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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
UNITED SERVICES AUTOMOBILE IN THE SUPERIOR COURT OF
ASSOCIATION PENNSYLVANIA
Appellee
v.
GAYLE HUDSON
Appellant No. 224 EDA 2014
Appeal from the Judgment Entered January 6, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2012-001132
BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2014
Gayle Hudson appeals from the judgment entered against her in the
Court of Common Pleas of Delaware County on January 6, 2014 following a
non-jury trial.1 United Services Automobile Association (U.S.A.A.) filed a
declaratory judgment action to determine its duty to provide underinsured
motorist benefits to its insured, Hudson. U.S.A.A. claimed benefits were not
required as Hudson was prevented from re-litigating the issue of damages
under the doctrine of collateral estoppel. The trial court agreed with
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*
Retired Senior Judge assigned to the Superior Court.
1
Pursuant to the civil docket supplied by the Court of Common Pleas of
Delaware County, a verdict in favor of U.S.A.A. was entered on November
-trial relief was denied on December 17,
2013 and judgment was entered by praecipe in favor of U.S.A.A. on January
6, 2014.
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U.S.A.A. and entered judgment in its favor. In this timely appeal, Hudson
against both the weight and sufficiency of the evidence. She further argues
her prior UIM arbitration was against the weight of the evidence. After a
thorough review of the submissions by the parties, certified record, and
relevant law, we affirm.
We adopt the facts as related by the trial court in its Pa.R.A.P. 1925(a)
Opinion, dated February 21, 2014, and authored by the Honorable Chad F.
Kenney, Sr., President Judge.
[Hudson] was a passenger in a vehicle involved in a motor
vehicle accident on June 9, 2007 and sustained a rotator cuff
injury to her left shoulder for which surgery was recommended.
[Hudson] recovered the maximum $15,000 from the at-fault
UIM [underinsured motorist] coverage to Allstate Insurance
Company, the insurance carrier that provided UIM coverage for
the vehicle in which [Hudson] was a passenger. The Allstate
proceeded to arbitration and, on December 18, 2009, the
arbitration panel rendered an award in favor [of Hudson], who
was then the plaintiff, of $75,000. The award took into account
the $15,000 for the at-
net award of $60,000 out of a potential $100,000. At the
arbitration hearing, counsel for Allstate presented medical
records which he had subpoenaed and the sworn statement of
Gayle Hudson. (Testimony of Gerard Bradley, trial date
November 8, 2013). The medical records noted the tear in
has a full tear and that the doctors told her it would definitely
need to be operated on. (Sworn Statement of Gayle Hudson,
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insurance carrier.[2] On July 26, 2011, [U.S.A.A.] received notice
from counsel for [Hudson] that [Hudson] was demanding UIM
coverage from [U.S.A.A.] pursuant to her insurance policy.
undergone subsequent rotator cuff surgery and follow up
value for her claim far in excess of the amount awarded by the
arbitration panel from the Allstate policy.
Trial Court Opinion, 2/21/2014, at 2-3.
underlying declaratory judgment action claiming Hudson was collaterally
estopped from seeking further damages as she had a full and fair
opportunity to litigate the issue of her damages in the UIM arbitration with
Allstate. Motions for summary judgment were ultimately filed by both
parties, and were denied. A non-jury trial was held before Judge Kenney, on
November 8, 2013. After hearing testimony from counsel for Allstate who
had participated in the prior UIM arbitration, and considering the submitted
documentary evidence, the trial judge ruled in favor of U.S.A.A.
-
jury trial is as follows:
[We are] limited to a determination of whether the findings
of the trial court are supported by competent evidence and
whether the trial court committed error in the application
of law. Findings of the trial judge in a non-jury case must
be given the same weight and effect on appeal as a verdict
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2
Pursuant to statute, the first priority of payment of UIM benefits was from
the policy covering the vehicle in which Hudson was a passenger. Her policy
with U.S.A.A. was second priority. See 75 Pa.C.S. § 1733(a)(1)-(2).
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of a jury and will not be disturbed on appeal absent error
of law or abuse of discretion. When this Court reviews the
findings of the trial judge, the evidence is viewed in the
light most favorable to the victorious party below and all
evidence and proper inferences favorable to that party
must be taken as true and all unfavorable inferences
rejected.
