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Home My WebLink About08-1480Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com Attorneys for Defendant Liberty Mutual Insurance Co. SHARON CHESTER, Plaintiff V. LIBERTY MUTUAL INSURANCE CO., Defendant NO. OP- 1y9d CIVIL ACTION - LAW PETITION TO APPOINT NEUTRAL ARBITRATOR AND NOW, comes the Defendant, Liberty Mutual Insurance Company, by and through its attorneys, Johnson, Duffie, Stewart & Weidner, and Jeffrey B. Rettig, Esquire, and petitions your Honorable Court to appoint a neutral arbitrator in the above matter, and in support thereof avers the following: 1. The Plaintiffs alleged injuries arise out of an automobile accident that took place on or about February 18, 2003 on SR 581 in Cumberland County, Pennsylvania. 2. At all times relevant hereto, Plaintiff was insured under a policy of insurance issued by the Liberty Mutual Insurance Company, which provided for Underinsured Motorist Coverage. A copy of the Arbitration clause of the Underinsured Motorist Coverage endorsement is attached hereto and marked as Exhibit "A". 3. On or about August 27, 2004, Plaintiff, through her counsel, Stephen Held, Esquire presented Liberty Mutual with a settlement demand requesting the limits IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA of the Underinsured Motorist Coverage. 4. The Underinsured Motorist Coverage endorsement contains an arbitration clause wherein all disputes related to said coverage will be submitted to arbitration pursuant to the policy provisions and conducted in accordance with the Pennsylvania Uniform Arbitration Act and the Pennsylvania Arbitration Act of 1927. 5. The aforementioned arbitration clause further provides in Part 4 §5(b) that, in the event that the parties cannot agree on the appointment of a neutral arbitrator within 30 days , either party may request selection of the same from a judge of the Common Pleas Court. See Exhibit "A" attached hereto. 6. Defendant took Plaintiff's Statement Under Oath on November 27, 2007. 7. After counsel's inability to settle the claim, defense counsel sent correspondence to Plaintiff's counsel dated January 22, 2008 requesting that Plaintiff choose an arbitrator, to which Plaintiff's counsel failed to respond. A copy of the correspondence is attached hereto and marked as Exhibit "B". 8. Subsequently, defense counsel sent correspondence to Plaintiffs counsel dated February 11, 2008 inquiring about the appointment of an arbitrator, to which Plaintiffs counsel failed to respond. A copy of the correspondence is attached hereto and marked as Exhibit "C". 9. To date, more than 30 days after Defendant's original request, Plaintiffs counsel has not responded to the Defendant's requests to appoint arbitrators and proceed pursuant to the insurance contract. WHEREFORE, Defendant Liberty Mutual Insurance Co. respectfully requests that your Honorable Court appoint a neutral arbitrator to preside over this matter, further Respectfully submitted, requesting that your Honorable Court appoint George B. Faller, Jr., Esquire of Carlisle, Cumberland County, Pennsylvania. Dated: 3/!?L 8 J ff r B. ttig tto y fo Defendant Liberty Mutual Insurance Co. Exhibit "A" 3. Limit Of Liability - Bodily Injury: Each Person -he limit stated under Underinsured Motorists - Bodily Injury -Each Person on your Declarations ;s the maximum we will pay for all damages, less all amounts recovered for all damages, arising out of bodily injury to one person as a result of any one accident. Included in Underinsured Motorists Bodily Injury - Each person, but not as a separate claim or claims, are all damages sustained by other persons, for example, loss of services, loss of support, loss of consortium, wrongful death, grief, sorrow and emotional distress. 4. Limit Of Liability-Bodily Injury- Each Accident The limit stated under Underinsured Motorists - Bodily Injury - Each Accident on your Declarations, is the maximum we will pay for all damages, subject to the Limit Of Liability - Underinsured Motorists - Bodily Injury - Each Person limit, arising out of bodily injury as a result of any one accident. Any Medical Payments determined to be payable under this Part are subject to a maximum payment for the service provided as established by the Pennsylvania Motor Vehicle Financial Responsibility Law. If a prevailing medical fee, charge or payment has not been calculated under the Medicare Program for a treatment, accommodation, product or service, the amount of our payment will not exceed 80% of the medical provider's usual and customary charge. Payment for acute tare in an accredited acute care facility or burn foundation will not exceed the usual and customary charge. If the peer review program, established by the Pennsylvania Motor Vehicle Financial Responsibility Law is utilized, an insured covered under this Part may request reconsideration of :he peer review initial determination of the disputed medical necessity of treatment or services. A request for reconsideration must be made within 30 days of the initial determination. 