Smith v. Rohrbaugh

OPINION BY OTT, J.: Kathy Smith, as Executrix of the Estate of Kenneth Smith and in her own right, appeals from the judgment entered in the Court of Common Pleas of York County following a jury verdict in a case arising out of an automobile accident between Kenneth Smith and Linda Rohrbaugh. Smith claims the trial court erred in molding the jury verdict to zero based upon the prior receipt of underinsured motorist benefits, improperly granted a $15,000.00 offset for work loss benefits, and improperly denied the request for $11,533.40 in costs. After a thorough review of the submissions [894] by the parties, the official record, and relevant law, we affirm the trial court’s decisions regarding the work loss benefits. We affirm in part and reverse in part on the issue of costs. Finally, we agree with Smith that the trial court erred in molding the jury award to zero based upon Smith’s prior receipt of underinsured motorist benefits. Therefore, we reverse on that issue and reinstate the molded verdict of $85,036.00. The basic facts and procedural history of this matter are simply related. On January 24, 2006, Kenneth Smith, now deceased, was involved in an automobile accident with Linda Rohrbaugh. Smith had stopped on West Market Street in York, Pennsylvania, when Rohrbaugh failed to stop her vehicle in time and struck the rear of Smith’s car. Smith claimed the force of the impact pushed his car into the car in front of him. Subsequently, Smith filed a claim for underinsured motorist (UIM) benefits against his own automobile insurance policy. That claim settled with a payment of $75,000.00. Smith’s insurer, State Farm, also waived whatever subrogation rights it might have against any further payment from the alleged tortfeasor (Rohrbaugh). Smith then instituted the instant lawsuit by writ of summons. A complaint was filed on February 19, 2008 claiming negligence, loss of consortium and punitive damages.1 Smith alleged the accident caused him various damages including bodily injuries to his back, neck, shoulders, and a concussion. See Complaint, 2/19/08, at ¶ 13. He also claimed the injury to his neck required surgery. Id. Trial of the case began on June 15, 2009 and the jury verdict was entered on June 17, 2009. Negligence had been admitted prior to trial, but the jury was required to determine whether the negligence was a factual cause of Smith’s injuries. The jury did so determine and awarded damages in the amount of $50,036.00. This amount was specifically apportioned as $29,036.00 for medical expenses, $16,000.00 for lost wages, and $5,000.00 for pain and suffering. Kathy Smith received no award for loss of consortium. The verdict was molded to $35,036.00 because Smith had already received $15,000.00 in work loss benefits and the amount had been stipulated to by the parties. On June 23, 2009, Rohrbaugh filed a post-trial motion asking to have the verdict molded to zero to reflect the $75,000.00 payment Smith had received prior to trial in UIM benefits. Rohrbaugh argued payment of the verdict would amount to an impermissible double recovery, as the jury verdict did not exceed the underinsured benefits Smith had already received. On June 26, 2009, Smith filed a post-trial motion seeking reimbursement for costs of $11,533.40. Smith also claimed Rohrbaugh was only entitled to a $10,000.00 credit for work loss benefits, not the $15,000.00 awarded by the trial court. The trial court denied Smith’s motions and granted Rohrbaugh’s motion to mold the verdict to zero. The trial court granted that motion on the basis of the then recently decided Superior Court decision in Pusl v. Means, 982 A.2d 550 (Pa.Super.2009).2 The Pusl decision held that [895] UIM benefits were precluded as double recovery in a tortfeasor action pursuant to 75 Pa.C.S. § 1722. A panel of our Court subsequently affirmed the trial court’s decision in the instant matter; however, that decision was withdrawn when Smith’s petition for en banc review was granted. Because we are reversing the trial court’s decision to mold the verdict to zero based on Smith’s receipt of UIM benefits, we will address that issue first. Smith raises four arguments why the trial court erred in molding the verdict to zero: (1) the instant case is distinguishable from Pusl, therefore Pusl is not binding; (2) the trial court improperly rewrote the terms of the UIM settlement between Smith and State Farm; (3) even if Pusl is otherwise controlling law, it should only be given prospective application; and (4) Pusl was wrongly decided. We agree that Pusl was wrongly decided and now overrule that decision. Pusl correctly states that Section 1722 prevents double collection of first-party benefits. However, Pusl then equates the payment of underinsured motorist benefits with first-party benefits and, as a result, concludes Section 1722 applies to UIM payments. This is a misinterpretation. Section 1722 states: § 1722 Preclusion of recovering required benefits In any action for damages against a tortfeasor, or in any uninsured or under-insured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation or other arrangement for payment of benefits as defined in section 1719. The “subchapter” referred to in Section 1722 is Subchapter B, regarding first-party benefits.3 The “other programs” referred to as defined in Section 1719 are the statutorily defined benefits found in Sections 1711, 1712 and 1715, as well as workers’ compensation benefits and hospital plans or professional health service plans. The benefits defined in Section 1712 are medical benefits up to $100,000.00 in coverage, income loss benefits, accidental death