I. Key Issues under Pennsylvania Motor Vehicle Financial Responsibility Law ( MVFRL ) 75 Pa.C.S.A. Section 1701, et. seq.

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1 I. Key Issues under Pennsylvania Motor Vehicle Financial Responsibility Law ( MVFRL ) 75 Pa.C.S.A. Section 1701, et. seq. A. Serious Injury 1. Serious Injury under the Law - Statutory Provisions 2. Definition and determination standards 3. Specific Cases a. Finding of serious injury b. Finding of no serious injury B. Occupant 1. Occupant - Statutory Provisions 2. Definition and determination standards 3. Specific Cases a. Finding of occupant b. Finding of no occupant C. Maintenance or Use 1. Maintenance or use - statutory provisions 2. Definition and decision standards 3. Specific Cases a. injury did arise from maintenance and use b. injury did not arise from maintenance and use D. Subrogation and First Party Benefits 1. Statutory Provisions a. Section Subrogation b. Section Required Benefits c. Section Availability of Benefits d. Section Availability of Adequate Benefits e. Section Coordination of Benefits 2 Case Law a. Workers Compensation b. ERISA c. Medicare E. Introduction of medical bills into evidence 1. Statutory Provisions 2. Case Law

2 II. Issues in UM/UIM Litigation A. Stacking 1. Controlling Case 2. Specific issues a. fleet policy b. spouse stacking under corporate fleet policy c. some fleet vehicles for personal use d. validity of anti-stacking provisions B. Exhaustion of Third Party Coverage 1. Specific Issues a. Exhaustion not required b. No consent to settle c. Settlement without consent d. prevention of claim from proceeding e. exhaustion against non-motor vehicle tortfeasors f. credit to all sources of coverage C. Arbitration 1. Determination of Issues to be arbitrated a. General Principles b. Matters which would be arbitrated c. Matters which would not be arbitrated 2. Appointment of Arbitrators 3. Discovery

3 III. Bad Faith - Standards and Defenses A. Statutory Provisions 1. Bad Faith Statute 2. Pennsylvania Unfair Insurances Practices Act 3. Black s Law Dictionary B. Case law treatment of definition and scope C. Actions constituting bad faith Broad Interpretation Narrower Interpretation D. Specific actions as bad faith 1. Examples of actions constituting bad faith 2. Examples of actions not constituting bad faith E. Damages 1. Attorneys fees 2. Compensatory Damages 3. Punitive Damages F. Right to Jury Trial

4 IV. Miscellaneous Insurance Decision Update A. Allegheny County B. Beaver County C. Lawrence County D. Washington County E. Westmoreland County V. Local Practices for Trial Listing

5 I. Key Issues under Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) 75 Pa.C.S.A. Section 1701, et.seq. A. Serious Injury 1. Statutory Provisions Section 1705(a)(1)(A) Limited Tort Option a. The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right of members of your household to seek financial compensation for injuries caused by other drivers. b. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other non-monetary damages unless the injuries suffered fall within the definition of serious injury as set forth in the policy or unless one of several other exceptions noted in the policy applies. Section 1702 Definition of Serious Injury - a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement 2. Definition and determination standards - determination of serious injury * Standard Washington v. Baxter, 719 A.2d 733 (Pa. 1998). a. The Pennsylvania Supreme Court adopted the Superior Court s interpretation of the term substantial impairment of bodily injury which followed the Michigan Model, as set forth in DiFranco v. Pickard, 398 N.W.2d 896 (Mich. 1986). * The serious impairment of bodily function threshold contains two inquiries: What body function, if any, was impaired because of injuries sustained in a motor vehicle accident? Was the impairment of the body function serious?

