Auto Law

By Joshua Romirowsky, Esq. (215-575-2742 or jhromirowsky@mdwcg.com)

Delaware

As A Matter Of First Impression, The Delaware Supreme Court Held That The Collateral Source Rules Applies In The Underinsured Motorist Context And That Plaintiffs' Paid Insurance Premiums Entitled Plaintiffs To Double Recovery.
Miller v. State Farm Mut. Auto. Ins. Co., 993 A.2d 1049 (Del. 2010) (Jacobs, J.)

The plaintiff, insured by codefendant State Farm, was injured while driving a car owned by his employer. He received the bodily injury liability coverage limit under the tortfeasor's insurance policy and settled with his workers' compensation carrier. The plaintiff brought an action in personal injury against his insurer for underinsured motorist benefits. The Delaware Superior Court denied the plaintiff's motions to exclude evidence of his workers' compensation benefits. During the trial, the defendant-insurer repeatedly mentioned the plaintiff's settlement with the workers' compensation carrier before the jury. The jury awarded no damages to the insured-plaintiff. On appeal, the Delaware Supreme Court addressed the collateral source rule, which provides that a tortfeasor has no right to any mitigation of damages because of payments or compensation received by the injured person from an independent source. The court held that restricting a double recovery in underinsured motorist cases would frustrate the reasonable expectations of the insured, created by the payment of insurance premiums, to recover under the policy. Furthermore, the restriction would defeat the purpose of Del. Code Ann. tit. 18, § 3902, which governs underinsured motorist coverage and has no legislative provision that eliminates or modifies the collateral source rule. The court held that because the insurer did not contribute to the fund that created the collateral source - the workers' compensation benefits - and had no interest in that fund, it should not have been allowed to benefit from it. Accordingly, the trial court's erroneous admission of the collateral source evidence materially prejudiced the insureds and was not harmless. The Supreme Court reversed and remanded the case to the Superior Court for a new trial.

Florida

Where Plaintiffs Sought Billing And Litigation Records From A Non-Party Hospital, The Trial Court Should Have Stayed The Discovery Until The Parties Had An Opportunity To Negotiate A Confidentiality Agreement Per Florida's Trade Secrets Laws.
Columbia Hospital (Palm Beaches) LP v. Hasson, 33 So. 3d 148 (Fl. Ct. App. May 12, 2010)

This action arises out of a motor vehicle accident in which the plaintiff claimed to have suffered damages for bodily injuries and subsequent medical treatment. The petitioner hospital, a non-party, sought certiorari relief of an order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, which denied its motion for a protective order as to the discovery of confidential trade secret materials under § 90.506, Fla. Stat. The defendants sought discovery from the hospital concerning a particular procedure, including the amount the hospital has charged patients with and without insurance, those with letters of protection, and differences in billing for litigation patients versus non-litigation patients. The court agreed that the trial court had to narrowly tailor any order requiring disclosure in such a way as to protect its trade secret interests. The defendants sufficiently explained that they needed the hospital's information in order to dispute the amount of the plaintiff's claimed medical expenses for recovery if the hospital charges non-litigation patients a lower fee for the same medical services. The trial court denied the hospital's motion for protective order without taking protective measures. The hospital was entitled to relief only insofar as the trial court should have stayed the discovery until the parties had an opportunity to negotiate a confidentiality agreement, as required under Florida's laws protecting trade secrets.

The Changes To Florida's Pre-Suit Provisions, Enacted In 2001, Cannot Be Applied Retroactively As The Changes Were Substantive And Not Procedural.
Menendez v. Progressive Express Ins. Co., 35 Fla. L. Weekly S. 222 (Fl. April 22, 2010)

The insured sued the insurer for failing to pay personal injury protection (PIP) benefits after she was injured in a motor vehicle accident. The issue on appeal to the Florida Supreme Court was whether the pre-suit provision of Fla. Stat. § 627.736(11)(a) (2001), which was enacted after the accident, was applicable. The pre-suit notice provisions instituted several amendments to the PIP law. It required an insured to provide a pre-suit notice of intent to initiate litigation and provided an insurer additional time to pay an overdue claim. The amendment also mandated that the payment from the insurer include interest and penalties not exceeding $250. If an insurer paid within the additional time provided by the statute, the payment precluded an insured from bringing suit for late payment or nonpayment and shielded the insurer from a claim for attorneys' fees. Further, the amendment tolled the applicable statute of limitations. On appeal, the Florida Supreme Court held that the pre-suit notice provision could not be applied retroactively because it constituted a substantive change to the statute, as it was a substantive and not a procedural change, because it imposed a penalty, implicated attorneys' fees, granted an insurer additional time to pay benefits, and delayed an insured's right to file suit. Accordingly, the Court found that the appellate court erred in its conclusion that § 627.736 was procedural and given retroactive application.

Pennsylvania

As A Matter Of First Impression, The Pennsylvania Supreme Court Held That An Insured's Recovery Under UM/UIM Policies May Be Offset Under 75 Pa.C.S. §1722 By Group/Program/Arrangement Benefits, Including Disability Benefits Purchased.
Tannebaum v. Nationwide Ins. Co., 992 A.2d 859 (Pa. April 28, 2010)

Following an automobile accident, the insured-driver received income-loss benefits under a group plan, paid by his employer, and benefits under two personal disability policies that were purchased privately. Later, the insured-driver sought to recover income-loss benefits under an underinsured motorist policy. The Supreme Court held that the benefits the insured received under his group plan and personal disability policies fell within the group/program/arrangement classification for purposes of § 1722 and, as a result, were subject to the specified statutory offset. Section 1722 specifically directed that its prohibition and offset prescriptions applied relative to "any program, group contract or other arrangement for payment of benefits." Under the plain terms of § 1722, an insured's recovery under uninsured/underinsured policies could be offset by group/program/arrangement benefits, including disability benefits purchased in whole or in part by the insured, at least so long as those benefits were not subject to subrogation.