benefits, funeral benefits, combination benefits (a combination of available benefits), and extraordinary medical benefits exceed [896] ing $100,000.00.4 Section 1711 requires every liability insurance policy issued to a motor vehicle registered under this title to provide $5,000.00 in medical benefits. Section 1715 sets the maximum coverage available for each of the defined first-party benefits. Despite the assertion in Pusl, underin-sured motorist benefits are absent from the list of precludable first-party benefits described “under this subchapter.” While UIM benefits are not found in Subchapter B, we note that they are sometimes referred to as first-party benefits because they are typically provided by a claimant’s own insurance policy. However, colloquial reference to UIM as a first-party benefit does not mandate we add UIM to those benefits the legislature has specifically designated by statute as first-party benefits.5 To do so would usurp the legislature’s .power and improperly rewrite the statute.6 This interpretation is supported by the fact that UIM coverage is specifically designated as a separate available coverage by statute located in Subchapter C7 of the Motor Vehicle Financial Responsibility Law (“MVFRL”). Subchapter C is entitled, “Uninsured And Underinsured Motorist Coverage.” By placing first-party benefits and UIM coverage in different subchapters, the legislature was clearly designating the two as distinct entities. Therefore, references in Section 1722 to coverages available “under this subchap-ter,” namely B, cannot rationally include coverage found in Subchapter C. Finally, our Supreme Court has stated the Legislature’s intent in enacting Section 1722 was to “shift a substantial share of the liability for injuries caused by uninsured and underinsured motorists from automobile insurance carriers to collateral source providers (many of which previously held subrogation interests), obviously with the aim to reduce motor vehicle insurance premiums.” Tannenbaum v. Nationwide Ins. Co., 605 Pa. 590, 992 A.2d 859, 866 (2010). Applying Section 1722 to the interplay between two aspects of automobile insurance, third-party coverage and underinsured coverage, cannot accomplish the Legislature’s intent of shifting responsibility away from auto insurance. While imposing the offset would undoubtedly act to keep premiums in check, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing the spirit.” 1 Pa.C.S. § 1921(b). Therefore, regarding the application of Section 1722 to the present situation: (1) UM/UIM motorist coverage is not defined or regulated in Subchapter B, which specifically relates to first-party coverage. Rather, UM/UIM coverage is defined and regulated under Subchapter C; (2) Section 1722 does not specifically refer to UM/ UIM benefits as precludable; (3) case law recognizes UM/UIM benefits are not stat [897] utorily recognized first-party benefits; and (4) the application of Section 1722 to the interplay between third-party-tortfeasor coverage and UM/UIM coverage does not further the legislative intent of the section. Given these facts, it follows that Section 1722 was not designed or intended to require the offset of UIM benefits from an award against a tortfeasor. Therefore, the decision in Pusl, and subsequently the underlying decision on this matter have been based on improper grounds. Smith also argues that the trial court improperly voided the agreement between them and State Farm to waive subrogation rights. In essence, molding the verdict to zero granted State Farm the subrogation it waived. Because our resolution of the issue is based upon statutory interpretation, this argument is not dispositive. However, we note our agreement with Smith. While subrogation rights are addressed in terms of Subchapter B first-party benefits, subrogation can be a matter of contract in adversarial actions. While there is always a legal right to subrogation, that right, like any, can be waived or modified by agreement of the parties. If an insurer waives its right to collect against the tortfeasor, we see no reason why the courts should interfere with that arrangement.8 In this instance, the waiver of subrogation rights may have disadvantaged State Farm, but State Farm is a sophisticated party and is free to enter into an agreement that might prove financially improvident. In the final issue,9 Smith claims the trial court erred in denying the application for payment of bill of costs. Smith sought payment of $10,260.41 in costs as the prevailing party. The vast majority of these costs, $8,866.42, were attributed to expert fees and technological personnel to operate digital machinery associated with the expert’s testimony. “It is a general rule in our judicial system, stemming from the Statute of Gloucester, 6 Edw. 1, c. 1 (1275) that costs inherent in a law suit are awarded to and should be recoverable by the prevailing party.” De Fulvio v. Holst, 239 Pa.Super. 