HomeMy WebLinkAbout96-03781
LAURALBB B. BAKBR.STARR, BRQUIRB
Pa. Supreme Court I.D. No. 5887t
RBYNOLDS , HAVAS
A Profe..ional corpor.ticn
101 Pine street
P,O. Box 932
Harrieburg, Penneylvania 17108.0932
Attorney for AD.pondentt
STATE FARM INSURANCE
Telephone!
FAXt
17171 236.3200
1717 236,6863
JAMES TOULOUMES, JR., and
FROSO TOULOUMES,
Petitioners
I tN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION .- LAW
I
I No. 96 -03791
I
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t
v.
KEMPER NATIONAL INSURANCE
COMPANIES tla AMERICAN
MOTORIST INSURANCE COMPANY,
and STATE FARM INSURANCE,
Respondents
NOTICE TO PIlBAD
TOI JAMES TOULOUMES, JR., and FROSO TOULOUMES, PETITIONERS
and THEIR ATTORNEY
Thomas J. Williams, Esquire
HARTSON, DEARDORPP, WILLIAMS AND OTTO
10 East High Street
Carlisle, Pennsylvania 17013
YOU ARE HEREBY NOTIFIED to plead to the enclosed NEW
MATTER AND COUNTERCLAIM OF DEFENDANT, STNrE FARM INSURANCE,
within twenty (20) days from service hereof, or a default
judgment may be entered against you.
Respectfully submitted,
REYNOLDS & HAVAS
A Professional Corporation
<t\ >\ qc,
Date
Esquire
Pi, fl-
Attorneys for Respondent,
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
2. Admitted to the extent indicated by Petitioners'
declaration sheet which is attached to Petitioners' petition as
Exhibit "A."
3. Admitted to the extent indicated by Petitioners'
declaration sheet which is attached to Petitioners' Petition as
Exhibit "A."
4. Admitted. By way of further answer, State F~r.m has
offered to settle the third party action for the entirety of Ms.
Straubel's liability limits of $100,000.00. However, State Farm
has n2t offered the under insured motorist benefits with limits of
$15,000/$30,000 as Petitioners are not an "insured" under the
State Farm policy or Pennsylvania law. By way of further answer,
under the State Farm policy and Pennsylvania law, one is not
entitled to liability coverage and underinsured motorist benefits
under the same policy.
5. Admitted in part and denied in part. It is
admitted that the State Farm policy provides for arbitration of
underinsured motorist benefits. It is specifically denied that
petitioners are entitled to underinsured motorist benefits under
the policy issued by State Farm to Ms. Straubel.
6. Admitted in part and denied in part. It is
admitted that Petitioners have made such claim. It is
specifically denied that petitioners are entitled to such claim.
By way of further answer, the answers contained in paragraphs 4
- 2 .
and 5 are incorporated herein by reference as though set forth
fully at length.
7. Admitted. By way of further answer, ,State Farm has
not appointed an arbitrator as Petitioners are not entitled to
underinsured motorist benefits coverage under the State Farm
policy or the law. By way of further answer, the answers
contained paragraphs 4 and 5 are incorporated herein by reference
as though set forth at length.
WHEREFORE, Respondent, State Farm Mutual Automobile
Insurance Company, requests that this Court deny Petitioners'
petition to Appoint Arbitrators as Petitioners are not entitled
to the underinsured motorist benefits coverage in the policy
issued by State Farm Mutual Automobile Insurance Company to
Judith Straubel. In the alternative, State Farm requests this
Court to permit it to appoint its own arbitrator, which has
already been arranged.
NBW MATTBR
8. The foregoing paragraphs 1 through 7 are
incorporated herein by reference as though set forth fully at
length.
9. This action arises out of a motor vehicle accident
which took place on July 9, 19~2, between Petitioners and Judith
Straubel, a State Farm insured. ("Ms. Straubel") A copy of Ms.
3 -
policy under the ambit of the "Priority of Recovery" provj,sions
in the PaMVFRL.
