For as long as most claim professionals have been in practice, all UM/UIM have been subject to the Pennsylvania Insurance Department’s mandatory arbitration requirement, forcing every unsettled UIM/UM claim in Pennsylvania to be resolved by arbitration, no matter how big or small. As discussed in a prior C&W Journal article, per Insurance Federation v. Koken, the Pennsylvania Supreme Court ruled that insurers no longer have to include an arbitration clause in their policies.
Insurers can now litigate UIM/UM cases in the courts. Still, insurers and claimants are not precluded from agreeing to arbitration or mediation. However, UIM carriers may be forced into the underlying third party BI action.
Procedurally, questions remain as to how these cases will be tried. In Allegheny County, separate UIM suits and the underlying 3rd party cases may be consolidated for discovery purposes. It has yet to be determined if such cases will remain consolidated for trial or not. The local Bench has indicated that these cases might be “reverse bifurcated," tried damages first.
Cipriani & Werner is at the forefront of this issue. We are currently involved in UM/UIM litigation and are paving the way in regards to ancillary issues that will continue to arise out of these matter.
What It Means to You
Despite the fact that the Pennsylvania Rules of Evidence bar evidence of applicable liability insurance, in insurance contract disputes such as these, the terms of insurance are admissible. If the UM/UIM claim is tried as a part of a tort action against a third party, the jury may be allowed to hear evidence of insurance coverage, potentially prejudicing and inflating the verdict against the tortfeasor as well as the UM/UIM insurer. This could create UM/UIM exposure where none would otherwise exist. Venue is also an unresolved issue. Claimants may bring hybrid third-party and UM/UIM actions in counties where there is a perception that jurors are more likely to award higher verdicts. Since venue as to all defendants is (generally) proper in any county in which any one defendant regularly conducts business, the presence of the insurance company as a party may permit Plaintiffs to forum shop regardless of where the accident occurred. Venue clauses, therefore, will be invaluable. If the underlying action proceeds prior the UM/UIM case, issues of res judicata and collateral estoppel stemming from the underlying action may also come into play. Policy language reinforcing these rights and ensuring that no policy language to the contrary exists will be critical. The attorneys at Cipriani & Werner are available to answer your questions on this evolving area of law.