6 * The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. * Generally, medical testimony will be needed to establish the existence, extent and permanency of the impairment. * In determining whether the impairment was serious, the following factors should be considered: The extent of the impairment; The length of time the impairment lasted; The treatment required to correct the impairment; and Any other relevant factors. * Lastly, an impairment need not be permanent to be serious. Update Hames v. Philadelphia Housing Authority, 696 A.2d 880 The Court in Hames reaffirmed by the standard adopted in Washington v. Baxter and concluded that the test for determining whether an individual has suffered a serious impairment of body function, for purposes of MVFRL, requires a court to consider: The extent of impairment; The particular body function impaired; The length of time the impairment lasted; ; and The treatment required to correct the impairment. 3. Specific Cases Finding of Serious Injury a. Hames v. Philadelphia Housing Authority, 737 A.2d 825 (Pa. Cmwlth. 1999) Automobile accident resulting in head injury to minor child. No outward sign of injury; however, plaintiff-child complained of blurred and double vision, nausea, dizziness and hearing loss. Psychiatrist opined that these injuries were the signs and symptoms of a brain injury despite the absence of any apparent objective medical basis for making such a diagnosis. Court concluded that plaintiff-child s injuries fell within the statutory requirement of serious injuries. b. Hellings v. Bowman, 744 A.2d 274 (Pa. Super. 1999)

7 Following an automobile accident, plaintiff was taken to the emergency room, complaining of severe low back pain and bilateral leg pain Plaintiff claimed that his x-rays revealed a herniated disc and degenerative disc disease. Following the accident, plaintiff continued to suffer sharp pains, muscle spasms, frequent headaches and neck discomfort. As a result, plaintiff missed six weeks of work before returning to his job. Plaintiff maintained that the continued pain in his back and neck limited his physical interaction with his children and his ability to enjoy various activities, such as hunting and skiing. Court concluded that plaintiff s injuries fell within the statutory requirement of serious injuries. c. Kelly v. Ziolko, unpublished Superior Court Opinion filed pain in neck, lower back; numbness in face and toes discharged from E/R in two hours pt and MRI indicated herniated disc - no surgery needed dull, achy daily discomfort limitations on sleeping, running, lengthy walking or sitting, bike riding, etc. return to work as carpenter within 3 days no prescription or treatment for pain likely permanent pinching sensation in leg due to herniation. Finding of No Serious Injury

8 a. Washington v. Baxter, 719 A.2d 733 (Pa. 1998) Plaintiff suffered a cervical strain or sprain, cuts and contusions and an injury to his right foot as a result of an automobile accident. Immediately after the accident, plaintiff was treated in an emergency room and released within several hours. Plaintiff was absent from work for several days. Approximately a year after the accident, plaintiff complained that he suffered occasional foot pain and could no longer use a push mower to mow his lawn, and instead, had to use a riding lawn mower. Aside from the change in the lawn mower and use of shoe lifts, plaintiff was able to continue his normal daily activities. Court concluded that plaintiff s injuries did not fall within the statutory requirement of serious injuries. b. Merriweather v. Kain, 40 D. & C. 4 th 80 (C.P. Phila. Cnty. 1998) Immediately after an automobile accident, plaintiff complained of headaches and neck and back pain. In the year that followed, plaintiff limited his athletic activities. Additionally, plaintiff contended that his job as a behavior treatment specialist, which required him to physically restrain patients at times, became more difficult. Plaintiff switched jobs and became a drug and alcohol treatment counselor, which he testified as what he had always wanted to be. Plaintiff s chiropractor stopped his treatment approximately eight months after said accident. Plaintiff testified that he had occasional aches and pains and was still less active in sports than he was prior to the accident. Court concluded that plaintiff s injuries did not fall within the statutory requirement of serious injuries. c. Sommerer v. Slowik, (C.P. Bucks County, March 3, (1999) neck, low back and wrist pain, fracture of left wrist short arm cast for 5 weeks, 1 pt visit off work as roofer 5 months, but little work during this time likely anyway no other restrictions

