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Act 17 – Joint And Several Liability – New “Risk Shifting” In Auto Cases

Act 17 – Joint And Several Liability – New “Risk Shifting” In Auto Cases. Scott B. Cooper SchmidtKramer P.C. 209 State Street Harrisburg, Pa. 17101 27 South 34 th Street Camp Hill, Pa. 17011 717-232-6300 scooper@schmidtkramer.com. Impact of SB 1131 – Act 17. Issues in auto cases

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Act 17 – Joint And Several Liability – New “Risk Shifting” In Auto Cases

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  1. Act 17 – Joint And Several Liability – New “Risk Shifting” In Auto Cases

  2. Scott B. Cooper SchmidtKramer P.C. 209 State Street Harrisburg, Pa. 17101 27 South 34th Street Camp Hill, Pa. 17011 717-232-6300 scooper@schmidtkramer.com

  3. Impact of SB 1131 – Act 17 • Issues in auto cases • Risk Shifting • Uninsured Motorist • Underinsured Motorist • Uninsured Dram Shop • Underinsured Dram Shop • 60% Defendant

  4. Situations Where Act 17 Likely To Apply • Plaintiff is a passenger • One or more joint tortfeasors is uninsured • One or more joint tortfeasors is underinsured • The fully financially responsible joint tortfeasor is not a primarily liable joint tortfeasor

  5. Provisions of Act 17 Which May Apply Most Often • 60% or more liable Defendant • Dram Shop • Released Defendant • Date of incident (at least initially)

  6. Arguments • Constitutional • Equal Protection because of 60% Defendant and application to children or elderly • Caps damages • Art. 3 Section 18

  7. Statutory Arguments • Does not apply if Plaintiff is 100% innocent • Does not apply to joint tortfeasor who was settled prior to “action”

  8. Important Auto Cases To Know! • Nationwide v. Cosenza, 258 F.3d 197 (3d Cir. 2001). • Penn National v. Black, 916 A.2d 569 (Pa. 2006).

  9. Impact On Koken Cases • Depends Upon Facts • Depends Upon Coverage • Could Be An Argument To Join Cases

  10. Hypothetical • Main Facts • P is passenger in D-1 car. D-1 collides with D-2. D-1 is 75% and D-2 is 25% at fault. D-1 has BI coverage of 15K and D-2 has BI coverage of 35K. Damages to Plaintiff are 50K. D-1 has no UIM coverage. P has no UIM coverage.

  11. How is money apportioned to P? Old Law D1 – 75% - 15K BI D2 – 25% - 35K BI P has no UIM D1 pays 15K and D2 pays 35K P fully compensated for 50K

  12. Applying new law D1 pays 15K D2 pays $12,500 (25% of 50K) P goes uncompensated $22,500 P collects $27,500

  13. Assume D1 has 15K UIM D1 pays 15K D2 pays $12,500 (25% of 50K) D1 UIM pays 15K (assuming you can use Cosenza and no offset under Black) P goes uncompensated $7,500 P collects $42,500

  14. Assume D1 is Uninsured D1 – 75% - $0 BI D2 – 25% - 35K BI P damages = 50K Alt 1 – P has no UM then only recovers $12,500 (D2 only). Alt 2 – P has 30K UM then recovers $42,500 (D2 plus UM)

  15. Assume P has UIM of 30K D1 – 75% - 15K D2 – 25% - 35K D1 and P have UIM 30K

  16. D1 pays 15K D2 pays $12,500 D1 UIM pays 15K (assuming Cosenza and Black) P UIM pays $7,500 (or $22,500 if no Cosenza and Black) P Fully Compensated

  17. Ways To Help Clients Practically • Educate clients about importance of UM and UIM coverage! • Creative use and thinking ahead of joint tortfeasor releases and the facts of the cases individually. • Know and understand the Cosenza and Black cases.

  18. Thanks for coming! Powerpoint will be posted on SchmidtKramer website at www.schmidtkramer.com

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