Trial Court Enters Orders On Various Pre-trial Koken Issues in Monroe County After Car Accident

In the first case, Orsulak v. Penn National Mut. Cas. Ins. Co., No. 4225 Civil 2011 (C.P. Monroe Jan. 14, 2013 )  the trial court grants the underinsured motorist carrier (UIM) request to sever breach of contract and bad faith claims from  a  UIM claim with   the  breach of contract and bad faith claims being heard after UIM claim concludes finding that evidence regarding the bad faith claim would confuse jury and could prejudice jury against UIM insurer.  Also,the underlying third party claim and UIM claim will be heard together and depending on the verdict, the bad faith claim may be moot.  However, the court denies UIM insurer’s request that the breach of contract and bad faith proceedings be stayed because the plaintiff has a right to move cases forward and a blanket “freeze” on all bad faith matters until the UIM claim concludes is not warranted.  Certain certain discovery may need to be barred until the UIM claim concludes but the court can set parameters whereby such evidence is turned over immediately at the conclusion of the UIM case.  Importantly, the mentioning of insurance and the identification of the UIM insurer will be excluded unless the UIM insurer intends to participate in the trial of the tortfeasor to comply with due process and to avoid a “double teaming” situation.

 

In the second companion case,  Orsulak v. Windish, No. 55 Civil 2011 (C.P. Monroe Jan. 14, 2013) the trial court grants consolidation of the UIM claim and tort claim because there is no need to have separate trials on the same issues.  The court also denies a request to have the UIM insurer be substituted as the subrogee in the underlying third-party case  where the UIM insurer has tendered $25,000 representing the third-party liability limits but refuses to give consent to settle or waive subrogation rights.  Since the UIM insurer agrees to be bound by the verdict up to the limits of UIM coverage the court   sees no prejudice to the plaintiffs in continuing their action against the tortfeasor and there is no reason to force the UIM insurer to stand in the plaintiffs’ shoes.