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PENNSYLVANIA
MOTOR VEHICLE
POLICY
This policy, the declarations page, and any appli-
caole endorsements contain the terms of the con-
tract of insurance between us and the policy-
hOlder.
NOTICE: IF YOU BUY COLLISION COVER-
AGE, IT DOES NOT APPLY TO VEHICLES
RENTED FOR BUSINESS USE OR FOR Ii
MONTHS OR MORE.
Progressive Northem Insurance Company
Madison, Wisconsin
Form No. 9606 (07/97) PA
@ '997 The Progressive Corporation, All Rights Reserved.
PLAINTIFF'S
EXHIBIT
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EXHIBIT "A"
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CONTENTS
YOUR DUTIES IN CASE OF AN ACCIDENT
OR LOSS
Notice 01 Accident Or Loss 1
Other Duties ............::::::::::: 1
GENERAL DEFINITIONS ............... 2
PART I - UABILITY TO OTHERS
Insuring Agreement. Bodily Injury ...... 5
Insuring Agreement. Property Damage. 5
Additional Delinition ................. 6
Additional Payments ................. 6
Exclusions ......................... 7
Umits Of Liability .................... 8
Financial ResponSibility Laws ......... 9
Other Insurance .................... 10
Out-Ol.State Coverage .............. 10
PART II . FIRST PARTY BENEFITS
COVERAGE
Insuring Agreement ................. 10
Additional Definitions ................ 11
Exclusions......................... 13
Umits Of Liability .................... 14
Other Insurance .................... 16
pART III- UNINSURED/UNDERINSURED
MOTORIST COVERAGE
Insuring Agreement. Uninsured
Motorist Coverage .,............... 17
Insuring Agreement. Underinsured
Motorist Coverage ................. 17
Additional Definitions ................ 18
Exclusions ......................... 20
, Umits Of Liability .................... 21
Other Insurance .................... 25
Arbitration ......................... 26
PART IV . DAMAGE TO A VEHICLE
Insuring Agreement. Collision ......... 27
Insuring Agreement. Comprehensive ... 27
Insuring Agreement. Custom Parts
Or Equipment .................... 28
Additional Definitions ................ 29
Exclusions ......................... 29
Limits Of Liability .................... 31
Insuring Agreement. Additional Custom
Parts Or Equipment Coverage ....... 33
Insuring Agreement. Emergency Towing
AndLabor .......................33
Insuring Agreement. Rental
Reimbursement Coverage .......... 34
Loan/Lease Payoff Coverage ......... '34
Payment Of Loss .. . . . . . . . . . . . . . . . .. 35
No Benefit To Bailee ................. 36
Loss Payee Agreement .............. 36
Other Insurance .................... 36
Appraisal.......................... 36
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GENERAL PROVISIONS
Policy Period And Territory ........... 37
Policy Changes ..................... 37
Terms 01 Policy Conformed To Statutes. 38
Transfer ........................... 38
Fraud Or Misrepresentation ........... 38
Payment 01 Premium ................ 39
Cancellation ........................ 39
Nonrenewal ........................ 41
Proof 01 Notice ..................... 41
Coverage Changes .................. 41
Legal Action Against Us .............. 41
Our Rights To Recover Payment ....... 42
Bankruptcy ........................ 43
NAMED DRIVER EXCLUSION ........... 43
NAMED OPERATOR - NON-OWNED
VEHICLE COVERAGE ................. 43
APPENDIX
Pennsylvania Surcharge Disclosure Statement
Form 1996 (11/96) .. . . .. . .. . . .. . . . ... 47
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PENNSYLVANIA MOTOR VEHICLE POUCY
f you pay your premium when due. we agree (0
lrovide this insurance. subject to all the terms
lnd provisions of this policy, and up to the Limits
)f Liability described in this policy and shown on
the Declarations Page. '
YOUR DUTIES IN CASE OF AN
ACCIDENT OR LOSS
Notice of Accident or Loss
If there is an accident or loss arising out of
the ownership, maintenan.;:e or use of a vehi.
cle, for which coverage may be provided u
oer this policy, report it to us within
tvventy.four (24) hours or as soan as practica-
ble by calling us at 1-800-274-4499.
You should report each accident or loss even
if an insured person is not at fault.
The following accident information should be re-
poned as it is obtained:
1. time;
2. place:
3. circumstances of the accident or loss:
4. names and addresses of any injured persons;
5. names and addresses of any witnesses: and
6. the license plate numbers of the vehicles
involved.
You should also notify the police within twenty-
lour (24) hours or as soon as practicable if;
1. you cannot identify the owner or operator of a
vehicle involved in the accident: or
2. theft or vandalism has occurred.
oniER DUTIES
A person claiming coverage under this oJic
musl'
cooperate with us in any matter concerning a
claim or lawsuil:
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2. provide any written proof of loss we may rea-
sonably require;
3. allow us to take signed or recorded state-
ments. including statementS under oath, and
answer all reasonable questions we may ask.
when and as olten as we may reasonably
require:
4. promptly send us any and all legal papers reo
latingto any, claim or lawsuit;
5. attend hearings and lrials as we require;
6. take reasonable steps after a loss to protect
the covered vehicle or non-owned vehicle
from ,further loss. We will pay reasonable ex-
penses incurred in providing that protection.
If you fail 10 do so, any further damages will
" d unde this policy;
7. allow us to inspect and ap' C1amage
to a 'covered vehicle or non-owned vehicle
befqre its repair. or disposal;
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pense by doctors we select as olten as we
may reasonably require; and
9. autl'1orize us to obtain medical and other
recotds.
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GENERAL DEFINITIONS
Excepl as otherwise defined in this policy, terms
appearing in boldface will have the following
meaning: .
1. "Accident" means a sudden. unexpected.
and unintended occurrence.
2. "Bodily injury" means bodily harm. sickness.
or disease. including death that results from
bodily harm. sickness. or disease.
3. 'Business" includes a trade. profession, or
occupation.
4. "Covered vehicle" means:
a. any vehicle shown on the Declarations
Page: '
b. any additional vehicle on the date you be-
come the owner if:
i. you acquire the vehicle during the pol-
icy period shown on the Declarations
Page:
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ii. we insure all vehicles owned by you;
and
iii. no other insurance policy provides cov-
erage for that vehicle.
For a vehicle you acquire in addition to
any vehicle shown on the Declarations
Page. we will provide the broadest cover-
age we provide for any covered vehicle
shown on the Declarations Page. We will
provide coverage for a period of thirty (30)
days after you become the owner. We
will not proVide coverage after this thirty
(30) day period unless within this period
you ask us to insure the vehicle;
c. any replacement vehicle on the date you
become the owner if:
i. you acquire the vehicle during the pol-
icy period shown on the Declarations
Page;
ii. the vehicle that you acquire replaces
one shown on the Declarations Page;
and
iii. no other insurance policy provides cov-
erage for that vehicle.
If the vehicle that you acquire replaces
one shown on the Declarations Page, it
will have the same coverage as the cov-
ered vehicle it replaces. You must ask
US to insure a replacement vehicle within
thirty (30) days after you become the
owner if you want to add or continue cov-
erage under Part IV - Damage To A Vehi-
cle: and
d. any trailer owned by you while drawn by
or attached to a vehicle described in a, b,
or c above.
"Oeclarations Page" means the report from
us listing:
a. the types of coverage you have elected;
b. the limit for each coverage;
c. the cost for each coverage:
d. the specified vehicles covered by this pol-
icy;
e. Ihe types of coverage for each such vehi-
cle; and
f. other information applicable to this policy.
6. "Loss" means sudden, direct, and accidental
10$s or damage.
7. "Non-owned vehicle" means any vehicle
that is not awned by you, a relative, or the
spouse. Of the named insured even if not re-
siding:in ihe same household as the named
insured.
8. "Occupying" means in, on, entering, or
elliling.
9. "Owned" means the perSon:
a. holds legal title to the vehicle;
b. has legal possession of the vehicle that is
subject to a written security agreement
with an original term of six (6) months or
more; or
c. has legal possession of the vehicle that is
leased to that person under a written
agreement for a continuous period of six
(6) months or more,
10. "Owner" means any person who. with re-
spect to a vehicle:
a. holds leoal title to the vehicle:
b. has legal possession of the vehicle that is
subject to a written security agreement
with an original term of six (6) months or
more: or
c. has legal possession of the vehicle that is
leased to that person under a written
agreement for a continuous period of six
(6) months or more.
11. "Property damage" means physical damage
to, or destruction or loss of use of, tangible
property .
12. "Relative" means:
a. a 'person residing in the same household
as you who is related to you by blood,
marriage, or adoption, including a ward,
stepchild, or foster child; and
b. a minor in the legal custody of the named
insured. or in the custody of a person re-
siding in your household who is related to
you.
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Unmarried dependent children temporarily
away frem home will be considered residents '
If:
a. they are under the age of twenty-five (25)
years~ and
b. they intend to continue to reside in your
household.
13. ''Trailer. means a vehicle designed to be
towed on public reads by a vehicle. It in-
cludes a farm wagon or fann implement while
being towed by a vehicle. It does not include
a mobile home. or a trailer used as an office
store, display, or passenger conveyance. .
14. "Vehicle. means a land motor vehicle:
a. of the private passenger, pickup body or
sedan delivery type: '
b. designed for operation principally upon
public roads:
. c. with at least four (4) wheels; and
d. with a gross vehicle weight of 10,000
pounds or less.
15. "We", "Us., and "Our" mean the company
providing the insurance, as shown on the
Declarations Page.
16. "You' and "Your. mean the person shown as
the named insured on the Declarations .
Page. and that person's spouse if residing in !
the same household.
PART I- LIABILITY TO OTHERS
INSURING AGREEMENT' - BODILY INJURY
Subject to the Limits of Liability, if you pay a pre-
mium for bodily injury liability coverage, we will
pay damages, other than punitive or exemplary
damages, for bodily injury for which an insured
person becomes legally responsible because of
an accident arising out of the ownership, mainte-
nance, or use of a vehicle.
INSURING AGREEMENT - PROPERTY OAMAGE
Subject to the Limits of Uability, if you pay a pre-
mium for property damage liability coverage, we
Will pay damages. other than punitive or exem-
plary damages. tor property damage tor which
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an insured person becomes legally responsible
because. of an accident arising out of the owner-
shIp, maintenance, or use of a vehicle.
We will settle or defend, at our option, any claim
for damages covered by this Part 1.
AOOmoNAL OE3=lNmON
When used in this Part I. "insured lI~rson. or "in-
sured persons. means:
1. yo~ or a relative with respect 10 an accident
anslng out of the ownership, maintenance, or
use of a covered vehicle;
2. any person with respect to an accident aris-
ing out of that person's use of a covered ve-
hicle with the express or implied permission
of you or a relative:
3. a relative with respect to an accident arising
out of the mpintenance or use of a non-'
owned vehicle with the express or implied
permission of the owner of the vehicle;
4. you with respect to an accident arising out of
the maintenance or use of any vehicle with
the express or implied permission of the
owner of the vehicle:
5. any person or organization with respect only
to ViCariOUS liability for an accident arising
out of the use of a covered vehicle or non-
owned vehicle by a person described in 1, 2.
3, or 4 above: and
6. any Additional Interest Insured designated by
you tn your application or by a change re-
quest agreed to by us. with respect to liability
for an accident arising out of the use of a
covered vehicle or non-owned vehicle by a
person described in 1, 2, 3, or 4 above.
AOomONALPAYMENTS
In ~ddition to our Limil of Liability, we will pay for
an Insured person:
1. all expenses that we incur in the settlement of
any claim or defense of any lawsuit;
2. premiums on appeal bonds or attachment
bonds required in any lawsuit we defend. We
have no duty to purchase bonds in an amount
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exceeding our Limit of Liability, and we have '
no duty to apply for or furnish these bonds:
3. up to $250 for a bail bond required because
bf an accident arising out of the ownership,
maintenance, or use of a covered vehicle or
non-owned vehicle. We have no duty to ap-
ply for or furnish this bond: and
4. reasonable expenses, including loss of earn-
ings up 10 $50 a day, incurred at our request.
EXCLUSIONS - READ THE FOllOWING EX-
CLUSIONS CAREFULLY. IF AN EXCLUSION
APPLIES; COVERAGE WILL NOT BE AF-
FORDED UNDER THIS PART I.
Coverage under this Part I, including our duty to
detend, does not apply to:
1. bodily injury or property damage arising
out of the ownership, maintenance, or use of
a vehicle while being used to carry persons
or property. for compensation or a fee, includ-
ing, but not limited to, delivery of magazines,
newspapers, food, or any other products.
This exclusion does not apply to shared-
expense car pools:
2. any liability assumed by an insured person
under any contract or bailment;
3. bodily injury to an employee of an insured
person arising out of or within the course of
employment, except for domestic employees
if benefits are neither paid nor required to be
provided under workers' compensation, dis-
ability benefits, or similar laws;
4. bodily injury or property damage arising
out of an accident involving a vehicle while
,being used by a person while employed or
engaged in the business of selling, leasing,
repairing, parking, storing, servicing, deliver-
ing, or testing vehicles. However, this exclu-
sion does not apply to you, a relative, or an
agent or employee of you or a relative, when
using a covered vehicle;
5. bodily injury or property damage resulting
from any pre-arranged or organized racing,
speed or demolition contest, stunting activity,
or in practice or preparation for any such con-
test or activity;
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6. bodily injury or property damage due to
nuclear reaction or radiation:
7. bodily injury or property damage for which
insurance is afforded under a nuclear energy
liability insurance contract;
8. any obligation for which Ihe United ~Iates
Government is Iiabfe under the Federal Tort
Claims Act;
9. bodily injury or property damage c~used
by an irllenticmal act of an insured person or
at the direCtion of an insured person;
10. property damage 10 any property owned by,
rented 10. being transported by, used by. or in
the charge of an insured person. However,
this exclusion does not apply to a rented resi- ·
dence or a rented garage damaged by a cov-
ered vehicle:
11. bodily injury or property damage resulting
from a relative's operation or use of a vehi-
cle. other than a covered vehicle, owned by
a person who resides with you; or
12. bodily injury or property damage resulling
from your operation or use of a vehicle
owned by you, other than a covered
vehicle.
UMITS OFUABIUTY
The Umit of Liability shown on the Declarations
Page is the most we will pay regardless of the
number of:
1. daims made:
2. covered vehicles;
3. insured persons;
4. lawsu~s brought:
5. vehicles involved in an accident; or
6. premiums paid.
If the Declarations Page shows that "combined
single limits' or "CSL" applies, the amount shown
is the most we will pay for the aggregate of all
damages resulting from anyone (1) accident.
We will apply the "each person" Limit of Liability
for bodily injury as required by the law of the
state listed on your application as your resi-
dence. However, this provision does not change
our total "each accident' Limit of Liability. . .'
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" your Declarations Page shows a split/lmit:
1. the amount shown for 'each person' is the
most we will pay for all damages due to a
bodily injury to one (1) person;
2. subject to the "each person" limit. the amount
shown for "each accident" is the most we will
pay for all damages due to a bodily injury to
two (2) or more persons in anyone (1) acci-
dent; and
3. the amount shown for "property damage" is
the. most we will pay for the aggregate of all
property damage for which an insured per-
son becomes liable from anyone (1)
accident.
The bodily injury limit for "each person" includes
the aggregate of claims made for such bodily in-
jury and claims derived from such bodily injury,
including, but not limited to, loss of society, loss of
companionship, Joss of services, loss of consor- I
tium, and wrongful death.
No one will be entitled to duplicate payments for
the same elements of damages.
Any payment to a person under this Part I shall
be reduced by any payment to that person under
Part III - UninsuredlUnderinsured Motorist
Coverage.
A vehicle and attached trailer are considered
one (1) vehicle. Therefore. the Limits of Liability
will not be increased for an accident involving a
vehicle which has an attached trailer.
FlNANClALRESPONSIBIUTY LAWS
When we certify this policy as proof of financial
responsibility, this policy will comply with the law
to the exlent required. You must reimburse us if
we make a payment that we would not have
made if this policy was not certified as Proof of
Financial Responsibility.
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OlliER INSURANCE
If there is other applicable liability insurance or
! bond, we will pay only our share 01 the damages.
Our share is the proportion that our Umit of li-
ability bears to the total of all applicable limits.
Any insurance we proVide lor a vehicle. other
than a covered vehicle, will be excess over any
other collectible insurance. sell-insurance, or
bond.
our -oF-5TATe COVERAGE
If an accident to which this policy applies occurs
in any state or province other than the one in
which a covered vehicle is principally garaged,
and the state or province has: _
1. a financial responsibility or similar law requir-
ing limits of liability for bodity injury or prop-
erty damage higher than the Umits shown on
the Declarations Page, this policy will pro-
vide the higher limit; or
2. a compulsory insurance or similar law requir-
ing a non-resident to maintain insurance
whenever the non-resident uses a vehicle in
that state or province, this policy will provide:
a. the required minimum amounts and types
of coverage; or
b. any higher limit you have elected, pro-
vided you have paid the premium for
higher limits.
PART" - RRST PARTY BENERTS COVERAGE
INSURING AGREEMENT
Subject to the Umit of Liability, if you pay a pre-
mium for First Party Benefits Coverage we will
pay the following First Party Benefits. il shown on
your Declarations Page, for loss or expense
sustained by an Insured person because of
bodily injury caused by an accident arising out
of the maintenance or use of a motor vehicle:
1. medical expenses:
2. Income Loss;
3. Funeral Benefit; and
4. Accidental Death Benefit.
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AoomONALDEFlNmONS
When used in this Part II:
1. "Accidental Death Benefit" means a death I
benefit paid to the personal representative of
the insured person. should bodily injury
caused by a motor vehicle accident result in
death within twenty-four (24) months from the
date of the accident.
2. "Funeral Benefit" means the reasonable and
necessary expenses directly related to the
funeral. burial. cremation. or other form of dis-
position of the remains of a deceased In-
sured person. incurred due to the death of
the insured person if death:
a. results from a motor vehicle accident;
and
b. occurs within twenty-four (24) months from
the date of the accident.
3. "Income Loss" means eighty percent (80%)
of actual loss of gross income of an insured
person. It also includes reasonable expenses I
actually incurred for:
a. hiring a substitute to perform services the
insured person would have performed in
connection with self-employment. in order
to mitigate or reduce loss of gross income;
or
b. hiring special help to enable the insured
person to work and mitigate loss of gross
Income.
We will not pay for "income lass" for:
a. loss of income during any periOd following
the death of an insured person;
b. expenses incurred for services performed
following the death of an insured person:
or
c. any loss of income during the first five (5)
days the insured person did not work af-
. ter the accident due to the bOdily injury
caused by the accident.
4. "Insured person" as used in this Part II
means:
a. you or any relative; and
b. any other person: ,
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i. while occupying your covered auto
with the express or implied pennission
of you or a relative; or
ii. while not occupying a motor vehicle if
injured as a result of an accident)Yhich
occurs in Pennsylvania involvingyaur
covered auto. This does not apply if
your covered auto is parked and un-
occupied at the time of the accident
unless it was parked in a manner as to
..' ~reate an unreasonable risk of injulY.
