United States District Court, M.D. Pennsylvania
D. MARIANI UNITED STATES DISTRICT JUDGE
Introduction and Procedural History
above-captioned action was filed by Plaintiff, Timothy
Sniffer, in the Lackawanna County Court of Common Pleas
against Defendant Liberty Mutual Fire Insurance Company
(hereinafter "Liberty Mutual") for breach of
contract (see Doc. 2). Defendant thereafter removed this
action to federal court on June 6, 2017 (Doc. 1).
the completion of fact discovery, Defendant filed a Motion
for Summary Judgment (Doc. 15) asserting that Plaintiffs
claims against Liberty Mutual are barred by the doctrine of
collateral estoppel. The parties have fully briefed the
motion, and it is now ripe for adjudication. For the reasons
set forth below, the Court will grant Defendant's motion.
Statement of Undisputed Facts
Liberty Mutual has submitted a Statement of Material Facts
(Doc. 17) as to which it submits there is no genuine issue or
dispute for trial, as well as a number of
exhibits attached thereto. Plaintiff submitted a
Response to the Statement of Material Facts (Doc. 25), with
the result being that the following facts have been admitted
except as specifically noted.
above-captioned action arises out of a two-car accident that
occurred on March 14, 2013, when Timothy Shiffer's car
was hit by a vehicle driven by Ann Malysa. (Doc. 17, at
¶ 1). Shiffer seeks to recover underinsured motorists
coverage pursuant to his insurance policy provided and
underwritten by Liberty Mutual Fire Insurance Company, policy
number A02-281-125861-60 2 9, with effective dates from
August 14, 2012, to August 14, 2013 (hereinafter the
"Policy"). (Id. at ¶ 2).
Policy contains a section entitled "Underinsured
Motorists Coverage - Pennsylvania (Stacked)", which
includes, in relevant part, the following provision:
will pay compensatory damages which an "insured" is
legally entitled to recover from the owner or operator of an
"underinsured motor vehicle" because of
1.Sustained by an "insured"; and
2.Caused by an accident.
Doc. 17-1, Ex. 2, at 45; see also, Doc. 17, at
¶ 3). The Policy further defines the term
"underinsured motor vehicle" as follows:
"Underinsured motor vehicle" means a land motor
vehicle or trailer of any type to which a bodily injury
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 legally entitled
to recover as damages.
Doc. 17-1, Ex. 2, at 45).
time of the car accident at issue, Ann Malysa maintained an
automobile insurance policy with Allstate which provided up
to $300, 000.00 in liability coverage. (Doc. 17, at ¶
filed a separate lawsuit against Malysa in the Court of
Common Pleas of Lackawanna County (hereinafter "third
party claim") as a result of the March 14, 2013 car
accident. (Id. at ¶ 7). Shiffer and Malysa,
through their respective counsel, agreed to submit the third
party claim to a "binding arbitration" and entered
into a written "Binding Arbitration Agreement"
signed by both Shiffer and his counsel on December 20, 2016.
(Id. at ¶ 8; see also, Binding
Arbitration Agreement, Doc. 17-1, Ex. 3-A).
testified at his deposition in the present action that he
chose to sign the binding arbitration agreement, that nothing
prevented him from reading it before he signed, that he did
not make any changes before he signed it, and that he was
represented by counsel when he signed it. (Doc. 17, at ¶
to the Binding Arbitration Agreement, "[t]he Arbitrator
will make his decision regarding all disputed issues using
the law of this jurisdiction." (Binding Arbitration
Agreement, Doc. 17-1, Ex. 3-A, at ¶ 1). The Agreement
provided that "[t]he parties agree that the decision of
the Arbitrator is final and binding with no right of
re-hearing or appeal in any forum or court, and that any
award ultimately rendered will constitute full settlement of
all claims submitted to this arbitration." (Id.
at ¶ 2; see also, Id. at ¶ 10 ("If
the Arbitrator's Award less the credits and off-sets
falls within the low/high parameters [$30, 000.00/$300,
000.00], that sum is the amount that Defendant [Malysa] shall
pay Plaintiff [Shifter] as full and final settlement of this
claim.")). The Binding Arbitration Agreement further
contained a statement that "[t]his agreement is not
intended to prevent the Plaintiff from pursuing an
underinsured motorist claim against his own insurance
company." (Id. at¶ 16).
to the signed "Binding Arbitration Agreement", the
third party claim proceeded to an arbitration hearing on or
about January 4, 2017, before Judge Thomas A. Wallitsch
(Ret.), as the sole arbitrator. (Doc. 17, at ¶ 10). In
connection with the binding arbitration of the third party
claim, Sniffer submitted two arbitration briefs and exhibits
to Judge Wallitsch and testified at the hearing.