9 d. Smith v. Altieri, 1997-C-5368 (C.P. North Hampton County, November 10, 1999) two dislocated toes on left foot needed to change shoe gear or undergo corrective surgery pain, limited treadmill, loss of golf, bowling and hiking e. Speakes v. Fisher, 41 D&C 4 th 349 (C.P. Monroe County, 1998). neck and lower back pain for couple of months limits on activities, not clear if chose not to or could not had to sit on a pillow while driving f. Johnson v. Guttfreund, 82 Erie 138 (Sept. 27, 1999) broken ankle, 4 weeks in cast head laceration and possible concussion continued shoulder pain difficulty in climbing, picking up child admitted she could do most of pre-injury activities to one extent or other g. McGee v. Muldowney, Pa.Super., 750 A.2d 912 (2000) cervical strain and sprain - E/R prescribed Tylenol no treatment for 10 more days radiculopathy of hand diagnosed, but x-rays were normal pt program, but MRI was essentially normal employed full-time as electrician, but employer did not notice he shunned lifting tasks Note: Question of Fact Cordaro v. Hedderick, 45 D&C 4 th 353 (Lackawanna, 2000). Fact that plaintiff was already vocationally disabled did not preclude finding of serious injury - jury question existed as to whether neck and back injuries sufficiently impeded ability to engage in activities that he could previously perform notwithstanding his heart related disability B. Occupant under MVFRL

10 1. Statutory Provisions Section 1713 Source of Benefits a. Except as provided in section 1714, a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority: For a named insured, the policy on which he is the named insured. For an insured, the policy covering the insured. For the occupants of an insured motor vehicle, the policy on that motor vehicle. For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident. For the purposes of this paragraph, a parked vehicle and unoccupied motor vehicle is not a motor vehicle involved in an accident unless it was parked so as to cause unreasonable risk of injury. 2. Definition and determination standards Standard Utica Mut. Ins. Co. v. Contrisciane, 473 A.2d 1005 (Pa. 1984) The Pennsylvania Supreme Court adopted a four factor test to determine whether the injured party qualified as an occupant under the MVFRL. Such factors are as follows: There is a causal relation or connection between the injury and the use of the insured vehicle; The person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle; The person must be vehicle oriented rather than highway or sidewalk oriented at the time; and The person must also be engaged in a transaction essential to the use of the vehicle at the time. 3. Case/Decisional Law Subject was found to be an occupant of the motor vehicle

11 Fisher v. Harleysville Ins. Co., 621 A.2d 158 (Pa. Super. 1993) Minor was struck by another vehicle while unloading rifle from his truck being used in a hunting trip. The Superior Court deemed minor to be an occupant of the truck within the meaning of policy and MVFRL. The Court reasoned that minor was considered an occupant because when he was injured, he was in close proximity to the truck and was truck oriented in that he was preparing to enter the truck lawfully and carefully, so that there was a causal connection between his injuries and the use of the truck. Subject was not found to be an occupant of the motor vehicle Downing v. Harleysville Ins. Co., 602 A.2d 871 (Pa. Super. 1992) The accident victim was struck by a third party and injured after exiting one vehicle on the side of the road, in order to help a disabled vehicle also along side of the road. The Superior Court held that the victim was not an occupant of the disabled vehicle, as he had never been inside the disabled car and there was nothing to indicate that he ever intended to enter the disabled vehicle. The Court reasoned that the victim s injuries were not causally connected to the vehicle in which he had been riding and therefore, the victim was highway oriented once he left his vehicle for purposes of helping the disable vehicle. C. Maintenance or Use under MVFRL 1. Statutory Provisions

12 Section 1712 Availability of Benefits An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcycles or like type vehicles, registered and operated in this Commonwealth, shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows: Medical benefit Income loss benefit Accidental death benefit Funeral benefit Combination benefit Extraordinary medical benefits 2. Determination of Maintenance or Use Standard Farm Mut. Auto Co., 566 A.2d 600 (Pa. Super. 1989) The Superior Court held that the test used in applying the maintenance and use requirement is whether the injury suffered was causally related to the use of the motor vehicle as a motor vehicle. 3. Case/Decisional Law Injuries arose out of the maintenance or use of motor vehicle Spisak v. Nationwide Mut. Ins. Co., 478 A.2d 891 (Pa. Super. 1984) Occupants of a parked automobile died as a result of carbon monoxide poisoning while they were engaged in compromising activities. The Superior Court concluded that the deaths of the occupants were the result of an accident that arose out of the maintenance or use of the motor vehicle because the vehicle was the instrumentality, which caused the harm. Injuries did not arise out of the maintenance or use of motor vehicle a. Cummings v. State Farm Mut. Auto Ins. Co., 596 A.2d 1138 (Pa. Super. 1991)

13 Insured sustained injuries as a result of a physical altercation with the other driver after the accident, and not as a result of the automobile accident itself. The Superior Court held that Insured s injuries did not arise out of the maintenance or use of the motor vehicle and were therefore not covered by the automobile policy pursuant to MVFRL. b. McKelvey v. Prudential Property & Cas. Ins. Co., 572 A.2d 769 (Pa. Super. 1990) Insured injured his shoulder when his body hit a door frame while running to investigate the safety of his screaming children after a motor vehicle crashed into the house. The Superior Court held that Insured s injury did not arise out of the maintenance or use of a motor vehicle.

