In the Post-Koken case of Kanyuck v. Hamilton, No. 83-CV-2018 (C.P. Monroe Co. March 4, 2020 Williamson, J.), Monroe County Court of Common Pleas Judge David Williamson agreed to mold an excess UIM jury verdict down to the policy limit and but also rejected the carrier’s argument that delay damages cannot be applied to a jury award on an underinsured motorist claim. The court did agree with the carrier’s position that delay damages must be calculated based upon on the policy limits rather than the full amount of the verdict.
With regards to molding the jury’s verdict down to the UIM policy limit, the Court noted that the defense had pled the policy limit as an affirmative defense in its New Matter pleading. Applying contractual principles, the court found that the contractual language regarding the policy limit amounted to a cap on damages in this UIM matter.
However, the Court also allowed for Rule 238 delay damages even though those types of damages apply to negligence matters. Judge Williamson noted that even though a UIM claim was a contract action, it was a claim that allowed recovery under tort principles.
|Judge David J. Williams
The Court noted that “[t]he plaintiff must still prove negligence, causation and damages at trial as to the tortfeasor. The damages recoverable at trial are the same that the plaintiff seeks from the tortfeasor. For this reason, Pa.R.C.P. 238 was clearly intended to apply to UM and UIM claims. Here, a demand was made for policy limits, Progressive offered substantially less, and following a trial, plaintiff was awarded a great deal more. As such, delay damages are due.”
However, Judge Williamson, pointing to the Pennsylvania Supreme Court’s 2012 ruling in Marlette v. State Farm that delay damages in uninsured motorist cases are calculated based upon the UM policy limits, ruled UIM delay damages must be applied the same way.
Anyone who wishes to review this Kanyuck decision may click this LINK.
In the source March 19, 2020 Legal Intelligencer article entitled “Trial Judge Says Delay Damages Apply to UIM Jury Verdicts — But Only on Policy Limits” by Zack Needles on this case it was noted that the Plaintiff had appealed this case up to the Superior Court.
The Tort Talk post on the Pennsylvania Supreme Court’s decision in the Marlette case can be viewed HERE.
Also, here is a LINK to my previous article from January 8, 2013 on the issue of calculating delay damages in Post-Koken cases.