The URL can be used to link to this page

Home My WebLink About98-5741 CivilGARTH M. SPONAGLE : and NORMAL. : SPONAGLE, his wife, : Plaintiffs : V. ~ DONEGAL MUTUAL : INSURANCE COMPANY,: t/d/b/a DONEGAL : COMPANIES, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 98-5741 CIVIL TERM IN RE: DEFENDANT'S PETITION TO AMEND ANSWER WITH NEW MATTER BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this 8th day of January, 2001, upon consideration of Defendant's Petition To Amend Answer with New Matter, and for the reasons stated in the accompanying opinion, the petition is granted, without prejudice to Plaintiffs' right to challenge the merits of the additional defense at a subsequent point in the case. BY THE COURT, .r /i ' .,.~ Wesley Ol~.~r., J. Marcus A. McKnight, III, Esq. Mark D. Schwartz, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorneys for Plaintiffs Daniel K. Deardorff, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendant GARTH M. SPONAGLE : and NORMAL. : SPONAGLE, his wife, : Plaintiffs : V. : DONEGAL MUTUAL : INSURANCE COMPANY,: t/d/b/a DONEGAL : COMPANIES, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 98-5741 CIVIL TERM IN RE: DEFENDANT'S PETITION TO AMEND ANSWER WITH NEW MATTER BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, J., January 8, 2001. In this civil action against an automobile insurance company, Plaintiff insureds have sued for breach of contract and bad faith arising out of Defendant's failure to pay certain lost wages and medical bills which allegedly resulted from a motor vehicle accident in which they were injured. For disposition at this time is a petition filed by Defendant insurer for leave to amend its answer with new matter to include an allegation that Plaintiffs executed a release in favor, among others, of a driver of another vehicle involved in the accident. For the reasons stated in this opinion, Defendant's petition to amend will be granted. STATEMENT OF FACTS This action was commenced by a praecipe for writ of summons on October 6, 1998. Plaintiffs' complaint was filed on November 19, 1999. The complaint alleged (a) that as a result of a motor vehicle accident on October 15, 1996, Plaintiffs were injured, (b) that at the time of the accident they were insured by Defendant, (c) that Defendant failed to pay for certain medical treatment and lost wages incurred in the accident, and (d) that Defendant's failure to pay was in bad faith. Defendant filed an answer with new matter on December 23, 1999. This pleading basically averred that Defendant had paid Plaintiffs' claims which were attributable to the accident and had declined to pay claims which were not attributable to the accident. On April 20, 2000, Defendant filed the petition sub judice to amend its answer with new matter. The petition averred that discovery had not been completed and that the case had not yet been listed for trial. It averred further that, a few days prior to the filing of its petition, Defendant had discovered through a subpoena to the attorney for the driver of another vehicle involved in the accident that Plaintiffs, on November 3, 1999, had released that driver in return for the sum of $38,132.00. The release contained the following language, according to Defendant: FOR AND IN CONSIDERATION of the sum of THIRTY-EIGHT THOUSAND ONE HUNDRED THIRTY- TWO AND NO/100 DOLLARS ($38,132.00) paid to the undersigned, Garth M. Sponagle and Norma L. Sponagle, and the receipt and sufficiency of which is hereby acknowledged, the undersigned agree to fully release, discharge, hold harmless, and indemnify ALLEN LEE FOGLE, GLENN EAVES, t/d/b/a OAK BLUFF FARMS, NATIONWIDE INSURANCE COMPANY, KINSLEY CONSTRUCTION, INC., ZURICH AMERICAN INSURANCE COMPANY, and all other persons, associations and corporations, whether or not named herein, their heirs, executors, administrators, successors, assigns and insurers, and their respective agents, servants, employees and attorneys, from any or all causes of action, claims and demands of whatsoever kind on account of all known, and unknown injuries, losses and damages allegedly sustained by Garth M. Sponagle and Norma L. Sponagle on October 15, 1996, and, specifically, from any claims, or joinders, for sole liability, contribution, indemnity or otherwise as a result of, arising from, or in any way connected with injuries sustained by Garth M. Sponagle and Norma L. Sponagle and on account of which a Legal Action was 2 instituted by the undersigned in the Court of