Pasparage v. Progressive Specialty Ins. Co., 2023 U.S. Dist. LEXIS 7179 (W.D. Pa. January 13, 2023). Plaintiff Dennis Pasparage (“Plaintiff”) was injured in a car accident caused by a negligent driver. The parties agree that the driver was at fault for the accident and agree that his insurer has tendered the full limits of his liability policy. Through this breach of contract action, Plaintiff seeks additional recovery under the underinsured motorist (“UIM”) provisions of his insurance policy, issued by Defendant Progressive Specialty Insurance Company (“Progressive”). The parties dispute the extent of Plaintiffs injuries that were caused by the accident, and Progressive has denied Plaintiffs UIM claim. Progressive has filed a Motion in Limine seeking to preclude references at trial to Progressive as the named defendant. Progressive contends it would suffer unfair prejudice if a jury was aware of its relationship to this action. Thus, Progressive requests that the parties use the name of the non-party driver as the defendant. Progressive argues that the substitution is in accord with “the substantive law of the forum state — Pennsylvania,” and the non-dipositive opinion issued by the Pennsylvania Superior Court in Stepanovich v. McGraw, 2013 PA Super 275, 78 A.3d 1147 (Pa. Super. 2013), where the underlying tortfeasor was also a party to the action. In the underinsured motorist case there is always an active opposing party and his insurer. Also the fact of underinsurance is an unresolved issue. To require both insurance carriers to be party defendants would present a confusing panorama to the jury and could so overemphasize the insurance feature of the lawsuit the real issues would become unimportant. For these reasons we hold in an action involving an underinsured motorist, the parties shall proceed as follows: When the litigant determines the opposing party’s liability coverage is below his liability coverage as well as the amount of damages claimed, and he wishes to invoke the underinsured motorist clause of his insurance policy, he shall notify his insurance carrier in the manner prescribed in the insurance policy. The insurance company may then intervene in the case at its election. If it elects to intervene, it shall be a named party to the action. If the insurance company elects not to intervene, K.S.A. 60-454 [Kansas’s version of Rule 411] is applicable. In either case the litigant’s underinsured motorist insurance carrier is bound by any judgment obtained in the action.
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January 27th, 2023 by Rieders Travis in Financial Responsibility Law