5. "Medical expense" and "medical expenses"
mean the reasonable charge for necessary
medical treatment and rehabilitative services. '
including, but not limited to:
a. hospital. dental. surgical. psychiatric. psy-
chological. osteopathic, ambulance. chiro-
practic, and nursing seIVices;
b. licensed physical therapy, vocational reha-
bilitation, occupational therapy, speech pa-
thology and audiology therapy, and
optometric services; and
c. medications. medical supplies and pros-
thetic devices;
all without limitation as to time. provided that.
within 18 months lrom the date of the acci-
dent causing bodily Injury, it is ascertain-
able. with reasonable medical probability, that
further, medical expense may be incurred as
a result of the bodily injury. "Medical ex-
pense" and "medical expenses" may include
any non-medical remedial care and treatment
rendered in accordance with a recognized re-
ligious method of healing.
6. "Motor vehicle" means a self-propelled vehi-
cle. operated or designed for use upon public
mads. However. motor vehicle does not in-
clude a vehicle operated:
a. by muscular power; or
b. on rails or tracks.
7. "Your covered auto" means a motor
vehicle:
a. to which coverage applies under Part I -
Uability To Others if:
i. owned by you; or
ii. shown on the Declarations Page; and
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b. lor which you maintain First Party Benefits
Coverage as required under the Pennsyl-
vanta Motor Vehicle Financial Responsibil-
ity Law.
exCLUSIONS
We do not provide any First Party Benelits under
this Part II for bodily injury:
1. sustained by any person while intentionally
causing or attempting to cause bodily injury
to:
a. himself or hers ell: or
b. any ather person;
2. sustained by any person while committing a
felony;
3. sustained by any person while seeking to
elude lawful apprehension or arrest by a Jaw
enforcement official;
4. sustained by any person while maintaining or
using a motor vehicle knowingly converted
by that person. However, this exclusion does
not apply to you while using a covered
vehicle:
5. sustained by any person who, at the time of
the accident:
a. is the owner alone or mare registered
motor vehicles which do not have in
effect lhe security required by . the
Pennsylvania Motor Vehicle Financial Re-
sponsibiiity Law; or
b. is occupying a motor vehicle owned by
that person for which the financial respon-
sibility required by the Pennsylvania Motor
Vehicle Financial Responsibility Law is not
in effect;
6. sustained by any person maintaining or using
a motor vehicle while located for use as a
residence or premises;
7. sustained bv any person injured as a result 01
conduct within the course of the business at
. repairing, servicing or otherwise maintaining
motor vehicles. However, this exclusion
does not apply if the conduct is aff the busi-
ness premises;
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8. sustained by any person while olilcul:!ying;
a. a recreational vehicle designed for use off
pUblic roads; or
b. a motorcycle, moped, or similar type
vehicle;
9. caused by or as a consequence 01:
a. any discharge of a nuclear weapon;
b. war (whether declared or undeclared);
c-. :' civil war;
d. insurrection; or
e. rebellion or revolution: or
10. from or as a consequence of the following
whether controlled or uncontrolled or however
caused;
a. nuclear reaction;
b. radiation; or
c. radioactive contamination.
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WITS OF UABIUTY
The Limit of Liability shown on the Declarations
Page lor each first party benefit under this Part II
is the most we shall pay for that benefit to or lor
each insured person as the result 01 anyone (1)
accident, regardless of the number 01:
t. claims made;
2. covered vehicles:
3. lawsuits brought;
4. vehicles involved in an accident;
5. premiums paid; or
6. insurers providing first party benefits.
Combination First Party Benefits
If you pay the premium for Combination First
Party Benefits, and it is shown on your Declara-
tions Page. we will pay medical expenses, In-
come Lass, Funeral Benefit, and Accidental
Death Benefit under this Part II, subject to the
combined single limit of liability shown on the
Declarations Page, lor each insured person
who sustains bodily injury in anyone (1) acci.
dent. Subject to the combined single limit of li-
ability, the most we will pay as the Funeral
Benefit lor an insured person is $2,500, and the
most we will pay as the,Accidental Death Bene-
fit for an insured person is $25,000. If you have
selected Combination First Party Benelits, we will
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only pay for expenses or loss incurred within
three (3) years from the date of the accident.
Extraordinary Medical Benefits Coverage
If you pay the premium ~or Extraordinary Medical
Benefits Cov~rage. and It IS shown on the Deela-
'rations Page, subject to the limit of liability shown
on 'the Declarations Page, we will pay medical
expenses incurred by an insured person in ex-
cess of the aggregate of $100,000 that result from
bodily injury caused by an accident. subject to
the following:
1 . The limit of liability shown on the Declara-
tions Page for Extraordinary Medical Bene-
fits Coverage is the most we win pay for
medical expenses incurred by an insured
person as the result of an accident to which
this Extraordinary Medical Benefits Coverage
applies. and is subject to the fOllOWing addi-
tionallimits:
a. an annual limit of $50.000 for medical ex.
penses incurred by an insured person;
and . '
b. a lifetime aggregate limit of $1,000,000 for
medical expenses incurred by an in-
sured person.
However, the $50,000 annual limit shall not
apply to medical expenses covered by Ex-
traordinary Medical Benefits Coverage which
are incurred within eighteen (18) months fol-
lowing the accident.
2. Any amounts payable by us as Extraordinary
Medical Benefits will be excess to any
amounts available to an insured person for
medical expense under any First Party
Benefits Coverage provided in accordance
with the Pennsylvania Motor Vehicle Financial
Responsibility Law.
3. If an insured person is eligible for Extraordi-
nary Medical Benefits Coverage and is also
eligible for benefits under the Catastrophic
LosS Trust Fund, the combined total recovery
under Extraordinary Medical Benefits Cover-
age and the Pennsylvania Catastrophic Loss
Trust Fund for medical expenses incurred
by an insured person as the result of an ac.
cident shall not exceed $1,000,000.
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OTHER INSURANCE
No one will be entitled to recover duplicate pay-
ments for the same elements of loss under this or
any other similar automobile insurance including
self-insurance.
Any amount payable under this Part II shall be
excess over any amounts paid, payable or re-
quired to be provided to an insured person un-
der any workers' compensation law or similar law.
Priority of Policies
If there is other First Party Benefits Coverage, we
will pay benefrts under this Part II in accordance
with the order of priorities set forth by the Penn-
sylvania Motor Vehicle Financial Responsibility
Law, as amended. We will not pay benefits if
there is another insurer at a higher level of prior-
ity. The order 01 priority is:
First The insurer providing benefits to the
insured person as a named insured.
Second The insurer providing beneffts to the
insured person as a relative who is
not a named insured under another pol-
icy providing coverage under the Penn-
sylvania Motor Vehicle Financial Re-
sponsibility Law.
Third The insurer of the motor vehicle which
the insured person is occupying at
the time of the accident.
Fourth The insurer providing benefits on any
motor vehicle involved in the accident
if the insured person is:
a. not occupying a motor vehicle:
and
b. not entitled to payment of first party
benefits under any other motor ve-
hicle policy.
An unoccupied parked motor vehicle
is not a motor vehicle involved in an
accident within this Fourth priority un-
less it was parked in a manner as to
create an unreasonable risk of injury.
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If two or more policies have eqUal priority within
the highest applicable priority level:
1. The insurer against whom the claim is first
made shall process and pay the claim as il
wholly responsible. The insurer is thereatter
llntitled to recover contribution on a pro rata
basis from any other insurer for the benefits
paid and the costs of processing the claim. If
contribution is sought among insIJrerS respon-
sible under the Fourth priority, proratio!l shall
be based on the number of involved motor
vehictes.
2. "we are the insurer against whom the claim
is first made, our payment to or for an i,n-
sured person will not exceed the applicable
limit of liability for coverage under this Part II
shown on the Declarations Page, or if you
have purchased Extraordinary Medical Sene-
fits, the applicable limit of liability.
3. The maximum recovery under all policies
may not exceed the amount payable under
the policy with the highest dollar limits of
benefits.
PARTlII- UNINSUREOIUNDERINSUREO
MOTORIST COVERAGE
INSURING AGREEMENT' - UNINSURED
MOTORIST COVERAGE
Subject to the Limits of Liability, if you pay a pre-
mium tor Uninsured Motorist Coverage, we will
pay for damages, other than punitive or exem-
plary damages. which an insured person is enti-
tled to recover from the owner or operator of an
uninsured motor vehicle because of bodily
injury:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance, or
, use of an uninsured motor vehicle.
INSURINGAGREEMerr - UNOEFIINSURED
MOTORIST' COveRAGE '
Subject \0 the Limits of liability, if you pay a pre-
mium for Underinsured Motorist Coverage, we
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will pay for damages, other than punitive or,exl!l1i'-
plary damages, which an irtsl.lred person IS enti-'
"ed to recover from Ilie ovmer or operator of an
underinsured motor vehicle because of bodU~
injury:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance, or
uSe of an underinsured motor vehicle,
An insured person must notify us in writing at
least thirty (30) days before entering into any s~t'
tlement with the owner or operator of an unin-
sured motor vehicle or underinsured moto~
vehicle. or any liability insurer. In order to pre-
serve our right of subrogation, we may elect \0
pay any sum offered in settlement by, or on be-
half of, the owner or operator of an uninsured
motor vehicle or underinsured motor vehicle.
If we do this, you agree to assign to us all rights
that you have against the owner or operator of
the uninsured motor vehicle or underinsured
motor vehicle.
Determination of whether an insured person is
legally entitled to recover damages ,and the
amount of damages will be made by agreement
between the insured person and us. If no
agreement is reached, the decision may be made
by arbitra1ion if we or the insured person make a
written demand for arbitration prior to the elCpira-
tion of the bodily injury statute of limitations in
the state in which the accident occurred,
ADomoNALOEFlNmONS
When used in this Part Ill:
1. "Insured person" and "Insured persons'
mean:
a. you or a relative;
b. any person occupying a covered vehi-
cle; and
c. any person who is entitled to recover dam-
ages covered by this Part III because of
bodily injury sustained by a person de-
scribed in a or b above.
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2. "Noneconomic loss" means pain and suffer-
ingand other non-monetary detriment.
3. "Serious injury' means bodily injury result-
ing in death. serious impairment of a bodily
function, or permanent serious disfigurement.
4. "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 its limit of liability
for bodily injury is less than the damages
which an insured person is entitled to re-
cover from the owner or operator of the mo-
tor vehicle because of bodily injury.
An underinsured motor vehicle does not
include any vehicle or equipment:
a. owned by you or a relative;
b. owned by any govemmental unit or
agency;
c. operated on rails or crawler treads;
d. designed mainly for use off public roads,
while not on public roads;
e. while used as a residence or premises:
f. shown on the Declarations Page of this
policy;
g. not required to be registered as a motor
vehicle: or
h. which is an uninsured motor vehicle.
5. "Uninsured motor vehicle" means a land
motor vehicle or trailer of any type:
a. to which no bodily injury liability bond or
policy applies at the time of the accident;
b. to which a bodily injury liability bond or
policy applies at the time of the accident,
but the bonding or insuring company:
i. denies coverage; or
Ii. is or becomes insolvent within six (6)
years after the accident occurs: or
c. whose operator or owner cannot be identi-
fied and which causes an accident result-
ing in bodily injury to an insured person.
provided that the insured person, or
someone on his or her behalf:
a. reports the accident to the police or
civil authority within twenty-four (24)
hours or as soon as practicable after
the accident: and
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b. notifies us within thirty (30) days, or as
soon as practicable thereafter, that the
insured person has a cause of action
arising out of such accident for dam-
ages against a person or persons
whose identity is unascertainable. and
sets forth the facts in support thereof.
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An uninsured motor vehicle does not in-
clude any vehicle or' equipment:
a. ~wned by you or a relative;
b. owned or operated by a sell-insurer under
any applicable vehicle law, except a self-
insurer that is or becomes insolvent;
c. owned by any govemmental unit or
agency; .
d. operated on raHs or crawler treads;
e. designed mainly for use off public roads.
while not on public roads;
f. while used as a residence or premises;
g. shown on the Declarations Page of this
policy;
h. not required to be registered as a mota r
vehicle: or
i. which is an underinsured motor vehicle.
EXCLUSIONS - READ THE FOLLOWING EX-
CLUSiONS CAREFULLY, IF AN EXCLUSION
APPLIES, COVERAGE WILL NOT BE AF-
FORDED UNDER THIS PART III.
1. Coverage under this Part 1\1 is not provided
for bodily injury sustained by any person
while using or occupying:
a. a covered vehicle while being used to
carry persons or property for compensa-
tion or a fee, including, but not limited to.
delivery of magazines, newspapers, food.
or any other products. This exclusion
does not apply to shared-expense car
pools;
b. a covered vehicle without the express or
implied permission of you or a relative;
c. a non.owned vehicle without the express
or implied permission of the owner; or
d. a vehicle owned by you or a relative.
other than a covered vehicle.
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2. We do not provide coverage under this Part
III for noneconomi,:= '.oss sustained by any
person 10 whom a hmlted tort option applies
unless the bodily injury sustained by the in-
sured person is a serious injury. However
this exclusion does not apply it the insured
p~rson is injured while occupying a motor
vehicle other than a private passenger motor
vehicle.
3. Coverage. under this Part III. will not apply di-
rectly or indirectly to benefit any insurer or
self-insurer under any of the following or simi-
lar laws:
a. workers' compensation law: or
b. disability benefits law.
UMITS OF UA81LJrY
Nonstacked Limits of liability
If the Declarations Page shows you have se-
lected nonstacked coverage under this Part III
with a split limit:
1. the amount shown for "each person" is the
most we will pay for all damages due to a
bodily injury to one (1) person: and
2. subject to the "each person" limit, the amount
shown for "each accident" is the most we will
pay for all damages due to a bodily injury to
two (2) or more persons in anyone (1)
accident.
If you have selected nonstacked coverage under
this Part III and the Declarations Page shows that
"combined sin!lle limits" or "CSL" applies the
amount shown is the most we will pay for th~ ag-
gregate of all damages resulting from anyone (1)
accident. We will apply the "each person" Umit
of Liability for uninsured or underinsured motorist
covera!le as required by the law of the state listed
on your application as your residence. However,
this provision does not change our total "each ac-
cident" Limit of Liability.
If you have selected nonstacked coverage un-
der this Part III. the Limit of Liability shown on
the Declarations Page for the coverages under
21
Part III is'the most we will pay regardless of the
number of:
1. claims made:
2. covered vehicles;
3. insured persons;
4. lawsuits brought;
5. vehicles involved in an accident: or
6. premiums paid.
The bodily injury Limit of Liability under this Part
III tor "each person" includes the aggregate of
claims made for such bodily injury and all claims
derived from such bodily injury, including, but
not limited to, loss of society, loss of companion-
ship, loss of services. loss of consortium. wrong-
ful death, and survival claims.
In determining the amount payable under this Part
III, the amount of damages which an insured
person is entitled to recover for bodily injury
shall be reduced by all sums:
1. paid because of bodily injury by or on behalf
of any persons or organizations who may be
legally responsible;
2. paid or payable because of bodily injury un-
der any of the following or similar laws:
a. workers' compensation law; or
b. disability benefits law.
However. if an insured person enters into a set-
tlement agreement for an amount less than the
sum of the limits of liability under all applicable
bodily injury liability bonds and.policies. our limit
of liability for Underinsured Motorist Coverage
shall not exceed the difference between the in-
sured person's damages and the sum of the ap-
plicable bodily injury liability limits.
The Limits of Liability under this Part III shall be
reduced by all sums paid under Part I - Liability
To Others.
Any payment made to a person under this Part III
shall reduce any amount that the person is enti-
tled to recover under Part I - Liability To Others.
No one will be entitled to duplicate payments for
the same elements of damages.
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No judgment for damages arising out of a lawsuit
brought against an operator or owner of an unin-
sured motor vehicle or underlnsured motor
vehicle shall be binding against us unless we:
1: received reasonable notice of the filing of the
lawsuit resulting in the judgment; and
. 2. had a reasonable opportunity to protect our
interests in the lawsuit.
Slacked Limits at Liability
II you have paid a premium for slacked coverage
under this Part "' with a split limit. and it is shown
on the Declarations Page. when you or a rela-
tive sustain bOdily injury which is covered under
this Part III:
1. the most we will pay for all damages due to
bodily injury to one (1) person in anyone (1)
accident is the 'each person' limit of liability
shown on the Declarations Page multiplied
oy the number of covered vehicles shown;
and
2. subject to the 'each person'limit, our maxi-
mum limit of liability lor all damages in any
one (1) accident is the "each accident' limit
of liability shown on the Declarations Page
multiplied by the number of covered vehicles
shown.
However, this shall not increase the limit of liabil-
ity applicable to any insured person other than
you or a relative.
If you have paid a premium for stacked coverage
under this Part 111 with 'combined single limits' or
'CSL' limits, and it is shown on the Declarations
Page, when you or a relative sustain a bodily
injury covered under this Part 1II lor which
stacked coverage has been purchased, our maxi-
mum limit of liability lor all damages in anyone (1)
accident shall be the sum of the applicable limits
of liability shown on the Declarations Page appli-
cable to each covered vehicle. However, this
shall not increase the limit of liability applicable to
any insured person other than you or a relative.
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The Umit of Liability shown on the Declarations
Page for the coverages under Part III is the most
we will pay regardless of the number 01:
1. claims made;
2. insured persons;
3. lawsuits brought;
4. . vehicles involved in an accident; or
5. . premiums paid.
~ The bodily injury Umit of Uability under this Part
Ii III for "each person' includes theaggre,gate of
: claims made for such bodily injury and all claims
derived from such bodily injury, including, but
not limited to, loss of society, loss of companion-
ship, loss of services, loss of consortium, wrong-
lul death, and survival claims.
In determining the amount payable under this Part
III, the amount of damages which an insllred
person is entitled to recover for bodily injury
shall be reduced by an sums:
1. paid because of bodily injury by or on behalf
of any persons or organizations who may be
legally responsible;
2. paid or payable because of bodily injury un-
der any of the following or similar laws:
a. workers' compensation law; or
b. disability benefits law.
However. if an insured person enters into a set-
tlement agreement for an amount less than the
sum of the limits of liability under all applicable
bodily injury liability bonds and policies, our limit
of liability for Underinsured Motorist Coverage
shall not exceed the difference between the in-
sured person's damages and the sum 01 the ap-
plicable bodily injury liability limits.
The Umits of Liability under this Part III shall be
reduced by all sums paid under Part I - Liability
To Others.
Any payment made to a person under this Part 111
shall reduce any amount Ihat the person is enti-
lied to recover under Part I - Liability To Others.
No one will be entitled 10 duplicate payments for
the same elements of damages. .
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No judgment for damages arising out of a lawsuit
brougnt against an operator or owner of an unin-
sured! motor vehicle or underinsured motor
vehicl'e shall be binding against us unless we:
1. rereived reasonable notice of the filing of the
la\'isuit resulting in the judgment; and
2. h~d. a reasonable opportunity to protect our
interests in the lawsuit.
