J-A21019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

UNITED SERVICES AUTOMOBILE                       IN THE SUPERIOR COURT OF
ASSOCIATION                                            PENNSYLVANIA

                            Appellee

                       v.

GAYLE HUDSON

                            Appellant                 No. 224 EDA 2014


              Appeal from the Judgment Entered January 6, 2014
              In the Court of Common Pleas of Delaware County
                     Civil Division at No(s): 2012-001132


BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                          FILED SEPTEMBER 24, 2014

        Gayle Hudson appeals from the judgment entered against her in the

Court of Common Pleas of Delaware County on January 6, 2014 following a

non-jury trial.1    United Services Automobile Association (U.S.A.A.) filed a

declaratory judgment action to determine its duty to provide underinsured

motorist benefits to its insured, Hudson. U.S.A.A. claimed benefits were not

required as Hudson was prevented from re-litigating the issue of damages

under the doctrine of collateral estoppel.       The trial court agreed with
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Pursuant to the civil docket supplied by the Court of Common Pleas of
Delaware County, a verdict in favor of U.S.A.A. was entered on November
                                   -trial relief was denied on December 17,
2013 and judgment was entered by praecipe in favor of U.S.A.A. on January
6, 2014.
J-A21019-14



U.S.A.A. and entered judgment in its favor. In this timely appeal, Hudson



against both the weight and sufficiency of the evidence. She further argues



her prior UIM arbitration was against the weight of the evidence.      After a

thorough review of the submissions by the parties, certified record, and

relevant law, we affirm.

      We adopt the facts as related by the trial court in its Pa.R.A.P. 1925(a)

Opinion, dated February 21, 2014, and authored by the Honorable Chad F.

Kenney, Sr., President Judge.

      [Hudson] was a passenger in a vehicle involved in a motor
      vehicle accident on June 9, 2007 and sustained a rotator cuff
      injury to her left shoulder for which surgery was recommended.
      [Hudson] recovered the maximum $15,000 from the at-fault

      UIM [underinsured motorist] coverage to Allstate Insurance
      Company, the insurance carrier that provided UIM coverage for
      the vehicle in which [Hudson] was a passenger. The Allstate

      proceeded to arbitration and, on December 18, 2009, the
      arbitration panel rendered an award in favor [of Hudson], who
      was then the plaintiff, of $75,000. The award took into account
      the $15,000 for the at-
      net award of $60,000 out of a potential $100,000. At the
      arbitration hearing, counsel for Allstate presented medical
      records which he had subpoenaed and the sworn statement of
      Gayle Hudson.       (Testimony of Gerard Bradley, trial date
      November 8, 2013). The medical records noted the tear in



      has a full tear and that the doctors told her it would definitely
      need to be operated on. (Sworn Statement of Gayle Hudson,


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       insurance carrier.[2] On July 26, 2011, [U.S.A.A.] received notice
       from counsel for [Hudson] that [Hudson] was demanding UIM
       coverage from [U.S.A.A.] pursuant to her insurance policy.

       undergone subsequent rotator cuff surgery and follow up

       value for her claim far in excess of the amount awarded by the
       arbitration panel from the Allstate policy.

Trial Court Opinion, 2/21/2014, at 2-3.



underlying declaratory judgment action claiming Hudson was collaterally

estopped from seeking further damages as she had a full and fair

opportunity to litigate the issue of her damages in the UIM arbitration with

Allstate. Motions for summary judgment were ultimately filed by both

parties, and were denied. A non-jury trial was held before Judge Kenney, on

November 8, 2013. After hearing testimony from counsel for Allstate who

had participated in the prior UIM arbitration, and considering the submitted

documentary evidence, the trial judge ruled in favor of U.S.A.A.

                                                                        -
       jury trial is as follows:

          [We are] limited to a determination of whether the findings
          of the trial court are supported by competent evidence and
          whether the trial court committed error in the application
          of law. Findings of the trial judge in a non-jury case must
          be given the same weight and effect on appeal as a verdict
____________________________________________


2
  Pursuant to statute, the first priority of payment of UIM benefits was from
the policy covering the vehicle in which Hudson was a passenger. Her policy
with U.S.A.A. was second priority. See 75 Pa.C.S. § 1733(a)(1)-(2).



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        of a jury and will not be disturbed on appeal absent error
        of law or abuse of discretion. When this Court reviews the
        findings of the trial judge, the evidence is viewed in the
        light most favorable to the victorious party below and all
        evidence and proper inferences favorable to that party
        must be taken as true and all unfavorable inferences
        rejected.