5. Arbitration If we and an insured do not agree: a) whether that person is legally entitled to recover damages resulting from the negligence et the owner or operator of an underinsured motor vehicle; or b) as to the amount of compensatory damages. Either party may make a written demand for arbitration. In this event, each party will select an arbitrator from the county where the insured lives. The two arbitrators will select a third arbitrator' from the same county. If they cannot agree within 30 days, either party may request selection from a judge of a common pleas court having jurisdiction where the insured. claiming coverage lives; or by a judge in the Federal District Court whose jurisdiction includes the county where the insured claiming coverage lives. Each party will: a) pay the expenses it incurs; and b) bear the expenses of the third party equally. Arbitration will be conducted in the county where the insured lives. Local rules of procedure and evidence will apply to the entire Arbitration process. We will not arbitrate questions of coverage or law as whether a person making a claim is covered under the policy, or is excluded under the policy. All disputes affecting the scope of coverage, the amount of coverage, a person's right or eligibility to make a claim, or the insured's selection of coverage, will be determined by the court in the county where the insured lives at the time the demand for arbitration is made; or a Federal District Court whose jurisdiction includes the county where the insured lives. Following the entry of an arbitration award, either party may file a petition to vacate or modify the award in the court in the county where the arbitration was conducted. The court may only modify or correct the award where: a) the arbitrators addressed and resolved issues not within the scope of their authority under ? this policy; b) the arbitrators were biased in the conduct of the hearing and the entry bf any award; - 28 - c) either party was denied appropriate due process rights to a full and fair hearing; 0k the arbitrators committed an error of law such that had it been a verdict of a jury the court would have entered a different or other judgment not withstanding the verdict. Arbitration will be conducted in accordance with the Provisions of the Pennsylvania Uniform Arbitration Act and the Pennsylvania Arbitration Act of 1927. 6. Judgment We will not be bound by any judgment or agreement against any person or organization which was obtained without our written consent. 7. Payments Reduced Payments for damages for bodily injury will be reduced by any amounts paid or payable: a) by persons or organizations who may be legally responsible; or b) under any other part of this policy under any other part of this policy except Medical Payments "Part 2"; or c) by other sources such as workers compensation, disability or similar laws. We will pay the difference between the sum of these amounts and the amount of the loss up to our Limit Of Liability subject to the Each Person, Each Accident limit. 8. Other Insurance - Your Car If there is other insurance which covers a loss under this Part, we will pay our share of the loss. Our share is the proportion our limit bears to the total of all applicable limits. But we will not pay for a loss involving anyone using a newly acquired (additional or replacement) car if you have another insurance policy that covers it. 9. Other Insurance - Non-Owned Car (Includes A Substitute Car) In the case of a non-owned car covered under this Part, we will pay those damages that are excess over amounts payable under any other insurance up to our Each Person, Each Accident Limit Of Liability under How We Will Settle A Claim. Priorities of Policies. We will pay under this part in accordance with the following order of priorities. We will not pay if there is another insurer at a higher level of priority. The priority order is: First: The policy covering a motor vehicle occupied by the injured person at the