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HomeMy WebLinkAbout12-3327C !1 Johnson, Dtoffie, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 196116 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com STEPHEN DONMOYER, V. Plaintiff UL i J- L; k.; Attorneys for Defendant Liberty Mutual Insurance Co. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. /a --?3.-2,7 t?r v? t???-end CIVIL ACTION - LAW LIBERTY MUTUAL INSURANCE CO., Defendant 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 states as follows: 1. The Plaintiff's alleged injuries arise out of an automobile accident that took place on or about November 27, 2001, on Poplar Street at the entrance to the Holy Spirit Hospital, Camp Hill, 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 Liberty Mutual UIM Endorsement is attached hereto as Exhibit A. (i) alb 3.'75 i L 44-kl 02 IC-4 GQ 'Xay 3. 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. 4. The aforementioned arbitration clause further provides 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. 5. At this point, both of the parties have agreed to an arbitrator of their choice: Defendant appointed Kent Price, Esquire; Plaintiff appointed Robert Claraval, Esquire. 6. On November 24, 2010, Counsel for the Defendant requested assistance from Plaintiff's counsel in appointing a third neutral arbitrator. 7. Thereafter, the parties exchanged suggestions for a third neutral arbitrator; however, to date, they have not been able to agree upon that person. 8. On April 5, 2012, Counsel for the Defendant notified Plaintiff's counsel, in writing, of his intention to file the within Petition to ask this Honorable Court to appoint a third arbitrator. A copy of the correspondence between the parties is attached hereto as Exhibit B. WHEREFORE, Defendant Liberty Mutual Insurance Company respectfully requests that your Honorable Court appoint a neutral arbitrator to preside over this matter. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER BY: 9Rettig quire No.: 19616 301 Market Stree PO Box 109 Lemoyne, PA 17043 (717) 761-4540 Attorneys for Defendant Date: May 24, 2012 497369 2 ?/? Liberty InsuraL Corporation Liberty PO Box 1128 Mutual. 512 E Township Line Rd Blue Bell PA 19422 Tel: (800) 362-5698 / (800) 362-5698 Fax: (603) 422-0103 October 03, 2011 LAW OFFICES' JOHNSON DUFFIE PO BOX 109 LEMOYNE PA 17043-0109 ATTN JEFFREY B. RETTIG, ESQUIRE INSURED: MISTY DONMOYER CLAIMANT: STEPILIEN M. DONMOYER DATE OF LOS$: 11/27/2001 CLAIM NUMBER: LA830-001947998-05 Dear Jeff. Enclosed please find a copy of the UIM endorsement AS 2051 09 00. Sincerely, CLARE MACNABB Claims Department Ext. 72187 Helping People Live Safer, More Secure Lives FREEFRM ENDORSEME ( ?NGES THE POLICY. PLEASE RRI 1 CAREFULLY. 'c bINDERINSUt ED MOTORISTS COVERAGE - PENNSYLVANIA(STACKED) AS 2051 09 00 (PP 04 19 06 95) With respect to the coverage provided by this endorsement, the provisions of the policy apply unless modified by the endorsement. SCHEDULE UNDERINSURED MOTORISTS COVERAGE Description Limit of of Vehicle Liability Premium $ $ $ $ $ $ INSURING AGREEMENT A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "underinsured motor vehi- cle" because of "bodily injury": 1. Sustained by an "insured"; and 2. Caused by an accident. The owner's',or operator's liability for these dam- ages must arpse out of the ownership, maintenance or use of the' "underinsured motor vehicle". We will pay under this coverage only if 1. or 2. below applies: 1. The limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements; or 2. A tentative settlement has been made between an "insured" and the insurer of the "underinsbred motor vehicle" and we: a. Have been given prompt written notice of such tentative settlement; and b. Advance payment to the "insured" in an amount equal to the tentative settlement within '130 days, after receipt of notification. No judgment for damages arising out of a suit brought against the owner or operator of an "underinsuredmotor vehicle" is binding on us un- less we: 1. Received reasonable notice of the pendency of the suit resulting in the judgment; and 2. Had a reasonable opportunity to protect our interests in''the suit. B. "Insured" as used in this endorsement means: 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person de- scribed in 1. or 2. above. C. "Underinsured motor vehicle" means a land motor vehicle or trailer of any type to which a bodily in- jury liability bond or policy applies at the.time of the accident but the amount paid for "bodily injury" under that bond or policy to an "insured" is not enough to pay the full amount the "insured" is le- gally entitled to recover as damages. However, "underinsured motor vehicle" u'btt,not include any vehicle or equipment: 1. For which liability coverage is provide under Part A of this policy. 2. Operated on rails or crawler treads. 3. Designed mainly for use off public ro'ad's while not on public roads. 