     Croyle v. Dellape, 832 A.2d 466, 470 (Pa. Super. 2003) (citing
     Behar v. Frazier, 724 A.2d 943, 946 (Pa. Super. 1999)). The
     court's findings are especially binding on appeal, where they are


     lack evidentiary support or that the court capriciously disbelieved
                     Fudula v. Keystone Wire & Iron Works, Inc.,
     283 Pa. Super. 502, 424 A.2d 921, 927 (1981).

        Judicial discretion requires action in conformity with law on
        facts and circumstances before the trial court after hearing
        and consideration. Consequently, the court abuses its
        discretion if, in resolving the issue for decision, it
        misapplies the law or exercises its discretion in a manner
        lacking reason.

     Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super.
     2000) (internal citati

                     de novo. John B. Conomos, Inc., v. Sun Co.,
     Inc. (R & M), 831 A.2d 696, 704 (Pa. Super. 2003), appeal
     denied, 577 Pa. 697, 845 A.2d 818 (2004).

Hart v. Arnold, 884 A.2d 316, 330-31 (Pa. Super. 2005).

     Further,


     prevents re-litigation of an issue in a later action, despite the
     fact that it is based on a cause of action different from the one
                            Balent v. City of Wilkes-Barre, 542 Pa.
     555, 669 A.2d 309, 313 (1995).

        Collateral estoppel applies if (1) the issue decided in the
        prior case is identical to one presented in the later case;


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J-A21019-14


          (2) there was a final judgment on the merits; (3) the party
          against whom the plea is asserted was a party or in privity
          with a party in the prior case; (4) the party or person privy
          to the party against whom the doctrine is asserted had a
          full and fair opportunity to litigate the issue in the prior
          proceeding and (5) the determination in the prior
          proceeding was essential to the judgment.

       Catroppa v. Carlton, 998 A.2d 643, 646 (Pa. Super. 2010)

       courts are owed t
       In re Stevenson, 615 Pa. 50, 40 A.3d 1212, 1222 (2012); see
       also Atiyeh v. Bear, 456 Pa. Super. 548, 690 A.2d 1245, 1249-
       50 (1997) (applying the collateral estoppel doctrine to a decision
       of bankruptcy courts, and precluding the relitigation of the same
       issue in this Court).

Weissberger v. Myers, 90 A.3d 730, 733-34 (Pa. Super. 2014).



determination that Hudson was collaterally estopped from re-litigating the

issue of damages.3




____________________________________________


3

elements of collateral estoppel. Because there are no questions regarding
the applicability of elements (2) existence of a final judgment, (3) identity of
the party, or (5) determination that the prior proceeding was essential to the
judgment, we will not discuss those.




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estopped from pursuing additional damages was against both the sufficiency

and weight of the evidence.4

       Initially, we note that a claim that a judgment is against the weight of

the evidence is a claim that certain evidence was not credible on its own or

that otherwise credible evidence was overwhelmed by other credible

              A motion for new trial on the grounds that the verdict is contrary

to the weight of the evidence, concedes that there is sufficient evidence to

                          Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000). While a sufficiency claim argues a required element of proof is



are so clearly of greater weight that to ignore them or to give them equal

                                                 Id.

       Assessing weight of the evidence is commonly stated in terms that the

fact finder, in passing upon the credibility of witnesses and the weight of the

evidence is free to believe all, part or none of the evidence.             See

Commonwealth v. Phillips, 93 A.3d 847 (Pa. 2014).               A judgment is

against the weight of the evidence if it is so contrary to the evidence as to

                                      Joseph v. Scranton Times, L.P., 89 A.3d

251, 274 (Pa. Super. 2014). Such determinations are the exclusive province
____________________________________________


4
  Hudson argues her issues in a different order in the body of her brief. We
refer to the order of the issues as they were listed in the statement of
questions involved. See



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J-A21019-14


of the fact finder and will not be overturned absent a showing the trial court

                                                                Hatwood v. Hospital

of the University of Pennsylvania, 55 A.3d 1229, 1238 (Pa. Super.

                              gument regarding the weight of the evidence does

not address credibility or the relative weight of the totality of the evidence.

                                                                                     no

evidence introduced at trial establishing that the is

to her shoulder surgery was actually presented to the Allstate UIM

                                          See

added).     Accordingly, we read the argument as a restatement of the

sufficiency claim. Therefore, the weight of the evidence argument has not

been developed and the issue has been waived.5                 Piston v. Hughes, 63

A.3d 440, 444 (Pa. Super. 2013) (undeveloped arguments are waived).