OTHER INSURANCE
If there is other applicable similar insurance avail-
able under more Ihan one policy or provision of
coverage. the following priorities of recovery
apply:
First The uninsured or underinsured motorist
coverage applicable to the motor vehi-
cle the insured person was occupy-
ing at the lime of the accident.
Second Any other policy affording uninsured or
underinsured motorist coverage to the
Insured person.
If two or more policies have equal priority, the in-
surer against whom the claim is first made shall
process and pay the claim as if wholly responsi-
ble. The insurer is thereafter entitled to recover
contribution on a pro rata basis from any other
insurer for the benefits paid and the costs of proc-
essing the claim.
If nonstacked coverage is shown on the Declara-
tions Page. the following additional provisions
apply:
1. When there is insurance available under the
First priority:
a. the limit of liability applicable to the motor
vehicle the insured person was occupy-
ing, under the policy in the First priority,
shall first be exhausted: and
b. the maximum recovery under all policies in
the Second priority shall not exceed the
amount by which the- highest limit for any
one (1) motor vehicle under anyone (1)
policy in t he Second priority exceeds the
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limit applicable under the policy in the First
priority; and .
2. When there is no applicable insurance avad-
able under the First priority. the maximum re-
covery under all policies in the Second priority
shall not exceed the highest applicable limit
for anyone (1) motor vehicle under anyone
(1) policy.
We will not:pay for any damages which would du-
plicate any payment made for damages under
other insurance.
ARBITRATION
If a written demand for arbitration has been made,
then arbitration shall be conducted in accordance
with the provisions of the Pennsylvania Arbitration
Act at 1927. Each party shall select an arbitrator.
The two arbitrators will select a third. It the two
arbitrators cannot agree on a third arbitrator
within thirty (30) days, then on joint application by
us and the Insured person, the third arbitrator
will be appointed by a court having jurisdiction in
the county in which the insured person resides.
Each party will pay the costs and fees ot its arbi-
- trator. The costs and fees of the third arbitrator
will be shared equally. Each party will pay the ex-
penses it incuia.
Unless both parties agree otherwise, arbitration
will take place in the county in which the insured
person resides. Local rules at procedure and
evidence will appiy.
A decision agreed to by two at the arbitrators will
be binding as to whether the insured person is
legally entitled to recover damages under the ap-
plicable liability law, and the amount at damages.
The arbitrators shall have no authority to award
, an amount in excess ot the limit of Liability.
Unless we and the insured person agree other-
wise, the arbitrators shall have no authority to de-
termine issues related to stacking or nonstacking
of coverage, waivers at coverage, residency,
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statutes of limitations. or whether a person quali-
fies as an insured person under this Part III. .
.The decision of the arbitrators is binding with re-
~pect to a detennination of the amount of the
damages sustained by the insured person and
of the legal liability of the operator or owner of,an
uninsured motor vehicle or underinsured 11l0-
tor vehicle only if the amount does not exceed
Ihe minimum limit of bodily injury liability specified
by the financial responsibility laws of the state
listed on your application as your residence., If
Ihe decision of the arbitrators is in an amount
which exceeds Ihis minimum limit. either party
may demand the right to a trial in a court having
jurisdiction in the county in which the insuted
person resides. This demand must be made in
writing within sixty (60) days of the arbitrators' de-
cision. If this demand is not made. the amount of
damages agreed to by the arbitrators will be
binding.
PART IV - DAMAGE TO A VEHICLE
INSURING AGREEMENT - COWSION
If you pay a premium for collision coverage. we
will pay for loss to a covered vehicle, n!ln-
owned vehicle, or trailer, when it collides with
another object or overtums, subject to the Limns
of Liability.
INSURING AGREEMENT - COMPREHENSIVE
If you pay a premium for comprehensive cover-
age. we will pay for comprehensive loss to a
covered vehicle. non-!Iwned vehicle. or trailer,
. subject to the Limits of Liability.
A comprehensive loss is a loss to a covered ve-
hicle. non-owned vehicle, or trailer. caused by
any event other than collision, including, but not
limited to. any of the following:
1. contact with an animal (including a bird);
2. explosion or earthquake:
3. fire:
4. malicious mischief or vandalism;
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5. missiles or falling objects;
6. riot or civil commotion;
7. theft or larceny; or
8. windstonn. hail, water, or flood.
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If you pay a premium for comprehensive cover-
age under this policy, we will pay you up to $20
per day, but not more than a total of $600 per
lass. for:
t_ transportation expenses incurred by you if a
covered vehicle is stolen; or
2. loss of use damages that you are legally li-
able to pay if a non-owned vehicle is stolen.
Transportation expenses and loss of use dam-
ages coverage begins forty-eight (48) hours after
you report the theft to us, and ends when"the
covered vehicle has been recovered and re-
paired, replaced, or ij the covered vehicle is
deemed by us to be a tolalloss or unrecoverable.
forty-eight (48) hours after we make an offer to
pay the lesser of the actual cash value of the cov-
ered vehicle or any Stated Amount Vehicle Cov-
erage elected by you.
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You must provide us wrnten proof of your trans-
portation expenses and loss of use damages.
Duplicate recovery for identical elements of dam-
ages is not permitted under this policy.
If we can pay the loss under either comprehen-
sive or collision coverage. we will pay under the
coverage where you collect the most.
INSURING AGREEMENT -
CUSTOM PARTS OR EQUIPMENT
We will pay for loss to custom parts or equip-
ment resulting from any loss for which compre-
hensive or collision coverage is provided under
the terms of this policy, subject to Ihe Limit of Li-
ability. All payments for loss to custom parts or
equipment shall be reduced by the applicable
deductible; but only one (1) deductible may be
applied to a loss in an accident which is covered
by this Part IV.
28
ADOmOl'lAl.DEFlNmONS
When used in this Part IV:
1. "Custom parts or equipment" means equip-
ment, devices, accessories, enhancements,
'and changes, other than those which are
original manufacturer installed, which alter the
appearance or performance of a vehicle.
This includes any electronic equipment, an-,
tennas. and other devices used exclusively to
send or receive audio, visual, or data signals,
or play back recorded media, other than
those which are original manufacturer in-
stalled, that are permanently installed in a
covered vehicle or non-owned vehicle us-
ing bolts or brackets, including slide-out
brackets.
2. "Nan-owned vehicle" means any vehicle
that is not owned by you, a relative, a resi-
dent of your household. or the spouse of the
named insured even if nat residing in the
same household as the named insured, while
in the custody of, or being operated by, you
or a relative with the express or implied per-
mission of the owner. A non-owned vehicle
will be provided the broadest coverage appli-
. cable to any vehicle shown on the Declara-
tions Page. .
3. "Trailer" means a vehicle. including a farm
wagon or farm implement. designed to be
towed on public roads. that is:
a. owned by you: or
b. not owned by you. while being towed by a
covered vehicle.
"Trailer" does not include a mobile home, or
a trailer used as an office, store, display, or
passenger conveyance.
EXCLUSIONS - READ THE FOl.LOWING EX-
Cl.USIONS CAREFUl.l.Y. IF AN EXCl.USION
APpLIES, COVERAGE WIl.l. NOT BE AF-
FORDED UNDER "THIS PART IV.
Coverage under !his Part IV 'does not apply for
loss:
1. to a covered vehicle. non-owned vehicle,
or trailer, while being used to carry persons
29
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or property for compensation or a fee, includ-
ing, but not limJted to, delivery of magazines, '(.
newspapers, food, or any other products.
This exclusion does not apply to shared- .
expense car pools; ,
2. to a non-owned vehicle or trailer rented by
you or a relative if being maintained or used
; fly a person while employed or engaged in
any business;
3. to a non-owned vehicle or trailer, other than
one rented by you or a relative. if being ~'
maintained or used by a person while em-
ployed or engaged in any business not de- ~
scribed in exclusion 4 below. This exclusion'
does not apply to the use by you or any refa"....
tive of a non-owned vehicle that is a private
passenger vehicle or trailer;
4. to a covered vehicle. non-owned vehicle,
or trailer, while being used or driven by a per-
son while employed or engaged in the busi-
ness of selling, leasing, repairing, parking,
storing, servicing, delivering, or testing vehi-
cles. However, this exclusion does not apply
to you. a relative, or an agent or employee of
you or a relative, when using a covered
vehicle;
5. to a covered vehicle or non-owned vehicle
resulting from any pre-arranged or organized
ra.cing, speed or demolition contest, stunting
activity, or in practice or preparation for any
such contest or activity;
6. to a covered vehicle, non-owned vehicle,
or trailer. due to nuclear reaction or radiation:
7. to a covered vehicle, non-owned vehicle,
or trailer, for which insurance is afforded un.
der a nuclear energy nabilily insurance
contract;
8. due to destruction or confiscation by govern-
mental or civil authorities of a covered vehi-
cle, 'non-owned vehicle, or trailer, because
you or any relative engaged in illegal
activities;
9. to a covered vehicle, non-owned vehicle,
or trailer, caused by an intentional act of you
or a relative or at the direction 01 you or a
reiative;
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10. to a covered vehicle. non-owned vehicle.
or trailer. that is due and confined to:
a, wear and tear;
b. freezing;
c. mechanical or electrical breakdown or fail.
ure; or
d. road damage to tires.
This exclusion does not apply if the damaoe
resUlts from the total theft of a covered vehi.
cle.non-owned vehicle. or trailer.
11. due to theft or conversion of a covered vehi-
cle.non-owned vehicle. or trailer.
a., by you. a relative. or any resident of your '
household:
b. prior to its delivery to you or a relative; or
c. while in the care. custody. or control of
anyone engaged in the business of sell.
ing the vehicle or trailer;
1Z. to tapes. compact discs, cassettes. and other
recording or recorded media;
13. to any case or other container designed for
use in storing or carrying tapes. compact
discs. cassettes. or other recording or re-
corded media;
14, to any device used for the detection or loca-
tion of radar. laser. or other speed measuring
equipment or its transmissions:
15. to custom parts or equipment in excess of
the applicable Limit of Liability: or
16, to a covered vehicle. non-owned vehicle
or trailer. for diminution of value. . .
UMlTS OF UABIUTY
1. The Limit of Liability for loss to a covered ve-
hicle. non-owned vehicle. or trailer will be
the lowest of:
a. the actual cash value of the stolen or dam-
aged property at the time of the loss. re-
duced by the applicable deductible shown
on the Declarations Page, and by its sal-
vage value if you retain the salvage;
b. the amount necessary to repair or replace
the stolen or damaged property, reduced
by the applicable deductible shown on the
Declarations Page; or
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c. any applicable Limit of Liability or Stated
Amount Vehicle Coverage elected by you.
reduced by its salvage value if you retain
the salvage.
However, if the loss is to a trailer, the appli-
cable Limit of Liability will be $500.
2, Subject to Section 3 below, the Limit of liabil-
ity for loss to custom parts or equipment is
the combined total of $1,000, unless you pay
a premium for Additional Custom Parts Or
Eq\lipment Coverage. and it is shown on the
Oeclaratlons Page.
"
Coverage for custom parts or equipment
shall not cause any Limit of Liability under this
Part IV to be increased to an amount in ex-
cess of the actual cash value of any stolen or
damaged vehicle.
3. Payments for loss covered under Collision,
Comprehensive, and Custom Parts Or Equip- :,
ment are subject to the following provisions;
a. no more than one (1) dedilctible shall be
applied to anyone (1) covered loss;
b. if coverage applies to a non-owned vehi-
cle. the highest deductible on any cov-
ered vehicle shall apply;
c. if Stated Amount Vehicle Coverage is
elected by you, that stated Limit of Liability
will be the total Limit of Uability applicable
for loss to a covered vehicle or non-
owned vehicle. including its custom
parts or equipment; .
d. an adjustment for depreciation and physi.
cal condition will be made in determining
the Umit of Uability at the time of loss;
e. in determining the amount necessary to
repair damaged property to its pre-loss
condition, our estimate will be based on;
i. the prevailing competitive labor rates
charged in the area where the property
is to be repaired. as reasonably deter-
mined by us; and
ii. the cost of repair or replacement parts
and equipment which may be new, reo
furbished. restored, or used. including,
but not limited to:
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(a) original manufacturer parts or equip-
ment: and
(b) nonoriginal manufacturer parts or
equipment: and
f. the actual cash value is determined by the
market value, age and condition of the ve-
hicle at the time the loss occurs.
4. If more than one (1) vehicle ;s shown on
your Declarations Page, coverage will be
provided as specified on the Declarations
Page as to each vehicle.
INSURING AGREEMENt - ADDmONAL
CUSTOM PARTS OR EOUIPMENTCOVERAGE
If you pay a premium for Additional Custom Parts
Or Equipment Coverage, the Limit of Liability for
loss to custom parts or equipment for this addi-
tional coverage will be the lowest of:
1. the actual cash value of such custom parts
or equipment;
2. the declared value of such custom parts or
equipment: or
3. the amount necessary to repair or replace
such custom parts or equipment;
reduced by the applicable deductible.
Coverage for custom parts or equipment shall
not cause any Limit of Liability under this Part IV
to be increased to an amount in excess of the ac-
tual cash value of any stolen or damaged
vehicle.
Any deductible amount will apply separately to
each loss.
INSURING AGREEMENT' .
EMERGENCY TOWING AND LABOR
If yeu pay a premium for Emergency Towing And
Labor coverage. we will pay fer towing and labor
costs incurred by you as a result of the disable-
ment of a covered vehicle or non-owned vehi-
cle. subject to the Limit of Liability shown on the
Declarations Page, provided that:
1. the labor is pertormed at the place of disable-
ment; and
33
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2. the disablement does not occur at your
residence.
INSURING AGREEMeNT .
RENTAl-REIMBURSEMENT COVERAGE
If you pay a premium for Rental Reimbursement
Coverage, we will reimburse up to $20 each day
tor thirty (30) days for anyone (1) accident for
rental charges incurred by you when you rent a
vehicle from e rental agency or' vehicle repair
shop due to a loss to a covered vehicle, other
than a total theft. that is payable under this Part
IV. Rental cnarges will be reimbursed beginning:
1. when the covered vehicle cannot be driven
due to a loss; or ..
2. if the covered vehicle can be driven, when
you deliver the covered vehicle to a vehicle
. repair shop for repairs due to the loss;
and ending when the covered vehicle has been
repaired, replaced, or if the covered vehicle is
deemed by us to be a' total loss. forty-eight (48)
hours after we make an offer to pay the actual
cash value of the covered vehicle.
You must provide us written proof of your rental
charges. .'
Duplicate recovery for identical elements of dam-
ages is not permitted underthis policy.
LOANIlEASE PAYOFF COVERAGE
If you pay a premium for LoanlLease Payoff Cov-
erage for a covered vehicle, and the covered
vehicle sustains a total loss, we will pay, in addi-
tion \0 any amounts otherwise payable under this
Part IV, the difference between:
1. the actual cash velue of the covered vehicle
at the time of the total loss reduced by the
applicable deductible. if any, shown on the
Oeclarations Page and by its salvage value
if you retain the salvage; and
2. any greater amount the owner of the cov-
ered vehicle is legally obligated \0 pay under
a written loan or lease agreement to which
34
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the covered vehicle is subject at the time of
the total loss, reduced by any:
a. unpaid finance charges or refunds due to
the owner for such charges;
b. excess mileage charges or charges for
wear and tear;
c. charges for extended warranties or re-
lunds due to the owner lor extended
warranties;
d. charges for credit insurance or refunds
due to the owner for credit insurance;
e. past due payments and charges for past
due payments; or
f. collection or repossession expenses.
However, our payment shall not exceed twenty-
five percent (25%) of the actual cash value of the
covered vehicle at the time of the total loss.
LOANILEASE PAYOFF COVERAGE APPLIES
ONLY WHILE THE COVERED VEHICLE IS
COVERED FOR BOTH COLLISION AND COM-
PR EHENSIVE COVERAGE..
For purposes of LoaillLease Payoff Coverage,
'to1:alloss" means:
1. the theft of the covered vehicle, if the cov-
ered vehicle is not recovered within thirty
(SO) days; or
2. any other loss to the covered vehicle that is
payable under this Pan IV, if the cost to repair
the damage to the covered vehicle exceeds
the actual cash value of the covered vehicle
at the time of the loss reduced by its salvage
value if you retain the salvage.
PAYMENT OF LOSS
At our expense, we may retum any stolen prop-
erty to you .or to the address shown on the Decla-
rations Page. with paym'ent for any damage
resulting from the theft. We may keep all or pan
of the property at the agreed or appraised value.
We may settle any loss with you or the owner or
lienholder at the property.
35
NO BENEFrrTO BAILEE
Coverage under this'Palt IV will not directly or in.
directly benefit any carrier or other bailee for hire.
LOSS PAYEE AGREEMENT
Payment for damage to a covered vehicle will be
made aCCOrding to your interest and the interest
of any Loss. Payee or lienholder shown on the
Declarations Page or designated by you. Pay-
ment may be made to both jointly, or separately,
at our discretion.
Where iraud, misrepresentation, meterial omis.
sian, or intentional damage has been comrTUtted
by or at the direction of you or a relative, the
Loss Payee or lienholder's interest will not be
protected.
We will be entitled to the Loss Payee or lien.
holder's rights of recovery, to the extent of our
payment to the Loss Payee or lienholder.
OTIlEl'lINSURANCe
If there is other applicable insurance, we will pay
only our share of the loss. Our share is the pro.
poltion that our Umit of Uability bears to the total
of all applicable limits of liability. However, any
insurance that we provide far a vehicle, other
than a covered vehicle, or for a non-owned
trailer, will be excess over any other collectible
source of recovery including, but not limited to:
1. any coverage provided by the owner of the
non-owned vehicle or trailer; and
2. any other applicable physical damage insur-
ance.
APPRAISAL
If we cannot agree with you on the amount of a
loss. then we or you may demand an appraisal
of the loss. If so, each party shall appoint a com.
petent and impartial appraiser. The appraisers
will determine the amount of loss. If they fail \0
agree, the disagreement will be submitted to a
36
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qualified and impartial umpire chosen by the ap-
praisers. A decision agreed to by any two will be
binding. You will pay your appraiser's fees and
expenses. We will pay our appraiser's fees and
expenses. Payment of the umpire and all other
expenses of the appraisal will be shared equally
between us and you. Neither we nor you waive
any rights under this policy by agreeing to an
appraisal.
GENERAL PROVISIONS
POUCY PERIOD AND TERRITORY
This policy applies only to accidents and losses
occurring during the policy period shown on the
Declarations Page and which Occur within any
state. territory, or possession of the United States
of America. or any province of Canada, or while a
covered vehicle. non-owned vehicle, or trailer
is being transported between their ports.
POUCY CHANGES
This policy, your application for insurance (which
is made a pa/'l of this policy as if attached hereto),
and endorsements issued by us to this policy
contain all the agreements between you and us.
Subject to the following, its terms may not be
changed or waived except by an endorsement
issued by us.
