J-A06007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LINYA MASON AND WALI MASON, H/W                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellants

                       v.

PROGRESSIVE DIRECT INSURANCE
COMPANY

                            Appellee                No. 1650 EDA 2014


                      Appeal from the Order April 24, 2014
              In the Court of Common Pleas of Philadelphia County
                      Civil Division at No(s): 2013 No. 146


BEFORE: PANELLA, J., OTT, J., JENKINS, J.

MEMORANDUM BY PANELLA, J.                             FILED JUNE 05, 2015

       Appellants, Linya and Wali Mason, husband and wife, seek review of

the order of the Philadelphia Court of Common Pleas granting summary

judgment based on collateral estoppel. We affirm.

       On December 22, 2009, Linya Mason was injured as a result of her

vehicle being rear-ended by a vehicle driven by William R. Jackson, Jr. She

brought a civil action in Philadelphia Court of Common Pleas against

Jackson1 asserting various personal injuries and seeking recovery for all of

her damages.       These included economic and non-economic damages, past

and future, for pain and suffering, past and future medical expenses, loss of

____________________________________________


1
  At the time of the accident, Jackson was insured by State Farm for bodily
injury and liability coverage for up to $25,000 per person.
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life’s pleasures, lost earnings, impairment of her earning capacity and

inability to attend to her usual duties and occupations. Wali Mason was not

a named plaintiff in the action, and at no point did he seek to intervene or

otherwise assert a derivative loss of consortium claim.

      Discovery ensued. After Linya Mason failed to comply with discovery

orders pertaining to certain past tax returns, Jackson filed a motion in limine

seeking to bar her from pursuing claims for wage loss and loss of earning

capacity.   The court granted the motion, and precluded Linya Mason from

offering any evidence regarding her wage loss, lost profits, or loss of earning

capacity claims.   A trial occurred.   The jury returned a verdict in favor of

Linya Mason for $100,000. The verdict was entered on April 4, 2013. Linya

Mason did not file any post-trial motions. State Farm, as Jackson’s insurer,

paid the entire amount of the verdict of $100,000 to Linya Mason.          She

subsequently filed a praecipe to satisfy the verdict.

      The Masons filed the instant suit against Appellee Progressive, her own

insurance carrier, for the recovery of underinsured motorist damages

allegedly arising from the December 22, 2009 accident.         She raised the

same issues raised in the action against Jackson and sought the same

damages that she had already recovered. In addition, Wali Mason asserted

a loss of consortium claim.

      Progressive filed a motion for summary judgment averring that the

action was barred by the doctrine of collateral estoppel. On April 24, 2014,

the trial court granted Progressive’s motion based on collateral estoppel and

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further concluded that because Linya Mason had no viable action, Wali

Mason’s derivative claim of loss of consortium could not go forward.        This

timely appeal followed.

      We will reverse an order granting summary judgment only for a

manifest abuse of discretion or an error of law. See Sellers v. Township

of Abington, 106 A.3d 679, 684 (Pa. 2014).            Summary judgment is

appropriate where the record shows that there are no genuine issues of

material fact, and the moving party is entitled to judgment as a matter of

law. See id. Whether there are issues of material fact presents a question

of law for which our standard of review is de novo and our scope of review is

plenary. See id. We review the record evidence in the light most favorable

to the non-moving party.      See Murphy v. Duquesne University of the

Holy Ghost, 777 A.2d 418, 429 (Pa. 2001).

      The first three issues raised pertain to the trial court’s finding of

collateral estoppel.   Collateral estoppel, or issue preclusion, prevents re-

litigation of identical issues in a later action. The application of collateral

estoppel is appropriate if:

      (1)   An issue decided in a prior action is identical to the one
            presented in a later action;

      (2)   The prior action resulted in a final judgment on the merits;

      (3)   The party against whom collateral estoppel is asserted was
            a party to the prior action, or is in privity with a party to
            the prior action; and




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      (4)   The party against whom collateral estoppel is asserted had
            a full and fair opportunity to litigate the issue in the prior
            action.

Safeguard Mutual Insurance Co. v. Williams, 345 A.2d 664, 668 (Pa.

1975) (citation omitted).

      “There is no requirement that there be an identity of parties in the two

actions in order to invoke the bar.” Columbia Medical Group v. Herring

& Barr, 829 A.2d 1184, 1190 (Pa. Super. 2003) (citation omitted).

“Collateral estoppel may be used as … a shield by a stranger to the prior

action if the party against whom the doctrine is invoked was a party or in

privity with a party to the prior action.”       Id.   (citation omitted).     “An

insurance company is in privity with its insured.”      Dally v. Pennsylvania

Thresherman & Famers’ Mut. Cas. Ins. Co., 97 A.2d 795, 796 (Pa. 1953)

(citation omitted).

      In the instant case, the trial court observed:

      In relation to Linya Mason’s claims, the first criteria for collateral
      estoppel, whether the issue decided in the prior adjudication as
      identical with the one presented in the later action, has been
      satisfied instantly in that the issues previously raised and
      litigated by [ ] Linya Mason in her case against William R.
      Jackson, Jr., are identical to those presented by her in this
      underinsured motorist claim against Progressive.