(Id. at ¶¶ 11, 12). Sniffer was
represented by counsel throughout the entirety of his third
party claim against Malysa. (Id. at¶ 14).
Plaintiffs "Arbitration Brief on Behalf of Plaintiff,
Timothy G. Shifter", submitted in the third party claim,
Plaintiffs counsel alleged that "[a]s a result of the
[accident with Malysa], Mr. SHIFFER sustained a cervical disc
disruption at ¶ 5-C6, C6-C7 central disc protrusion, and
L3-4 and L4-5 disc bulging." (Plaintiffs Arbitration
Brief, Doc. 17-1, Ex. 3-B, at 2). Plaintiffs Brief further
According to Dr. Bednarz, Dr. Wolk, Dr. Henderson, and Dr.
DePietro, Mr. SHIFFER will continue to suffer from his
injuries into the future since they have not resolved.
Further, Dr. Henderson has discussed with Mr. Shifter an
anterior cervical fusion at ¶ 4-6 with the likelihood of
a multilevel fusion with instrumentation. Accordingly, Mr.
SHIFFER, is seeking future damages, past and present damages.
(Id. at 5-6). (See also, Id. at 7
(Plaintiff "has been totally disabled from his
pre-injury employment as a truck driver and will continue to
suffer continued pain and flare-ups from his injuries");
id. (Plaintiff "is also seeking compensation
for his past loss of income.... and the diminution of his
future earning capacity and economic horizons");
id. at 8 ("Plaintiff was and is presently
unable to perform all of the physical demands of her
[sic] pre-injury position" and Plaintiff's
"treating physicians have opined that due to his
injuries and limitations imposed he will never be able to
perform that position"); id. at 8-9
("Plaintiff is seeking both past, present and future
damages in each of the categories of damages indicated
Plaintiffs second Arbitration brief submitted to Judge
Wallitsch, he summarized his injuries as "severe and
permanent injuries to his cervical and lumbar spine."
(Doc. 17-1, Ex. 3-C, at 1). Plaintiffs brief set forth the
opinions of several physicians who had diagnosed him with,
among other injuries, cervical strain, thoracic strain,
lumbar strain, and neck and back pain (id. at 2).
Plaintiff further asserted that an MRI of his cervical spine
on August 6, 2013,
revealed C4-5 mild/moderate left paracentral disc protrusion
impressing on the ventral thecal sac with mild deformity of
the central spinal cord, C5-C6 mild broad-based disc bulge
with osseous ridging more eccentric to the right impressing
upon the ventral thecal sac causing mild flattening of the
central spinal cord with moderate right neural foraminal
narrowing, and C6-C7 minimal central disc protrusion
impressing upon the ventral thecal sac.
(Id. at 3). (See also, Id. (stating that
Dr. Lyness diagnosed Plaintiff with "C4-5 small right
disc bulge with mild neural foraminal stenois and C5-6 left
disc osteophyte with mild neural foraminal stenosis");
id. at 3-4 (stating the Dr. Wolk "diagnosed
myofascial pain of thoracic spine, lumbosacral spine and
cervical spine from sprain/strain type of injuries,
aggravation of underlying degenerative problems within the
cervical spine particularly at the right C5-6 level with
aggravation of underlying degenerative disc disease and
foraminal stenosis resulting in some radicular
symptomology"); id. at 4 (stating that Dr.
Bednarz "diagnosed cervical disc disruption at ¶
5-C6 and lumbar myoligamentous sprain/strain with sight sided
sciatica"); id. at 4, 5 (stating that Dr.