14 D. Subrogation and First Party Benefits 1. Statutory Provisions Section 1720 Subrogation In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant s tort recovery with respect to workers compensation benefits, benefits available under section 1711, 1712 or 1715 or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section Section 1720 was repealed, effective August 31, 1993, insofar as the section related to workers compensation payments or other benefits available under the Workers Compensation Act. Act 44, July 2, Section 1711 Required Benefits Medical benefit An insurer issuing or delivering insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use,... shall include coverage providing a medical benefit in the amount of $5,000. Minimum policy All insurers subject to this chapter shall make available for purchase a motor vehicle insurance policy which contains only the minimum requirements of financial responsibility and medical benefits as provided for in this chapter. Section 1712 Availability of Benefits Medical benefit Subject to the limitations of section 1797 (relating to customary charges for treatment), coverage to provide for reasonable and necessary medical treatment and rehabilitative services, including, but not limited to, hospital, dental, surgical, psychiatric, psychological, osteopathic, ambulance, chiropractic, licensed physical therapy, nursing services, vocational rehabilitation and occupational therapy, speech pathology and audiology, optometric services, medications, medical supplies and prosthetic devices, all without limitation as to time, provided that, within 18 months from the date of the accident causing injury, it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the injury. Benefits under this paragraph may include any non-medical remedial care and treatment rendered in accordance with a recognized religious method of healing. Income loss benefit Includes the following: Eighty percent of actual loss of gross income.

15 Reasonable expenses actually incurred for hiring a substitute to perform self-employment services thereby mitigating loss of gross income or for hiring special help thereby enabling a person to work and mitigate loss of gross income. Income loss does not include loss of expected income for any period following the death of an individual or expenses incurred for services performed following the death of an individual. Income loss shall not commence until five working days have been lost after the date of the accident. Accidental death benefit A death benefit paid to the personal representative of the insured, should injury resulting from a motor vehicle accident cause death within 24 months from the date of the accident. Funeral benefit Expenses directly related to the funeral, burial, cremation or other form of disposition of the remains of a deceased individual, incurred as a result of the death of the individual as a result of the accident and within 24 months from the date of the accident. Combination benefit A combination of benefits described in paragraphs (a) through (d) as an alternative to the separate purchase of those benefits. Extraordinary medical benefits Medical benefits, as defined in paragraph (a), which exceed $100,000. Section 1715 Availability of Adequate Benefits a. General rule An insurer shall make available for purchase first party benefits as follows: (1) For medical benefits, up to at least $100,000. (1.1) For extraordinary medical benefits, from $100,000 to $1,100,000, which may be offered in increments of $100,000, as limited by subsection (d). (2) For income loss benefits, up to at least $2,500 per month up to a maximum benefit of at least $50,000. (3) For accidental death benefits, up to at least $25,000. (4) For funeral benefits, $2,500. (5) For combination benefits enumerated above and subject to a limit on the accidental death benefit of up to $25,000 and a limit on the funeral benefit of $2,500, up to at least $177,500 of benefits in the aggregate or benefits payable up to three years from the date of the accident, whichever occurs first, provided that nothing contained in this subsection shall be construed to limit, reduce, modify or change the provisions of subsection (d).

