from Pasparage v. Progressive Specialty Ins. Co.As decided last month by Judge Maureen Kelly (WD Pa.):
The plaintiff … was injured in a car accident caused by a negligent driver. The parties agree that the driver was at fault for the accident and agree that his insurer paid the full limit of his liability policy. Through this breach of contract, plaintiff seeks additional recovery under the underinsured motorist (“UIM”) provision of her insurance policy, issued by defendant Progressive Specialty Insurance Company. The parties dispute the extent of plaintiff’s injuries resulting from the accident, and Progressive has denied plaintiff’s UIM claim
Progressive filed a motion in limine to exclude references at trial to Progressive as a named defendant. Progressive contends that it would be unfairly prejudiced if a jury were aware of its relationship to the action. Thus, progressive requests that the parties use the name of the non-party driver as a defendant. Progressive argues that the substitution is in accordance with the “forum state – Pennsylvania substantive law” and non-depository opinions issued by the Pennsylvania Superior Court. Stepanovich v. McGrath (Pa. Super. 2013), where the underlying tortfeasor was also a party to the action.
Plaintiff opposed the motion. He stated that he did not wish to present evidence of the amount of Progressive’s UIM coverage limits or the tortfeasor’s liability insurance limits. However, plaintiff argues that Progressive should remain as a named defendant so that the jury can understand Progressive’s role as an adverse party and breach of contract claim for UIM benefits….
Progressive … seeks to protect his identity from the jury due to the widely reported fear of an inflated jury verdict. Support, progressive quotes Paxton Nat. Ins. Co. Co. v. Brick ceiling (Pa. 1987), which involved a breach of a contractual duty to cooperate in a reversionary action to recover damages paid by the insured. The policyholder refuses to allow the insurer to proceed against the third party in his name. The Pennsylvania Supreme Court concluded that the insured was in material breach of the policy because the rescission action “would almost certainly be stronger if filed in the insured’s name,” and using his name would protect a jury from the temptation to render a decision” based on extrinsic considerations that An insurance company will actually pay the bill.”
Here, Progressive fails to provide any obligation or persuasive authority that would permit it to protect its identity by naming an individual before the jury who is not a party to the UIM policy, under no obligation under the policy, and who has no legal obligation to the instant case . . .
The progressive brief invokes Federal Rule of Evidence 403, which provides that “[t]”The court may exclude relevant evidence if its probative value is substantially outweighed by danger … of unfair prejudice, confusing the issues, confusing the jury, unduly delaying, wasting time, or presenting unduly cumulative evidence.” As in Rule 411. , Rule 403 is not a proceeding permitting a party to proceed anonymously or in the name of a non-party and … runs counter to the general right of the public to know the identity of persons appearing before the court. Absent the exceptional circumstances set forth by Progressive, the requested relief is not warranted.
Finally, the court noted that any potential prejudice to the proceeding in its own name was offset by plaintiff’s agreement not to present evidence of UIM policy limits and the amount of underlying liability payments received….
Within five days, the case was settled (although this may also have stemmed from the court’s decision to exclude evidence of the plaintiff’s hernia, which the plaintiff claimed was caused by the injury; the court said expert evidence would be needed to support that theory).