      The second criteria for collateral estoppel has been satisfied
      because there was a final judgment/adjudication on the merits in
      the underlying action as evidenced by the jury verdict and the
      satisfaction of that judgment filed with the [c]ourt.

      The third criteria for collateral estoppel has been met in that
      there is no dispute that Linya Mason was a party to the prior
      adjudication.


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       The fourth criteria for collateral estoppel has been met as the
       Masons had a full and fair opportunity to litigate the issues of
       causation and damages in the underlying action. It is clear that
       the jury’s verdict represented a final determination as to all
       damages which plaintiff claimed or could have been claimed [sic]
       and that Linya Mason accepted that verdict by not pursuing post-
       trial relief.

Trial Court Opinion, dated 10/20/14, at 6 (emphasis in original).

       We conclude that the trial court did not abuse its discretion or commit

an error of law in granting Progressive’s summary judgment motion.         As

noted above, Linya Mason previously litigated the same issues of causation

and damages arising from the accident to a final determination on the

merits.   She is, thus, collaterally estopped from re-litigating the identical

issues of causation and damages against Progressive in her claim for

recovery of underinsured motorist benefits.

       Linya Mason argues, without citation to relevant authority, that

because she was precluded from litigating her claim of loss of earnings and

earning capacity after the trial court granted Jackson’s motion in limine, the

fourth element of collateral estoppel requiring identical issues has not been

satisfied.2 We note that Linya Mason did not file any post-trial motions in

____________________________________________


2
  Linya Mason cites Safeguard Mut. Ins. Co., supra, to support her
averment that because “the trial court limited the nature of [her]
participation when it precluded her from pursuing a claim for economic
damages,” collateral estoppel is not applicable. In Safeguard, unlike here,
the issues raised were not identical to those in a prior action in which the
appellants had been allowed to intervene. Moreover, the appellants in the
(Footnote Continued Next Page)


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her prior case.        Moreover, she accepted the jury’s verdict and filed a

praecipe to satisfy verdict. In so doing, she agreed that the jury verdict

represented a satisfactory resolution of all issues raised in her complaint.

See Wilk v. Kochara, 647 A.2d 595, 596 (Pa. Super. 1994) (observing

that where a judgment has been satisfied, all questions of liability and

damages are deemed extinguished).                 Accordingly, collateral estoppel

precludes further consideration of her claims.3

      Wali Mason argues that his loss of consortium claim should not have

been terminated upon the dismissal of Linya Mason’s claims because his

claim is “an independent cause of action that survives the discontinuance of

the injured spouse[’]s claim.”              Appellant’s Brief at 18 (citing Darr

Construction Co. v. Workmen’s Compensation Appeal Board, 715 A.2d

1075, 1080 (Pa. 1998)).4

                       _______________________
(Footnote Continued)

prior action at issue in Safeguard had been allowed to intervene only with
the understanding, as stated by the trial court, that “we are limited to a very
narrow issue involved in the specific complaint filed by the Commonwealth.”
Id. at 669. Safeguard is inapposite to the instant case.
3
  Moreover, the trial court granted Mr. Jackson’s motion in limine based on
Linya Mason’s failure to comply with the trial court’s scheduling order. She
may not resurrect those claims, that she herself lost through her non-
compliance, by filing subsequent, piecemeal litigation against different
defendants.
4
  Darr was a worker’s compensation case where the issue involved whether
an employer has a subrogation interest in a loss of consortium claim. Our
Supreme Court observed: “It is well-settled that the [loss of consortium]
claim is derivative, emerging from the impact of one spouse’s physical
(Footnote Continued Next Page)


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      A loss of consortium claim is considered to be a derivative claim for

which one’s right to recover is totally dependent on the injured spouse’s

right to recover. See Scattaregia v. Shin Shen Wu, 495 A.2d 552, 553-

54 (Pa. Super. 1985). In addition, “[a] loss of consortium claim is separate

and independent from the personal injury claim where the injured spouse

has settled the case or for some reason the merits of the directly injured

spouse’s claim have not been reached[.]” Barchfeld v. Nunley by Nunley,

577 A.2d 910, 912 (Pa. Super. 1990) (emphasis added).

      Although a loss of consortium claim is separate and independent, it is

still derived from the injured spouse’s right to recover. Here, Linya Mason

has no right to recover on the claims raised in the instant action because

their merits were litigated to a final verdict in a prior action. See id. Her

filing a praecipe for satisfaction of that verdict extinguished all claims

deriving from the issues which she has again raised in the instant case. See

Wilk, supra. Accordingly, Wali Mason has no viable cause of action.

      In their last two issues, the Masons aver in two paragraphs that the

trial court erred in concluding that Progressive was entitled to a credit

against all liability. They do not cite to any authority in support and provide

no analysis with reference to the record as required by Pa.R.A.P. 2119(b),
                       _______________________
(Footnote Continued)

injuries upon the other spouse’s marital privileges and amenities. It is
equally established that a loss of consortium claim remains a separate and
distinct cause of action.” 715 A.2d at 1180.



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(c), and (d).    Accordingly, these issues are waived.   See Coulter v.

Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014), appeal denied, 110

A.3d 998 (Pa. 2014).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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