The premium for each vehicle is based on infor-
mation we have received from you or other
sources. You agree to cooperate with us in de-
termining if this information is correct and com-
plete. and you will notify us if it changes during
the' policy period. If this information is incorrect,
incomplete, or changes during the policy period,
, we may adjust your premium during the policy
period, or take other appropriate action. To prop-
erly insure your vehicle. you must promptly no-
tify us when: '
1. you change your address:
2. any resident operators are added ar deleted;
or
37
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3. you acquire an additional or replacement
vehicle.
Changes that may result in a premium adjustment
are contained in our rates and rules. These In-
clude, but are not limited to:
1. changes in the number. type, or use classifi-
Cation of covered vehicles;
2. changes in operators using covered vehi-
cles, their ages, or marital status;
3. a relative obtaining a driver's license or op-
erator's permit;
4. changes in the place of principal, garaging of
any covered vehicle;
5. changes in coverage, deductibles, or limits of
liability; or " .
6. changes in rating territory or discount eligI-
bility.
'TERMS OF POUCY CONFORMED TO STATUTES
.'
If any proVision of this policy fails to conform with
the legal requirements of the state listed on, your
application as your residence, the provision shall
be deemed amended to conform with such legal
requirements. All other provisions shall be given
full force and effect. Any disputes as to the cov-
erages provided or the provisions. of this policy
shall be govemed by" the law 01 the state listed on
your application as your residence.
TRANSFER
This policy may not be transferred to another per-
son without our written consent. If you die. this
policy will provide coverage until the end of the
policy period for your legal representative, while
acting as such, and for persons covered under
this policy on the date of your ~eath.
FRAUD OR M1SREPRESENTATTON
We may deny coverage for an accident or loss if
you or an insured person have knowingly con-
cealed or misrepresented any material fact or cir-
cumstance, or engaged in fraudulent conduct, in
38
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connection with the presentation or settlement 01
a claim.
No person who engages in Iraudulent conduct in
connection with an accident or claim shall be en-
titled 10 receive any payment under this policy.
PAYMENT' OF PREMIUM
II your initial premium payment is by check. draft.
or any remittance other than cash, coverage un-
der this policy is conditioned upon the check,
draft, or remittance being honored upon present-
ment. II the check. draft, or remittance is not hon-
ored upon presentment. this policy may, at our
option, be deemed void lrom its inception. This
means that we will not be liable under this policy
for any claims or damages which would otherwise
be covered if the check. draft. or remittance had
been honored upon presentment.
If you tender a check to us lor any lull or partial
payment 01 your premium. other than your initial
payment. and the check is returned to us be-
cause 01 insufficientlunds, a closed account or a
stop payment. a service charge will be add~d to
your account balance.
CANCEllATION
You may cancel this policy by calling or writing
us. and stating the luture date that you wish the
cancellation to be effective.
We may cancel this policy by mailing a notice of
cancellation to the named insured shown on the
Declarations Page at the last known address ap_
pearing in our records. If cancellation is within
the first litty-nine (59) days of the policy period. or
il cancellation is at any time due to nonpayment of
premium or loss of driving privileges through sus-
pension or revocation of the named insured's op-
erator's license or motor vehicle registration.
notice will be mailed at least fifteen (15) days be-
lore the effective date of cancellation. After this
policy has been in effect lor lifty-nine (59) days. il
cancellation is due to any reason other than
39
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nonpayment 01 premium, notice will be mailed at
least sixty (60) days before the effective date of
cancellation. If you do not pay the required pre-
mium lor this policy when due. we may cancel
this policy at any time.
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We may cancel this policy lor any reason within
the JiJst Iilty-nine (59) days of the policy periOd
shown on the Declarations Page. After this pol-
icy is in effect for more than lifty-nine (59) days.
or if this is a renewal or continuation policy, we
may cancel only lor one (1) or more of the follow-
ing reasons:
1. you do not pay the required premium lor this
policy when due;
2. misrepresentation by you 01 any material fact.
in the procurement or renewal 01 this pOlicy;
3. loss 01 driving privileges through suspension
or revocation 01 the named insured's opera-
tor's license or motor vehicle registration; or
4. any other reason specified by law.
We may cancel coverage under this policy for a
resident 01 your household, other than the named
insured. whose driver's license has been sus-
pended or revoked during the policy period. by
imposing a Named Driver Exclusion as to that
resident of your household.
We will mail notice 01 cancellation to the named
insured shown on the Declarations Page at the
last known address for the named insured ap-
pearing in our records.
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Upon cancellation. you may be entitled to a pre-
mium refund. Our making or olfering of a refund
is not a condition of cancellation.
If this policy is cancelled. any relund due will be
computed on a daily pro-rata basis. However.we
shall retain a cancellation lee il this policy is can.
celled at your request or il cancellation is lor non.
payment 01 premium. The effective date of can.
cellation shown in a notice will be the end 01 the
policy period.
40
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NONRENEWAL
If we decide not to renew or continue this policy
we will mail notice of nonrenewal to the named
insured shown on the Declarations Page at the
last known ~ddress appearing in our records. If
nonrenewal.ls due to nonpayment of premium or
loss of dnvlng privileges through suspension or
revocation of the named insured's operator's li-
cense or motor vehicle registration, notice will be
mailed at least fifteen (15) days before the end of
the policy period. If nonrenewal is due tD any
other reaSDn, notice will be mailed at least sixty
(60) days before the end of the pelicy period. If
th.e policy peri~d is other than one (1) year, we
will have the nght not tD renew Dr continue this
policy only at each anniversary of its original ef-
fective date Dr earlier if permitted by state law.
PROOF OF N011CE
Proof Df mailing Df any notice will be sufficient
prDof Df notice.
COVERAGE CHANGES
If we make a change which brDadens a coverage
you ha,:,e under this edition of your pDlicy, with-
out a.ddltlonal charge. you will receive the broad-
ened cDverage. The broadened coverage applies
on the date the cDverage change is implemented
in your state. This provision does not apply to a
general prD gram reVtSIDn or our issuance of a
subsequent edition of your policy. Otherwise,
this policy can be changed only by endorsement
issued by us.
LEGALACTIONAGA~STUS
We may not be sued unless there is full compli-
ance with all the terms of this policy. We may not
be sued for payment under Part I - Liability To
Others until the obligation of an insured person
to pay is finally determined either by final judg-
ment against that person or by written agreement
of the insured person. the claimant, and us. No
41
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one wit! have any right to make us a party to a
lawsuit to determine the liability of an insured
persDn.
OUR RIGHTS TO RECOVER PAYMENT
,
In the event of any payment under this policy, we
are entitled to all the rights of recovery that the
ins4red person to whom payment was, made has
against another. That insured person must sign
and deliver to us any legal papers relating to that
recovery, do whatever else is necessary to help
us exercise those rights, and do nothing after an
accident or loss to prejudice our rights.
However, we may not assert righ1s of recovery
against: a
1. any person who was using a covered vehi-
cle with your express or implied permission
for any payment made under Part IV - Dam-
age To A Vehicle; or
2. the owner or operator of an uninsured mo-
tor vehicle or underlnsured motor vehicle,
if the insured person under Part III -
UninsuredlUnderinsured Motorist COverage
provides us with WTitten notice thirty (30)
days prior to entering into a settlement that an
offer of settlement has been made by, or on
behalf of, the owner or operator of an un!n- "
sured motor vehicle or underinsured mo-
tor vehicle, and we do not elect to pay to the
insured person an amount equal to the
amount offered in full settlement by, or on be-
half of, the owner or operator of the unin-
sured motor vehicle or underinsured
motor vehicle.
,
.
When an insured person has been paid by us un-
der this policy and also reCDvers from another
person, entity, or organization, the amount recov-
ered will be held by the insured person in trust for
us and reimbursed to us to the extent of our pay-
ment. However, this shall nDt apply to amounts
paid by us under Part II - First Party Benefits
Coverage.
42
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\I recovery is made by an insured person under
this policy from a responsible party without our
written consent, the insured person's right to pay-
ment under any affected coverage will no longer
exist.
BANKRUPTCY
The bankruptcy or insolvency of an insured per-
son.will not relieve us of any obligations under
this policy.
NAMED DRIVER EXCWSlON
If you have asked us to exclude any person from
coverage under this Policy, then we will not pro-
vide coverage for any claim arising from an acci-
dent or loss invoMng a covered vehicle or
non-owned vehicle that occurs while it is being
operated by the excluded person. THIS IN-
CLUDES ANY CLAIM FOR DAMAGES MADE
AGAINST YOU, A RELATIVE. OR ANY OTHER
PERSON OR ORGANIZATION THAT IS VICARI-
OUSL YLIA8LE FOR AN ACCIDENT ARISING
OUT OF THE OPERATION OF A COVERED VE-
HICLE OR NON-OWNED VEHICLE BY THE EX-
CLUDED DRIVER.
However, this exclusion does not apply to the ex-
tent of the minimum Rrst Party Benefits Coverage
for medical expenses required by 75 Pa. C. S.
Section 1711, et seq.. as amended, if:
1. the driver's license of the excluded person
has not been under suspension or revocation
during the policy period; and
2. the excluded person does not have first party
benefits coverage available under any other
policy of insurance.
NAMED OPERATOR - NO~WNED
VEHICLE COVERAGE
If you elect Named Operator - Non-owned Ve-
hicle Coverage, you agree with us that this pol-
icy is amended as follows: ,
43
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1. General Definitions:
a. The general policy definition of "you" and
'your" is deleted and replaced by the
following:
'.
'You" and "your" mean the person shown
as the named insured on the Declarations
Page.
b. The general policy definitions of "covered
vehicle" and "non-owned vehicle" are
deleted and replaced by the following:
"Covered vehicle" and 'non-owned vehi-
cle" mean any vehicle that is not owned ",
by you, a relative, or your spouse, even if
not residing in the same household as
you.
2. Part I - Uability To Others
a. Additional Definition: When used in Part I,
the definition of "insured person" and "in-
sured persons" is deleted and replaced
by the following:
"Insured person" and "insured persons"
mean:
i. you. when operating or using a cov-
ered vehicle or non-owned vehicle
with the express or implied permission
of the owner; and
ii. any person or organization with respect ~
only to vicarious liability for an acci-
dent arising out of the use of a cov-
ered vehicle or non-owned vehicle
by you with the express or implied per-
mission of the owner.
b., Exclusions: The following exclusion is de-
leted from Part I:
Coverage under this Part I, including our
duty to defend, does not apply to:
bodily injury or property damage arising
out of an accident involving a vehicle
44
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while being used by a person while em-
ployed or engaged in the business of sell-
il1g, leasing, repairing, parking, storing,
servicing. delivering, or testing vehicles.
However. this exclusion does not apply to
you. a relative, or an agent or employee
. of you or a relative, when using a cov-
ered vehicle;
and replaced by the following:
Coverage under this Part I, including our
duty to defend, does not apply to:
bodily injury or property damage arising
out of an accident involving a vehicle
while being used by a person while em-
ployed or engaged !~ the busi.ness of sell-
ing, leasing, repamng, parking, stonng,
servicing, delivering, or testing vehicles.
Other Insurance. The Other Insurance
c.
provision under Pa~ I is deleted and re-
placed by the follOWing:
OTIiEflINSURANCE
Any insurance we provide shall be excess
over any other applicable liability insur-
ance. seif-insurance, or bond.
3. Part II - First Party Benefits Coverage
Additional Definitions: When used in Part
II, the definition of "insured person" and
"insured persons" is deleted and re-
placed by the following:
"Insured person" means you while occu-
pying a covered vehicle or non-owned
vehicle. or when struck by a motor vehicle
or trailer while not occupying a motor
vehicle.
45
4. Part III - UninsuredJUnderinsured Motorist
Coverage
If you pay a premium for UninsurecllUnder-
insured Motorist Coverage, and it is shown on
the Declarations Page:
a. When used in Part III, the Additional Defi-
nition of "insured person" and "Insured
. ..persons" is deleted and replaced by the
.. -. following:
"Insured person" and "Insured persons"
mean:
i. you: and
ii. any person who is entitled to recover
damages covered by Part III, because "
of bodily injury to you.
b. The Other Insurance provision under Part
III is deleted and replaced by the following:
OTIiER INSURANCE
If there is other applicable uninsured or
underinsured motorist coverage, any in-
surance we provide shall be excess over
any other collectible uninsured or underin.
sured motorist coverage.
We will not pay for any damages which
would duplicate any payment made for
damages under other insurance.
II you are injured while not occupying a
motor vehicle, the coverage provided un.
der this policy shall be excess to any unin-
sured or underinsured motorist coverage
provided by a policy under which you are
a named insured.
lllJrr512a
t?JJ-b~
Secretary
President
46
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APPENDIX
Peimsylvania Surcharge Disclosure Slatement
Form 1996 (11196)
In compliance with 75 Pa. C.S. Section 1793(b),
we provide this surcharge disclosure plan to ex-
plain our system of driving record points. This
statement provides an overview; more detailed
information is available on request
Driving record points are assigned to operators
for chargeable accidents and violations. All acci-
dents and violations occurring in the 35-month
period prior to policy inception are considered in
developing a driver's policy premium. If a driver is
added mid-term, accidents and violations will be
charged for the entire 35-month period prior to the
driver being added to the policy.
Point surcharges follow the driver. To determine
if the accident or violation took place in the
chargeable period. we use the occurrence date
instead of the conviction date. We charge for ac-
cidents and violations occurring while a driver is
operating a private passenger automobile. com-
mercial vehicle. motorcycle. or recreational
vehicle.
Accidents_ We assess a surcharge of approxi-
mately 30% for each at'fault accident charged to
an operator. Accidents are chargeable if, as a
result of the accident. the insurer incurs at least
$650 in losses in excess of any deductible for
personal injury or damage to property, including
the insured's.
Each accumulation of $650 in aggregate losses
from incidents not otherwise charged represents
an at-fault accident. If the insured can demon-
strate that any of the facts of loss described in 3 t
Pa. Code Section 67.33 (non-chargeable acci-
dents) apply to an accident, the accident will not
be charged to the operator.
, 47
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Minor Violations. We assess a surcharge of ap-
proximately 15% for the second and each subse-
quent conviction of routine traffic infractio~s like
speeding or failure to yield. Most of these infrac-
tions are listed in 75 Pa. C.S. Section 1535.
'.
Major Violations. We assess a surcharge of ap-
proximately 45% for each conviction of a v!olation
which suggests the presence of a '!Iate~at~ in-
creased risk in a motorist. Such mlllor Violations
include vehicular homicide. leaving the scene of
an accident involving death or injury, or fleeing a
police officer.
~
Driving While Intoxicated. We assess a. s.ur-
charge of approximately 15% for each Dnvlng
While Intoxicated infraction for conviction under
Section 3731 (Driving under the influence of alco-
hol or controlled substance), notice of Section
1534 (Acceptance of Accelerated Rehabilitative
Disposition), or any similar infraction.
.
46
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F:\FILES\DATAFILE\Prgdoc,cur\105-trial brief.2
Created: 08103101 10:32:05 AM
Revised: 08/07/01 02:39:24 PM
PROGRESSIVE NORTHERN
INSURANCE COMPANY
,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-3530
ANGELA ROHRER,
LAURA 1. MYERS, and
TERRY L. VITALE,
Defendants
/
DECLARATORY JUDGMENT ACTION
PLAINTIFF'S TRIAL MEMORANDUM
I. STATEMENT OF FACTS:
Plaintiff Progressive Northern Insurance Company (hereinafter "Progressive") issued a
Automobile Liability Insurance Policy (hereinafter "Policy") to Defendant Angela Rohrer which
insured Defendant Rohrer against ". . . bodily injury for which an insured person becomes legally
responsible because of an accident arising out of the ownership, maintenance, or use of a vehicle."
(Exhibit "A" of Plaintiff's Complaint, Progressive Pennsylvania Motor Vehicle Policy, pg. 5),
emphasis added. On July 16, 1999, in the late evening, Defendant Angela Rohrer was driving
around Carlisle with her sister in the passenger's seat and two male passengers in the back seat.
(Deposition of Defendant Angela Rohrer, pg. 6, In. 5-9.) As Defendant Rohrer's car was
approaching the intersection ofPomfret and South Spring Garden Street, the occupants encountered
Defendants Laura J. Myers and Terry L. Vitale screaming at each other on the sidewalk. (Rohrer
Dep. pg. 8, In. 7-10.) Seeing this, Defendant Rohrer, who had been heading towards Giant Food
Stores on South Spring Garden Street, made a right turn onto Pomfret Street heading west, in the
direction of Castles Lumber. (Rohrer Dep. pg.l1, In. 18-24.) She stopped her car in the street, and
an altercation ensued between one ofthe male passengers, who got out of the rear of her four door
car, and Defendants Myers and Vitale. (Rohrer Dep. pg. 14, In. 4-15.)
After the male passenger re-entered the rear of her car, Angela Rohrer's car was still facing
directly west bound on Pomfret Street. Defendant Rohrer admits that there was nothing in front of
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her car, and she could have driven away without hitting the other Defendants, (Rohrer Dep. pg.18,
In. 10-14), but instead put her car into reverse and began to backup. (Rohrer Dep. pg. 18, In. 15-16.)
As she backed the car up, she changed the angle of the car approximately 45 degrees so that it was
pointing towards the curb on the right hand side of the roadway where Defendants Myers and Vitale
were standing. (Deposition of Jay Redcay, pg.ll, In. 24-25.) Then Defendant Rohrer intentionally
put the car back into drive and then intentionally put her foot on the accelerator. (Rohrer Dep. pg.
42, In. 4-10.) Defendant Rohrer stated at her deposition that she intended to drive at Defendants
Myers and Vitale only for the purpose of scaring them. (Rohrer Dep. pg. 42, In. 15-17.) An
independent eye witness who observed this incident from the parking lot across the street from
Castles Lumber has stated in his deposition that the only thing that stopped Defendant Rohrer's car
from completely running over the two Defendants was the curb. (Redcay Dep. pg. 15, In. 10-23.)
Defendant Rohrer then left the scene. (Rohrer Dep. pg. 20, In. 8-10.)
Defendant Angela Rohrer stated that she was "really, really, really high" that evening after
smoking several marijuana cigars, (Rohrer Dep. pg. 32, In. 14-23 and pg. 33, In. 14-15), and
Defendants Laura Myers and Terry Vitale also stated in their depositions they had both been drinking
prior to the incident. (Deposition of Defendant Vitale, pg. lOin. 21-24 and Deposition of Defendant
Myers, pg. 6, In. 7-8.)
Carlisle Borough Police responded to the scene of the incident and took Defendant Angela
Rohrer into custody a short time later when she was stopped by Borough Police. (Rohrer Dep. pg.20,
In. 8-10.)
II. QUESTION PRESENTED
1. UNDERPENNSYL V ANIA CASE LA W, IS PLAINTIFF ENTITLED TO REFUSE
INDEMNIFICATION OF ITS INSURED, DEFENDANT ROHRER, FOR DAMAGES CAUSED
BY ROHRER'S INTENTIONAL ACTS UNDER A POLICY PROVIDING LIABILITY
COVERAGE FOR BODILY INJURY CAUSED BY "ACCIDENT," AND WHICH INCLUDES
AN EXCLUSION CLAUSE FOR INJURIES ARISING OUT OF INTENTIONAL ACTS BY THE
INSURED?