16 b. Higher or lower limits and additional benefits Insurers may make available higher or lower limits or benefits in addition to those enumerated in subsection (a). c. Restriction on providing first party benefits An insurer shall not issue or deliver a policy providing first party benefits in accordance with this subchapter unless the policy also contains coverage for liability in amounts at least equal to the limits required for financial responsibility. d. Limitations The maximum medical benefit which shall be paid on behalf of any one eligible claimant under subsection (a)(1.1) shall be $50,000 per year and $1,000,000 lifetime aggregate of reasonable and necessary expenses only for medical treatment and rehabilitative services which, as described in section 1712(1) (relating to availability of benefits), exceed $100,000. During the first 18 months of eligibility, the insurer shall approve payments on behalf of a claimant without regard to the $50,000 per year limit but subject to the $1,000,000 lifetime aggregate. e. Other extraordinary medical benefits Notwithstanding the requirement of subsection (a)(1.1), an insured may obtain the extraordinary medical benefits described in that subsection through any insurance contract, program or group arrangement. f. Determining adverse experience of an agent For purposes of determining adverse experience of an agent, experience generated from extraordinary medical benefit coverage described in subsection (a)(1.1) shall be excluded. g. Voluntary pooling Notwithstanding any other provisions of this act or the act of June 11, 1947, known as The Casualty and Surety Rate Regulatory Act, two or more insurers may enter into an arrangement or agreement to provide for the availability of an extraordinary medical benefit pursuant to the provisions of this chapter. All such arrangements or agreements entered into by an insurer shall be subject to the prior approval of the Insurance Commissioner. Section 1719 Coordination of Benefits a. General Rule Except for workers compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits) 1712(1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall

17 be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712 or 1715 or workers compensation. b. Definition As used in this section the term program, group contract or other arrangement includes, but is not limited to, benefits payable by a hospital plan corporation or a professional health service corporation subject to 40 Pa.C.S. Ch. 61 (relating to hospital plan corporations) or 63 (relating to professional health services plan corporations). 2.. Case/Decisional Law a. Workers Compensation Valin v. Kemper Insurance Co., 983 F.Supp. 280 (E.D. Pa. 1996) The plaintiff was involved in a motor vehicle accident prior to August 31, As a result, plaintiff received worker s compensation benefits both before and after August 31, On September 17, 1995, plaintiff entered into a settlement with the tortfeasor. Thus, the workers compensation carrier sought recovery of worker s compensation benefits which it paid to the plaintiff after August 31, The District Court agreed and allowed the worker s compensation carrier to subrogate for payments made after the effective date of Act 44. In allowing the subrogation of benefits paid after August 31, 1993, the Court looked to the date of the payments as opposed to the date of the accident. Ducjai v. Dennis, 636 A.2d 1130 (Pa. Super. 1994) Plaintiff, while in the course of her employment, was injured when riding as a passenger in a vehicle operated by her co-worker. Plaintiff received workers compensation benefits from her employer and also sought damages at common law from her co-employee. Thus, the issue before the Court was whether the plaintiff could recover both workers compensation benefits and damages at common law from a co-worker. The Superior Court reasoned that the MVFRL does not implicitly alter the exclusivity provision of the Workers Compensation Act which immunizes a co-worker from

18 common law liability in an action brought by a coemployee for injuries sustained in a car accident. Thus, the Court concluded that workers compensation remains the sole and exclusive avenue of compensation in such cases. b. ERISA FMC Corporation v. Holliday, 498 U.S. 52 (1990) FMC operated a health care plan (employee welfare benefit plan) under the authority of 29 U.S.C , which is part of ERISA. It was a self-funded plan which did not purchase an insurance policy to assure payment of benefits, but did contain a subrogation clause. Holliday, who was the daughter of a plan member and FMC employee, was injured in a 1987 automobile accident. As a result, the plan paid part of her medical expenses. A lawsuit was later filed, but was settled on behalf of Holliday. During the pendency of the lawsuit, FMC notified Holliday of the reimbursement claim which was rejected by Holliday, citing section 1720 of MVFRL Based on a discussion of federal intent, the Third Circuit ruled that 1720 was not preempted by ERISA. The Supreme Court reasoned that 1720 falls within the savings clause because it is directed at insurance companies by invalidating any subrogation clauses in insurance contracts, and therefore, it would not be preempted unless it is excluded from the savings clause by the deemer clause, which exempts self-funded ERISA plans from state laws that regulate insurance within the meaning of the deemer clause. Since the FMC plan was self-funded, it was exempted from the savings clause and from the effect of Thus, the U.S. Supreme Court in Holliday permitted subrogation. c. Medicare Coopersmith v. Colonia Penn Ins. Co., 743 A.2d 452 (Pa. Super. 1999) Plaintiff represented a class of similar situated insureds who were injured in motor vehicle accidents after December 5, 1980, and as a result of these accidents, plaintiffs incurred medical expenses.

