J-A21019- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 UNITED SERVICES AUTOMOBILE ASSOCIATION IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 p rovide underinsured motorist benefits to its insured, Hudson. U.S.A.A. clai med benefits were not required as Hudson was prevented from re-litigating th e issue of damages under the doctrine of collateral estoppel. The trial court agreed with

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* 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 e ntered on November 26, 2013. Hudson’s motion for post -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

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U.S.A.A. and entered judgment in its favor. In this timely appeal, Hudson argues the trial court’s determination that collateral estoppel applied was against both the weight and sufficiency of the eviden ce. She further argues the trial court’s determination that Hudson had been f ully compensated in her prior UIM arbitration was against the weight of t he evidence. After a thorough review of the submissions by the parties, cert ified record, and relevant law, we affirm. We adopt the facts as related by the trial court in it s Pa.R.A.P. 1925(a) Opinion, dated February 21, 2014, and authored by t he Honorable Chad F. Kenney, Sr., President Judge. [Hudson] was a passenger in a vehicle involved in a mo tor vehicle accident on June 9, 2007 and sustained a rotato r cuff injury to her left shoulder for which surgery was recom mended. [Hudson] recovered the maximum $15,000 from the at-fa ult driver’s liability insurance and proceeded to present a claim for UIM [underinsured motorist] coverage to Allstate Insur ance Company, the insurance carrier that provided UIM cover age for the vehicle in which [Hudson] was a passenger. The All state policy carried UIM limits of $100,000. [Hudson’s] UIM claim proceeded to arbitration and, on December 18, 2009, t he arbitration panel rendered an award in favor [of Hu dson], who was then the plaintiff, of $75,000. The award took into account the $15,000 for the at- fault driver’s limits and, thus, provided a net award of $60,000 out of a potential $100,000. At the arbitration hearing, counsel for Allstate presented me dical records which he had subpoenaed and the sworn statement of Gayle Hudson. (Testimony of Gerard Bradley, trial da te November 8, 2013). The medical records noted the tear i n [Hudson’s] left shoulder and recommended surgery. (Let ter dated January 15, 2008, marked as Plaintiff’s Exhibi t 2). In [Hudson’s] sworn statement, she states that her left shou lder has a full tear and that the doctors told her it would definitely need to be operated on. (Sworn Statement of Gayle Hudson, marked as Plaintiff’s Exhibit 1).J-A21019- 14

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The Plaintiff, [U.S.A.A.], is [Hudson’s] personal autom obile insurance carrier. [ 2] On July 26, 2011, [U.S.A.A.] received notice from counsel for [Hudson] that [Hudson] was demanding UI M coverage from [U.S.A.A.] pursuant to her insurance poli cy. [Hudson’s] demand was based on the fact that [Hudson] ha d undergone subsequent rotator cuff surgery and follow u p physical therapy which [Hudson’s] attorney contended crea ted a value for her claim far in excess of the amount awarde d by the arbitration panel from the Allstate policy. Trial Court Opinion, 2/21/2014, at 2- 3. In response to Hudson’s demand for UIM coverage, U.S.A.A . filed the 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 t he UIM arbitration with Allstate. Motions for summary judgment were ultimatel y filed by both parties, and were denied. A non-jury trial was held before Judge Kenney, on November 8, 2013. After hearing testimony from counse l 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. The relevant standard of review of a court’s decision i n a non 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 appli cation of law. Findings of the trial judge in a non-jury cas e must be given the same weight and effect on appeal as a ver dict

____________________________________________ 2 Pursuant to statute, the first priority of payment of UIM benefits was from the policy covering the vehicle in which Hudson was a p assenger. Her policy with U.S.A.A. was second priority. See 75 Pa.C.S. § 1733(a)(1)-(2).J-A21019- 14

- 4 - of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. When this Court reviews t he findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below an d 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 based upon the credibility of the witnesses, “unless it app ears that the court abused its discretion or that the court ’s findings lack evidentiary support or that the court capriciously disbelieved the evidence.” Fudula v. Keystone Wire & Iron Works, Inc. , 283 Pa. Super. 502, 424 A.2d 921, 927 (1981). Judicial discretion requires action in conformity with la w on facts and circumstances before the trial court after heari ng 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 manne r lacking reason. Miller v. Sacred Heart Hosp. , 753 A.2d 829, 832 (Pa. Super. 2000) (internal citati ons omitted). “To the extent that the trial court’s findings are predicated on errors of law, we rev iew the court’s findings 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, “Collateral estoppel, or issue preclusion, is a doctrine which 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 previously litigated.” 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;J-A21019- 14

- 5 - (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in pr ivity with a party in the prior case; (4) the party or per son privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in th e 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) (citation omitted). Furthermore, “[t]he judgments of t he federal courts are owed t heir due force and full effect in state courts.” 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 t o 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). With these standards in mind, we examine the trial cour t’s determination that Hudson was collaterally estopped fro m re-litigating the issue of damages. 3
Hudson’s first two issues are related and we will address t hem together. Hudson argues the trial court’s determinatio n she was collaterally

