Claims Against the King

By: Roger D. Horgan

King! What King? There is no royalty in Pennsylvania, correct? No, there is not. However, when it comes to claims against the Commonwealth of Pennsylvania, or its subsidiaries, our law harkens back to English law, making use of concepts from another age and another society.

Just as the King and Queen in England were generally immune from suits, the Commonwealth, and its subsidiaries, are immune from suit unless for claims for which Pennsylvania has agreed to be liable. An injury victim can bring a claim against the Commonwealth or its subsidiaries only in certain, limited circumstances, and subject to limitations that would not apply to other defendants. Different rules apply depending on whether the claim is being brought against the Commonwealth itself or one of its statewide agencies (known as Commonwealth agencies), or one of its local subsidiaries such as a township or a borough (known as local agencies).

One of the important elements of bringing a claim against the Commonwealth or a local agency is that the normal two year statute of limitations is modified such that a victim must provide written notice to the Commonwealth or local agency in a specified form within 180 days of the accident. While suit need not be brought within 180 days, the victim will generally be precluded from bringing suit if proper written notice was provided. It is imperative that a person with a potential claim against a governmental agency promptly consult with a lawyer to determine whether a potential claim exists and comply with the many technical requirements involved in bringing such a claim.

Another important consideration is that the Commonwealth has limited the amount which it will be required to pay if found responsible for the accident. Claims against a Commonwealth agency are limited to $250,000 per person and no more than $1 million for any one accident. As to local agencies, the limit is $500,000 per accident. These limits can lead to incomplete compensation in cases involving extremely serious injuries, or numerous victims. In the recent case of Zauflik v. Pennsbury School District, the Pennsylvania Supreme Court agreed that it was necessary to reduce a $14 million verdict to just $500,000. This was a tragic case in which a school bus went out of control and ran into 20 students. This was the result even though the school district had insurance covering claims up to $11 million. The Court recognized the apparent injustice of the result but concluded that any change in the law governing these cases must come from the Legislature.

These are but two examples of the many complexities involved in bringing an injury claim against the Commonwealth and local agencies. This is not an area of law in which an unrepresented victim can be expected to achieve a favorable result without a lawyer. If you have a claim against any person or entity that is in any way related to any part of the government please contact an attorney, and do so promptly.

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.

What are Punitive Damages?

In some circumstances, a jury is permitted to send a message in addition to making the victim of another’s wrongdoing whole. Sometimes, the conduct of an individual which results in harm to another is so extreme and outrageous that the law permits a jury to award damages intended to notify that particular defendant and others who might consider doing the same thing that society will not tolerate such conduct. In such cases, the defendant will be ordered to pay the normal damages, which usually include pain and suffering, lost wages, medical expenses etc. He may also be ordered to pay punitive damages due to the outrageousness of his conduct. To send a message.

As stated in a recent federal court case, “Pennsylvania law allows punitive damages when a defendant has an evil motive or reckless indifference to the rights of others; such damages are available only when the defendant’s actions are so outrageous as to demonstrate willful, wanton, or reckless conduct. This type of damage is not compensatory in nature, but is meant to heap an additional punishment on a defendant who was found to have acted in a fashion which is particularly egregious. To establish a claim for punitive damages the evidence must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that he acted, or failed to act in conscious disregard of that risk.” Coello V. Frac Tech Services, LLC, United States District Court, Middle District of Pennsylvania, Civil Action No. 3:13–534(2013)(citations omitted.)

In the Coello case, the Court refused to dismiss a victim’s claim for punitive damages where it was alleged that a serious accident was caused by a truck driver’s extreme sleep deprivation. It was undisputed that the truck driver fell asleep at the wheel at the time of the accident. The victim alleged that the employer of the driver knew or should have known that the driver posed a high risk of harm to others by driving with sleep deprivation. This was because the driver had been scheduled for 60 hours of work over the previous 4 days, and worked during the 19 hours leading up to the accident. This was not a case of simple negligence, but rather one of intentional conduct by the defendant that inherently created a high risk of harm to others. If this conduct is proven at trial, the driver and his employer may face a verdict far above that which would be expected in the absence of such outrageous conduct.

In a case being heard in the Court of Common Pleas of Northampton County, the Court likewise refused to dismiss a claim for punitive damages where the victim alleged that the defendant intentionally blocked all of the lanes of travel on a state highway with a tractor-trailer, knowing that the visibility at this sharp turn limited visibility by oncoming traffic. McPoyle v. Mast Excavating, Inc., No. C-48-CV-2013-7658. The argument was that this driver knew to a certainty that he was creating a high risk of harm to others, but did so anyway. If true, he put his interests far above those of his fellow citizens, and he will pay the price.

Other cases in which punitive damages are routinely claimed include cases in which the defendant drove under the influence of alcohol or drugs, and cases in which establishments serving alcoholic beverages serve a visibly intoxicated person who thereafter injures others or himself. While the courts generally do not favor forcing a defendant to pay for more than the actual harm he caused, there are certain cases where that would just not be enough. Those are cases for punitive damages.


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