4. While located for use as a residence or prem- ises. EXCLUSIONS A. We do not provide Underinsured Motori's'ts Cover— age for "bodily injury" sustained: 1. While "occupying" a motor vehicle owned by you or a "family member" not insured for Un- derinsured Motorists Coverage under this pol- icy; nor to "bodily injury" from being hit by any such motor vehicle. 2. By a "family member": 1. You or any "family member". 2. Any other person "occupying" "your covered auto". a. Who owns an auto, while "occupying" , or when struck by, any motor vehicle owned by you or any "family member" which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. Page I of 3 PF AS 21'U51 09 00 (PP 04 1: 06 95) b. Who does not own an auto, while "occupying", or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy. B. We do not provide Underinsured Motorists Cover- age for "bodily injury" sustained by any person: 1. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.1.) does not apply to a share- the-expense', car pool. 2. Using a vehicle without a reasonable belief that that person is entitled to do so. C. We do not provide Underinsured Motorists Cover- age for "noneconomic loss" sustained by any per- son to whom the limited tort alternative applies, re- sulting from 'iodily injury" caused by an accident involving an'*dermsuredmotor vehicle", unless the "bodily injury" sustained is a "serious injury". This exclusion (C.) does not apply if that "insured" is injured while "occupying" a motor vehicle in- sured under a commercial motor vehicle insurance policy. D. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the follovsing or similar law: 1. IY3 kern' compensation law; or 2. Disability benefits law. E. We do rot provide Underinsured. Motorists Cover- age for punitive or exemplary damages. LIMIT Of LIABILITY A. Except as provided in paragraph B., the limit of liability shown' in the Schedule or in the Declara- tions for Underinsured Motorists Coverage is our maxvrrlm limit of liability for all damages result- ing; from any one accident. This is the most we will pay regardless 'of the number of 1. "Insureds 2. Claims made; 3. Vehicles or premiums shown in the Schedule or in the Declarations; or 4. Vehicles involved in the accident. B. If "bodily injury" is sustained in an accident by you or any "famil=ages mber", our maximum limit of l- ability for all in any such accident is the sum of the limits of liability for Underinsured Mo- torists Coverage shown in the Schedule or in the Declarations applicable to each vehicle. Subject to this maximum limit of liability for all damages, the most we will pay for "bodily injury" sustained by an "insured" other than you or any "family mem- ber" is the limit of liability shown in the Schedule or in the Declions applicable to the vehicle the "insured" was 'occupying" at the time of the acci- dent. This is the most we will pay regardless of the -iimUar nf- 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Schedule or in the Declarations; or 4. Vehicles involved in the accident. C. The damages payable under this coverage shall be reduced by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid for an "insured's" attorney either directly or as part of the amount paid to the "insured". It also includes all sums paid under Part A of this policy. D. No one will be entitled to receive duplicate pay- ments for the same elements of loss under this cov- erage and Part A, Part B or Part C of this policy. E. We will not make a duplicate payment under this coverage for any element of loss for which pay- ment has been made by or on behalf of persons or organizations who may be legally. responsible. F. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. OTHER INSURANCE If there is other applicable similar insurance available under more than one policy or provision of coverage: The following priorities of recovery apply: First The Underinsured Motorists Coverage applicable to the vehicle the "insured" was "occupying" at the time of the acci- dent. Second The policy affording Underinsured Mo- torists Coverage to the "insured" as a named insured or family member. If two or more policies have equal priority, the insurer against whom the claim is first made shall process and pay the claim as if wholly responsible for all insurers with equal priority. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim. If we are the insurer against whom the claim is first made, we will pay, subject to the limit of liability shown in the Schedule or in the Declarations for Un- derinsured Motorists Coverage, after we and all other contributing insurers agree: 1. Whether the "insured" is legally entitled to re- cover damages from the owner or operator of an "underinsured motor vehicle"; and 2. As to the amount of damages. ARBITRATION A. If we and an "insured" do not agree: AN ZUK 09 f (PI' 04 19 06 911) 1. Whs*'?Pr that "insured" is legally entitled to re- cover damages; or 2. As to the amount of damages which are recover- able by that "insured"; From the owner orI6perator of an "underinsured motor vehicle" then th`e. matter may be arbitrated. However, disputes cone ring coverage under this endorsement, may not be arbi: sated. Either party z ay make a written