First Wave of Post-Koken Cases Hitting Trial
Last month, a Philadelphia jury awarded one of Simon's clients $100,000 in a UIM case, and in September 2013 Flanagan got a defense verdict in a phantom vehicle case for his insurance carrier client in Lancaster County.
Flanagan, who typically works in the middle of the state, said the juries he has seen have been sympathetic to insurance carriers.
"Out here in Central Pennsylvania, I'm very happy that we now have our juries back," Flanagan said. "I've got several [cases] that I'm lining up to get to trial, and I'm looking forward to doing it."
According to Flanagan, having a carrier listed as a defendant before the jury has added to the voir dire questioning, but he has found mid-state juries are more likely than arbitration panels to award a modest figure.
"There's something of a bias against insurance companies. That can't be denied," Flanagan said. "But it's not, in my view, as heavy a bias as existed under the old arbitration system."
Flanagan also noted that bad-faith actions had been tossed into nearly all of the UM and UIM cases he has handled. However, the actions have been overwhelmingly stayed pending the outcome of the trial, he said, and as a result, fewer and fewer plaintiffs attorneys are pursuing the bad-faith angle.
Attorneys who spoke with the Law Weekly projected that within the next year appellate courts will begin dealing more with unresolved questions now being fought out at the trial level, and within five years the case law will begin firming up.
"Hopefully we'll see more cases going to verdict and climbing up the appeal ladder to get some much-needed appellate guidance to see how to handle the trials," Cummins said. "Once there's more certainty to see how trials will be held, depending on what those rules are, you might see an uptick in the trial, instead of the arbitration."