Pusl v. Means -982 A.2d 550 (Pa. Super. Sept 23, 2009).
HOLDING: When There is No Evidence That Consent To Settle And Waiver Of Subrogation Was Obtained from UIM Carrier, Superior Court Allows Molding Of Jury Verdict To Reflect Previous Underinsured Motorist Recovery For Same Accident.
The Plaintiff "Pusl" was involved in a car accident with the Defendant Means and sustained injuries. As a result of the accident Pusl made a third party claim against Means but also an underinsured motorist (UIM) claim with State Farm. The policy limits of the UIM claim were $75,000. In full accordance with Pennsylvania law, Pusl settled the UIM claim for the full $75,000 before the resolution of the pending third party claim. The case against the third party Means continued and ultimately went to trial with a jury verdict of $100,000.
After the verdict Means filed a Motion to Mold the verdict to $25,000 to take into consideration the previous UIM recovery of $75,000. Importantly, there was no record of whether the underinsured motorist carrier State Farm had waived subrogation or assigned its subrogation claim to Pusl. The trial court granted the motion and molded the verdict and Pusl appealed.
The Superior Court panel affirms the entry of the judgment in favor Pusl in the amount of $25,000, even though the jury verdict was $100,000. Even though not briefed or argued, the Superior Court first states in dicta that under Section 1722 of Title 75 of the Pennsylvania Motor Vehicle Financial Responsibility Law the legislature intended to prevent the recovery of first party benefits in a third party action which are paid for such as underinsured motorist benefits.
With regards to the main issued raised, argued and briefed the Superior Court holds that under the Pennsylvania Supreme Court decision in Johnson v. Beane, 664 A.2d 96 (Pa. 1995) and the reasoning of the trial court in Delaware County in Shankweiler v. Regan, 60 Pa. D & C 4th (Del. Co. 2002), the third party is entitled to mold the verdict.
The Superior Court notes that there was nothing in the record regarding the underinsured motorist carrier enforcing or assigning its subrogation rights. The decision is clear that if the UIM carrier had not waived subrogation or assigned its subrogation rights then the third party Means would still need to pay the $75,000 of the verdict under the subrogation claim.
Some reasons are set forth below as well as possible suggestions to use when encountering a possible Pusl situation.
1. If settling the underinsured motorist claim prior to the third party claim have the liability and damages thoroughly evaluated and try to discover the third party coverage as soon as possible before trying to amicably resolve the underinsured motorist claim. If there is a low third party policy coverage and clear liability with large/clear damages which would in essence make the third party case a "slam dunk" then the Pusl case may not become that huge of an issue.
2. If the plaintiff has already settled the underinsured motorist claim and received consent to settle and waiver of subrogation rights, then any third party defendant may need to plead as an affirmative defense the molding of the verdict as new matter if there is a potential UIM claim or even amend its new matter which was allowed in this case.
3. If settling the underinsured motorist claim prior to the third party claim, obtain the underinsured motorist carrier’s consent to settle and its waiver of subrogation.
4. If settling the underinsured motorist claim prior to the third party claim do not obtain consent to settle and waiver of subrogation but reach an agreement as to how the third party monies will be disbursed should the need to assert those rights arise after a verdict.
5. if settling the underinsured motorist claim prior to the third party claim have the exact amounts being settled for among the client and his spouse set forth in the underinsured settlement so that at trial the defendant can only seek to mold based upon what is awarded to each client.
Currently, there is a Petition for Allowance of Appeal pending in the Pennsylvania Supreme Court which was filed by Pusl. I will keep an eye on this.
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