A Pennsylvania trial judge has ruled that a woman injured in a car accident can’t recover underinsured motorist benefits from her own insurer because the third-party tortfeasor’s policy can pay the full amount of damages awarded by an arbitrator.
Wayne County Court of Common Pleas President Judge Raymond L. Hamill ruled that the third-party tortfeasor in plaintiff Tami Tenbus’ case against Progressive Direct Insurance Co. was not an underinsured motorist as defined by the state’s Motor Vehicle Financial Responsibility Law.
Hamill granted Progressive’s motion to uphold the judgment of the arbitrator in the case, who held that the tortfeasor’s $125,000 policy limit would cover Tenbus’ expenses. Tenbus had sought additional compensation from her own insurer through a UIM claim.
“Plaintiff claims that the third-party defendant/tortfeasor was an underinsured motorist. However, this assertion lacks merit,” Hamill wrote in his opinion. “It is undisputed in this case that the third-party defendant/tortfeasor had bodily injury liability limits in the amount of $125,000.”
He added, “It is also undisputed that pursuant to the arbitrator’s award of Oct. 25, 2012, plaintiff recovered $125,000, an amount exactly equal to, and not in excess of, the third-party defendant/tortfeasor’s liability limits.”
Hamill said the tortfeasor did not meet the definition of “underinsured” listed by the MVFRL because his policy provided the exact amount of coverage deemed appropriate by the arbitrator.
Hamill also said that Tenbus is precluded from further recovery and denied her request to add additional evidence to the case, while also striking a sympathetic note over Tenbus’ diagnosis of breast cancer.
“While this court is sympathetic to Ms. Tenbus’ plight with her ongoing health concerns, she was not precluded from introducing evidence of future damages during the arbitration hearing,” Hamill said.
Hamill said Tenbus attempted to make a claim for future damages after being awarded past damages. Citing language from the state Superior Court decision in U.S.A.A. v. Hudson, he said, “‘While past and future damages are likely to be calculated differently, they are both elements of damages, not separate issues.’”
He added that Tenbus “is precluded from recovering against defendant Progressive because she had a full and fair opportunity to litigate the issue of her damages.”
Malcolm L. MacGregor of McDonald & MacGregor in Scranton represents Tenbus. David R. Friedman of Forry Ullman in King of Prussia represents Progressive. Neither returned calls seeking comment.