66, 362 A.2d 1098, 1099 (1976). Important to our analysis of all Appellant’s issues is the distinction between record costs (such as filing fees) and actual costs (such as transcript costs and witness fees). Record costs are “the costs of proceeding in court, not those of preparation, consultation, and fees generally.” Id. Zelenak v. Mikula, 911 A.2d 542, 544 (Pa.Super.2006). Additionally, “[a]t law the general rule is that costs follow as a matter of course, and the court has no discretion to award or deny them.” Id. at 545. Here, the trial court denied the payment of costs because Smith submitted [898] a bill that contained both record costs and actual costs. . The trial court ordered Smith to submit a bill with only record costs, but Smith did not do so. Therefore, the trial court denied all costs. Because the general rule is that the trial court has no discretion to deny proper costs, we are required to reverse the denial of payment. There is no dispute that the $134.00 (cost for filing suit), $33.21 (sheriff service York County), $26.00 (sheriff service Adams County), $23.75 (cost of five subpoenas), $26.60 (postage serving subpoenas, certified mail, return receipt), $4.75 (subpoena executed by court), and $2.70 (postage serving subpoena, certified mail, return receipt) are all properly considered record costs. These items total $251.01. Additionally, the trial court ordered the parties to supply it with certain items for a joint trial notebook pursuant to a preliminary trial order. See Order, 2/26/09. The parties had no discretion in this matter, therefore, the cost of supplying the materials needed for the trial court’s benefit are properly included as “costs of proceeding in court”, rather than as “preparation, consultation, and fees generally.” Zelenak, supra. These costs were listed by Smith as $40.07 (extra copies of exhibits for joint trial notebook), $22.50 (copy charges for joint trial notebook), and $26.35 (UPS fee to send joint trial notebook to trial judge). These non-discretionary costs, incurred pursuant to court order and for the trial court’s benefit, total $88.92. The total amount of record costs incurred by Smith was $339.93. Therefore, we reverse the denial of all costs and direct Rohrbaugh to pay $339.93 in addition to the reinstated $35,036.00 molded verdict.10 We direct the trial court to enter judgment in the manner described. Judgment affirmed in part, reversed in part. Matter is remanded to the trial court for action consistent with this decision. Jurisdiction relinquished. WECHT, J., files a Concurring Opinion. Footnotes [1] The claim for punitive damages was not submitted to the jury. [2] In Pusl, in a similar factual scenario, the award of damages was molded to reflect the prior payment of UIM benefits to the plaintiff. The amount of UIM benefits paid, $75,000.00, was determined to be a double recovery by the plaintiff and therefore precluded pursuant to Section 1722 (preclusion of recovering required benefits). In concluding UIM benefits were subject to Section 1722 preclusion, Pusl relied on Tannenbaum v. Nationwide Ins. Co., [895] 919 A.2d 267 (Pa.Super.2007). Tannenbaum determined that disability benefits, paid for by the claimant and that came from a source independent from the automobile policy, were not subject to Section 1722 preclusion. Pusl apparently interpreted this to mean that if the benefits were not from an independent source, then Section 1722 preclusion applied. Therefore, Pusl concluded that because UIM benefits did not fit the Tannenbaum scenario, they were precludable. "Appellant’s UIM benefits fall within Section 1722’s first-party benefits because the UIM benefit was paid to her from her personal insurance policy with State Farm.” See Tannenbaum v. Nationwide Ins. Co., 919 A.2d 267, 270 (Pa.Super.2007) (discussing "benefits [] which a plaintiff has paid for or earned through his employment are not within the purview of [Section] 1722 and the receipt of those benefits do not constitute a double recovery.”) Pusl, 982 A.2d at 556. The logical error in this statement is concluding that the Tannenbaum exception to Section 1722 was the only possible exception without examining the statutory definitions. Tannenbaum has since been overruled by our Supreme Court, see Tannenbaum v. Nationwide, 605 Pa. 590, 992 A.2d 859 (2010). [3] Subchapter B includes Sections 1711-1725. [4] See 75 Pa.C.S. § 1712(l)-(6) respectively. [5] Case law further supports this important differentiation between statutory definition and colloquial reference. Both Zappile v. AMEX, 928 A.2d 251 (Pa.Super.2007) and Condio v. Erie Ins. Exchange, 899 A.2d 1136 (Pa.Super.2006), recognize that UM/UIM (uninsured/underinsured) benefits are only colloquially referred to as first-party benefits. Also, Zappile and Condio both recognize another important difference: unlike statutorily defined first-party benefits, UM/UIM benefits are inherently adversarial, an award of benefits being subject to arbitration or trial. [6] See Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 206 n. 17 (2002) (courts not representative bodies and must not usurp the legislative function). [7] Subchapter C encompasses Sections 1731-1738. [8] It was argued in plaintiffs answer to defendant's motion to mold the verdict, that subro-gation is not actually at issue in this matter because the UIM carrier and third-party insurer are the same. In the instant factual scenario, as a practical matter to the insurer, the problem may simply be one of accounting, because the tortfeasor and injured party are insured by the same company, but actually subrogation would be against the third-party tortfeasor, not the insurer. [9] We need not reach Smith’s argument that under the "common fund doctrine” she is entitled to a credit for the $5,000 in attorney’s fees incurred in collecting the $15,000 work loss benefits since the official record indicates the parties stipulated to the full $15,000 deduction. See N.T. Trial, 6/16/09, at 93, Wayda v. Wayda, 395 Pa.Super. 94, 576 A.2d 1060 (1990) (courts may not ignore parties’ stipulations). [10] In its December 9, 2009 Order and Opinion, the trial court awarded Smith delay damages on the full amount of the jury verdict, $50,036.00. This decision does not alter that determination; Smith is entitled to delay damages pursuant to Pa.R.C.P. 238(2).