Liens and Subrogation in Auto Accident Cases

By: Roger D. Horgan

Medical liens and subrogation. These obscure misunderstood words can have a dramatic impact on the victim of automobile negligence. These concepts come into play when the victim’s auto insurance is insufficient to pay all of the medical expenses arising from an accident. After the auto coverage has been exhausted, the victim’s health plan will step in to pay the remaining bills, under the terms of that plan. The health plan’s claim well then seek reimbursement from the proceeds of the accident litigation, also known as enforcing a lien or seeking subrogation.

The problem with medical liens is that they can overwhelm a case and lead to negative and unjust results. If the defendants liability coverage is inadequate, and the health plan insists on 100% reimbursement of what it paid, the true victim may bear the shortfall and be left with little or nothing. Many accident victims are sorely disappointed to find that they must reimburse their health insurance company even though they have paid for that coverage.

The lienholders have enormous power over the resolution of the case and how much the accident victim ultimately receives. The best way to prevent being held hostage in this manner is to purchase as much uninsured and underinsured motorist protection as you can possibly afford. This enlarges the pot from with you and the lienholder are paid, and it increases the likelihood that you, the accident victim, can be fully and fairly compensated.

The Consumption of Alcohol Is Not Always Admissible at Trial

By: Roger D. Horgan

It is perfectly legal for a driver over the age of 21 years to drink and drive in the Commonwealth of Pennsylvania! That may come as a surprise to people, given the popular admonishment, “Don’t Drink and Drive!” In reality, there is a prohibition only against driving while under the influence of alcohol to such a degree that it renders the driver incapable of safe driving. Impaired driving may be proven by behavior such as swaying, slurred speech, etc., coupled with a police officer’s opinion of intoxication. It can also be proven by testing the driver’s blood alcohol level. In Pennsylvania, the blood alcohol limit is .08%. That is the criminal side.

What happens in a civil lawsuit when the injured party, the Plaintiff, has consumed alcohol? One might think that proof of the consumption of any alcohol whatsoever should be admissible into evidence. It should be left up to the jury as to what weight should be placed upon the consumption of minor amounts of alcohol, right? Historically, that has not been the case. Pennsylvania courts have ruled that in the absence of proof of alcohol induced impairment, the mention of alcohol consumption is too prejudicial to allow a jury to hear. In 1956, the Pennsylvania Supreme Court said, “While proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.”

The interplay of the factors surrounding alcohol as evidence in an auto accident case is demonstrated in a recent Pennsylvania Superior Court case of Rohe v. Vinson in 2016. Mr. Rohe was a motorcyclist who was injured in an accident involving a truck which turned into his lane of travel. Mr. Rohe admitted to having drunk several beers over the course of an afternoon of riding and dining, but denied that he was intoxicated. He asked the trial court to prevent any evidence of his consumption of alcohol from being presented to the jury. The trial court denied that request, and Rohe lost his claim for damages.

He appealed to the Superior Court, which reversed the decision of the trial court, and ordered a new trial at which evidence of Rohe’s alcohol consumption will not be presented to the jury. The Superior Court concluded that the defendant had no viable proof that Mr. Rohe was unfit to drive as the result of alcohol consumption. The record established that none of the individuals with whom Rohe interacted after the accident, including a State Trooper, observed anything in Rohe’s demeanor to indicate that he was under the influence of alcohol. Further, his blood alcohol level as tested two hours after the accident was found to be below the state limit of .08%, at .0706%. The Court also ruled that the defendant’s efforts to calculate the blood level at the time of driving by way of the expert opinion of a toxicologist amounted to no more than speculation, and that the opinion should not have been admitted. The Court was critical of the expert’s methodology, and found the opinion to be too unreliable to have been submitted to the jury.

While one is best served refraining from driving after consuming any alcohol, the law remains that evidence of alcohol is only permitted where it can be shown that the alcohol the driver consumed rendered him unable to drive safely.


By: Roger D. Horgan

You have just landed a new job, or received a promotion, which has the added benefit of a company car. You even get to take it home and use it as your personal car. What could possibly be wrong with that set up?

A lot. You get in an accident while driving your shiny new company car. The other driver admits responsibility, and his insurance company tenders his policy limits, which, in Pennsylvania, may be as little as $15,000.00. Since the responsible driver has inadequate insurance, you want to look at the company car policy to see if it has any underinsured motorist coverage, known as UIM coverage. The policy covering the employer-provided vehicle may or may not have UIM coverage. Further, even if it has such coverage it still may be inadequate to cover the value of a serious injury claim. The next place to look is the policy you have purchased to cover your personal vehicles. You determine, thank goodness, that you have purchased a great deal of UIM coverage, and initially feel relief that you had such great foresight to protect you and your family.