16. Even assuming, arquendo, that this Court finds
Petitioners were an "insured" under Ms. Straubel's policy,
Pennsylvania law is clear that a claimant may not recover third
party liability benefits and underiosured motorist benefits from
the same policy. Manev v. Llovd, ___ Iila. Super. ___' 634 A.2d
1139 (1993), and ~vlor v. Hartford Insurance Compa~, ___ Pa.
_, 640 A.2d 1234 (1994).
17. Accordingly, Petitioners are not entitled in any
way to receive underinsured motorist benefits from Ms. Straubel's
policy of insurance with State Farm.
WHEREFORE, State Farm respectf.ully requests that this
Honorable Court dismiss Petitioners' petition to Appoint
Arbitrators and to hold that underinsured motorist coverage may
not be recovered.
COUNTIllRCLAIM
18. The foregoing paragraphs are incorporated herein
by reference as though set forth fully at length.
19. Following Petitioners' initial notification to
State Farm that it was their intention to seek underinsured
motorist benefits under Ms. Straubel's policy, State Farm
notified Petitioners that under insured motorist benefits were not
- 7.
available lInder State Farm's policy. A copy of said
correspondellclt from Dolores McKenzie, State Fatln Claim
Specialiat, to Petit.ioners' counsel dated February 8, 1996, is
attached hereto, incorporated herein by reference and marked
Rxhibit "B."
20. 'rhereafter, when Petitioners continued to pursue
underinaured motorist bemefits from State Farm, counsel for
Pet.itioners and State Farm had several telephone conversations in
which it Willi once again reiterated that State Farm was not
responsible for under insured motorist benefits for Petitioners.
A copy of correspondence documenting said conversation is
IIttached hereto, incorporated herein by reference and marked "C."
21. As part of the foregoing correspondence,
PetitIoners were notif ied that if, indeed, they intended to
pursue said claim, State Farm would be willing to appoint an
arbitrator.
22. Nonetheless, on July 16, 1996, Respondents were
fJerved with the instant petition to Appoint Arbitrators.
23. In light of the clear contractual and statutory
language providing that petitioners do not have a right to
recover under insured motorist benefits from State Farm under the
facts herein, State Farm is entitled to attorneys' fees to
compensate for the costs involved in answering Petitioners'
petition and claim is made therefor.
- 8 -
Exhibit A
Ilnns of rh. poU'Y
,u, policy if l5Iu.d
laralions Pa... If
COMPANY of
( of Bloomin.lon,
apan.
Icdard Time
liey is deleted and
III \lIher. you, c"
; Or
'IOY denies cov.r.
,el insoh'ent; or
lor velllcle whose
" unknown and
, io,u"d.
el nOI include a
'covera~e of lhis
use of you, you,
..If.lnsurer under
III rClponsibility
r any similar la,..;
'01 or any of ils
gencies:
orr public roods
ds: or
j",elling or olher
6997 AF
UNDERJNSVRED MOTOR VEHICLE
COVERA.GE W
You ba ve tbb covera,. if "W" appean in lhe
.Coveralles" Ipace on lh. de<:laratlons plse,
We will PlY dalGlgcs for 604/1" I,,}/I,y In III'/I"d
Is leSllly entllled to collect from the owner or dri.
ver of In ,.,IUriOIll.,,,/ /fIO'O, .d,/e/I. Tho 604/ly
III}u,y must be ca-.l by accident arising out of
the ownership, mllUtenance or use of an .."""i,,.
Ju,.,l mo'" ,"'IcI,.
The amount we will pay for dama.es is suhJeclto
lbe Iimltltlonl of TiLle 7S of Ihe Pennsylvania
ConsoUdated StaIUteS.
THERE IS NO COVERAGE FOR BODILY IN.
JVR Y ARISING OUT OF THE OWNERSHIP.
MAINTENANCE OR USE OF AN UNDERIN.