Croyle v. Dellape, 832 A.2d 466, 470 (Pa. Super. 2003) (citing
Behar v. Frazier, 724 A.2d 943, 946 (Pa. Super. 1999)). The
court's findings are especially binding on appeal, where they are
lack evidentiary support or that the court capriciously disbelieved
Fudula v. Keystone Wire & Iron Works, Inc.,
283 Pa. Super. 502, 424 A.2d 921, 927 (1981).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super.
2000) (internal citati
de novo. John B. Conomos, Inc., v. Sun Co.,
Inc. (R & M), 831 A.2d 696, 704 (Pa. Super. 2003), appeal
denied, 577 Pa. 697, 845 A.2d 818 (2004).
Hart v. Arnold, 884 A.2d 316, 330-31 (Pa. Super. 2005).
Further,
prevents re-litigation of an issue in a later action, despite the
fact that it is based on a cause of action different from the one
Balent v. City of Wilkes-Barre, 542 Pa.
555, 669 A.2d 309, 313 (1995).
Collateral estoppel applies if (1) the issue decided in the
prior case is identical to one presented in the later case;
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(2) there was a final judgment on the merits; (3) the party
against whom the plea is asserted was a party or in privity
with a party in the prior case; (4) the party or person privy
to the party against whom the doctrine is asserted had a
full and fair opportunity to litigate the issue in the prior
proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
Catroppa v. Carlton, 998 A.2d 643, 646 (Pa. Super. 2010)
courts are owed t
In re Stevenson, 615 Pa. 50, 40 A.3d 1212, 1222 (2012); see
also Atiyeh v. Bear, 456 Pa. Super. 548, 690 A.2d 1245, 1249-
50 (1997) (applying the collateral estoppel doctrine to a decision
of bankruptcy courts, and precluding the relitigation of the same
issue in this Court).
Weissberger v. Myers, 90 A.3d 730, 733-34 (Pa. Super. 2014).
determination that Hudson was collaterally estopped from re-litigating the
issue of damages.3
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3
elements of collateral estoppel. Because there are no questions regarding
the applicability of elements (2) existence of a final judgment, (3) identity of
the party, or (5) determination that the prior proceeding was essential to the
judgment, we will not discuss those.
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estopped from pursuing additional damages was against both the sufficiency
and weight of the evidence.4
Initially, we note that a claim that a judgment is against the weight of
the evidence is a claim that certain evidence was not credible on its own or
that otherwise credible evidence was overwhelmed by other credible
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient evidence to
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000). While a sufficiency claim argues a required element of proof is
are so clearly of greater weight that to ignore them or to give them equal
Id.
Assessing weight of the evidence is commonly stated in terms that the
fact finder, in passing upon the credibility of witnesses and the weight of the
evidence is free to believe all, part or none of the evidence. See
Commonwealth v. Phillips, 93 A.3d 847 (Pa. 2014). A judgment is
against the weight of the evidence if it is so contrary to the evidence as to
Joseph v. Scranton Times, L.P., 89 A.3d
251, 274 (Pa. Super. 2014). Such determinations are the exclusive province
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4
Hudson argues her issues in a different order in the body of her brief. We
refer to the order of the issues as they were listed in the statement of
questions involved. See
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of the fact finder and will not be overturned absent a showing the trial court
Hatwood v. Hospital
of the University of Pennsylvania, 55 A.3d 1229, 1238 (Pa. Super.
gument regarding the weight of the evidence does
not address credibility or the relative weight of the totality of the evidence.
no
evidence introduced at trial establishing that the is
to her shoulder surgery was actually presented to the Allstate UIM
See
added). Accordingly, we read the argument as a restatement of the
sufficiency claim. Therefore, the weight of the evidence argument has not
been developed and the issue has been waived.5 Piston v. Hughes, 63
A.3d 440, 444 (Pa. Super. 2013) (undeveloped arguments are waived).
As to insufficiency of the evidence, Hudson argues she did not present
any evidence of her shoulder surgery and resulting scarring, recovery, etc.
to the arbitration panel; therefore, the issue was never litigated.