Unfortunately, your relief is likely to be short lived because your insurance carrier is likely to deny your UIM claim. Virtually every automobile insurance policy issued in the state of Pennsylvania contains a limitation on UIM claims that applies when the insured is injured while occupying a vehicle that he does not own, but regularly uses. This is known as the Regularly Used/Non-owned Vehicle Exclusion. These exclusions are written into auto insurance policies because the insurance company does not want to be responsible for vehicles that it does not insure, and for activities of the driver beyond what the insurance company expects when the policy is issued. They contend that, if required to pay to such UIM claims, they would be forced to pay benefits for claims that were not anticipated by the premiums they charged.

The saddest examples of the Regularly Used/Non-owned Vehicle Exclusion have to do with police officers who are seriously injured in an automobile accidents while on the job. While the officer was entitled to the police equivalent of worker’s compensation, those benefits are not intended to and do not cover all of his damages. His only sources of compensation for his other damages is a claim against the defendant driver, plus any available UIM coverage. Most employers do not provide UIM coverage on their vehicles because it is not required by law, and therefore it is an avoidable expense. Even if the employer does have UIM coverage it may well be inadequate in serious injury cases. By operation of the Regularly Used/Non–owned Vehicle Exclusion in his personal policy the injured police officer cannot tap into the UIM coverage he purchased, and he can be left far from fully compensated for his losses.

This outcome was challenged by a police officer in the Pennsylvania Supreme Court case of Williams v. GEICO Gov’t Employees. Ins. Co., 613 Pa. 113 (Pa. 2011). The policy language prohibited recovery of UIM benefits, but the officer argued that enforcing that language, and denying such benefits, violated the strong public policy in favor of protecting police officers. The court sympathized with the officer’s predicament, but nevertheless found that public policy was not violated by the Regularly Used/Non-owned Vehicle Exclusion, and confirmed the denial of his claim for UIM benefits.

“In summary, we reaffirm the decision in Burstein, holding that the regular-use exclusion is not void as against public policy. A contrary decision is untenable, as it would require insurers to compensate for risks they have not agreed to insure, and for which premiums have not been collected.” Williams v. GEICO Gov’t Employees. Ins. Co., 613 Pa. at 135 (Pa. 2011).

This is now well-settled law in Pennsylvania, and the question is what can a person who regularly drives a vehicle which he does not own to protect himself? Unfortunately, there appears to be no perfect answer. One suggestion is to purchase accident disability coverage separate and apart from automobile insurance. However, recovery under such policies is generally limited to a particular, monthly dollar amount. Worse, some of them would reduce payments of benefits by the amount of workers compensation or similar benefits received by the victim. Another suggestion would be to convince the employer, if possible, to purchase adequate UIM coverage for the vehicles it provides to employees. This should be a part of any labor/management negotiations where employees are provided with vehicles by the employer, and it should be requested by any employee who regularly drives a vehicle provided by an employer. In any event, be careful out there!

The Phantom Insurance Company

By: Roger D. Horgan

We all know that one must have insurance to drive the car. However, when you get in an accident, the other guy might only have minimal insurance. Therefore, Pennsylvania residents have the option of purchasing under-insured motorist coverage (UIM coverage). This coverage is designed to permit you to recover more than the limit of the other guy’s insurance. Frequently an accident victim pursues two claims at once: one against the responsible driver and another against his own insurance company for UIM coverage.

This allows the courts to address those suits together. It also creates certain complications which arise from judicial tradition and Rule 411 of the Rules of Civil Procedure, prohibiting the mention of liability insurance to a jury. This prohibition requires the jury to focus on the facts of the case rather than upon the amount of insurance coverage available to satisfy the claim.

This creates an inherent difficulty when the case is tried in front of a jury. The insurance companies have successfully argued that the jury considering the case should not be told that one of the defendants is an insurance company. Nevertheless, because the insurance company is a party to the lawsuit it is permitted to have its attorney participate fully in the trial. So, the jury does not know who the second defense attorney is  representing, but the victim’s attorney is required to contend with two attorneys. Two attorneys are better than one, and the plaintiff has a harder case. 

In one recent case, the judge decided this was unfair and ordered a new trial following a defense verdict. In that case, the jury was not told that State Farm insurance Company was a party to the case or that the second defense attorney who participated in the trial represented State Farm. The jury eventually found that the driver was not negligent, and the jury returned a defense verdict. After the trial, Judge O’Reilly concluded  that the procedure designed to hide the identity of the insurance company denied the plaintiff due process of law, and ordered a new trial. In doing so, he concluded that Rule 411 did not  require that the identity of the insurance company in an UIM case be hidden. He stated in his opinion that the practice of not identifying insurance carriers in motor vehicle cases was the perpetuation of a myth that had outlived its usefulness. He concluded that it was fundamentally unfair to permit the double-teaming of the plaintiff in the name of serving this outmoded principle. 

