Um/Uim Litigation In Pennsylvania -- The Game Has Changed
Traditionally in Pennsylvania, uninsured and underinsured motorist cases were privately arbitrated. Automobile insurance policies had provisions stating that these types of claims would be arbitrated rather than litigated through the Court system. Typically, the plaintiff would select one arbitrator. The insurance company would select one arbitrator. Those two arbitrators would then select a third or "neutral" arbitrator. The case would be tried in a far less formal fashion than a full blown jury trial. For example, medical records, police reports, expert reports, etc. would be submitted to the arbitrators, without the need to call the doctors, experts, witnesses, etc. to testify live. The decision of the arbitration panel would be binding -- i.e., not appealable (except in very rare circumstances). A case that would take several days to try in a courtroom in front of a jury, and which would cost each party several thousand dollars to litigate, could be arbitrated in an afternoon for a fraction of the cost. This procedure was so beneficial to consumers, that the Pennsylvania Insurance Department made the arbitration provisions mandatory in Pennsylvania automobile insurance policies.
Then, in 2005, the Pennsylvania Supreme Court ruled that the Insurance Department did not have the authority to mandate arbitration in UM/UIM cases. The Court held that it was no longer mandatory under Pennsylvania law that UM/UIM cases be submitted for binding arbitration.
Therefore, insurance companies now had the option of now resolving UIM/UIM cases in arbitration. Insurance companies began writing their insurance policies in several ways: (1) mandating arbitration just like previously; (2) allowing arbitration if either party requested it; (3) allowing arbitration if both sides agree to it; or (4) allowing arbitration if it, the carrier, requested.
It has since become increasingly routine for UM/UIM cases to be filed in the Courts of Pennsylvania. Under the Rules of Civil Procedure, civil cases arising out of motor vehicle accidents can be brought in the county: (1) where the accident occurred, (2) in the county where any defendant can be served, or (3) in the county where any corporate defendant regularly conducts business. Venue which is proper as to any one defendant is proper as to all defendants.
In the context of a UM or UIM case, the addition of the insurance company as a potential defendant in the lawsuit arising out of a motor vehicle accident has increased the venue options for plaintiffs in many cases. Most insurance companies that write automobile insurance coverage in Pennsylvania regularly do business in many counties throughout the Commonwealth. Under the Rules of Civil Procedure, those insurance companies can be sued in any county in which they regularly conduct business.
The insurance companies have responded to this seemingly unanticipated aspect of their unilateral elimination of mandatory binding arbitration by including "forum selection clauses" in their insurance policies. A forum selection clause is a policy provision which states that if a dispute arises between the insured and the carrier in respect to a UM or UIM case, the case can be litigated only in a particular county. These clauses often reduce the number of viable venues provided under the Pennsylvania Rules of Civil Procedure.
The validity and enforceability of these forum selection clauses in the context of UM/UIM cases was recently addressed by the Pennsylvania Superior Court in the case of O'Hara v. First Liberty Insurance Corporation. In that case, the Superior Court of Pennsylvania ruled that a form selection clause in the insurance policy which required all UM/UIM cases to be brought in the county and state of the "legal domicile" -- where the insured lives -- of the insured at the time of the accident was valid and enforceable.
This latest opinion is yet another example of the Courts in Pennsylvania making decisions which make it more difficult and more expensive for the innocent victims of motor vehicle accidents to litigate their cases.
BY: DANIEL J. O'BRIEN
Mr. O'Brien is the founder and Chair of the firm's Plaintiff's Personal Injury Practice Group. Mr. O'Brien is a partner at White and Williams LLP and has been with the firm for over 25 years. He has the highest possible rating in the Martin Dale Hubbard Ratings, and has been selected in a survey of his peers as a "Pennsylvania Super Lawyer" multiple times.
Mr. O'Brien dedicates 100% of his professional time to representing individuals who have been seriously and catastrophically injured in accidents. He has extensive experience handling cases in a wide range of areas including products liability, industrial accidents, premises liability accidents, construction site accidents, sports and recreation accidents, motor vehicle and trucking accidents and dog attacks.
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