--
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(SUGGESTED ANSWER: YES)
m. DISCUSSION
A. Plaintiff is entitled to refuse indemnification of Defend ant Rohrer for those damages
caused by Rohr~r's intentional acts since the damages are not the result of an "accident."
In Pennsylvania, whether bodily injury is caused by accident must be determined from the
prospective oftheinsllred. State Farm Mut. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442, 660 A.2d
66 (1995). A policy ofliability insurance is a contract meant to protect and benefit the insured from
liability resulting' from unintentional conduct. If the bodily injury is caused by an intentional assault
and not by accident, the policy does not provide coverage. Id. at 446,442 Pa. Super. at 447. Thus,
a willful and malicious assault, being an intentional tort, is not an accident. Gene's Restaurant. Inc.
v. Nationwide Ins. Co., 519 Pa. 306, 548 A.2d 246 (1988). As such, it is not covered by a policy
agreeing to indemnifY against damages caused by accident. In such cases, the insurer is not even
required to defend its insured. Id. In this Commonwealth the rule is so firmly established that the
Superior Court has said that "it is against the public policy of this Commonwealth to provide
insurance coverage for intentional acts." Nationwide Mut. Ins. Co. v. Hassinger, 325 Pa. Super. 484,
489,473 A.2d 171, 173 (1984).
In Edmond v. Liscio. 209 Pa. Super. 200,224 A.2d 793 (1966), an insured opened his car
door for the sole purpose of striking a pedestrian. The trial court found this to be an intentional
assault. The liability insurance provided coverage for bodily injury caused by accident. The Court
held that the insured's actions warranted no coverage because a "person should not be indemnified
by insurance against the consequences of his willful, criminal assault." Id. at 209,224 A2d. at 798.
Additionally, in State Farm Mut. Auto. Ins. Co. v. Martin, the insured was the owner of a
liability policy providing coverage for bodily harm and property damages "caused by accident." The
insured, under the influence of alcohol, drove his truck to his wife's mobile home and upon seeing
her car parked outside, ran into the rear of the vehicle twice. When the insured wife came out of the
house he mounted the lawn with his truck and struck his wife. Thereafter the insured drove his
,
truck into the side ofthe house three times. The insured's wife sued for injuries, and the owner of
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the home sued for property damages. The Court ruled that the damages were a result of the
insured's intentional acts for which there was no coverage under his policy ofliability insurance.
442 Pa. Super. 442, 660 A.2d 66 (1995). Those injured argued that the insured's conduct was
unintentional (and therefore, accidental) because he was under the influence of alcohol. The Court
ruled, however, that "while voluntary intoxication may so cloud the mind as to deprive it of the
power of pre-meditation and deliberation, it will not prevent the formation of the general intent
necessary for the commission ofan assault and battery." Id. at 446, quoting Esmond v. Liscio, supra
at 208, 224 A.2d at 797.
Here, Plaintiff has insured Defendant Rohrer under a Policy that reads, "we will pay damages
. . . for bodily injury for which an insured person becomes legally responsible because of an accident
arising out of the ownership, maintenance, or use of a vehicle." (Exhibit "A" of Plain. Comp.,
Policy, pg. 5), emphasis added. Defendant Rohrer stated in her deposition that at the time of the
incident, it was her intention to drive the car at Defendants Myers and Vitale and not away from
them. (Deposition of Angela Rohrer, pg. 24, lines 2-4.) Defendant Rohrer further stated that she
intentionally put her car into reverse; intentionally turned the steering wheel in the direction of the
other Defendants; intentionally put the vehicle into gear; and intentionally stepped on the accelerator.
(Id. at pg. 41-42.) Defendant Rohrer has stated that she was smoking marijuana and she was "really,
really, really high," (Deposition of Angela Rohrer, pg. 33, line 15), but as seen in State Farm v.
Martin, "voluntary intoxication will not prevent the formation of the general intent necessary for the
commission of an assault and battery." 442 Pa. Super. 442 (1995), 660 A.2d 66.
Defendant Rohrer intentionally caused the injuries stemming from this incident, and Plaintiff
is entitled to refuse indemnification for those damages since Pennsylvania case law and public policy
dictates that the incident does not fall under the terms of the Policy as an "accident."
B. This incident is excluded from coverage under Plaintiff's policy issued to Defendant
Rohrer since the facts of the case show that the injuries fall under the exclusion clause for
"injury caused by an intentional act of an insured person."
Exclusion number nine in the Policy that Plaintiff issued to Defendant Rohrer states that
"Coverage [under this policy,] including our duty to defend, does not apply to: bodily injury or
. --
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property damage caused by an intentional act of an insured person or at the direction of an insured
person." (Exhibit "A" of Plain. Comp., Policy, pg. 7-8).
The goal of interpreting an insurance contract is to ascertain intent of parties as manifested
by language of the written instrument. Madison Const. Co. v. Harlevsville Mut. Ins. Co., 557 Pa.
595,735 A.2d 100 (1999). The Pennsylvania Superior Court has held that an insurance contract is
not rendered ambiguous by the mere fact that parties do not agree upon the proper construction; they
found ambiguity exists only when policy provisions are reasonably susceptible of more than one
meaning. Tenos v. State Farm Ins. Co., 716 A.2d 626 (Fa. Super. Ct. 1998).
Exclusion clause number nine is anything but ambiguous. It states that intentional acts that
cause bodily injury are not covered under this insurance policy. When given the opportunity to
simply turn the car in a different direction and leave the situation with no injuries, Defendant Rohrer
intentionally put her car into reverse to aim the front of her vehicle at Defendants Myers and Vitale.
(Rohrer Dep. pg. 41 and 42.) She intentionally put her car in gear and intentionally pressed the
accelerator. (Rohrer Dep. pg. 42, In. 4-10.) As a direct result of Defendant Rohrer's intentional
acts, Defendants Myers and Vitale suffered bodily injury which under the clear and unambiguous
meaning of exclusion clause number nine is not covered under the Policy Plaintiff issued Defendant.
IV. CONCLUSION
The acts of Defendant Angela Rohrer were intentional, not accidental and as such are not
covered under the Automobile Liability Insurance Policy issued to Defendant by Plaintiff. First,
the injuries are not covered because the events were not accidental, but intentional acts of the
insured. Secondly, the injuries are not covered because there was an exclusion clause in the
policy which excluded intentional acts from coverage under the policy.
WHEREFORE, Plaintiff prays upon this Honorable Court to enter a declaratory
judgment regarding the parties respective rights, duties and legal relationships with respect to the
insurance policy at issue, specifically:
A. Declaring the underlying incident was not an "accident," as defined by the Policy;
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B. Declaring the underlying incident was intentionally caused by Defendant Rohrer;
C. Declaring the injuries suffered by Defendants Myers and Vitale are excluded from
coverage under the policy as a result of intentional conduct of the insured,
Defendant Rohrer;
D. Declaring Progressive owes no duty to defend or indemnifY claims which may be
made;
E. Declaring Progressive, under the terms of the Policy, is not obligated to
compensate Defendants Myers and Vitale for any claims or loses suffered by them
as a result of the incident;
F. Awarding costs of this action to Progressive;
G. Awarding such other relief as the Court may deem just and proper.
Respectfully submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
By
G B. Faller, Jr., Es
J.D. Number 49813
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Plaintiff Progressive
Northern Insurance Company
Date: i4vt'tJff It,;o I
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
v.
ANGELA ROHRER, LAURA J.
MYERS, and TERRY L.
VITALE,
Defendants
".
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
NO. 00-3530 CIVIL TERM
ORDER OF COURT
AND NOW, this 30th day of May, 2001, upon consideration of the attached letter
from George B. Faller, Jr., Esq., attorney for Plaintiff, the nonjury trial previously
scheduled in this matter for June 11,2001, is rescheduled to Thursday, August 9,2001, at
9:30 a.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania.
George B. Faller, Jr., Esq.
10 East High Street
Carlisle, PA 17013
Attorney for Plaintiff
Angela Rohrer
724 North Hanover Street
Carlisle, PA 17013
Defendant, Pro Se
BY THE COURT,
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esley Oler,
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Matthew S. Crosby, Esq.
1300 Linglestown Road
P.O. Box 1177
Harrisburg, PA 17108
Attorney for Defendant
Laura J. Myers
Karl Rominger, Esq.
155 South Hanover Street
Carlisle,PA 17013
Attorney for Defendant
Terry L. Vitale
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'INF~RMATION'AoVICE:AoVOC<CY' . ,.,.' ,,' " ."", · ','
TEN EAST HIGH $TREET
CAR:L1SLE, PENNSYLVANIA 17013
, ArrORNEYS & _QOUNSEUpRS AT LAW
WILLIAM f. MARTioN
JOHN B.I'OWL~R III
E'DWARD t. SCHORP_P
, DAN~E_~ K. D'EAR,DdRFF.
_'fHOMAS j. W)LLlAMS '" ,
. ' JV(lV; Ono IIi
, G~QRGE B. ' FALLER JR.'
CARl.'C. RISCH
MARIS: A. I)~NLINGER
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TELEPHONt (717) 243-3341
'FAcSl!\'lILE ,(717)243-)850
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*BOARirCERTIFlED',C1vIL TR:IA.l: SPE.CIALlST
May 23, 2001
HonorableJ.WesleyOler,Jr. ,
ClUllberland CountY CourthQuse '
OIleColI1'thous~Square' "
Carlisle,PA17013. '
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RE: Progressiye.Northern Instlra:Il<::e COplpanyv,AngelaRohr~r, Laura J.MYers and
. TeITY~'Vitale . , ' "
Om File N6: 7837.105 '
bear Judge Oler:
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',,', " M)' secretai-y,Ami,hadspo~et1\'{ithAtforneYCro~bY's secretary,Jel:ll1ifet:a:IldAttorney
ROn;1i!lger's secret#rY,Lin~a, regaxdi11gtheircimcu1TeIlc~for jeschedulingthe ,trial date in the above
ref~reIj.pedIllatter..AttomeyCro~byand Att(1111eyRomingerboth concur with rescheduling from
June 11,2001 toa.rio~)1et4ate. . ,. ' . . .
Very tl1!ly yours,. .
, FWILLIAMS & OTTO
GBF/ajt ",. ", ,'" .."" .,., , ,,'."
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Matthew Cr-osb"y;Esquin,
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F:\FILES\DATAFILE\Prgdoc.cur\105-co.lljad
7837.105
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,
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00- ~5 3D C iUtl
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
DECLARATORY JUDGMENT ACTION
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are warned that if you fail to
do so, the case may proceed without you and a judgment may be entered against you by the court
without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiffs. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT
HAVE ALA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone (717) 249-3166
,
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,
I
,
,
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
NO. IJO~ 35,3/J C!.W;1/.biA"""
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
DECLARATORY JUDGMENT ACTION
COMPLAINT
AND NOW, comes, Plaintiff, Progressive Northern Insurance Company, by and through its
attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and avers as follows:
1. Plaintiff is Progressive Northern Insurance Company (hereinafter "Progressive"),
licensed to do business in Pennsylvania, with a business address of 801 East Park Drive, Suite 105,
Harrisburg, Pennsylvania 17111.
2. Defendant Angela Rohrer is an adult individual currently residing at 135 E. Penn
Street, Carlisle, Pennsylvania 17013.
3. Defendant Laura J. Myers is an adult individual currently residing at 38 South Spring
Garden Street, Carlisle, Pennsylvania 17013.
4. Defendant Terry L. Vitale is an adult individual currently residing at 241 East Louther
Street, Carlisle, Pennsylvania 17013.
5. This Action is brought by Progressive, pursuant to the Declaratory Judgments Act,
42 Pa.C.S. S 7531, et seq., to determine its rights and responsibilities under automobile insurance
policy number 55598090-0 issued to Ray Greene. A true and accurate copy of the Policy is attached
hereto as Exhibit "A."
6. The underlying incident occurred on July 17, 1999, at approximately 11 :30 p.m., near
the intersection of East Pomfret and South Spring Garden Streets in Carlisle, Cumberland County,
Pennsylvania.
7. Defendants Myers and Vitale allegedly suffered various injuries when Defendant
Rohrer, while operating a 1992 Chevrolet owned by Greene, caused her vehicle to collide with
Defendants Myers and Vitale, both of whom had been standing along, in or near the street.
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,
,
.
8. Progressive believes Defendant Rohrer intentionally caused her vehicle to collide
with Defendants Myers and Vitale thereby intentionally causing their alleged injuries.
9. At the time of the incident, Defendant Rohrer was covered by an automobile
insurance policy that provides, in relevant part, as follows:
General Definitions: ." Accident' means a sudden, unexpected, and unintended
occurrence. "
PART I - LIABILITY TO OTHERS
INSURING AGREEMENT - BODILY INJURY
[Progressive] will pay damages [] for bodily injury for which an
insured person becomes legally responsible because of an accident
arising out of the ownership, maintenance, or use of a vehicle.
10. The Progressive Policy contains an exclusion to coverage "bodily injury or property
damage caused by an intentional act of an insured person or at the direction of an insured person."
11. Progressive believes and therefore avers, that the injuries suffered by Defendants
Myers and Vitale were caused by the intentional act of the insured, Defendant Rohrer, and
consequently, do not qualify as compensable damages.
12. Progressive believes that the injuries allegedly suffered by Myers and Vitale were not
as a result of an accident as it is defined in the policy.
13. As a result ofthe incident that occurred on July 17, 1999, Defendant Myers, through
her counsel, Matthew S. Crosby, ofthe law firm Handler, Henning and Rosenberg, has indicated she
will be presenting a claim for personal injuries.
14. A claim has been made to Progressive that the injuries suffered by Defendant Myers
are covered under the insurance policy issued to Defendant Rohrer.
15. All parties necessary for the resolution of this matter and whose rights and obligations
may be affected thereby, have been joined as parties to this Action.
16. An actual controversy exists between the parties named herein and the Declaration
sought will substantially aid in determining an appropriate resolution.
WHEREFORE, Plaintiff, Progressive Northern Insurance Company, requests this Court to
enter a Declaratory Judgment regarding the parties' respective rights, duties and legal relationships
with respect to the insurance policy at issues, specifically:
I
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,
,
,
A. Declaring the underlying incident was not an "accident," as defined
by the Policy;
B. Declaring the underlying incident was intentionally caused by
Defendant Rohrer;
C. Declaring the injuries suffered by Defendants Myers and Vitale are
excluded from coverage under the Policy as the result of intentional
conduct of the insured, Defendant Rohrer;
D. That Progressive owes no duty to defend or indemnifY claims which
may be made;
E. Declaring Progressive, under the terms ofthe Policy, is not obligated
to compensate Defendants Myers and Vitale for any claims or losses
suffered by them as a result ofthe incident;
F. Awarding costs of this Action to Progressive; and
G. Awarding such other relief as the Court may deem just and proper.
Respectfully submitted,
By
e B. Faller, Jr., Esquir
LD. No. 49813
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Plaintiff
Date: June 8, 2000
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PENNSYLVANIA
MOTOR VEHICLE
POLICY
This policy, the declarations page. and any appli-
caole endorsements contain the terms of the con-
tract at insurance between llS and the policy-
hOlder.
NOTICE: IF YOU BUY COLLISION COVER-
AGE, IT DOES NOT APPLY TO VEHICLES
RENTED FOR BUSINESS USE OR FOR 6
MONTHS OR MORE.
Progressive Northem Insurance Company
Madison, Wisconsin
Form No. 9606 (07/97) PA
~ 1997 The Progressive Corporation. All Rights Reserved.
EXHIBIT "An
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CONTENTS
YOUR DUTIES IN CASE OF AN ACCIDENT
OR LOSS
Notice Of Accident Or Loss 1
Other Duties ............::::::::::: 1
GENERAL DEFINITIONS ............... 2
PART 1- WABIL1TY TO OTHERS
Insuring Agreement - Bodily Injury ...... 5
Insunng Agreement - Property Damage. 5
Additional Definition 6
Additional Payments ::::::::::::::::: 6
Eltclusions ......................... 7
Umils Of Liability .................... 8
Financial ResponSibility Laws ......... 9
Other Insurance .................... 10
Out-Ol-State Coverage .............. 10
PART 11- FIRST PARTY BENEFITS
COVERAGE
Insuring Agreement ................. 10
Additional Definitions ................ 11
Exclusions ................. ........ 13
Umits Of Liability .................... 14
Other Insurance .................... 16
PART 111- UNINSURED/UNDERINSURED
MOTORIST COVERAGE
Insuring Agreement - Uninsured
Motorist Coverage ................. 17
Insuring Agreement - Underinsured
Motorist Coverage .............,... 17
Additional Definitions ................ 18
Eltcluslons ......................... 20
. Umits Of Liability .................... 21
Other Insurance .................... 25
Arbitration ......................... 26
PART IV - DAMAGE TO A VEHICLE
Insuring Agreement - Collision ......... 27
Insuring Agreement - Comprehensive ... 27
Insuring Agreement - Custom Parts
Or Equipment .................... 28
Additional Definitions ................ 29
Exclusions ..... _ . . . . . . . .. . . . . . . . . .. 29
Limits Of Liability .................... 31
Insuring Agreement - Additional Custom
Parts Or Equipment Coverage ....... 33
Insuring Agreement - Emergency Towing
And labor ....................... 33
Insuring Agreement - Rental
Reimbursement Coverage .......... 34
Loan/Lease Payoff Coverage ......... '34
Payment Of Loss ................... 35
No Benefit To Bailee ................. 36
Loss Payee Agreement .............. 36
Other Insurance .................... 36
Appraisal .......................... 36
,
GENERAL PROVISIONS
Policy Period And Territory ........... 37
Policy Changes ..................... 37
Terms 01 Policy Conlormed To Statutes. 38
Transfer ........................... 38
Fraud Or Misrepresentation ........... 38
Payment Of Premium ................ 39
Cancellation ........................ 39
Nonrenewal ........................ 41
Proof Of Notice ..................... 41
Coverage Changes .................. 41
Legal Action Against Us .............. 41
Our Rights To Recover Payment ....... 42
Bankruptcy ........................ 43
NAMED DRIVER EXCLUSION ........... 43
NAMED OPERATOR - NON-OWNED
VEHICLE COVERAGE ................. 43
APPENDIX
Pennsylvania Surcharge Disclosure Statement
Form 1996 (11/96) ................... 47
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PENNSYLVANIA MOTOR VEHIClE POUCY
f you pay your premium when due. we agree to
lrovide this insurance. subject to all the terms
~nd provisions of this po/icy, and up to the Umlts
~t Uability described in this policy and shown on
the Declarations Page.
YOUR DUTIES IN CASE OF AN
ACCIDENT OR LOSS
Notice of Accident or Loss
If there is an accident or loss arising out of
the ownership, maintenam;:e or use of a vehi-
cte, for which coverage may be provided u
der this policy, report it to us within
twenty-four (24) hours or as soon as practica-
ble by calling us at 1-800-274-4499.
You should report each accident or loss even
if an insured person is not at fault.