Common Pleas, Cumberland County, Pennsylvania, at Docket No. 98-5740 - Civil, and the defense and handling thereof from the inception of the claim until the date of this Full and Final Release. Defendant's petition requested leave of court to amend its answer with new matter to include an allegation that Plaintiffs had issued the said release. In response to the petition, the court issued a rule upon Plaintiffs to show cause why the amendment should not be permitted. By an answer filed on May 25, 2000, Defendant admitted the pendency of discovery, the fact that the case had not been listed for trial, and the execution of the release. Plaintiffs denied that the release constituted a defense in the present action, contended that Defendant should have been aware of the release at the time it was executed, and argued that allowance of the amendment would delay trial. On July 10, 2000, the parties conducted a deposition of Janet Sandillon, a medical coordinator and claims supervisor for Defendant, for the purpose of providing a record for disposition of Defendant's petition to amend. This testimony supported Defendant's position that Defendant had not been aware of the release until a subpoena resulted in its production in April of 2000, and that this lack of knowledge was not the product of any absence of due diligence on Defendant's part. DISCUSSION Under Pennsylvania Rule of Civil Procedure 1033, it is provided as follows: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or aRer the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. "[I]t has been firmly established that the right to amend a pleading is a matter of judicial discretion and should be liberally granted at any stage of a proceeding unless it constitutes surprise which results in prejudice to an adverse party, or the grant thereof constitutes an error of law." Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 121 n.6, 516 A.2d 299, 302 n.6 (1986). Alloxvance of an amendment of an answer to assert a defense of release is not unusual. See, e.g., Vaughn v. Didizian, 436 Pa. Super. 436, 648 A.2d 38 (1994). With respect to prejudice, the Pennsylvania Supreme Court has stated as follows: All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed. Bata v. Central-Penn Nat? Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied, 409 U.S. 1108, 93 S. Ct. 910, 34 L. Ed. 2d 689 (1973). An example of resulting prejudice which would warrant the denial of a motion to amend has been said to be the addition of a new cause of action to a complaint after the statute of limitations has run upon the claim. See McCartney v. Dunn & Conner, Inc., 386 Pa. Super. 563,569, 563 A.2d 525,528 (1989). "Written releases are construed according to the rules governing the construction of contracts generally .... The intention of the parties to a written release is paramount .... "Sparler v. Firemen's Insurance Co. of Newark, 360 Pa. Super. 597, 601,521 A.2d 433,434 (1987). In the present case, the court is unable to agree with Plaintiffs that a sound basis for denying Defendant's petition to amend its answer with new matter to add a defense of release exists. The defense could properly have been included in the 4 original pleading. Prejudice to Plaintiffs of the type discussed above has not been shown. Although it may well be that the record will ultimately not support the defense,~ it is believed that it would be premature to resolve this interpretative issue adversely to Defendant upon a request by Defendant to do no more at this time than advance the defense. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 8th day of January, 2001, upon consideration of Defendant's Petition To Amend Answer with New Matter, and for the reasons stated in the accompanying opinion, the petition is granted, without prejudice to Plaintiffs' right to challenge the merits of the additional defense at a subsequent point in the case. BY THE COURT, Marcus A. McKnight, III, Esq. Mark D. Schwartz, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorneys for Plaintiffs Daniel K. Deardorff, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendant /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. ~ See $t~arler v. Firemen's Insurance Co. of Newark, 360 Pa. Super. 597, 521 A.2d 433 (1987) (statement to effect that record did not support motor vehicle insurer's position that release of third-party tortfeasor operated to discharge insurer from obligation to provide underinsured motorist benefits to insured). 5