SURED MOTOR VEHICLE UNTIL
I THE LIMITS Of LIABILni' OF All
BODILY INJURY LIABILITY BONDS
AND POLlCrES THAT APPLY HAVE
BEEN USED UP BY PAYMENT OF
JUDGMENTS OR SETTLEMENTS TO
OTHER PERSONS; OR
2, SUCH LIMITS OF lIABILITY OR RE.
MAINING PART OF THEM HAVE
BEEN OFFERED TO THE INSURED
IN WRITING.
V"",,ill'"'''' M,,,, V./ricu - means 0 land mo.
lor vettiel.:
I. lhe ownership, maintenauce or Ole of
whicb is insured or boaded for bodily in.
Jury Uabllity al Ihe time of tbe accident;
and
Z. whose Iimi15 of liabililY for bodily injUry
liabiUty:
a. are less lhan lhe amount of the
i",ured', damalles; or
b, ha,o beon reduced by paymenls 10 ,,,.
'0'" olh.r than Ihe i",u"d 10 less lhln
the Imounl of the /1IJ1I"d', damae",
IU ..".,IIIr..rld "''''0' ,,/rI,I, does not include 0
laDd molor v.hlcl"
I, Insured under Ihe IIlbilhy ~overase of thl,
polley;
2, furnished for lb. rogullr use of YO", YO..,
"""It or any ,,1.rI,.;
J, owned by Iny ,overument or ony of its
pollucal subdi,illons or Igonclll;
. 4, while locI led for uae os I dwolline or olher
I prerwses;
" S, designed for llSC malnly olT public roads
ucopt while on public roads; or
6. defined as on ""'",..reJ "'oro, ,dldl In
you, policy,
Who 1I In Insu,ed - Co.orlll" U and W
/{l,u"d - means Ibe p"'o" or p",oo, covered by
u'nJnlured motor vehicle or UIIderinsured mOlor
",ehJcle co'erale.
ThJsis:
l. the firstp'''''" nlm.d In the dcclaratlona;
J, 2. his or berspo..It;
J. thel".I,ri..,: and
.' 4. sny olher per"M while oc'..pyi""
.. you, ear, a ""'por",y .,,,bl';"~'1 C.,, a
"'../y .~9u/"d CG" or a llliler onached
to such CG,. Such vohJde ba. to be OIed
wilhin the scope of the consenl of YOII
or )10'" spo"",' or
b, a co, not owned by ;yo.., YUII, 'POUII or
any "/Gr/'t, or 0 Ira,ler allached 10
luch a e.... lr has 10 be drh.n by the
fint ""0" named in the declarations
or tbOI p'"oo', J,o.... and within the
"ope of the owner's COD..nt,
Such other perso" occ/I,yi", a 'Chicle used
10 corry p."DII' for a chu.e IS nOI aD ;".
,""d.
$. any ,"JD" enlltled to recover dRntages be.
caUIl of botIJly illjll,y to an illJ..reJ under I
throulh 4 above.
2
6997 AF
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exhibit B
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Exhibit C
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R, JAMII RIYNOLDI. JA,
JDHN HA V AI
MICHAIL M, IADOWIKI '
IT1PHIN L, IANKO, JR,
ROLl'I, KROLL
IARRY A, KRONTHAL
LAURALlI I, IAKIA,ITAAA
MICHILI J, THORP
REYNOLDS & HAVAS
,. "'"'....IO~"'" COIl~Il.no,-
ATTOANIYI AND COUNSELORI AT LAW
101 plNI l~flT
POIT omcl lOX 832
HAIlAIIIUAO, PlNNIVLVANI" 1710Q,OG~2
TtLlPHONI
17171 230.3200
'''X
17171 2~U"~
July 9, 1996
VIA PAX .. [7171 243-1850
Thomas J. Williams, Esquire
MARTSON, DEARDORFF, WILLIAMS & OTTO
Ten East High Street
Carlisle, Pennsylvania 17013
Rei Touloumes vs. Straubel, et al.