Not surprisingly, the defendants appealed. The Superior Court reversed the judge’s order, and remanded the case to the trial court with instructions to enter judgment in favor of the defendants. What is most interesting about the Superior Court’s decision is that it did not definitively rule whether the procedure of hiding the identity of the UIM carrier resulted in a denial of due process. Rather, it focused on the jury’s decision that the defendant driver was not negligent. Since the driver was found to be not negligent there could be no judgment against either that driver or the UIM carrier. The Superior Court relied upon the rule of law that a violation of due process does not necessarily lead to a remedy. A party who demonstrates a violation of due process is entitled to a remedy only if that party can also show that the violation resulted in prejudice to him. The Superior Court concluded that the plaintiff could not show prejudice since the identity of the insurance company had no bearing on whether or not the defendant driver was negligent. 

It is anticipated that UIM carrier’s will rely upon this case to argue that their identities should never be disclosed in these circumstances. However, plaintiffs will respond that this is a case that is very much limited to the fact that the defendant driver was not negligent. Plaintiffs’ counsel can be expected to continue to fight for the right to have cases tried on the reality of the parties, and not on the basis of myths and phantoms.


The title to this article is not an attention grabber. Indeed, it could cause one’s eyes to glaze over, and quickly move on without reading the article. However, the Regularly Used, Non- Owned (RUNO) Vehicle Exclusion, which is found in virtually all automobile insurance policies in Pennsylvania, is critically and practically important in this era of employer-provided vehicles, multiple vehicles per household, divorce, and non-traditional family situations. The multiple exclamation points following the title serve to point out that this arcane and superficially boring topic may become central to your life and happiness under certain circumstances.

The RUNO exclusion means generally that an auto insurance company will not provide benefits that would otherwise be required if the incident giving rise to a claim involves an individual covered under the policy who regularly uses a vehicle not covered by that insurer’s policy. Fundamentally, this exclusion is designed to prevent an insurer from being called to answer for a vehicle it does not insure, and for conduct it did not intend to insure. 

A sad example of how this exclusion works has to do with police officers. Assume that an officer has purchased his or her own auto policy that provides good coverage for the officer and the officer’s family. One of the keystones of a good auto policy is the provision of uninsured (UM) and underinsured (UIM) motorist coverage. These benefits apply where the responsible driver has either no insurance (UM) or inadequate insurance (UIM) to meet the needs of the case. Also assume that the officer is severely injured in an auto accident during the course of his or her duties, and that the responsible driver has little or no insurance coverage. One would think that this is exactly why the officer has purchased UM and UIM coverage, and that he should have access to it under his own policy. Not so. The RUNO exclusion prevents the officer from recovering UM or UIM benefits under his own policy because he was driving a vehicle that he did not own, but drove regularly. That officer may well feel that he paid for nothing when he purchased that coverage. Moreover, the victim’s life may have been changed forever due to someone else’s negligence, and there is no hope of being fully compensated.

To be fair, it must be acknowledged that an insurer does not intend to insure against all the risks involved in operating a police vehicle when it sells a personal policy. Further, individuals who drive an employer’s vehicle as part of their work are generally covered under the employer’s workers compensation and auto insurance policies. However, UM and UIM coverages are not mandatory, and one who is injured while driving for an employer may find that the employer declined to afford such coverage. Such an employee may be left far from whole after sustaining serious injuries while driving the employer’s vehicle. 

More to the point for the average family, however, is the reality that the same scenario may play out in more surprising but no less harmful ways. In the case of Rother v. Erie Insurance Exchange, a 2012 case from the Pennsylvania Superior Court, the youthful accident victim was denied UIM benefits because he was driving his father’s vehicle, and not that of his mother. The boy lived with his mother who had UIM coverage in her policy. However, he was driving his father’s separately insured vehicle at the time of the accident. For a mere two weeks prior to the accident the son had used his father’s vehicle to commute to and from work , and for emergencies. Nevertheless, the court ruled that this use was regular, and not isolated, casual or incidental. The RUNO exclusion applied, and UIM benefits were denied.

Many other such fact patterns can be readily imagined: the college kid borrows his aunt’s vehicle for a semester; one has a prolonged stay with a friend or relative, and drives their vehicles during that period; a teen buys a car and cut-rate auto insurance separate from the rest of the family vehicles, etc. All of these people are at risk for what is known as the “coverage tragedy.” 

The lessons to be learned from these examples are (1) that it is best, even if more expensive, to have all household autos insured under one good policy, and (2) that it is imperative to determined what kind of auto coverage applies to a vehicle the one does not own, but will use on a regular basis. Having use of a poorly insured vehicle is no bargain, and can lead to tragic results.

The Power of the Civil Justice System

Michael Smerconish of CNN comments on the importance of our modern day Civil Justice System. Though often maligned, it is often to only way to protect the public from future harm as seen in the recent problems with General Motors ignition switches. Companies are not going to jump and say they did something wrong. Often, it is only through a lawsuit that we learn about dangerous conditions affecting the public. Watch his commentary here.


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