The following accident information should be re-
ported as it is obtained:
1. time:
2. place:
3. circumstances of the accident or loss:
4. names and addresses of any injured persons;
5. names and addresses of any witnesses: and
6. the license plate numbers of the vehicles
involved.
You should also notify the police within twenty-
tour (24) hours or as sOOn as practicable if:
1. you cannot identify the owner or operator of a
vehicle involved in the accident: or
2. theft or vandalism has occurred.
OlliER DlIrtES
A person claiming coverage under this olic
must.
cooperate with us'in any matter concerning a
claim or lawsuit:
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2. prevideany written proof of loss we may rea-
sonably require;
3. allow us to take signed or recorded state-
ments. including statements under oath. and
answer all reasonable questions we may ask.
when and as often as we may reasonably
require:
4. promptly send us any and all legal papers re-
lating to any claim or lawsuit:
S. attend hearings and trials as we require:
6. take reasonable steps after a loss to protect
the covered vehicle or non-owned vehicle
from further foss. We will pay reasonable ex-
penses incurred in providing that protection.
If you fail to do so, any further damages will
ed un e his policy;
7. allow us to inspect and app' "damage
to a covered vehicle or non-owned vehicle
before its repair or disposal;
. . .
8.
pense by doctors we select as often as we
may reasonably require; and
9. authorize us to obtain medical and other
records.
GENERAL DEFINITIONS
Except as othetWise defined in this policy, terms
appearing in boldface will have the following
meaning:
1. "Accident" means a sudden, unexpected,
and unintended occurrence.
2. "Bodily injury" means bodily harm. sickness,
or disease. including death that results from
bodily harm. sickness. or disease.
3. "Business" includes a trade. profession, or
occupation.
4. "Covered vehicle" means:
a. any vehicle shown on the Declarations
Page: '
b. any additional vehicle an the date you be-
come the owner if:
i. you acquire the vehicle during the pol-
icy period shown on the Declarations
Page:
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ii. we insure all vehicles owned by you;
and
iii. no other insurance policy provides cov-
erage far that vehicle.
For' a vehicle you acquire in addition to
any vehicle shown on the Declarations
Page. we will provide the broadest cover-
age we provide for any covered vehicle
shown on the Declarations Page. We will
provide coverage for a period of thirty (30)
days atter you become the owner. We
will not provide coverage after this thirty
(30) day period unless within this period
you ask us to insure the vehicle;
c. any replacement vehicle on the date you
become the owner if:
i. you acquire the vehicle during the pol-
icy period shown on the Declarations
Page;
II. the vehicle that you acquire replaces
one shown on the Declarations Page;
and
iii. no other insurance policy provides cov-
erage for that vehicle.
If the vehicle that you acquire replaces
one shown on the Declarations Page, it
will have the same coverage as the cov-
ered vehicle it replaces. You must ask
us to insure a replacement vehicle within
thirty (30) days after you become the
owner If you want to add or continue cov-
erage under Part IV - Damage To A Vehi-
cle; and
d. any trailer owned by you while drawn by
or attached to a vehicie described in a, b,
or c above.
5. "Declarations Page" means the report from
us listing:
a. the types of coverage you have elected;
b. the limit for each coverage:
c. the cost for each coverage:
d. the specified vehicles covered by this pol-
icy;
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e. the types of coverage for each such vehi-
cle; and
f. other information applicable to this policy.
6. 'Loss" means sudden, direct, and accidental
loss or damage.
7. "Non-owned vehicle' means any vehicle
that is not owned by you, a relative. or the
spouse. Of the named insured even if not re-
siding:in the same household as the named
insured.
8. "Occupying" means in, on, entering, or
exiting.
9. 'Owned" means the person:
a. holds legal title to the vehicle:
b. has legal possession of the vehicle that is
subject to a written security agreement
with an original term of six (6) months or
more; or
c. has legal possession of the vehicle that is
leased to that person under a wntten
agreement for a continuous period of six
(6) months or more.
10. "Owner" means any person who, with re-
spect to a vehicle:
a. holds leaal title to the vehicle;
b. has legal possession of the vehicle that is
subject to a written security agreement
with an original term of six (6) months or
more; or
c. has legal possession of the vehicle that is
leased to that person under a written
agreement for a continuous period of six
(6) months or more.
11. "Property damage" means physical damage
to. or destruction or loss of use of, tangible
property.
12. "Relative" means:
a. a person residing in the same household
as you who is related to you by blood,
marriage. or adoption, including a ward,
stepchild, or foster child: and
b. a minor In the legal custody of the named
insured. or in the custody of a person re-
siding in your household who is related to
you.
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Unmarried dependent children temporarily
away from home will be considered residents '
if:
a. they are under the age of twenty-five (25)
years~ and
b. they intend to continue to reside in your
household.
13. "'Trailer' means a vehicle designed to be
towed on public roads by a vehicle. It in-
cludes a farm wagon or farm implement while
being towed by a vehicle. It does not include
a mobile home. or a trailer used as an office.
store. display, or passenger conveyance.
14. 'Vehicle' means a land motor vehicle:
a. of the private passenger, pickup body, or
sedan delivery type:
b. designed for operation principally upon
public roads;
'c. with at least four (4) wheels: and
d. with a gross vehicle weight of 10,000
pounds or less.
15. 'We', "Us', and 'Our" mean the company
providing the insurance, as shown on the
Declarations Page.
16. "Vou" and "Your' mean the person shown as
the named insured on the Declarations
Page. and that person's spouse if residing in
the same household.
PART I. LlA81LITYTO OTHERS
INSURING AGREEMENT' - BODILY INJURY
Subject to the Limits of Liability, if you pay a pre-
mium for bodily injury liability coverage. we will
pay damages. other than punitive or exemplary
damages. for bodily injury for W~ich an insured
person becomes legally responSIble becaus.e of
an accident arising out of the ownership, mainte-
nance. or use of a vehicle.
INSURING AGREEMENT - PROPERTY DAMAGE
Subject to the Limits of Uability, if you pay a pre-
mium for property damage liability coverage, we
will pay damages. other than punitive or exem-
platy damages, for property damage for which
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an insured person becomes legally responsible
because of an accident arising out of the owner-
ship, maintenance, or use of a vehicle.
We will settle or defend, at our option, any claim
for damages covered by this Part I.
ADDmoNALDERNmON
When used in this Part I. "insured person" or "In-
sured persons' means: .
1. you or a relative with respect to an aCCident
arising aut of the ownership, maintenance, or
use of a covered vehicle; .
2. any person with respect to an accident aris-
ing out of that person's use of a covered ve-
hicle with the express or implied permiSSion
of you or a relative; .' .
3. a relative with respect to an aCCIdent arising
ou1 of the maintenance or use of a non.
owned vehicie with the express or implied
permission of the owner of.the vehicle:
4. you with respect to an aCCident arlsl~g out .of
the maintenance or use of any vehIcle With
the express or implied permission of the
owner of the vehicle:
5. any person or organization with. respect .only
to vicarious liability for an aCCIdent anslng
aut of the use of a covered vehicte or non-
owned vehicle by a person described in 1, 2,
3. or 4 above: and .
6. any Additional Interest Insured deSignated by
you in your application or by a change r.e-
quest agreed to by us, with respect to liability
lor an accident arising out of the use of a
covered vehicle or non-owned vehicle by a
person described in 1, 2, 3, or 4 above.
ADomONAL PA YMENl"S
In addition to our Umit of Uability, we will pay for
an insured person:
1. all expenses that we incur in the settlement of
any claim or defense of any laWSUit;
2. premiums on appeal bonds or attachment
bonds required in any lawsuit we defend. We
have no duty to purchase bands in an amount
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exceeding our Limit of Liability, and we have
no duty to apply for or furnish these bonds;
3. up to $250 for a bail bond required because
of an accident arising out of the ownership,
maintenance, or use of a covered vehicle or
non-owned vehicle. We have no duty to ap-
ply for or furnish this bond: and
4. reasonable expenses, including loss of earn-
ings up to $50 a day, incurred at our request.
eXCLUSIONS - READ THE FOLL.OWING EX-
CLUSIONS CAREFULLY, IF AN EXCLUSION
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APPLIES, COVERAGE WILL NOT BE AF-
FORDED UNDER THIS PART 1.
Coverage under this Part I. including our duty to
defend, does not apply to:
1. bodily injury or property damage arising
out of the ownership. maintenance, or use of
a vehicle while being used to carry persons
or property"for compensation or a fee, includ-
ing, but not limited to, delivery of magazines,
newspapers, food, or any other products.
This exclusion does not apply to shared-
expense car pools;
2. any liability assumed by an insured person
, under any contract or bailment;
3. bodily in jury to an employee of an insured
person arising out of or within the course of
employment. except for domestic empioyees
if benefits are neither paid nor required to be
provided under workers' compensation, dis-
ability benefits. or similar laws;
4. bodily injury or property damage arising
out of an accident involving a vehicle while
,being used by a person while employed or
engaged in the business of selling, leasing,
repairing, parking, storing, servicing, deliver-
ing, or testing vehicles. However, this exclu-
sion does not apply to you, a relative, or an
agent or employee of you or a relative, when
using a covered vehicle;
5. bodily injury or property damage resulting
from any pre-arranged or organized racing,
speed or demolition contest, stunting activity,
or in practice or preparation for any such con-
test or activity;
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6. bodily injury or property damage due to
nuclear reaction or radiation;
7. bodily injury or property damage for which
insurance is afforded under a nuclear energy
liability insurance contract;
8. any obligation for which the United Slates
Gavemment is liable under the Federal Tort
Claims Act:
9. bodily injury or property damage caused
by an intentional act of an insured person or
at the direction of an insured person;
10. property damage to any property owned by,
rented to. being transported by, used by, or In
the charge of an insured person. However,
this exclusion does not apply to a rented resi- ·
dence or a rented garage damaged by a cov-
ered vehicle:
11. bodily injury or property damage resulting
from a relative's operation or use of a vehi-
cle, other than a covered vehicle, owned by
a person who resides with you: or
12. bodily injury or property damage resulting
from your operation or use of a vehicle
owned by you. other than a covered
vehicle.
UMfTS OF UABlllTY
The Limit of Liability shown on the Declarations
Page is the most we will pay regardless of the
number 01:
1. claims made:
2. covered vehicles:
3. insured persons;
4. lawsuits brought;
5. vehicles involved in an accident: or
6. premiums paid.
II the Declarations Page shows that "combined
single limits' or "CSL" applies. the amount shown
is the most we will pay for the aggregate of all
damages resulting from anyone (1) accident.
We will apply the "each person" Limit of Liability
for bodily injury as required by the law of the
state listed on your application as your resi-
dence. However, this provision does not change
OUr total "each accident" Limit of Liability. . ..
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If your Declarations Page shows a split limit:
1. the amount shown for 'each person" is the
most we will pay for all damages due to a
bodily injury to one (1) person:
2. subject to the "each person" limit, the amount
shown for "each accident" is the most we will
pay for all damages due to a bodily injury to
two (2) or more persons in anyone (1) acci-
dent: and
3. the amount shown for "property damage" is
the, most we will pay for the aggregate of all
property damage for which an insured per-
son becomes liable from anyone (1)
accident.
The bodily injury limit for "each person" includes
the aggregate of claims made for such bOdily in-
iury and claims derived from such bodily injury,
including, but not limited to, loss of society, loss of
companionship, loss of services, lass of consor-
tium, and wrongful death.
No one will be entitled to duplicate payments for
the same elements of damages.
Any payment to a person under this Part I shall
be reduced by any payment to that person under
Pan III UninsuredlUnderinsured Motorist
Coverage.
A vehicle and attached trailer are considered
one (1) vehicle. Therefore. the Limits of Liabiiity
will not be increased for an accident Involving a
vehicle which has an attached trailer.
FlNANClALRESPONSIBIUTY LAWS
When we certify this policy as proof of financial
responsibility, this policy will comply with the law
to the extent required. You must reimburse us if
we make a payment that we would not have
made if this policy was not certified as Proof of
Financial Responsibility.
9
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emIER,INSURANCE
If there is other applicable liability insurance or
, bond, we will pay only our share of the damages.
Our share is the proportion that our Limit of li-
ability bears to the total of all applicable limits.
Any insurance we provide for a vehicle. other
Ihan a covered vehicle, will be excess over any
other collectible insurance, seil-insurance, or
bond.
our -oF-STATE COVERAGE
If an accident to which this policy applies occurs
in any state or province other than the one in
which a covered vehicle is principally garaged,
and the state or province has: .
1. a financial responsibility or similar law requir-
ing limits of liability for bodily injury or prop-
erty damage higher than the Limits shown on
the Declarations Page, this policy will pro-
vide the higher limit: or .
2. a compulsory insurance or similar law reqUir-
ing a non-resident to maintain insurance
whenever the non-resident uses a vehicle in
that state or province. this policy will provide:
a. the required minimum amounts and types
of coverage: or
b. any higher limit you have elected, pro-
vided you have paid the premium for
higher limits.
PART 11- FIRST PARTY BENEFITS COVERAGE
INSURING AGREEMENT
Subject to the Limit of Liability, if you pay a pre-
mium for First Party Benefits Coverage we will
pay the following First Party Benefits, if shown on
your Declarations Page, for loss or expense
sustained by an insured person because of
bodily injury caused by an accident arising out
of the maintenance or use of a motor vehicle:
1. medical expenses:
2. Income Loss:
3. Funeral Benefit; and
4. Accidental Death Benefit.
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ADDmONAL DEFlNmONS
When used in this Part II:
1. "Accidental Death Benefit" means a death '
benefit paid to the personal representative of
the insured person. should bodily injury
caused by a motor vehicle accident result in
death within twenty-four (24) months from the
dale of the accident.
2. "Funeral Benefit" means the reasonable and
necessary expenses directly related to the
funeral. burial. cremation. or other fonn of dis-
position of the remains of a deceased in-
sured person. incurred due to the death of '
the insured person if death:
a. results from a motor vehicle accident.
and .
b. occurs within twenty-four (24) months from
the date of the accident.
3. "Income Loss" means eighty percent (80%)
of actual loss of gross income of an insured
person. It also includes reasonable expenses '
actually incurred for:
a. hiring a substitute to perfonn services the
insured person would have performed in
connection with self-employment. in order '
to mitigate or reduce loss of gross income;
or
b. hiring special help to enable the insured
person to work and mitigate loss of gross
Income.
We will not pay for "income ioss" for:
a. lass of income during any periOd following
the death of an insured person:
b. expenses incurred for services performed
following the death of an insured person;
or
c. any loss of income during the first five (5)
days the insured person did not work af.
,. ter the accident due to the bOdily injury
caused by the accident.
4. "Insured person" as used in this Part 1I
means:
a. you or any relative; and
b. any oth er person:
11
I. while occupying your covered auto
with the express or implied pennission
of you or a relative; or
ii. while not occupying a motor vehicle if
injured as a result of an accident which
occurs in Pennsylvania involving your
covered auto. This does not apply if
your covered auto is parked and un-
occupied at the time of the accident
unless it was parked in a manner as to
.'~reate an unreasonable risk of injury.
5. "Medical expense" and "medical expenses"
mean the reasonable charge for necessary
medical treatment and rehabilitative services,
including, but not limited to:
a. hospital. dental, surgical, psychiatric, psy-
chological, osteopathic, ambulance, chiro-
practic, and nursing services:
b. licensed physical therapy, vocational reha-
bilitation, occupational therapy, speech pa-
thology and audiology therapy, and
optometric services; and
c. medications. medical supplies and pros-
thetic devices;
all without limitation as to time. provided that.
within 18 months from the date of the acci-
dent causing bodily injury, It is ascertain-
able. with reasonable medical probability, that
further medical expense may be incurred as
a result of the bodily injury. "Medical ex-
pense" and "medical expenses" may include
any non-medical remedial care and treatment
rendered in accordance with a recognized re-
ligious method of healing.
6. "Motor vehicle" means a self-propelled vehi-
cle. operated or designed for use upon public
roads. However, motor vehicle does not in-
clude a vehicle operated:
a. by muscular power; or
b. on rails or tracks.
7. "Your covered auto" means a motor
vehicle:
a. to which coverage applies under Part I -
Uability To Others if:
i. owned by you; or
ii. shown on the Declarations Page; and
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b. for which you maintain First Party Benefits
Coverage as required under the Pennsyl-
vanta Motor Vehicle FinancIal Responsibil-
ityLaw.
EXCLUSIONS
We do not provide any First Party Benefits under
this Pan II for bodily injury;
1. sustained by any person while intentionally
causing or attemptIng to cause bodily injury
to:
a. himself or herself; or
b. any other person:
2. sustained by any person while committing a
felony;
3. sustained by any person while seeking to
elude lawful apprehension or arrest by a law
enforcement official;
4. sustained by any person while maintaining or
using a motor vehicle knowingly convened
by that person. However. this exclusion does
not apply to you while using a covered
vehicle:
5. sustained by any person who. at the time of
the accident:
a. is the owner of one or more registered
motor vehictes which do not have in
effect the security required by . the
Pennsylvania Motor Vehicle Financial Re-
sponsibility Law; or
b. is occupying a motor vehicle owned by
that person for which the financial respon-
sibility required by the Pennsylvania Motor
Vehicle Financial Responsibility Law is not
in effect:
6. sustained by any person maintaining or using
a motor veM icle while located for use as a
residence or premises;
7. sustained by any person injured as a resuit of
conduct within the course of the business of
,repairing, servicing or otherwise maintaining
motor vehicles. However, this exclusion
does not apply if the conduct is off the busi-
ness premises:
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8. sustained by any person while occupying:
a. a recreational vehicle designed for use off
public roads; or
b. a motorcycle, moped. or similar type
vehicle;
9. caused by or as a consequence of:
a. any discharge of a nuclear weapon;
b. war (whether declared or undeclared);
0". 'civil war;
d.. insurrection; or
e. rebellion or revolution; or
10. from or as a consequence of the following
whether controlled or uncontrolled or however
caused:
a. nuclear reaction;
b. radiation; or
c. radioactive contamination.
UMlTS OF UAB1UTY
The Umit of Uability shown on the Declarations
Page for each first party benefit under this Part II
is the most we shall pay for that benefit to or for
! each insured person as the result of anyone (1)
accident, regardless of the number of:
,. claims made;
2. covered vehicles:
3. lawsuits brought;
4. vehicies involved in an accident;
5. premiums paid: or
6. insurers providing first party benefits.
Combination First Party Benefits
If you pay the premium for Combination First
Party Benefits. and it is shown on your Declara-
tions Page. we will pay medical expenses. In-
come Loss, Funeral Benefit, and Accidental
Death Benefit under this Part II, subject to the
combined single limit of liability shown on the
Declarations Page, for each insured person
who sustains bodily injury in anyone (1) acci-
dent. Subject to the combined single limit of li-
ability, the most we will pay as the Funeral
Benefit for an insured person is $2,500, and the
most we will pay as the Accidental Death Bene-
fit for an insured person is $25,000. If you have
selected Combination First Party Benefits, we will
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only pay for expenses or loss incurred within
three (3) years from the date of the accident.