R&H File No. 2845-1
Dear Tom:
This correspondence serves as follow-up to our several
telephone conversations regarding the availability of
underinsured motorist coverage with regard to the above-
referenced matter. You have indicated that the underinsured
motorist coverage at issue is that of the $15,000/$30,000 limit
available on Ms. Straubel's policy. As we have discussed, it is
State Falm's position that liability coverage and underinsured
motorist coverage are not recoverable under the same policy. ~
Pavlor v. Hartford Insurance Company, ___ Pa. ___, 640 A.2d 1234
(1994), and the cases cited therein. In effect, the Touloumes'
request for underinsured motorist cov~rage from Ms. Straubel's
policy is equivalent to an attempt of recovery of both liability
and underinsured motorist coverage from the same policy which is
not permitted under the foregoing case law.
Please call me once you have had an opportunity to
review the foregoing case law. If you still believe an
arbitration is necessary, State Farm is willing to appoint an
arbitrator to review this matter.
Very truly yours,
/ /-,(1
hJ:.08
taurale@. B. Baker-Starr
LBS/na
bc: .Ms. Dolores McKenzie (SFU 38-6521-212)
Confirmation coPY via first class mail.
, Celtlllert sa . CI....II Trl.1 AdVOCAte bV the Natiun..1 Baird of Trill AdvoclcV
A Penn'I/lvan.. Guprl!llle Cuulf Accredited Agencv
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I' '11l1'~ IlAI Mill-' t i1~ t\IJl ~ '~n 411'1lJl '1'1' I Ill....
,'lnIIlIQ'.Ull,lllll)...I:QI'M
1I.~'N'oI Q',IU<Hll)4lJ Ird'M
JAMES TOULOUMES. JR, and
FROSO TOUL.OUMES.
Petitioners
IN THE couln OF COMMON Ill.EAS
CUMBERl.AND COUNT\". IlENNSYL. VANIA
CIVIL ACTION .l.AW
v,
NO, (/1, ]),1'/ (:.." " r:
. ' J,.~_
KEMPER NATIONAl. INSURANCE
COMPANIES tla AMERICAN
MOTORISTS INSURANCE COMPANY,
and STATE FARM INSURANCE
Respondents
PETITION TO AllPOINT ARBITRATORS
AND NOW. comes Petitioners IIbove named by their attorneys, MARTSON. DEARDORFF,
WIL.LlAMS & OTTO, and avers as follows pursuant to 42 !la, C.SA ~730S:
I. Petitioners are adult Individuals who at all pertinent times resided at 328 West Old
York Road. Carlisle, Cumberland County, Pennsylvania 17013
2. Petitioners had an auto Insurllnce policy with Respondent Kemper Nationllllnsunmce
Companies tla American Motorists Insurance Company in fullfluce and etl'ect when injured in an
auto collision on July 9, 1992. A copy of the declaration sheet is attllched and marked as Exhibit
UA,1I
3. Said policy provided lInderinsured Motorists Coverage (lIIM),
4, The said collision involved a car driven by Judith Straubelthat was insured by State
Farm Insurance. with liability limits 01'$100.000,00 and UIM limits of $15.00000/$30,000,00, A
copy of the declaration sheet of said policy is auached and marked as Exhibit "B,"
S. Both policies provide for arbitration of 1I1M claims in accordance with the Uniform
Arbitration Act. 42 !la, C.SA !i730 I. e/. '\'C//' with both parties appointing one arbitrator and the
two arbitrators so appointed selecting a third arbitrator,
6, Petitioners have made a UIM claill1against both policies and have appointed James
D, Flower, Jr" Esquire as their arhltrator on or about February S. 1996 A copy of the
correspondence dated February S, 1996 to Respondents appointing same is auached IlI1d nHlrked as
Exhibit He."