19 All of plaintiffs medical and other accident-related expenses were paid by Medicare and the insurers. Although the defendant insurers reimbursed the plaintiffs for excess medical and non-medical basic loss expenses, they argued that Medicare was the primary insurer for the medical expenses. Consequently, the insurers made no payment for medical expenses until a Medicare disposition was received, and then only to the extent that Medicare had not paid. Subsequently, the plaintiffs filed suit in order to recover the unpaid no-fault medical benefits and interest accrued thereon. The Superior Court concluded that it is proper for the federal government to seek assignment and subrogation of private party claims. E. Introduction of medical bills into evidence 1. Statutory Provision Section 1797(a) Customary Charges for Treatment The General Assembly finds that the reimbursement allowances applicable in the Commonwealth under the Medicare program are an

20 appropriate basis to calculate payment for treatments, accommodations, products or services for injuries covered by liability or uninsured and underinsured benefits or first party medical benefits insurance. 2. Case/Decisional Law Sczcypta v. HERCO, Inc., 44 Pa. D. & C.4th 174 (Dauph. 1999) a. Plaintiff was injured in a collision and as a result, she underwent medical treatment and care, with provider charges totaling $60, b. Plaintiff had first party medical benefits in the amount of $5,000, which became exhausted. c. Additionally, private medical carriers had paid $16, and of this amount, $7, was paid by NOVA Health Care, a selffunded plan governed by ERISA. d. Plaintiff contended that she was entitled to recover $45, which represented the gross amount of these bills, less the amounts paid by the first party carrier, less the amount paid by private medical carriers. e. On appeal, plaintiff argued that the court erred by refusing to allow her to introduce evidence on the difference between the amount billed by plaintiff s health care providers and the amounts accepted as payment for such services. f. The Court disagreed and stated that the issue was controlled by 75 Pa. C.S. Section g. Therefore, the Court concluded that reimbursement for medical expenses is limited to the amount actually paid by the applicable insurance and accepted by the provider as payment in full. Vosberg v. Keysaw, 45 Pa. D. & C.4th 252 (Brad. 1999) a. Plaintiff brought suit alleging she suffered various injuries as a result of defendant s negligent operation of an automobile. b. Prior to trial, plaintiff filed a motion in limine, arguing that she was entitled to plead, prove, and recover the difference between the reasonable value of the health care provider s charges and the amounts paid as first party benefits under MVFRL, was entitled to recover for the first five days of her disability from work, and other matters. c. The Court held that plaintiff was not entitled to plead, prove, and recover from the defendant the difference between the reasonable value of the health care provider s charges and the amounts paid as first party benefits by the insurer. d. In doing so, the Court premised its holding on 75 Pa. C.S. 1797(a), which provides that a health care provider could not bill an insured for the difference between the provider s charge and the amount paid by the insurer.

21 e. Therefore, the Court concluded that the plaintiff suffered no harm resulting from the difference in charges and the insurer s payments; however, the Court did allow the plaintiff to recover for the first five days of lost income based on the fact that plaintiff suffered harm through the required use of her sick days. 3. Moorhead v. Crozer Chester Medical Center, Pa., 763 A.2d 376 (2000). a. Patient in medical malpractice action had incurred over $100,000 in medical expenses, however over $12,000 was paid by Medicare and accepted as full payment by providers, and plaintiff was awarded this latter amount. b. The court, in reviewing the full amount asserted by plaintiff as the proper measure, held that lower amount was true measure of compensation, that to award the higher figure would amount to a windfall. c. Since neither plaintiff, Medicare or Blue Cross paid the difference in the two values, the court rejected plaintiff s assertion that the collateral source rule would apply to allow recovery of this illusory charge. II. Issues in UM/UIM Litigation A. Stacking 1. Controlling Case Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). Three classes of potential claims are described:

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