       As to insufficiency of the evidence, Hudson argues she did not present

any evidence of her shoulder surgery and resulting scarring, recovery, etc.

to   the   arbitration    panel;    therefore,   the   issue    was   never   litigated.

Accordingly, she claims, collateral estoppel cannot apply.               Hudson has

framed this argument as a failure to meet the first requirement of collateral

estoppel     the necessity that the issue to be decided be identical to the issue


____________________________________________


5
  Even so, our review of the certified record leads to the conclusion that the
judgment is not against the weight of the evidence.



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J-A21019-14


question was the broader concept of the damages suffered by Hudson

because of the automobile accident. As a result, the trial court essentially

                                                                          a

question of whether Hudson was afforded the opportunity to fully and fairly

litigate the issue. See Trial




surgery entails a number of elements.       These include the cost of the

surgery, the actual scar from the surgery, months of post-operative therapy,

                                         See

argument concerns the continuation of treatment, and concurrent claim of

continuing damages, arising from a known injury. This is simply a claim for

future damages.      The argument is essentially an assertion that future

damages are a different issue from damages.


                                                                      h no

compelling argument why future damages should be considered separately

from general damages.      While past and future damages are likely to be




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J-A21019-14



calculated differently, they are both elements of damages, not separate

issues.6

          The issue                            es was clearly before the arbitration



opinion that surgery would be necessary7

that      Hudson   testified   consistently     with   her    sworn     statement,8    and

determined       her   injuries   were   compensable         to   the   total amount    of

$75,000.00. Therefore, Hudson cannot credibly claim that the general issue

of damages was not presented to the prior arbitration panel, and we find no

____________________________________________


6
  In the context of collateral estoppel, past and future damages are no more
a question of separate issues that is the question of physical injury and wage
loss. One could not credibly argue one was entitled to separate arbitrations
to determine physical injury and wage loss. The trial court aptly noted:

          The fact that [Hudson] decided to wait to undergo surgery at a
          time that was more convenient for her does not magically make
          the injury anything different than the one that was sustained in
          the motor vehicle accident and for which she was compensated
          by the arbitration panel. [Hudson] had not chosen surgery at
          the time of arbitration but it was clear at the arbitration that
          surgery was recommended and would most likely be necessary
          in the future therefore, the panel took it into account.

Trial Court Opinion at 6.
7
    See

Weiner, her primary treating physician.
8
                                                                  orn
statement included her admission that she believed her shoulder would
require surgery. See N.T. Trial, 11/8/2013, at 11.



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J-A21019-14



abuse of discretion or error of law in the trial

first requirement of collateral estoppel, issue identity, had been met.

         However, the trial court addressed future damages in terms of the

fourth element of collateral estoppel, addressing the opportunity to fully and

fairly

encompass that concept.             Therefore, despite not being labeled as a

challenge to the sufficiency of the fourth element of collateral estoppel, we

will address her claims in those terms.

         The fourth requirement for application of collateral estoppel is whether

the party was given the opportunity to fully and fairly litigate the issue. The

salient word here is opportunity. The trial court found that the arbitration

panel was presented with medic



well as the report from the defense medical examination.           The certified



records, so we cannot consider either of those.9



to the shoulder and the recommendation of surgery. Hudson claimed then

and claims now that those injuries were a result of the automobile accident.
____________________________________________


9
 Hudson has not specifically argued that the medical/treatment records do
not include the shoulder injury. If Hudson believed those records supported
her argument, it was incumbent on her to provide them.




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J-A21019-14



She knew about the injuries then and related those injuries to the arbitration

panelists.10

       Further, at the non-jury trial, counsel for Hudson admitted that

nothing prevented her from joining U.S.A.A. in the original arbitration.

       THE COURT: What would stop you from bringing that [secondary
       UIM coverage policy] to the table?



____________________________________________


10
                           McNally v. Dagney, 510 A.2d 722 (Pa. Super.
1986), to support this aspect of her claim is unavailing. In McNally, the
plaintiff was injured in a car accident with a phantom vehicle. That claim

that accident, McNally was involved in an accident with Dagney. While the
UM claim was pending, McNally filed an action against Dagney, who
subsequently sought dismissal of the action claiming McNally was collaterally
estopped from seeking the same damages from two accidents. While the
trial court agreed with Dagney, a panel of our court determined that
collateral estoppel would prevent collecting duplicate damages, but that
based on the record it was unclear to which accident McNally was ascribing
the specific injuries. In footnote eight of the decision, it was noted that
McNally claimed to have specifically limited the claim of damages

        from the time of the accident to the day before accident two,

       injuries, continuing injuries [, and] lost wages that were not


McNally, 510 A.2d at 725, n. 8.