____________________________________________ 3 Hudson’s appeal only challenges the application of the f irst and fourth elements of collateral estoppel. Because there are no q uestions regarding the applicability of elements (2) existence of a final judgment, (3) identity of the party, or (5) determination that the prior proc eeding was essential to the judgment, we will not discuss those.J-A21019- 14

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estopped from pursuing additional damages was against b oth the sufficiency and weight of the evidence. 4 Initially, we note that a claim that a judgment is a gainst the weight of
the evidence is a claim that certain evidence was not cred ible on its own or that otherwise credible evidence was overwhelmed by oth er credible evidence. “ A motion for new trial on the grounds that the verdi ct is contrary to the weight of the evidence, concedes that there is suf ficient evidence to sustain the verdict.” Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). While a sufficiency claim argues a required element of p roof is missing, the weight claim argues, “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Id

. Assessing weight of the evidence is commonly stated in ter ms that the fact finder, in passing upon the credibility of witnesse s 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 shock one’s sense of justice. Joseph v. Scranton Times, L.P. , 89 A.3d 251, 274 (Pa. Super. 2014). Such determinations are the exclusive province

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4 Hudson argues her issues in a different order in the bo dy of her brief. We refer to the order of the issues as they were listed in the statement of questions involved. See Appellant’s Brief at 5.J-A21019- 14

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of the fact finder and will not be overturned absent a showing the trial court “acted capriciously or palpably abused its discretion.” Hatwood v. Hospital of the University of Pennsylvania , 55 A.3d 1229, 1238 (Pa. Super. 2012). Here, Hudson’s ar gument regarding the weight of the evidence does not address credibility or the relative weight of the totality of the evidence. The argument as presented in the Appellant’s brief is t hat “there was no evidence introduced at trial establishing that the is sue of ... damages related to her shoulder surgery was actually presented to the A llstate UIM Arbitration Panel and litigated.” See Appellant’s Brief at 30 (emphasis added). Accordingly, we read the argument as a restat ement of the sufficiency claim. Therefore, the weight of the evide nce argument has not been developed and the issue has been waived. 5 Piston v. Hughes , 63 A.3d 440, 444 (Pa. Super. 2013) (undeveloped argume nts are waived). As to insufficiency of the evidence, Hudson argues she di d not present any evidence of her shoulder surgery and resulting scarri ng, recovery, etc. to the arbitration panel; therefore, the issue was n ever litigated. Accordingly, she claims, collateral estoppel cannot appl y. Hudson has framed this argument as a failure to meet the first re quirement of collateral estoppel

– the necessity that the issue to be decided be identical t o the issue previously decided. However, the trial court determin ed the “issue” in

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5 Even so, our review of the certified record leads to t he conclusion that the ju dgment is not against the weight of the evidence.J-A21019- 14

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question was the broader concept of the damages suffered by Hudson because of the automobile accident. As a result, the tr ial court essentially reframed Hudson’s argument in terms of the fourth requ irement – a question of whether Hudson was afforded the opportunit y to fully and fairly litigate the issue. See Trial Court Opinion at 6 (“[Hudson] had a full and fair opportunity to litigate the extent of her damages...”). We believe the trial court’s approach was correct. Rather, Hudson has claimed: “The issue of the damages rela ted to the surgery entails a number of elements. These include the cost of the surgery, the actual scar from the surgery, months of post- operative therapy, lost wages, and pain and suffering.” See Appellant’s Brief at 30. This argument concerns the continuation of treatment, and co ncurrent claim of continuing damages, arising from a known injury. Th is is simply a claim for future damages. The argument is essentially an assertio n that future damages are a different issue from damages.
However, other than Hudson’s assertion, she has put fo rt h no compelling argument why future damages should be conside red separately from general damages. While past and future damages are likely to beJ-A21019- 14

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calculated differently, they are both elements of dama ges, not separate issues. 6
The issue of Hudson’s damag es was clearly before the arbitration panel, which considered the evidence presented, includi ng the doctor’s opinion that surgery would be necessary 7 and Gerard Bradley’s testimony that Hudson testified consistently with her sworn statemen t, 8 and determined her injuries were compensable to the total amount of $75,000.00. Therefore, Hudson cannot credibly claim th at 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 futur e damages are no more a question of separate issues that is the question of phys ical injury and wage loss. One could not credibly argue one was entitled to separate arbitrations to determine physical injury and wage loss. The tria l court aptly noted: The fact that [Hudson] decided to wait to undergo surg ery at a time that was more convenient for her does not magicall y make the injury anything different than the one that was sustained in the motor vehicle accident and for which she was compensate d by the arbitration panel. [Hudson] had not chosen sur gery at the time of arbitration but it was clear at the arbit ration that surgery was recommended and would most likely be necessar y in the future

– therefore, the panel took it into account. Trial Court Opinion at 6.

