Motor Vehicles

First Wave of Post-Koken Cases Hitting Trial

, The Legal Intelligencer

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insurance policy

Roughly eight years after the state Supreme Court reshaped how underinsured and uninsured motorist claims are resolved by allowing them to go to trial, the first wave of those cases are beginning to be tried to juries.

According to attorneys who spoke with the Law Weekly, the delay can be traced to the complex nature of the cases, cost concerns and trepidation on behalf of attorneys to be the first to wade into untested waters in front of a jury. However, while the first wave of these cases to hit the trial stage has been slow in coming, most attorneys agree that more and more UM and UIM trials are soon to follow.

Parties in UM and UIM cases were first allowed the option to take their cases before a jury after the state Supreme Court's December 2005 ruling in Insurance Federation of Pennsylvania v. Koken, which held that carriers were no longer required to include mandatory arbitration clauses in UM and UIM policies.

According to personal injury attorney Scott B. Cooper of SchmidtKramer in Harrisburg, the cases are now lining up for trial after years of disputes at the discovery phase.

"From an overall perspective, this is the first big wave that's starting to happen," Cooper said. "There were tons of cases where there were discovery disputes. By now they've worked through the system and we are seeing more and more coming to fruition."

Scranton, Pa.-based defense attorney Daniel E. Cummins, who has been closely following post-Koken litigation development, said the cases have only started going before juries in the past two years and that he had heard of fewer than 10 cases that went before a jury in the past year. Too few verdicts have come down to see how juries will view the cases, Cummins said.

"Some people think people are pissed at insurance companies and want to whack them, and some see the system as a way for people to make easy money," said Cummins, who is a Law Weekly contributor. "There have been a whole smattering of different kinds of results in the handful of cases I've heard about."

The main reason cases have been so slow to come to trial is that the majority of cases are still going to arbitration, attorneys who spoke with the Law Weekly agreed. By arbitrating, parties can avoid the uncertainty of trial and also save on litigation costs.

"You see more and more get to the eve of trial with motions in limine, and once the judge makes a decision, the cases settle," Cooper said. "It's more inexpensive and more expeditious. You don't need live witnesses, and the lawyers know all the issues."

Attorneys agreed that the one thing they have consistently seen with post-Koken UM and UIM cases is an increase in the number of high-low agreements the parties make before arbitration.

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