Pa. Courts Disagree on Admissibility of UIM Policy Details Zack Needles, The Legal Intelligencer July 22, 2016 In a ruling indicative of what attorneys said is a lack of uniformity across the state regarding UM and UIM evidence, the Eastern District of Pennsylvania has broken with the Middle District over the admissibility of a plaintiff’s underinsured motorist policy limits and premium amounts in a jury trial on damages. In a July 7 ruling in Lucca v. Geico Insurance, U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania granted defendant Geico’s motion to exclude any mention at trial of the plaintiff’s UIM policy limits or the amount his stepfather pays in premiums. Pratter, noting that Pennsylvania case law on the issue is “almost nonexistent,” said there was only one reported federal court decision that addressed it: Noone v. Progressive Direct Insurance, in which the U.S. District Court for the Middle District of Pennsylvania in 2013 permitted evidence of the plaintiff’s policy limits and premium payments to be introduced into evidence.
“However, the Noone court simply reasoned that the information would give the jury background information about the policy and help them understand the case without explaining how that background information would be helpful to the jury or to what disputed issue in the case the information related,” Pratter said. Attorneys who handle UM and UIM cases said this issue comes up frequently and rulings across the state have been inconsistent. The lack of uniformity, they said, is due in large part to the dearth of precedential evidentiary decisions that have been issued in the decade-plus since the Pennsylvania Supreme Court’s game-changing 2005 ruling in Insurance Federation of Pennsylvania v. Koken, which held that UM and UIM disputes do not have to be arbitrated. “It’s still the Wild Wild West out there in terms of courts and judges ruling on admissibility of policy limits and premiums in UM/UIM trials. … There’s no real consensus,” said plaintiffs attorney Marc I. Simon of Simon & Simon in Philadelphia, who was not involved in the Lucca case. Defense attorney Daniel E. Cummins of Foley, Comerford & Cummins said the decision in Lucca, in which he was not involved, shows federal trial courts are still grappling with evidentiary issues in post-Koken jury trials. “At a minimum, this decision tempers Judge Munley’s decision in the Noone case, which allowed everything into evidence,” Cummins said. “Now with the Lucca decision, there is a split of authority for both sides to argue away on with respect to the admissibility of insurance evidence on a case-by-case basis.”
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Simon said the admissibility of policy limits and premiums is an important issue for plaintiffs and insurers alike because of that evidence’s potential psychological effect on jurors. For example, Simon said, if jurors hear that a plaintiff has hundreds of thousands dollars in UM and UIM coverage available to him, they may be more likely to enter a large verdict. However, if a jury is also told that the plaintiff only pays $100 a year for those benefits or that the plaintiff already received a substantial sum of money from the third-party tortfeasor, jurors may not be so quick to hand up a large award, according to Simon. Simon said that’s why if plaintiffs lawyers had their way in cases where their clients have high UM and UIM policy limits, juries would be privy to the amount of coverage and the fact that the clients paid for that coverage, but not how much the clients paid for that coverage. Any attempt at that type of “cherry picking” of evidence, however, is rarely successful, Simon added, which is why his firm generally does not push for the admission of policy limits and premiums. “We can’t pick what we want when we want it,” Simon said. “We either have to take the approach where everything comes in or nothing comes in.” Simon said the latter approach typically makes the most sense for his firm because its clients generally tend to have UM and UIM policy limits of between $15,000 and $20,000. The hope in those types of cases is that the jury, with no knowledge of the policy limits or premiums, will render a verdict well in excess of that coverage, setting up a potential bad-faith claim against the insurer that could lead to a substantial settlement. That’s part of the reason so few UM and UIM cases have actually gone to trial in the past 10 years, Simon said: Most of the time, insurers feel it’s better to pay the full limit, or close to it, than to risk going to trial. Simon said the resulting lack of Pennsylvania case law on evidence admissibility in UM and UIM trials is another reason his firm tends to avoid battling with insurers over admitting plaintiffs’ policy details. It’s better not to risk an adverse ruling on that issue from a trial judge who has no appellate precedent to draw upon—not to mention the lengthy appeals process that would likely follow any decision, Simon said. “They’re really shooting in the dark,” Simon said. “If a trial judge were to rule one way or another, even if that case were to go up on appeal, you’re talking two or three years of rulings that could be against me before a secondary court rules and creates a precedent.” The Lucca case, however, is set for trial and the only remaining issue is the amount of Lucca’s damages, according to Pratter’s opinion. According to the opinion, plaintiff Darren Lucca has a $900,000 UIM policy limit with defendant Geico Insurance Co. Lucca was injured in a 2011 car accident caused by another driver. The other motorist had $100,000 in coverage through his insurer and Lucca asked for Geico’s consent to settle his claim with the motorist’s carrier for $75,000. But when Lucca sought UIM benefits, Geico denied his claim, believing Lucca had received $75,000 from the other motorist’s insurance as an award in binding arbitration, rather than in a settlement, and therefore the other motorist was not underinsured, Pratter said. Geico filed a motion in limine seeking a ruling either barring Lucca’s UIM policy limit and the premium amounts from trial or, in the alternative, permitting Geico to introduce evidence of the third-party tortfeasor’s policy limits, as well as the amount of Lucca’s settlement. Geico argued that Lucca’s UIM policy limit, as well as the amounts his stepfather pays in premiums, were irrelevant and possibly prejudicial. Pratter agreed. “That Mr. Lucca’s policy includes a $900,000 underinsured motorist limit or that his stepfather paid a certain amount in premiums for the policy does not have ‘any tendency to make [any fact at issue in this case] more or less probable than it would be without the evidence,’” Pratter said, citing language from Federal Rule of Evidence 401. “Indeed, not only is the policy limit irrelevant in this case, introducing evidence of the policy limit may very well serve to prejudice Geico by giving the jury an anchor number that has no bearing on Mr. Lucca’s damages.” Pratter said Lucca relied heavily on the Noone ruling in his response to Geico’s motion to exclude the evidence from his trial, “but without setting forth any principled reasons of his own regarding why the evidence is relevant or not unduly prejudicial,” Pratter said. “Instead, he simply parrots Noone’s statement that the information will provide the jury with background information about the claim,” the judge said. Pratter said Lucca failed to adequately address the fact that the Noone ruling allowed into evidence not only the plaintiff’s coverage limits but also the tortfeasor’s policy limits, along with the amount the plaintiff received from the tortfeasor and the amount of the plaintiff’s premiums. “Despite the broad outcome in Noone, Mr. Lucca argues that the tortfeasor’s policy limits and settlement amount should not be permitted to come into evidence, arguing that Geico will get a credit for the full amount of the tortfeasor’s policy limits against any verdict the jury renders,” Pratter said. “He does not explain why the court should not take that same molding approach when it comes to the $900,000 Geico policy limit.” Counsel for Lucca, Guy N. Paolino of Forbes, Bender, Paolino & Disanti in Media, could not be reached for comment. Counsel for Geico, Robert J. Cahall of McCormick & Priore in Philadelphia, also could not be reached.
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