7, Neither Respondent has appointed an arbitrlltor as required by the respective policies
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exhibit A
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'" '~l' .l.'.r'. "l..l:.lfJ. I .It':. 11.:: I 1 f -..t::": I..... ':':
, WIUCAN t1OTORI5'l'~ I.~~\JI(AN~'" L;VlIl'MI
CONTINUATION CERTIFICATE
Pf'l'Ional Auto Polky AGl!trr IBROKER CCPY
!hI. <WIIIflclle .h.U contloue 111. pollry in fomo lor tho policy ,,"Mol .how., ....1 nnl\
Ir lhtt rtq\l1lcc1 ptcmhJm II plld bwllJftl \h. "I'om" chiC .1.lId,
MnR ~ 1 ' 95 1 ~ : ~: '10,0 1 ~ p, I] 2
rt\vt.. i VI i .~
,\n..d, ~\I. (or1llil:OlO to YOUI pollcv, ~
Pollr~ 'j"mbw liB 543 305
I'ellry Iro", 07/20/91
1'O'lntl 10 07120192
11101 A, I'l, IIlndnr>lll"",
Ale"Vn,"~<1 32-2909
HCnOlt'llJ,L INSURANCE ISC
POBOX 614
CARLlstE PA 17013
Naill.... In...'" a.... ....11I"' ........
BILL TO FOLLOW
jAH!S J TOULOUHEB
noso I TOULOUMl!S
328 ~ OLD YORK ROAD
CARLISI.! PA I 7013
,"Iuf.d', Ilrll.lJlulUUn RESTAURANT
The IUlo(l) '" ,,,llerul ~.'..nu.d In Ihl. poll')' 110 pl"'''p.lIv &1I'l1"rf .llho .boVI Idd.... unl... uloorw Ie ,ljlOd,
DfSCIIll'110N 0' AU'Olil O. 'RAIlIlU5l IlIIp
1 66 CADILLAC FLEETIIOOO IGtD\l696JG~116666
2 78 FORD FAIRLANi 6X91T209916
3 86 FORD MUSTANG I1A8P45EOJF21~179
'>)m llmtory
Ii 021 027
5 027 027
IP 027 027
CI... (00<:
8572214
8111206
6912415
Crcctlu
128
1
18
erel6llel 1.:WO l)I mO(l:~ "1106 1 III COIT'r'oIln I,ll , v l~u(.1.IWlfl" ? . ^I ('111.."1 11'........I'\I01IlU..I." lS - ^IlL'"lholl dl"ri<:C c,hlO)Un1
1 III O,~ trJlnWiq 4 _ COOU '" ,khH I.lV\n~ h. &HTlIWW ll'~llIljlll ^ . fI,nlvlI 1",,11,Ult ~ ",our. C . A1ltJ"ock brllCt' dtKQUnt
COVEMen , liMnS 0' llAlIlITV - C""."I' II pl'O\'ldld only ".0" I p..ml... 0' IImh of lI.blllly II ohown to. ""' raw.o,..
AUIO 1 ^,,~I 2 AUlD 3 Auto
$ ~OO.OOO $ 500,000 ~ 500.000
" ll.blIllv . ~lcll .crld....
; Mo<llul '...."'.nu ' OI,h porIOn
,~. llMrlIU,od MoUxi"l
I, ijodll~ Injury' ood1.cclOonl $ 35,000
2, PropofIy Do""'A. . .",,," 1,,:hlc"1
<), Dom.. '" your I\'J'" ' A",uII Cllh Voloe (M",,! mlllu\ dodllctlUlo olwwn
1. ('....""', 1016 2 500
I, tlIIlo, thnn colli. Ion "'" v 100
I"",,,,.nd labor CotII fJOI' dlublomo"
TOTAL MtMtUM tACH AUlO
AlJ\O 1
lot'm
premium
$ 378.00
$ 12.00
$
35.000
$
35.000
$
$
500
100
A"'"
10rm
I...-um
CAIV.
