009, No. 3375, the plaintiff, Michelle Johnson, made claim for recovery of underinsured motorist benefits in connection with injuries sustained in a January 30, 2007 motor vehicle accident.  The underlying tort action settled.  A credit of $15,000.00 was to be applied.  The case proceeded to trial in the Court of Common Pleas of Philadelphia County.   A question arose as to how the issue of insurance was to be handled before the jury.  A Motion in Limine was prepared and the issues argued.  The Court accepted the argument of the defendant that the issue of insurance should not be presented to the jury.  As a result, the case was tried as a traditional third party tort action.  Insurance was only mentioned to the jury in voir dire when the name of the defendant was reviewed.  There was no evidence or testimony, or even mention of insurance or underinsurance, during the trial.  During closing arguments, reference was made to the identity of the defendant.  Otherwise, the case was tried as a traditional third party motor vehicle claim.           The jury returned a verdict in favor of the plaintiff in the amount of $4,150.00.  A Motion was then made to mold the verdict in accordance with the credits applied by reason of the settlement of the underlying tort action.  The verdict was molded to zero.  As such, the plaintiff was awarded no underinsured motorist monies.           The prospect of trying a case in court with an insurance company as the only defendant has raised concerns.  These concerns were appropriately addressed and handled by Swartz Campbell LLC attorneys in the Johnson case.  By working closely with representatives of the insurer, the issues were properly controlled and the case presented to the jury in an appropriate manner.  Insurance was not inappropriately injected into the trial.  The case was tried as a tort action, not a contract claim.  As a result, a favorable decision was obtained on behalf of the defendant-insurer.