LACKAWANNA JURIST JUDICIAL OPINION CASE NAME AND NUMBER: Fertig v. Horace Mann Ins. Co., 2022 WL 3586596 (Lacka. Co. 2022)

DATE OF DECISION: August 9, 2022

JUDGE: Terrence R. Nealon


Bradley Moyer, Esquire, Thomas J. Carroll, Jr., Esquire, counsel for Plaintiff
Anthony P. Trozzolillo, Esquire, counsel for Defendant



After the jury in separate underinsured motorist (“UIM”) benefits trials awarded the insured $75,000.00 in economic damages and $175,000.00 in noneconomic damages for an aggregate gross award of $250,000.00, the combined verdicts were reduced to a net UIM award of $150,000.00 to reflect a credit for the tortfeasor’s liability insurance coverage limit of $100,000.00. The UIM insurer filed a post-trial motion pursuant to Pa.R.Civ.P. 227.1(a)(4) seeking to mold the $150,000.00 net award to its UIM coverage limit of $100,000.00. The insured filed her own post-trial motion requesting an award of delay damages under .Pa.R.Civ.P. 238 as calculated based upon the net award of $150,000.00.

Absent bad faith liability on the part of the UIM insurer, Pennsylvania precedent limits the maximum “legally-recoverable” damages in a UIM proceeding to the UIM coverage limits set forth in the policy, and requires an award in excess of that limit to be molded to the amount of the UIM policy. The insured’s argument premised upon the common law “made whole” doctrine was misplaced since it only applies only to an insurer‘s subrogation rights, and no subrogation claim was asserted in the case. Therefore, the UIM insurer’s motion to modify the net UIM verdict of $150,000.00 to the UIM policy limit of $100,000.00 was granted.

The UIM insurer opposed the insured’s request for delay damages on the ground that delay damages are not recoverable in connection with a UIM claim. Although arbitrators in a UIM arbitration proceeding do not have the authority to award UIM damages under Rule 238 unless the insurance policy vests them with that authority, the parties chose to litigate this UIM claim in “a civil action” in which the insured sought “monetary relief for bodily injury,“ thereby making Rule 238 applicable. Since the UIM insurer did not make a written settlement offer, nor did it establish that the insured caused delay of the trial, the insured‘s motion for delay damages was granted, albeit based upon her “legally-recoverable” damages of $100,000.00 rather than the net award of $150,000.00 in compliance with appellate precedent.