Extraordinary Medical Benefits Coverage
If you pay the premium for Extraordinary Medical
Benefits Cov~rage. and it is shown on the Decla-
-rati'ons Page, subject to the limit of liability shown
on the Declarations Page. we will pay medical
expenses incurred by an insured person in ex-
cess of the aggregate of $100,000 that result from
bodily injury caused by an accident. subject to
the following:
1 . The limit of liability shown on the Declara-
tions Page for Extraordinary Medical Bene-
fits Coverage is the most we will pay for
medical expenses incurred by an insured
person as the result of an accident to which
this Extraordinary Medical Benefits Coverage
applies. and is subject to the following addi-
tionallimits:
a. an annual limit of $50.000 for medical ex-
penses incurred by an insured person;
and ,
b. a lifetime aggregate limit of $1,000,000 for
medical expenses incurred by an in-
sured person.
However, the $50,000 annual limit shall not
apply to medical expenses covered by Ex-
traordinary Medical Benefits Coverage which
are incurred within eighteen (18) months fol-
lowing the accident.
2. Any amounts payable by us as ExtraOrdinary
Medical Benefits will be excess to any
amounts available to an insured person for
medical expense under any First Party
Benefits Coverage provided in accordance
with the Pennsylvania Motor Vehicle Financial
Responsibility Law.
3. If an insured person is eligible for Extraordi-
nary Medical Benefits Coverage and is also
eligible for benefits under the Catastrophic
Loss Trust Fund, the combined total recovery
under Extraordinary Medical Benefits Cover-
age and the Pennsylvania Catastrophic Loss
Trust Fund for medical expenses incurred
by an insured person as the result of an ac-
cident shall not exceed $1 ,000,000.
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ornER INSURANCE
No one will be entitled to recover duplicate pay-
ments for the same elements oJ loss under this or
any other similar automobile insurance including
self.insurance.
Any amount payable under this Part II shall be
excess over an\( amounts paid, payable or re-
quired to be provided to an insured person un-
der any workers' compensation law or SImilar law.
Priority of Policies
If there is other First Party Benefits Coverage. we
will pay benefits under this Part /I in accordance
with the order of priorities set forth by the Pen.n-
sylvania Motor Vehicle Financial Responsl~lhty
Law, as amended. We will not pay benefits .f
there is another insurer at a higher level of prior-
ity. The order of priority is:
First The insurer providing benefits to the
insured person as a named insured.
Second The insurer providing benefits to the
insured person as a relative who is
not a named insured under another pol-
icy providing coverage under the Penn-
sylvania Motor Vehicle Financial Re-
sponsibility Law.
Third The insurer of the motor vehicle which
the insured person is occupying ,at
the time of the accident.
Fourth The insurer providing benefits on any
motor vehicle involved in the accident
if the insured person is:
a. not occupying a motor vehicle;
and
b. not entitled to payment of first party
benefits under any other motor ve-
hicle policy.
An unoccupied parked motor vehicle
is not a motor vehicle involved in an
accident within this Fourth priority un-
less it was parked in a manner as to
create an unreasonable risk of injury.
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If two or more policies have equal priority within
the highest applicable priority level:
1. The insurer against whom the claim is first
made shall process and pay the claim as if
wholly responsible. The insurer is thereafter
antitled to recover contribution on a pro rata
basis from any other insurer for the benefits
paid and the costs of processing the claim. If
contribution is sought among insurers respon-
sible under the Fourth priority, proration shall
be based on the number of involved motor
vehicles.
2. If we are the insurer against whom the claim
is first made, our payment to or for an in-
sured person will not exceed the applicable
limit of liability for coverage under this Part II
shown on the Declarations Page, or if you
have purchased Extraordinary Medical Bene-
fits. the applicable limit of liability.
3. The maximum recovery under all policies
may not exceed the amount payable under
the policy with the highest dollar limits of
benefits.
PARTllI. UNlNSUREOONOERINSURED
MOTORIST COVeRAGE
INSURING AGREEMENT - UNINSURED
MOTORIST COVeRAGE
Subject to the Urnits of Uability, if you pay a pre-
mium for Uninsured Motorist Coverage, we will
pay for damages, other than punitive or exem-
plary damages, which an insured person is enti-
tled to recover from the owner or operator of an
uninsured motor vehicle because of bodily
injury:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance, or
, use of an uninsured motor vehicle.
INSURING AGREEMENT. UNDERINSURED
MOTORIST COVERAGE
Subject to the Limits of Liability, if you pay a pre-
mium for Underinsured Motorist Coverage; we
17
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will pay for damages, other than punitive or exem-
plary damages, which an insured person is enti-
tled to recover from the owner or operator of an
underinsured motor vehicle because of bodily
injury:
t. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance, or
use of an underinsured motor vehicle.
An insured person must notify us in writing at
least thirty (30) days before entering into any s~t-
lIement with the owner or operator of an unm.
sured motor vehicle or underinsured motor
vehicle, or any liability insurer. In order to pre-
serve our right of subrogation, we may elect to
pay any sum offered in settlement by, or on be-
half of, the owner or operator of an uninsured
motor vehicle or underinsured motor vehicle.
If we do this, you agree to assign to us all rights
that you have against the owner or operator of
the uninsured motor vehicle or underinsured
motor vehicle.
Determination of whether an insured person is
legally entitled to recover damages ,and the
amOllnt. of damages will be made by agreement
between the insured person and us; If no
agreement is reached, the decision may be made
by arbitration if we or the insured person make a
written demand for arbitration prior to the expira-
tion of the bodily injury statute of limitations in
the state in which the accident occurred.
ADomoNALDEflNmONS
When used in this Part III:
1. 'Insured person" and "Insured persons"
mean:
a. you or a relative;
b. any person occupying a covered vehi.
cle; and
c. any person who is entitled to recover dam-
ages covered by this Part III because of
bodily injury sustained by a person de.
scribed in a or b above.
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2. "Noneconomic loss" means pain and suffer-
ing and other non-monetary detriment.
3. "Serious injury" means bodily injury result-
ing in death. serious impairment of a bodily
funcllon. or permanent serious disfigurement.
4. "Underinsured motor vehicle" means a land
motor vehicle or trailer of any type to which a
bodily injury Iiabil~ty bond or policy applies at
the time of the aCCIdent. but its limit of liability
for bodily injury is less than the damages
which an insured person is entitled to re-
cover from the owner or operator of the mo-
tor vehicle because of bOdily injury.
An underinsured motor vehicle does not
include any vehicie or equipment:
a. owned by you or a relative;
b. owned by any governmental unit or
agency;
c. operated on rails or crawler treads:
d. designed mainly for use off public roads,
while not on public roads;
e. while used as a residence or premises;
f. shown on the Declarations Page of this
policy;
g. not required to be registered as a motor
vehicle: or
h. which is an uninsured motor vehicle.
5. "Uninsured motor vehicle" means a land
motor vehicie or trailer of any type:
a. to which no bodily Injury liability bond or
policy applies at the time of the accident;
b. to which a bodily injury liability bond or
policy applies at the time of the accident.
but the bonding or insuring company:
i. denies coverage; or
ii. is or becomes insolvent within six (6)
years after the accident occurs; or
c. whose operator or owner cannot be identi-
fied and which causes an accident result-
ing in bodily injury to an insured person.
provided that the insured person, or
someone on his or her behalf:
a. reports the accident to the police or
civil authority within twenty-four (24)
hours or as soon as practicable after
the accident: and
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b. notifies us within thirty (30) days. or as
soon as practicable thereafter, that the
insured person has a cause of action
arising out of such accident for dam-
ages against a person or persons
whose identity is unascertainable. and
sets forth the facts in support thereof.
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An uninsured motor vehicle does not in-
clude any vehicle or' equipment:
a. owned by you or a relative:
b. owned or operated by a self-insurer under
any applicable vehicle law, except a self-
insurer that is or becomes insolvent:
c. owned by any govemmental unit or
agency; ,~
d. operated on rails or crawler treads;
e. designed mainly for use off public roads.
while not on pUblic roads;
f. while used as a residence or premises;
g. shown on the Declarations Page of this
policy;
h. not required to be registered as a motor
vehicle: or
i. which is an underinsured motor vehicle.
EXCLUSIONS - READ THE FOLLOWING EX-
CLUSIONS CAREFULLY. IF AN EXCLUSION
APPLIES, COVERAGE WILL NOT BE AF-
FORDED UNDER THIS PART III.
1. Coverage under this Part III is not provided
for bodily injury sustained by any person
while using or occupying:
a. a covered vehicle while being used to
carry persons or property for compensa-
tion or a fee. including, but not limited to.
delivery of magazines, newspapers, food.
or any other products. This exclusion
does not apply to shared-expense car
pools:
b. a covered vehicle without the express or
implied permission of you or a relative:
c. a non-owned vehicle without the express
or implied permission of the owner: or
d. a vehicle owned by you or a relative.
other than a covered vehicle.
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2. We do not provide coverage under this Part
III for noneconomi7 '.oss sustained by any
person to whom a limited tort option applies
unless the bodily injury sustained by the in-
sured person is a serious injury. However
this exclusion does not apply if the insured
pQrson is injured while occupying a motor
vehicle other than a private passenger motor
vehicle.
3. Coverage. under this Part III.Will not apply di.
rectly or mdlrectly to benefit any insurer or
self-insurer under any at the following or simi.
lar laws:
a. workers' compensation law; or
b. disability benefits law.
UMITS OF UA81UTY
Nonstacked Limits of Liability
It the Declarations Page shows you have se-
lected nonstacked coverage under this Part III
with a split limit:
1. the amount shown for "each person" is the
most we will pay for all damages due to a
bodily injury to one (1) person: and
2. subject to the "each person" limit. the amount
shawn for "each accident" is the most we will
pay far all damages due to a bodily injury to
two (2) or more persons in anyone (1)
accident.
If you have selected nanstacked cav!i!rage under
this Pan III and the Declarations Page shows that
"combined single limits" or "CSL" appiies, the
amount shown is the mast we will pay for the ago
gregate of all damages resulting from anyone (1)
accident. We will apply the "each person" Limit
of Liability for uninsured or underinsured motorist
coverage es required by the law at the state listed
on your application as your residence. However,
this provision does not change our total "each ac.
cident" Limit at Liability.
If you have selected nonstacked coverage un-
der this Part III, the Limit of Liability shown on
the Declarations Page for the coverages under
21
Part III is the most we will pay regardlass of the
number at:
1. claims made:
2. covered vehicles:
3. insured persons;
4. lawsuits brought:
5. vehicles involved in an accident; or
6. premiums paid.
The bodily injury Limit of Liability under this Pan
III for "each person" includes the aggregate of
claims made for such bodily injury and all claims
derived from such bodily injury, including, but
not limited to, loss of society, loss of companion-
ship. loss of services, loss of consortium, wrong-
fuldeath. and survival claims.
In determining the amount payable under this Part
III, the amount of damages which an insured
person is entitled to recover for bodily injury
shall be reduced by all sums:
1. paid because of bodily injury by or on behalf
of any persons or organizations who may be
legally responsible;
2. paid or payable because of bodily injury un-
der any of the following or similar laws:
a. workers' compensation law; or
b. disability benefits law.
However. if an insured person enters into a set-
tlement agreement for an amount less than the
sum of the limits of liability under all applicable
bodily injury liability bonds and. policies, our limit
of liability for Underinsured Motorist Coverage
shall not exceed the difterence between the in-
sured person's damages and the sum of the ap'
plicable bodily injury liability limits.
The Limits of Liability under this Part 11\ shall be
reduced by all sums paid under Part I - Liability
To Others.
Any payment made to a person under this Part III
shall reduce any amount that the person is enti-
tled to recover under Part I - Liability To Others.
No one will be entitled to duplicate payments for
the same elements of damages.
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No judgment for damages arising out of a lawsuit
brought against an operator or owner of an unin-
sured motor vehicle or underinsured motor
vehicle shall be binding against us unless we:
1: received reasonable notice of the filing of the
lawsuit resulting in the judgment: and
2. had a reasonable opportunity to protect our
interests in the lawsuit.
Stacked Limits of Uability
If you have paid a premium for stacked coverage
under this Part III with a split limit, and it is shown
on the Dectaratlons Page, when you or a rela-
tive sustain bOdily injury which is covered under
this Part III:
1. the most we will pay for all damages due to
bodily injury to one (1) person in anyone (1)
accident is the "each person' limit ,of liability
shown an the Declarations Page multiplied
by the number of covered vehicles shown;
and
2. subject to the "each person" limit, our maxi-
mum limit of liability for all damages in any
one (1) accident is the 'each accident' limit
of liability shown on the Declarations Page
multiplied by the number of covered vehicles
shown.
However. this shall not increase the limit of liabil-
ity applicable to any insured person other than
you or a relative.
If you have paid a premium for stacked coverage
under this Part III with 'combined single limits" or
"CSL' limits. and it is shown on the Declarations
Page. when you or a relative sustain a bodily
injury covered under this Part III for which
stacked cove rage has been purchased, our maxi-
mum limit of liability for all damages in anyone (1)
accident shall be the sum of the applicable limits
of liability shown on the Declarations Page appli-
cabie to each covered vehicle. However this
shall not increase the limit of liability applicable to
any insured person other than you or a relative.
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The Umit of Uability shown on the Declarations
Page for the coverages under Part !II is the most
we will pay regardless of the number of:
1. claims made:
2. insured persons;
3. lawsuits brought;
4. ,vehicles involved in an accident; or
5.. premiums paid.
The bodily injury Limit of Liability under this Part
III for 'each person' includes the aggregate of
claims made for such bodily injury and all claims
derived from such bodily injury, including, but
not limited to, loss of society, loss of companion-
ship, loss of services, loss of consortium, wrong-
ful death, and survival claims.
In determining the amount payable under this Part
III, the amount of damages which an Insured
person is entitled to recover jar bodily injury
shall be reduced by all sums:
1. paid because of bodily Injury by or on behaif
of any persons or organizations who may be
legally responsible;
2. paid or payable because of bodily Injury un-
der any of the following or similar laws:
a. worners' compensation law; or
b. disability benefits law. '
However, if an Insured person enters into a set-
tlement agreement for an amount less than the
sum of the limits of liability under all applicable
bodily injury liability bonds and policies. our limit
of liability far Underinsured Motorist Coverage
shall not exceed the difference between the in-
sured person's damages and the sum of the ap-
plicable bodily injury liability limits.
The Limits of Liability under this Part III shall be
reduced by all sums paid under Part I - Liability
To Others.
Any payment made to a person under this Part III
shall reduce any amount that the person is enti-
tled to recover under Part I - Uabiiity To Olhers.
No one will be entitied to duplicate payments for
the same elements of damages. .
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No judgment for damages arising out of a lawsuit
brought against an operator or owner of an unin-
sured motor vehicle or underinsured motor
vehicle shall be binding against us unless we:
1. received reasonable notice of the filing of the
lawsuit resulting in the judgment; and
2. had. a reasonable opportunity to protect our
interests in the lawsuit.
OTHER INSURANCE
If there is other applicable similar insurance avail-
able under more than one policy or provision of
coverage. the following priorities of recovery
apply:
Firs! The uninsured or underinsured motorist
coverage applicable to the motor vehi-
cle the insured person was occupy-
ing at the time of the accident.
Second Any other policy affording uninsured or
underinsured motorist coverage to the
insured person.
It two or more policies have equal priority, the in-
surer against whom the claim is first made shall
process and pay the claim as if wholly responsi-
ble. The insurer is thereafter entitled to recover
comribution on a pro rata basis from any other
insurer for the benefits paid and the costs of proc-
essing the claim.
If nonstacked coverage is shown on the Declara-
tions Page. the following additional provisions
appiy:
1. When there is insurance available under the
First priority:
a. the limit of liability applicable to the motor
vehicle the insured person was occupy-
Ing, under the policy in the First priority,
shail first be exhausted: and
b. the maxim um recovery under ail Policies in
the Second priority shail not exceed the
amount by which the highest limit for any
one (1) motor vehicle under anyone (1)
policy in t he Second priority exceeds the
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limit applicable under the policy in the First
priority; and .
2. When there is no applicable insurance avail-
able under the First priority, the maximum re-
covery under ail policies in the Second priority
shall not exceed the highest applicable limit
tor anyone (1) motor vehicle under anyone
(1) policy.
We wiii nOI,pay for any damages which would du-
plicate any payment made for damages under
other insurance.
ARBITRATION
If a written demand for arbitration has been made.
then arbitration shall be conducted in accordance
with the provisions of the Pennsylvania Arbitration
Act of 1927. Each party shail select an arbitrator.
The two arbitrators will select a third. If the two
arbitrators cannot agree on a third arbitrator
within thirty (30) days, then on joint applicati~n by
us and the insured person, the third arbitrator
will be appointed by a court having jurisdiction in
the county in which the insured person resides.
Each party wiil pay the costs and fees of its arbi-
'Irator. The costs and fees of the third arbitrator
wiil be shared equaily. Each party wiii pay the ex-
penses it incurs.
Unless both parties agree othelWlse. arbitration
will take place in the county in which the insured
person resides. Local rules of procedure and
evidence will apply.
A decision agreed to by two of the arbitrators will
be binding as to whether the insured person is
legally entitled to recover damages under the ap-
plicable liability law, and the amount of damages.
The arbitrators shall have no authonty to award
an amount in excess of the Umit of Liability.
Unless we and the insured person agree other-
wise the arbitrators shall have no authority to de-
termine issues related to stacking or nonstacking
of coverage. waivers of coverage, residency,
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statutes of limitations. or whether a person quali-
fies as an insured person under this Part III. '
The decision of the arbitrators is binding with re-
~pect to a determination of the amount of the
damages sustained by the insured person and
of the legal liability of the operator or owner of an
uninsured motor vehicle or underinsured mo-
tor vehicle only if the amount does not exceed
the minimum limit of bodily injury liability specified
by the financial responsibility laws of the state
listed on your application as your residence. If
the decision of the arbitrators is in an amount
which exceeds this minimum limit, either party
may demand the right to a trial in a court haVing
jurisdiction in the county in which the insured
person resides. This demand must be made in
writing within sixty (60) days of the arbitrators' de-
cision. If this demand is not made, the amount of
damages agreed to by the arbitrators will be
binding.
PART IV - DAMAGE TO A VEHICLE
INSURING AGREEMENT - COWSION
If you pay iii premium for collision coverage. we
will pay for loss to a covered vehicle. non-
owned vehicle, or trailer, when it collides with
another object or overturns. subject to the Limits
of Liability.
INSURING AGREEMENT - COMPREHENSIVE
If you pay a premium for comprehensive cover-
age, we will pay for comprehensive loss to a
covered vehicle. non-owned vehicle. or trailer,
. subject to the Limits of Liability.
A comprehensive loss is a loss to a covered ve-
hicle. non-owned vehicle. or trailer, caused by
any event other than collision, including, but not
limited to. any of the following:
1. contact with an animal (including a bird);
2. explosion or earthquake;
3. fire;
4. malicious mischief or vandalism;
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S. missiles or falling obiects;
6. riot or civil commotion;
7. theft or larceny; or
8. windstorm. hail, water, or flood.
