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Superior Court Rules On Joining Tort and Coverage Issue In Same Proceeding

Posted On Behalf of Schmidt Kramer Injury Lawyers on May 14, 2012 in General

Pennsylvania Superior Court opinion of Jan. 6, 2011 in  Richner v. McCance and Erie Ins.  Exch. et al.

The case involves a third party and coverage dispute for underinsured motorist (UIM) benefits that were joined in the same action. In this case, the insured Matthew Richner (“Richner”) was hurt in a car accident while operating his employer’s vehicle. He pursued a third party claim against the other driver. Also, since the other driver apparently had a low liability policy, he pursued an underinsured motorist claim. Since his employer did not have UIM coverage he sought UIM coverage with his parent’s policy. Erie denied coverage based upon a regular use exclusion. Richner denied the employer vehicle was “regularly used”. He filed suit in Allegheny County against the third party and Erie. Erie previously filed a Declaratory Judgment Action in Butler County on the “regular use” coverage issue. Erie filed preliminary objections in the Allegheny County case arguing that the pending Butler County case barred the second suit under lis pendens and the tort and coverage claims were misjoined. The Objections were overruled and Erie appealed.

The Pennsylvania Superior Court reverses and holds that under the doctrine of lis pendens the earlier Butler County Action barred the filing of the second action because the case involves the same set of facts, parties, issues and relief. Also, the Court holds that because their was a tort action and a separate coverage issue being pursued the claims were misjoined under Pennsylvania Rule of Civil Procedure 2229(b) because the third party case is only about the injuries and tort issues and the coverage issue concerns the rights and the exclusion under the policy. Therefore, the Court reverses the trial court. Importantly, in footnote 4 at the end of the opinion the Court writes that it is not ruling upon joining a third party and UIM claim where the same issues of liability and damages are being litigated. It writes that, “[w]e emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefits claims. Scott B. Cooper scooper@Schmidt 717-232-6300