7 See Plaintiff’s Exhibit 2, Letter from Dr. Trevlyn to Dr . Weiner, 1/15/2008. Dr. Trevlyn appears to have been Hudson’s orthopedic sp ecialist, and Dr. Weiner, her primary treating physician.

8 Gerard Bradley was arbitration counsel for Allstate. H udson’s sw orn statement included her admission that she believed her sh oulder would require surgery. See N.T. Trial, 11/8/2013, at 11.J-A21019- 14

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abuse of discretion or error of law in the trial court’s determination that the first requirement of collateral estoppel, issue identity , had been met. However, the trial court addressed future damages in t erms of the fourth element of collateral estoppel, addressing the opportunity to fully and fairly litigate the claim, and Hudson’s argument can be fairl y read to encompass that concept. Therefore, despite not being l abeled as a challenge to the sufficiency of the fourth element of co llateral 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 fai rly litigate the issue. The salient word here is opportunity. The trial court fou nd that the arbitration panel was presented with medic al records, doctor’s statements, treatment records, Hudson’s statement that she believed she would ne ed surgery, as well as the report from the defense medical examinatio n. The certified record in this matter does not contain Hudson’s medical or treatment records, so we cannot consider either of those. 9 However, we have Hudson’s statement and Dr. Trevlyn’s letter, both of which clea rly indicate the injury to the shoulder and the recommendation of surgery. H udson claimed then and claims now that those injuries were a result of the automobile accident.

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

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She knew about the injuries then and related those in juries to the arbitration panelists. 10 Further, at the non-jury trial, counsel for Hudson ad mitted that nothing prevented her from joining U.S.A.A. in the original arbitration. THE COURT: What would stop you from bringing that [se condary UIM coverage policy] to the table?

____________________________________________ 10 Hudson’s reliance on 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 was submitted to McNally’s uninsured motorist (UM) carrier . Subsequent to that accident, McNally was involved in an accident with Dagney. While the UM claim was pending, McNally filed an action against Da gney, who subsequently sought dismissal of the action claiming McNa lly was collaterally estopped from seeking the same damages from two accident s. 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 McNa lly 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 accid ent two, one year, and about seven months later” and had “diffe rent injuries, continuing injuries [, and] lost wages that we re not compensated by the first award.” McNally , 510 A.2d at 725, n. 8. Initially, we agree with the general principle that collateral estoppel cannot prevent a party from claiming “new” damages. How ever, a significant difference between McNally and the instant matter is that in McNally , the claimant argued he had specifically limited the d amages submitted in the first claim, while that argument ha s not been raised here.J-A21019- 14

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[Counsel]: One thing that might stop someone from bri nging it is that they feel that the $100,000 adequately compensat es the Plaintiff . So, there’s no need to go any further than that. That based on the evidence or the injuries at the time of t he hearing that’s adequate in terms of compensation. Two, the hea ring is scheduled and testimony was that it’s recommended, but I don’t really want to move forward with surgery, so we’ll just prese nt the case as recommended surgery. But I’m not going to have it. N.T. Trial, 11/8/2013, at 42. Counsel’s comments indicate that any decision not to fully present the claim of damages was strategic or practical. Neither the arbitration panel nor defendant precluded Hudson from presenting such evi dence. We also examine the language of the relevant statut e, 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 all ow for multiple

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11 We note this language is mirrored in the relevant in surance policies.J-A21019- 14

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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 discre tion or error of law in the trial court’s determination that Hudson was affo rded a full and fair opportunity to present her entire case for damages. 13

____________________________________________ 12 Indeed, without that explicit allowance, the gener al policy of the Commonwealth of Pennsylvania frowns upon piecemeal lit igation as being wasteful, expensive and as unnecessarily protracting liti gation. See generally , Pennsylvania Turnpike Commission v. Atlantic Richfiel d , 394 A.2d 491 (Pa. 1978). While Section 1733 does not forbid seria l litigation, we believe we should not unnecessarily encou rage it. As noted, in the instant matter there was nothing preventing Hudson from fully presenting her claim for future damages or from joinin g U.S.A.A. in the original arbitration. Therefore, there is no particu lar reason to endorse serial litigation under the facts before us. Prior to 2005, piecemeal litigation involving the a lleged tortfeasor and UIM coverage was not only encouraged, it was virtually mand ated by the Department of Insurance, which required insurance polic ies to provide for UIM arbitration. The third-party negligence matter would typically be brought before the Court of Common Pleas (including st atutory arbitration as applicable) while the UIM claim was presented to a priv ate arbitration panel. This mandatory separation of third party and UIM claim s no longer exists. See Insurance Federation of Pennsylvania, Inc. v. Koke n , 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 surg ery. 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 medi cal report from a defense medical examination that opined the shoulder i njury 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 regardi ng the shoulder injury.J-A21019- 14

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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 ful ly compensated for her damages. This claim is moot in light of the fact th at 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 fro m seeking further coverage from her own policy based on the failure to e xhaust 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 determinin g the amount of damages. Because collateral estoppel has prevented Hudson from see king another determination of damages, the issue of exhausti on 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