Accordingly, she claims, collateral estoppel cannot apply. Hudson has
framed this argument as a failure to meet the first requirement of collateral
estoppel the necessity that the issue to be decided be identical to the issue
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5
Even so, our review of the certified record leads to the conclusion that the
judgment is not against the weight of the evidence.
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question was the broader concept of the damages suffered by Hudson
because of the automobile accident. As a result, the trial court essentially
a
question of whether Hudson was afforded the opportunity to fully and fairly
litigate the issue. See Trial
surgery entails a number of elements. These include the cost of the
surgery, the actual scar from the surgery, months of post-operative therapy,
See
argument concerns the continuation of treatment, and concurrent claim of
continuing damages, arising from a known injury. This is simply a claim for
future damages. The argument is essentially an assertion that future
damages are a different issue from damages.
h no
compelling argument why future damages should be considered separately
from general damages. While past and future damages are likely to be
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calculated differently, they are both elements of damages, not separate
issues.6
The issue es was clearly before the arbitration
opinion that surgery would be necessary7
that Hudson testified consistently with her sworn statement,8 and
determined her injuries were compensable to the total amount of
$75,000.00. Therefore, Hudson cannot credibly claim that the general issue
of damages was not presented to the prior arbitration panel, and we find no
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6
In the context of collateral estoppel, past and future damages are no more
a question of separate issues that is the question of physical injury and wage
loss. One could not credibly argue one was entitled to separate arbitrations
to determine physical injury and wage loss. The trial court aptly noted:
The fact that [Hudson] decided to wait to undergo surgery at a
time that was more convenient for her does not magically make
the injury anything different than the one that was sustained in
the motor vehicle accident and for which she was compensated
by the arbitration panel. [Hudson] had not chosen surgery at
the time of arbitration but it was clear at the arbitration that
surgery was recommended and would most likely be necessary
in the future therefore, the panel took it into account.
Trial Court Opinion at 6.
7
See
Weiner, her primary treating physician.
8
orn
statement included her admission that she believed her shoulder would
require surgery. See N.T. Trial, 11/8/2013, at 11.
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abuse of discretion or error of law in the trial
first requirement of collateral estoppel, issue identity, had been met.
However, the trial court addressed future damages in terms of the
fourth element of collateral estoppel, addressing the opportunity to fully and
fairly
encompass that concept. Therefore, despite not being labeled as a
challenge to the sufficiency of the fourth element of collateral estoppel, we
will address her claims in those terms.
The fourth requirement for application of collateral estoppel is whether
the party was given the opportunity to fully and fairly litigate the issue. The
salient word here is opportunity. The trial court found that the arbitration
panel was presented with medic
well as the report from the defense medical examination. The certified
records, so we cannot consider either of those.9
to the shoulder and the recommendation of surgery. Hudson claimed then
and claims now that those injuries were a result of the automobile accident.
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9
Hudson has not specifically argued that the medical/treatment records do
not include the shoulder injury. If Hudson believed those records supported
her argument, it was incumbent on her to provide them.
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She knew about the injuries then and related those injuries to the arbitration
panelists.10
Further, at the non-jury trial, counsel for Hudson admitted that
nothing prevented her from joining U.S.A.A. in the original arbitration.
THE COURT: What would stop you from bringing that [secondary
UIM coverage policy] to the table?
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10
McNally v. Dagney, 510 A.2d 722 (Pa. Super.
1986), to support this aspect of her claim is unavailing. In McNally, the
plaintiff was injured in a car accident with a phantom vehicle. That claim
that accident, McNally was involved in an accident with Dagney. While the
UM claim was pending, McNally filed an action against Dagney, who
subsequently sought dismissal of the action claiming McNally was collaterally
estopped from seeking the same damages from two accidents. While the
trial court agreed with Dagney, a panel of our court determined that
collateral estoppel would prevent collecting duplicate damages, but that
based on the record it was unclear to which accident McNally was ascribing
the specific injuries. In footnote eight of the decision, it was noted that
McNally claimed to have specifically limited the claim of damages
from the time of the accident to the day before accident two,
injuries, continuing injuries [, and] lost wages that were not
McNally, 510 A.2d at 725, n. 8.
