DAMAGES-DELAY DAMAGES-UIM CLAIM

October 19th, 2022 by Rieders Travis in Damages

Fertig v. Horace Mann Insurance Company, Pa. Civil No. 16-CV-4801 (C.P. Lackawanna August 19, 2022) (Nealon, J.)  After juries in separate underinsured motorist (“UIM”) benefits trials awarded the insured $75,000 in economic damages and $175,000 in noneconomic damages for an aggregate gross award of $250,000, the combined verdicts were reduced to a net UIM award of $150,000 to reflect a credit for the tortfeasor’s liability insurance coverage limit of $100,000.  The UIM insurer has filed a post-trial motion pursuant to Pa.R.Civ.P. 227.1(a)(4) seeking to mold the $150,000 net award to its UIM coverage limit of $100,000.  The insured has filed her own post-trial motion requesting an award of delay damages under Pa.R.Civ.P. 238 as calculated based upon the net award of $150,000.  Absent bad faith liability on the part of the UIM insurer, decisional precedent in our Commonwealth limits the maximum “legally-recoverable” damages in a UIM proceeding to the UIM coverage limits set forth in the policy, and requires an award in excess of that limit to be molded to the amount of the UIM policy limit.  The insured’s argument premised upon the common law “made whole” doctrine is misplaced since it applies to an insurer’s subrogation rights, and no subrogation claim has ever been raised or asserted in this case.  Therefore, the UIM insurer’s motion to modify the net UIM verdict of $150,000 to the UIM policy limit of $100,000 will be granted.  The UIM insurer opposes the insured’s request for delay damages on the ground that delay damages are not recoverable in connection with a UIM claim.  Although arbitrators in a UIM arbitration proceeding do not have the authority to award delay damages under Rule 238 unless the insurance policy vests them with that authority, the parties chose to litigate this UIM claim in “a civil action” in which the insured sought “monetary relief for bodily injury,” thereby making Rule 238 applicable.  Since the UIM insurer did not make a written settlement offer, nor has it established that the insured caused delay of the trial, the insured’s motion for delay damages will be granted, albeit based upon her “legally-recoverable” damages of $100,000, rather than the net award of $150,000, in compliance with the appellate precedent.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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