demand for arbi- tration. Arbitration shall be conducted in accor- dance with the provisions of the Pennsylvania Uni- form Arbitration Act. Each party will select an arbitrator. The two arbitrators will select a third. If they carmot agree within 30 days, either may re- quest that selection be made by a judge of a court having jurisdiction. Arbitrations all not, however, be a means of set- tlement should the dispute involve: 1. Any form of inter- or intea-policy stacking, or 2. Selection of a coverage option, or a waiver of such coverage, or 3. Determination of residency in defining who is or is not an insured under this coverage, or 4. Statutes of Imitation, or 5. Determination of whether a claimant is an in- sured under these coverages. B. Each party will: 1. Pay the expenses it incurs; and 2. Bear the expenses of the third arbitrator equally. C. Unless both parties agree otherwise, arbitration will take place in the county in which the "insured" lives. Local rules of law as to procedure and evi- dence will apply. A decision agreed to by two of the arbitrators! will be binding. ADDITIONAL DUTIES A person seeking, Underinsured Motorists Coverage must also promptly: 1. Send us cgpies of the legal papers if a suit is brought; ahd 2. Notify us in writing of a tentative : ettlemerrt between the "insured" and the insurer of the "underinsured motor vehicle" and allow us 30 days to advance payment to that "i-lsured" in ari amount equal to the tentative settlement to pna- serve our rights against the insurer, owner or operator of such "underinsuredmutor vehicle". PART F - GENERAL PROVISIONS Part F is amended as follows: A. The following is added to the Our Right To Re- cover Payment provision: OUR RIGHT TO RECOVER PAYMENT Our rights do not apply under paragraph A. with re•• spect to Underinsured Motorists Coverage if we: 1. Have been given prompt written notice of a tentative settlement between an "insured" and the insurer of an "underinsured motor vehicle"; and 2. Fail to advance payment to the "insured" in ar amount equal to the tentative settlement withi 30 days after receipt of notification. If we advance payment to the "insured" in an amount equal to the tentative settlement within 30 days after receipt of notification: 1. That payment will be separate from anv amount the "insured" is entitled to recover a4der, the provisions of Underinsured Motorists C;naerage; and 2. We also have a right to recover the advanced payment. B. The following is added to the Two Or Mor?.Auto Policies provision: TWO OR MORE AUTO POLICIES 1. This provision does not apply to Underinsured Motorists Coverage. 2. No one will be entitled to receive duplicator payments for the same elements of loss under Underinsured Motorists Coverage. This endorsement must be attached to the Change Endorsement when issued after the policy is written. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Copyright, Insurance Services Office, Inc., 1994 Page 3 of 3 PF I- ELIZABETH D. SNOVER DUFFIE SARAH E. HOFFMAN RICHARD W. STEWART EDMUND G. MYERS MCCLAIN L A W O F F I C E S ACLYN B. JOHN A LUCY . DAVID W. DELUGE STATLER A / ULj-* S S. WILSON SON JOHN . >1., PHILLIPS JEFFERSON J. SHIPMAN T T FREY B. RET TIG JEF MARK C. DUFFIE 0'F? SEL FRE v HORACE A.JOHN N JOHN R. NINOSKY C. ROY WEIDNER, JR. MICHAEL J. CASSIDY CONSTANCE P. BRUNT MELISSA PEEL GREEVY WADE D. MANLEY WRITBR ti E, T. N ). l6-5 E-j•J-AiL jbrcijdsw.co- April 5, 2012 Dusan Bratic, Esquire 101 Office Centler, Suite A 101 S. U. S. Route 15 Dillsburg, PA 17019 Re: $tephen Donmoyer v. Liberty Mutual Maim No. 0019479980005 Dear Dusan: Liberty Mutual has decided against asserting the statute of limitations in this matter and is thus prepared to proceed to Arbitration. We will be filing a Petition with the Court to appoint a neutral Arbitrator. Very truly yours, IE, STEWART & WEIDNER JBR:csj:490169 301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WWWJDSWCOM 717.761.4540 FAX: 717.761.3015 MAIL@JDSW.COM 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 same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on the 24th day of May, 2012: Dusan Bratic, Esquire 101 Office Center, Suite A 101 S. U. S. Route 15 Dillsburg, PA 17019 (Counsel for Plaintiff) JOHNSON, DUFFIE, STEWART & WEIDNER BY: ff B. Retti squire ,i-o„! 1 STEPHEN DONMOYER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. la - 3327 ervi L LIBERTY MUTUAL INSURANCE CO., CIVIL ACTION - LAW Defendant i ORDER AND NOW, this jL4 day of May, 2012, in consideration of Defendant's Petition to Appoint Neutral Arbitrator, it is hereby Ordered that Defendant's Petition is GRANTED. It is further ordered that Esquire is appointed as the neutral arbitrator in this matter. Distribution List: ? • Dusan Bratic, Esquire, 101 Office Center, Suite A, 101 S. U. S. Route 15, Dillsburg, PA 17019 (717) 432-9706 (Counsel for Plaintiff) Jwl: ph.lhrsfCj . • Jeffrey B. Rettig, Esquire., Johnson, Duffie, Stewart & Weidner, P.C., 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109 (717) 761-4540 (Counsel for Defendant) ep.es kna- led 41111 Ael RY THE r0l1RT-