"'pI
\
~
~,
.1
Jl $
J2 $
1 owl",
"ldll I
ItJlAl
'OIN'fS
AUlo 2
Torm
premium
$ 246,00
Auto 3
10''''
promhlm
~ 402,00
$ I~, 00
$ 462,00
$ 222,00
i 102.00
1200.00
134,00
$
12,00
344.00
140.00
94.00
968.00
94.00
t
66,00
326.00
,'re rovers_ lot enOO.&CInc:nll IltJlCltcd lD Ulb pollry,
roll<-'Y 101Al
e 2,494.00
;OLLISIOO COVIlIUGB PROVIDM BY YOUR POLICY EXTEKlJ5 TO ~N'rAL VEHICLES BUBJ1!CT TO TIlE CONDITIONS
\NIl LIMITATIONS IN YOUR POLICV SUCH AS COVERED 'I'1!RRlTORY I LENGnl or TIliR OR ANY OtDUCTIBLES.
~OlNT8t nus AMOUNT SHOWS TIlE SURCHARGE Foa EACH AUTO THAT RF.llUT.TS fROH
\CCID!NT INVOLVEllEtrr.
, . r"' It. PuNll' l)!\j dt't<"'frlllcd lJY Ino nlic'. r, 'hI" '><11,. r<fIWI pI ,'I 01 .,M,"llllJlo 1)""1 III your ,1'\',," In InCM 1tA1'" two "~ pO"'l ,nit_ ('rflIlllA"
dlllrJI;C Of 1 P<',ot,
'CO """ 111 "I" , POI'" . .. _ I
,jM~^,'N liSl ""l Y )(l;M~I!R PAYHRNT fLIIN ACCOUNT N\IKllER SKT1969!8
In IllCfll~ (')II,OW' I ch.,,&" n..m II !hi' I'CMWII
,MOt u, It'... !
EXHIBIT "A"
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EXHIBIT B
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EXHIBIT C
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WILI.lAM /I, MA~11I11N
DAHilL K. DWD<I~"
TllllMM J. WILLIAMS
1\'lIV.OmI,11I
Snrfll.N 1., IlUlt.IM
(illllW. II. PALUl, Jl,
WILLIAM D. PllWlLL
TllllMM 0, CULUNI
fj (JI I ,J)I ''1I'~I/' ...P.
.JlIla4,IJMI., j'),'a,I'((.o",., f/f/f{((aJIIJ (Y
A NUlrt'\&!lJNA!. n)~"()JlA'JIUN
A'I'I\JRNHS ANO CUUNS~LI.l"l~ AT LAW
l'~N rWiT HIl.1I STIl~n
CAllllSlf" PtNNSVl.VANIA 17013
ello
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TlLrrllONI
(717) 24H'41
February 5, 1996
'ACSIMILI
(717) 145.1850
INTlllNlT
mdwollmdwo"om
Mr, Edward A, McMerty, III
Claim Specialist
Slate Farm Insurance
Harrisburg Service Center
115 Limekiln Road
P,O, Box 257
New Cumberland, PA 17070.0257
, "
RE: Claim Number:
Date of Loss:
Your Insured:
Our Clients:
Our File Number:
38.6521.212
July 9, 1992
Judith Ann Straubel
James J, and Froso Touloumes
4850,13
Dear Ed:
I understand that you have VIM coverage for Judith Ann Straube!. A copy of the Declaration
Page is enclosed for your convenient reference, As I interpret this, the coverage is in the amount of
$15,000.00 for one claim and $30,000,00 in the al!8regate,
Please treat this as a demand for the $15,000.00 limit each on behalf of James J, Touloumes,
Jr, and Froso I, Touloumes for a total of $30,000,00.
Mr, and Mrs, Touloumes were insured by American Motorists Insurance, A copy of their
Declaration Page is enclosed,
We would also request your consent to settle this for the S I 00,00.00 policy limit in our claim
against your insured's liability coverage,
If this claim for VIM limits is not acceptable, then I hereby appoint James D, Flower, Jr.,
Esquire as my arbitrator, and I would request that you appoint your arbitrator,
Very truly yours,
Thomas J, Williams
TJW/tdw
Enclosures
p 'fJLIlIfIOATAflI.1i\l.1f.Nl..TR9to\4I'I(1)'11