Initially, we agree with the general principle that collateral estoppel
significant difference between McNally and the instant matter is that in
McNally, the claimant argued he had specifically limited the damages
submitted in the first claim, while that argument has not been raised here.
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[Counsel]: One thing that might stop someone from bringing it is
that they feel that the $100,000 adequately compensates the
Plaintiff
based on the evidence or the injuries at the time of the hearing
really
N.T. Trial, 11/8/2013, at 42.
claim of damages was strategic or practical. Neither the arbitration panel
nor defendant precluded Hudson from presenting such evidence.
We also examine the language of the relevant statute, 75 Pa.C.S. §
1733, addressing the priority of recovery. The statute reads, in relevant
part:
(a) General rule. Where multiple policies apply, payment shall
be made in the following order of priority:
(1) A policy covering a motor vehicle occupied by the
injured person at the time of the accident.
(2) A policy covering a motor vehicle not involved in the
accident with respect to which the injured person is an
insured.
75 Pa.C.S. § 1733 (a) (1)-(2).11
To the extent that Hudson relies on this statute, the statute addresses
only the order of payment; it does not explicitly allow for multiple
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11
We note this language is mirrored in the relevant insurance policies.
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adjudications and serial determinations of the amount of damages suffered
by the injured person.12
In light of the foregoing, we find no abuse of discretion or error of law
opportunity to present her entire case for damages.13
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12
Indeed, without that explicit allowance, the general policy of the
Commonwealth of Pennsylvania frowns upon piecemeal litigation as being
wasteful, expensive and as unnecessarily protracting litigation. See
generally, Pennsylvania Turnpike Commission v. Atlantic Richfield,
394 A.2d 491 (Pa. 1978). While Section 1733 does not forbid serial
litigation, we believe we should not unnecessarily encourage it. As noted, in
the instant matter there was nothing preventing Hudson from fully
presenting her claim for future damages or from joining U.S.A.A. in the
original arbitration. Therefore, there is no particular reason to endorse serial
litigation under the facts before us.
Prior to 2005, piecemeal litigation involving the alleged tortfeasor and UIM
coverage was not only encouraged, it was virtually mandated by the
Department of Insurance, which required insurance policies to provide for
UIM arbitration. The third-party negligence matter would typically be
brought before the Court of Common Pleas (including statutory arbitration as
applicable) while the UIM claim was presented to a private arbitration panel.
This mandatory separation of third party and UIM claims no longer exists.
See Insurance Federation of Pennsylvania, Inc. v. Koken, 889 A.2d
550 (Pa. 2005).
13
Hudson has also argued that the amount of the award, $75,000.00 is
proof that she did not present her case for future surgery. Whether she did
or did not present specific numbers for the cost of surgery and wage loss,
etc., is immaterial to whether she had the opportunity to do so. In addition,
the defense in the prior arbitration presented a medical report from a
defense medical examination that opined the shoulder injury was not
causally related to the accident. See Report of Dr. Stuart Gordon, M.D.,
7/20/2009. Therefore, the amount of the award might also indicate the
arbitration panel accepted the defense position regarding the shoulder
injury.
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In her final argument, Hudson claims the trial court erred in
determining that the award of the prior arbitration panel, for less than the
primary UIM policy limits, demonstrates that she was fully compensated for
her damages. This claim is moot in light of the fact that Hudson has been
properly precluded from further litigating the issue of damages. We agree
with the proposition that had Hudson settled her claim against the primary
UIM policy for $60,000, she would not be precluded from seeking further
coverage from her own policy based on the failure to exhaust prior levels of
coverage. See Nationwide Ins. Co. v. Schneider, 960 A.2d 442 (Pa.
2008). However, Schneider did not address the concurrent issue of
collateral estoppel. Schneider settled the claim with the primary UIM carrier.
Therefore, there was no prior adjudication determining the amount of
damages.
Because collateral estoppel has prevented Hudson from seeking
another determination of damages, the issue of exhaustion of the prior
policy is moot. Accordingly, Hudson is not entitled to relief on this issue.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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United Services Auto. Assoc. v. Hudson, G.
Combined Opinion