time of the accident. Second: The policy covering a motor vehicle not involved in the accident with respect to which the injured person is an Insured. If two or more policies have equal priority: a)' The insurer against which the claim is first made under the above priorities shall process and pay the claim as if wholly responsible. The insurer is thereafter entitled to recover contribution pro-rata from any other insurer for the benefits paid and the cost of processing the claim. b) The maximum recovery under all policies will not exceed the amount payable under the policy with the highest dollar limits of benefits. For the purposes of determining priorities, an unoccupied parked motor vehicle is not a motor vehicle involved in an accident unless it was parked in a manner as to create an unreasonable risk of injury. PART 6 - FIRST PARTY BENEFITS If you have paid for this coverage (see your Declarations), we will pay first party benefits for medical expenses and if purchased for: a. income loss, and b. funeral expenses Exhibit "B" JERRY R. DUFFIE RICHARD W. STEWART C. ROY WEIDNER, JR. EDMUND G. MYERS DAVID W. DELUCE JOHN A. STATLER JEFFERSON J. SHIPMAN JEFFREY B. RETTIG KEVIN E. OSBORNE RALPH H. WRIGHT, JR. MARK C. DUFFIE JOHN R. NINOSKY MICHAEL J. CASSIDY iLOAy-?vsoN DUFFIE January 22, 2008 Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, Pennsylvania 17110 Re: Sharon Chester v. Liberty Mutual Our File No: 014775.75 Dear Steve: MELISSA PEEL GREEVY ROBERT M. WALKER WADE D. MANLEY ELIZABETH D. SNOVER KELLY L. BONANNO OF COUNSEL HORACE A. JOHNSON F. LEE SHIPMAN (1965-2006) WRITER'S FXT. NO. 165 E-MAIL jbitjdsw.com It is my understanding that you have been unable to come up with a reasonable and realistic settlement demand in this case since the Statement Under Oath of your client. In light of that, we might as well proceed to Arbitration. I am appointing Jim Nealon to serve as an Arbitrator. Please let me know the name of your Arbitrator as soon as possible so that the two Arbitrators can then select a third Arbitrator. Thank you. Very truly yours, 1"EWART & WEIDNER JBR/mmc 321720 301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WWW.JDSW.COM 717.761.4540 FAX: 717.761.3015 MAIL@JDSW.COM JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. Exhibit "C" jnnni it. uUmn RICHARD W. STEWART C. ROY WEIDNER, JR. EDMUND G. MYERS DAVID W. DELUCE JOHN A. STATLER JEFFERSON J. SHIPMAN JEFFREY B. RETTIG KEVIN E. OSBORNE RALPH H. WRIGHT, JR. MARK C. DUFFIE JOHN R. NINOSKY MICHAEL J. CASSIDY JL?so?r DUFFIE MELISSA PEEL GREEVY ROBERT M. WALKER WADE D. MANLEY ELIZABETH D. SNOVER KELLY L. BONANNO OF COUNSEL HORACE A. JOHNSON F. LEE SHIPMAN (1965.2006) February 11, 2008 Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, Pennsylvania 17110 Re: Sharon Chester v. Liberty Mutual Our File No: 014775.75 Dear Steve: WRITER'S Ex,r. No.] (;,5 F-l?t till: jhf?adstiti•.com I have no record of hearing back from you to my letter asking that you appoint an arbitrator. Please let me know what you want to do at this point in time. I guess I can file a Petition with the Court to have an arbitrator appointed on your behalf but do not want to do that if at all possible. Please advise. Very truly yours, SON, DUF IE, STEWART & WEIDNER ettig li# JBR/mmc 323609 301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WWW.JDSW.COM 717.761.4540 FAX: 717.761.3015 MAIL@JDSWCOM JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing PETITION TO APPOINT NEUTRAL ARBITRATOR has been duly served upon the following counsel of record, by depositing the s me in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on the day of March, 2008: Stephen Held, Esquire Handier, Henning & Rosenberg 1300 Linglestown Rd. Harrisburg, PA 17110 N, DUFFIE, STEWART & WEIDNER 4S B. j'ettig, Esquire :325730 F? -?C a., N N ? w a ("? rv s. ? 5b vt d cn -? 77ts T O 0 SHARON CHESTER, PLAINTIFF V. LIBERTY MUTUAL INSURANCE CO., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-1480 CIVIL TERM ORDER OF COURT AND NOW, this 1( day of March, 2008, a Rule is entered against Sharon Chester to show cause why this court should not appoint an arbitrator on her behalf, which arbitrator shall then consult with the arbitrator already appointed by Liberty Mutual Insurance Company on order to appoint a neutral arbitrator. Rule returnable seven (7) days after service. By the Co Edgar B. Bayley; ZStephen G. Held, Esquire For Plaintiff Zeffrey B. Rettig, Esquire For Defendant :sal CO tes mill LeCL -3111 lo $ rl ,ol C u cr _ c. z Lq {3„ v LL cc? N