       Initially, we agree with the general principle that collateral estoppel

significant difference between McNally and the instant matter is that in
McNally, the claimant argued he had specifically limited the damages
submitted in the first claim, while that argument has not been raised here.




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J-A21019-14


        [Counsel]: One thing that might stop someone from bringing it is
        that they feel that the $100,000 adequately compensates the
        Plaintiff
        based on the evidence or the injuries at the time of the hearing


        really


N.T. Trial, 11/8/2013, at 42.



claim of damages was strategic or practical.        Neither the arbitration panel

nor defendant precluded Hudson from presenting such evidence.

        We also examine the language of the relevant statute, 75 Pa.C.S. §

1733, addressing the priority of recovery.         The statute reads, in relevant

part:

        (a) General rule.   Where multiple policies apply, payment shall
        be made in the following order of priority:

           (1) A policy covering a motor vehicle occupied by the
           injured person at the time of the accident.

           (2) A policy covering a motor vehicle not involved in the
           accident with respect to which the injured person is an
           insured.

75 Pa.C.S. § 1733 (a) (1)-(2).11

        To the extent that Hudson relies on this statute, the statute addresses

only the order of payment; it does not explicitly allow for multiple


____________________________________________


11
     We note this language is mirrored in the relevant insurance policies.




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J-A21019-14



adjudications and serial determinations of the amount of damages suffered

by the injured person.12

       In light of the foregoing, we find no abuse of discretion or error of law



opportunity to present her entire case for damages.13
____________________________________________


12
     Indeed, without that explicit allowance, the general policy of the
Commonwealth of Pennsylvania frowns upon piecemeal litigation as being
wasteful, expensive and as unnecessarily protracting litigation.           See
generally, Pennsylvania Turnpike Commission v. Atlantic Richfield,
394 A.2d 491 (Pa. 1978). While Section 1733 does not forbid serial
litigation, we believe we should not unnecessarily encourage it. As noted, in
the instant matter there was nothing preventing Hudson from fully
presenting her claim for future damages or from joining U.S.A.A. in the
original arbitration. Therefore, there is no particular reason to endorse serial
litigation under the facts before us.

Prior to 2005, piecemeal litigation involving the alleged tortfeasor and UIM
coverage was not only encouraged, it was virtually mandated by the
Department of Insurance, which required insurance policies to provide for
UIM arbitration.    The third-party negligence matter would typically be
brought before the Court of Common Pleas (including statutory arbitration as
applicable) while the UIM claim was presented to a private arbitration panel.
This mandatory separation of third party and UIM claims no longer exists.
See Insurance Federation of Pennsylvania, Inc. v. Koken, 889 A.2d
550 (Pa. 2005).
13
   Hudson has also argued that the amount of the award, $75,000.00 is
proof that she did not present her case for future surgery. Whether she did
or did not present specific numbers for the cost of surgery and wage loss,
etc., is immaterial to whether she had the opportunity to do so. In addition,
the defense in the prior arbitration presented a medical report from a
defense medical examination that opined the shoulder injury was not
causally related to the accident. See Report of Dr. Stuart Gordon, M.D.,
7/20/2009. Therefore, the amount of the award might also indicate the
arbitration panel accepted the defense position regarding the shoulder
injury.



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J-A21019-14



      In her final argument, Hudson claims the trial court erred in

determining that the award of the prior arbitration panel, for less than the

primary UIM policy limits, demonstrates that she was fully compensated for

her damages. This claim is moot in light of the fact that Hudson has been

properly precluded from further litigating the issue of damages. We agree

with the proposition that had Hudson settled her claim against the primary

UIM policy for $60,000, she would not be precluded from seeking further

coverage from her own policy based on the failure to exhaust prior levels of

coverage.    See Nationwide Ins. Co. v. Schneider, 960 A.2d 442 (Pa.

2008).     However, Schneider did not address the concurrent issue of

collateral estoppel. Schneider settled the claim with the primary UIM carrier.

Therefore, there was no prior adjudication determining the amount of

damages.

      Because collateral estoppel has prevented Hudson from seeking

another determination of damages, the issue of exhaustion of the prior

policy is moot. Accordingly, Hudson is not entitled to relief on this issue.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2014


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