First Wave of Post-Koken Cases Hitting Trial
According to Cummins, the expectation following Koken was that the ruling would spark an uptick in claims that would slam juries across the state.
"It's certainly been overrun with more cases, but the way it's played out is that it's not going to trial," Cummins said. "You never know what's going to happen when you go to a jury, therefore people keep moving toward binding high-low arbitration."
Proceeding Without Guidance?
So far, parties in UM and UIM cases have mostly been battling out discovery and pretrial issues, such as joinder, consolidation and venue. Without much guidance from the appellate courts, different trial courts have come down on different sides of the various issues, attorneys agreed.
Last year, the state Supreme Court made its first ruling on issues relating to whether attorneys representing the tortfeasor and the insurance carrier should participate at trial, effectively doubling up against a plaintiff at trial. In Stepanovich v. McGraw, the high court found that the plaintiff's due process rights were not violated when a trial court allowed separate counsel for the driver and the insurance carrier to participate in the trial without any mention of the UIM carrier as a defendant.
However, months before the Stepanovich holding, U.S. District Judge James M. Munley of the Middle District of Pennsylvania decided in Noone v. Progressive Direct Insurance that information regarding the amount of the insurance premiums and the policy limits was admissible.
Additional issues that remain to be resolved include whether the case should be bifurcated, the way in which different defense attorneys should be able to examine witnesses, and whether the carrier should be listed on the jury slip or if the judge should simply mold the verdict afterward.
According to Cooper, the federal courts, particularly the U.S. District Court for the Western District of Pennsylvania, have largely been leading the way in post-Koken decisions. However, attorneys agreed that the more cases come to trial, the faster these issues will be resolved.
Push to Trial
While attorneys agreed that the vast majority of cases are being arbitrated, some attorneys prefer trial.
Philadelphia personal injury attorney Marc Simon of Simon & Simon and defense attorney J. Michael Flanagan of Flanagan and DiBernardo both said they are eager to take their UM and UIM cases before juries.
"As we begin to bring in more cases where clients have UIM or UM cases, we're always going to opt to file in the court systems instead of going to an arbitration process," Simon said. "We want to get these cases in the trial court. We want them as jury cases. We want juries to decide these issues and judges to decide these issues. We want juries to see the insurance companies' names on the verdict slip and we don't get that effect by demanding arbitration."