Henderson twice "diagnosed cervical degenerative disc
disease with radiculopathy and lumbar degenerative disc
disease with radiculopathy")).
counsel attached twenty-five exhibits to his second
Arbitration brief, including Emergency Room records and
physical therapy records, MRIs of Cervical Spine, and reports
by Drs. Bednarz, Wolk, Henderson, Lyness, Lawrence, and
binding arbitration of the third party claim, Judge Wallitsch
issued an "Award of Arbitrator" on January 9, 2017,
in the amount of $214, 298.37. (Doc. 17, at¶ 13).
Two days later, on January 11, 2017, Plaintiffs counsel wrote
to Liberty Mutual and indicated, in part:
Please accept this correspondence as notice of presenting an
underinsured motorist claim on behalf of Mr. Sniffer.
We have received an offer to settle Mr. Shiffer's
third-party claim in the amount of Two Hundred Fourteen
Thousand Two Hundred Ninety-Eight Dollars and thirty-seven
cents ($214, 298.37) which Mr. Shiffer would like to accept
in lieu of pursuing further litigation in the third party
claim- Please have an underinsured motorist adjuster assigned
to this claim-
(Doc. 17, at ¶ 15; see also, Doc. 17-1, Ex.
January 20, 2017, a claims department representative for
Liberty Mutual responded to Plaintiffs counsel stating, in
Please be advised that we have waived our subrogation rights
against Ann Malysa and Robert Malysa, for this loss. We have
no objection to your client completing a release for Geico.
Please be advised that we will be taking credit for the
tortfeasor's full liability limits of $300, 000 in the
Underinsured Motorist claim.
17, at ¶ 16; see also, Doc. 17-1, Ex. 3-F).
to requesting and subsequently receiving Liberty Mutual's
consent to settle, Shiffer did not disclose to his insurance
company that the third party claim had already proceeded to a
binding arbitration. (Doc. 17, at ¶ 17).
signed a "Release and Settlement Agreement" between
himself and Ann Malysa on January 20, 2017. (See Release and
Settlement Agreement, Doc. 17-1, Ex. 3-G). The release amount
was $214, 298.37, the same amount of the third party binding
arbitration award. (Id.). At Shiffer's
deposition, he testified that it was his choice to sign the
release and that he was not forced to sign it, and that he
was represented by counsel when he signed it. (Doc. 17, at
¶ 19; Dep. of Shiffer, at 17).
January 30, 2017, "upon Praecipe for
Discontinuance", the Prothonotary for the Court of
Common Pleas of Lackawanna County issued an Order of
Discontinuance in Shiffer's action against Malysa and
discontinued the action with prejudice. (Doc. 17-1, Ex. 3-H;
see also, Doc. 17, at ¶ 20).
February 14, 2017, Liberty Mutual sent an email to Plaintiffs
counsel requesting that counsel "[p]lease advise whether
or not this matter went to arbitration or mediation in the
third party claim. If it did, I will need a copy of the
arbitration or mediation agreement." (Doc. 17, at¶
21). That same day, Plaintiffs counsel responded to Liberty
Mutual stating, in part, that "Mr. Sniffer's third
party case was concluded with the execution of a third party
release and settlement agreement which I previously forwarded
to you when we sought consent to settle." (Id.
at ¶ 22).
March 3, 2017, Liberty Mutual again requested a copy of the
arbitration or mediation agreement with respect to the third
party claim. (Id. at ¶ 23). On March 6,
Plaintiffs counsel responded to Liberty Mutual stating that
"the manner in which the third party case was negotiated
and settled between Mr. Shiffer and Geico is not and should
not be an issue or concern of Liberty Mutual regarding
settlement of his underinsured motorist claim. You have
granted consent to settle and waiver of subrogation."
(Id. at ¶ 24).
Standard of Review
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, ... [o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once such a showing has been made, the non-moving party must
offer specific facts contradicting those averred by the
movant to establish a genuine issue of material fact.
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888 (1990). Therefore, the non-moving party may not oppose
summary judgment simply on the basis of the pleadings, or on
conclusory statements that a factual issue exists.
Anderson, 477 U.S. at 248. "A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by citing to particular parts of materials in
the record ... or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In
evaluating whether summary judgment should be granted,
"[t]he court need consider only the cited materials, but
it may consider other materials in the record."
Fed.R.Civ.P. 56(c)(3). "Inferences should be drawn in
the light most favorable to the non-moving party, and where
the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true." Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert,
denied 507 U.S. 912 (1993).
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380 (2007). If a party has ...