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If you pay a premium for comprehensive cover-
age under this policy, we will pay you up to $20
per day, but not more than a total of $600 per
loss. for:
T _ transportation expenses incurred by you if a
covered vehicle is stolen: or
2_ loss of use damages that you are legally li-
able to pay if a non-owned vehicle is stolen.
Transportation expenses and loss of use dam-
ages coverage begins forty-eight (48) hours ~fter
you report the theft to us, and ends when the
covered vehicle has been recovered and re-
paired, replaced, or if the covered vehicle is
deemed by us to be a total loss or unrecoverable.
forty-eight (48) hours after we make an offer to
pay the lesser of the actual cash value of the cov-
ered vehicle or any Stated Amount Vehicle Cov-
erage elected by you.
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You must provide us written proof of your trans-
portation expenses and loss of use damages.
Duplicate recovery for identical elements of dam-
ages is not permitted under this policy.
If we can pay the loss under either comprehen-
sive or collision coverage, we will pay under the
coverage where you coliect the most.
INSURING AGREEMENT -
CUSTOM PARTS OR EQUIPMENT
We will pay for loss to custom parts or equip-
ment resuiting from any loss for which compre-
hensive or collision coverage is provided under
the terms of this policy, subject to the Limit of li-
ability. All payments far loss to custom parts or
equipment shall be reduced by the applicable
deductible: but only one (1) deductible may be
applied to a loss in an accident which is covered
by this Part IV.
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ADDmONALDEANmONS
When used in this Part IV:
1. "Custom parts or equipment" means equip-
ment, devices, accessories, enhancements,
'Elnd changes, other than those which are
original manufacturer installed, which alter the
appearance or performance of a vehicle.
This includes any electronic equipment. an-,
tennas, and other devices used exclusively to
send or receive audio, visual, or data signals,
or play back recorded media, other than
those whiCh are original manufacturer in-
stalled, that are permanently installed in a
covered vehicle or non-owned vehicle us-
ing bolts ar brackets, including slide-out
brackets.
2. "Non-owned vehicle" means any vehicle
that is not owned by you, a relative, a resi-
dent of your household, or the spouse of the
named insured even if not residing in the
same household as the named insured, while
in the custody of, or being operated by, you
or a relative with the express or implied per-
mission of the owner. A non.owned vehicle
will be provided the broadest coverage appli-
cable to any vehicle shown on the DeClara-
tions Page. .
3. "Trailer" means a vehicle. including a farm
wagon or farm implement, designed to be
lowed on public roads. that is:
a. owned by you; or
b. not awned by you, while being towed by a
covered vehicle.
"Trailer" does not include a mobile home, or
a trailer used as an office. store, display, or
passenger conveyance.
~CLUS10NS - READ THE FOLLOWING EX-
CLUSIONS CAREFULLY. IF AN eXCLUSION
APPLIES, COVERAGE WILL NOT BE AF.
FORDED UNDER THIS PART IV.
Coverage under this Part IV does not apply for
loss:
1. to a covered vehicle, non-owned vehicle,
or trailer, while being used to carry persons
29
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or property for compensation or a fee, includ.
ing, but not limited ta, delivery of magazines, 'i.
newspapers, faod. or any other products.
This exclusion does not apply 10 shared-
expense car pOOls;
2. to a non-owned vehicle or trailer rented by
you or a relative if being maintained or used
~ fly a person while employed or engaged in
any business;
3. to a non-owned vehicle or trailer, other than
one rented by you or a relative, if being
maintained or used by a person while em-
ployed or engaged in any business not de- .
scribed in exclusion 4 below. This exclusion... .
does not apply to the use by you or any rela-
tive of a non-owned vehicle that is a private
passenger vehicle or trailer;
4. to a covered vehicle, non-owned vehicle,
or trailer, while being used or driven by a per-
son while employed or engaged in the busi-
ness of selling, leasing, repairing, parking,
storing, servicing, delivering, or testing vehi-
cles. However, this exclusion does not apply
to you. a relative, or an agent or employee of
you or a relative, when using a covered
vehicle;
S. to a covered vehicle or non-owned vehicle
resulting from any pre-arranged or organized
racing, speed ar demolition contest, stunting
activity, or in practice or preparation for any
such contest ar activity;
6. to a covered vehicle, non-awned vehicle,
or trailer. due to nuclear reaction ar radiatian;
7. to a covered vehicle, non-owned vehicle,
or trailer, for which insurance is afforded un-
der a nuclear energy liability insurance
contract;
8. due to destruction or confiscation by govern-
mental or civil authorities of a covered vehi-
cle, 'non-owned vehicle, or trailer, because
you or any relative engaged in illegal
activities;
9. to a covered vehicle, non-owned vehicle,
or trailer, caused by an intentional act of you
or a relative ar at the direction of you or a
relative;
30
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10. to a covered vehicle. non-owned vehicle.
or trailer, that is due and confined to:
a. wear and tear:
b. freezing;
c. mechanical or electrical breakdown or fail-
,ure; or
d. ,road damage to tires.
This exclusion does not apply if the damaoe
results from the total theft of a covered vehi-
cle. non-owned vehicle, or trailer:
11. due to theft or conversion of a covered vehi-
cle. non-owned vehicle, or trailer:
a. by you, a relative. or any resident oj your
household;
b. prior to its delivery to you or a relative: or
c. while in the care. custody, or control of
anyone engaged in the business of sell-
ing the vehicle or trailer;
12. tolapes, compact discs, cassettes, and other
recording or recorded media;
13. to, any case or other container designed for
use in storing or carrying tapes. compact
discs, cassettes, or other recording or re-
corded media:
14. to any device used for the detection or loca-
tion of radar. laser. or other speed measuring
equipment or its transmissions:
15. to custom parts or equipment in excess of
the applicable Limit oj Liability; or
16. to a covered vehicle, non-owned vehicle.
or trailer. for diminution of value. .
UMITS OF UABILlTY
1, The Limit of Liability for loss to a covered ve-
hicle. non-owned vehicle. or trailer will be
the lowest of:
a. the actual cash value of the stolen or dam-
aged property at the time of the loss, re-
. duced by the applicable deductible shown
on the Declarations Page, and by its sal-
vage value if you retain the salvage:
b. the amount necessary to repair or replace
the stolen or damaged property, reduced
by the applicable deductible shown on the
Declarations Page; or
31
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c. any applicable Limit of Liability or Slated
Amount Vehicle Coverage elected by you.
reduced by its salvage value if you retain
the salvage.
However, if the loss is to a trailer, the appli-
cable Limit of Liability will be $500.
2. Subject to Section 3 below, the Limit of Liabil-
ity for loss to custom parts or equipment is
the combined total of $1,000, unless you pay
a premium for Additional Custom Parts Or
Eq\lipment Coverage, and it is shown on the
Declarations Page.
Coverage for custom parts or equipment
shall not cause any Limit oj Liability under this
Part IV to be increased to an amount in ex-
cess oj the actual cash value of any stolen or
damaged vehicle.
3. Payments for loss covered under Collision.
Comprehensive, and Custom Parts Or Equip-:'
ment are subject to the following provisions:
a. no more than one (1) deductible shall be
applied to anyone (1) covered loss;
b. if coverage applies to a non-owned vehi-
cle. the highest deductible on any cov-
ered vehicle shall apply;
c. if Stated Amount Vehicle Coverage is
elected by you. that stated Limit of Liability
will be the total Limit of Liability applicable
for loss to a covered vehicle or nan-
owned vehicle. including its custom
parts or equipment:
d. an adjustment for depreciation and physi-
cal condition will be made in determining
the Limit of Liability at the time of loss:
e. in determining the amount necessary to
repair damaged property to its pre-loss
condition, our estimate will be based on:
i. the prevailing competitive labor rates
charged in the area where the property
is to be repaired, as reasonably deter-
mined by us; and
ii. the cost of repair or replacement parts
and equipment which may be new, re-
furbished, restored, or used, including,
but not limited to:
32
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(a) original manufacturer parts or equip-
ment; and
(b) non original manufacturer parts or
equipment; and
t. the actual cash value is determined by the
market value, age and condition of the ve-
hicle at the time the loss Occurs.
4. If more than one (1) vehicle is shown an
your Declarations Page, coverage will be
provided as specified on the Declarations
Page as to each vehicle.
INSURING AGREEMENT - ADDmONAL
CUSTOM PARTS OR EQUIPMENT COVERAGE
If you pay a premium for Additional Custom Parts
Or Equipment Coverage. the Limit of Liability for
loss to custom parts or equipment for this addi-
tional coverage will be the lowest of:
1. the actual cash value of such custom parts
or equipment;
2. the declared value of such custom parts or
equipment: or
3. the amount necessary to repair or repiace
such custom parts or equipment;
reduced by the applicable deductible.
Coverage for custom parts or equipment shall
not cause any Limit of Liability under this Part IV
to be increased to an amount in excess of the ac-
tual cash value of any stolen or damaged
vehicle.
Any deductible amount will apply separately to
each loss.
INSURING AGREEMENT -
EMERGENCY TOWING AND LABOR
If you pay a premium for Emergency Towing And
Labar coverage. we will pay far tawing and labor
costs incurred by you as a result of the disable-
ment of a covered vehicle or non-owned vehi-
cle. subject to the Limit of Liability shown an the
Declarations Page, provided that:
1. the labor is performed at the place of disable-
ment: and
33
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2. the disablement does not occur at your
residence.
INSURING AGREEMENT .
RENTAL REIMBURSEMENT COVCflAGE
If you pay a premium for Rental Reimbursement
Coverage. we will reimburse up to $20 each day
fo.r thirty (30) days for anyone (1) accident for
rental charges incurred by you when you rent a
vehicle from a rental agency or vehicle repair
shop due to a lass to. a covered vehicle, other
than a total theft, that is payable under this Part
IV. Rental charges will be reimbursed beginning:
1. when the covered vehicle cannot be driven
due to a lass; or ..
2. if the covered vehicle can be driven, when
you deliver the covered vehicle to a vehicle
repair shop for repairs due to the loss;
and ending when the covered vehicle has been
repaired. replaced, or if the covered vehicle is
deemed by us to be a' total loss, forty-eight (48l
hours after we make an offer to pay the actual
cash value of the covered vehicle.
You must provide us written proof of yo.ur rental
charges. '.'
Duplicate recovery for identical elements of dam.
ages is not permitted under this policy.
LOA~SEPAYOFFCOVERAGE
If you pay a premium for LoanlLease Payoff Cov-
erage for a covered vehicle, and the covered
vehicle sustains a totslloss. we will pay, in addi.
tion to any amounts otherwise payable under this
Part IV, the difference between:
1. the actual cash value of the covered vehicle
at the time of the total lass reduced by the
applicable deductible. if any, shown on the
Declarations Page and by its salvage value
if you retain the salvage; and
2. any greater amount the owner of the cov-
ered vehicle is legally obligated to. pay under
a written loan or lease agreement to which
34
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the covered vehicle is subject at the time of
the total! oss, reduced by any:
a. unpaid finance charges or refunds due to
the owner for such charges;
b. excess mileage charges or charges for
wear and tear;
c. charges for extended warranties or re-
funds due to the owner for extended
warranties;
d. charges for credit insurance or refunds
due to the owner for credit insurance;
e. past due payments and charges for past
due payments; or
f. collection or repossession expenses.
However, our payment shall not exceed twenty.
five percent (25%) of the actual cash value of the
covered vehicle at the time of the total loss.
LOANILEASE PAYOFF COVERAGE APPLIES
ONLY WHILE THE COVERED VEHICLE IS
COVERED FOR BOTH COLLISION AND COM.
PREHENSIVE COVERAGE.
For purposes of Loai1lLease Payoff Coverage,
"total loss" means:
1. the theft of the covered vehicle, if the cov-
ered vehicle is not recovered within thirty
(3D) days: or
2. any other loss to the covered vehicle that is
payable under this Pan IV. if the cost to repair
the damage to the covered Vehicle exceeds
the actual cash value of the covered vehicle
at the time of the loss reduced by its salvage
value if you retain the salvage.
PAYMENT OF LOSS
At our expense, we may retum any stolen prop-
erty to you ,or to the address shown on the Decla.
rations Page. with payment for any damage
resulting from the theft. We may keep all or part
of the property at the agreed or appraised value.
We may settle any loss with you or the owner or
iienhoider of the property.
35
NO 8ENEFlTTO8AlLEE
Coverage under this Part IV will not directly or in-
directly benefit any carrier or other bailee for hire.
LOSS PAYEE AGREEMENT
Payment for damage to a covered vehicl~ will be
made according to your interest and the Interest
of any Loss. Payee or lienholder shown on the
Declarations Page or designated by you. Pay-
ment may be made to both jointly, or separately,
at our discretion.
Where fraud, misrepresentation, material omis-
sion, or intentional damage has been commItted
by or at the direction of you or a relative. the
Loss Payee or lienholders interest will not be
protected.
We will be entitled to the Loss Payee or lien-
holders rights of recovery, to the extent of our
payment to the Loss Payee or lienholder.
01HER INSURANCE
If there is other applicable insurance, we will pay
only our share of the loss. Our share is the pro-
portion that our Limit of Liability bears to the total
of all applicable limits of liability. However; any
insurance that we provide for a vehicle, other
than a covered vehicle, or for a non-owned
trailer. will be excess over any other collectible
source of recovery including, but not limited to:
1. any coverage provided by the owner of the
non-owned vehicle or trailer; and
2. any other applicable physical damage insur-
ance.
APPRAISAL
If we cannot agree with you on the amount of a
loss, then we or you may demand an appraisal
of the loss. If so, each party shall appoint a com-
petent and impartial appraiser. The appraisers
will determine the amount of loss. If they fail to
agree, the disagreement wili be submitted to a
36
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qualified and impartial umpire chosen by the ap-
praisers. A decision agreed to by any two will be
binding. You will pay your appraiser's fees and
expenses. We will pay our appraiser's fees and
expenses. Payment of the umpire and all other
expenses of the appraisal will be shared equally
between us and you. Neither we nor you waive
any rights under this policy by agreeing to an
appraisal.
GENERAL PROVISIONS
POUCY PERIOD AND TERRrrORY
This policy applies only to accidents and losses
occurring during the policy periOd shown on the
Declarations Page and which Occur within any
state. territory, or possession of the United States
of America. or any province of Canada. or while a
covered vehicle. non-owned vehicle. or trailer
is being transported between their ports.
POUCY CHANGES
This policy, your application for insurance (which
is made a pare of this policy as if attached hereto),
and endorsements issued by us to this policy
contain all the agreements between you and us.
Subject to the following, its terms may not be
changed or waived except by an endorsement
issued by us.
The premium for each vehicle is based on infor-
mation we have received from you or other
sources. You agree to cooperate with us in de-
termining if this information is correct and com-
pleie. and you will notify us if it changes during
the policy period. If this information is incorrect,
incomplete, or changes during the policy period,
, we may adjust your premium during the policy
period. or take other appropriate action. To prop-
erly insure your vehicle, you must promptly no-
tily us when:
1. you change your address:
2. any resident operators are added or deleted;
or
37
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3. you acquire an additional or replacement
vehicle.
Changes that may result in a premium adjustment
are contained in our rates and rules. These In-
clude. but are not limited to:
1. changes in the number. type, or use class!fi-
'cation of covered vehicles;
2. changes in operators using covered vehi-
cles. their ages. or marital status;
3. a relative obtaining a driver's license or op-
erator's permit;
4. changes in the place of principal garaging of
any covered vehicle;
5. changes in coverage, deductibles, or limits of
liability; or .. .
6. changes in rating territory or discount eligi-
bility.
TERMS OF POUCY CONFORMED TO STATUTES
.'
.
If any provision of this policy fails to conform with
the legal requirements of the state listed .on your
application as your residence. the prOVISion shall
be deemed amended to conform with such legal
requirements. All other provisions shall be given
full force and effect. Any disputes as to the cov-
erages provided or the provisions, of thi~ policy
shall be governed by the law of the state listed on
your application as your residence.
mANSFEfl
This policy may not be transferred to another per-
son without our written consent. If you die. this
policy will provide coverage until the end of the
policy period lor your legal representative, while
acting as such, and for persons covered under
this policy on the date of your ~eath.
FRAUD OR MlSREPRESENTATlON
We may deny coverage for an accident or loss if
you or an insured person have knowingly con-
cealed or misrepresented any material fact or cir-
cumstance, or engaged in fraudulent conduct, in
38
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connection with the presentation or settlement of
a claim.
No person who engages in fraudulent conduct in
connection with an accident or claim shall be en-
titled to receive any payment under this policy.
PAYMENT OF PREMIUM
If your initial premium payment is by check, draft,
or any remittance other than cash. coverage un-
der this policy is conditioned upon the check
draft, or remittance being honored upon present:
men!. If the check, draft, or remittance is not hon-
ored upon presentment, this policy may at our
option, be deemed void from its inceptio'n. This
means that we will not be liable under this policy
for any claims or damages which would otherwise
be covered if, the check. draft, or remittance had
been honored upon presentment.
If you tender a check to us for any full or partial
payment of your premium, other than your initial
payment. and the check is returned to us be-
cause of insufficient funds, a closed account or a
stop payment, a service charge will be add~d to
your account baiance.
CANCEUATlON
You may cancel this policy by calling or writing
us. ,and stating the future date that you wish the
cancellation to be effective.
We may cancel this policy by mailing a notice of
cancellation to the named insured shown on the
Decl,arations Page at the last known address ap-
pearing In our records. If cancellation is within
the first fifty-nine (59) days of the policy period. or
if cancellation is at any time due to nonpayment of
premium or loss ot driving privileges through sus-
pension or revocalion of the named insured's op-
erator's license or motor vehicle registration,
notice will be mailed at least fifteen (15) days be-
fore the effective date of cancellation. After this
policy has been in effect for fifty-nine (59) days, if
cancellation is due to any reason other than
39
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nonpayment of premium, notice will be mailed at
least sixty (60) days before the effective date of
cancellation. If you do not pay the required pre-
mium for this policy when due, we may cancel
this policy at any time.
We may cancel this policy for any reason within
the -first fifty-nine (59) days of the policy period
shown on the Declarations Page. After this pol-
icy is in effect for more than fifty-nine (59) days,
or if this is a renewal or continuation policy, we
may cancel only for one (1) or more of the follow-
ing reasons:
1. you do not pay the required premium for this
policy when due;
2.. misrepresentation by you of any material fach
in the procurement or renewal of this policy;
3. loss of driving privileges through suspension
or revocation of the named insured's opera-
tor's license or motor vehicle registration; or
4. any other reason specified by law.
We may cancel coverage under this policy for a
resident of your household, other than the named
insured, whose driver's license has been sus-
pended or revoked during the policy period, by
imposing a Named Driver Exclusion as to that
resident of your household.
We will mail notice of cancellation to the named
insured shown on the Declarations Page at the
last known address for the named insured ap-
pearing in our records. ,
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Upon cancellation, you may be entitled to a pre-
mium refund. Our making or offering of a refund
is not a condition of cancellation.
If this policy is cancelled. any refund due will be
computed on a daily pro-rata basis. However, we
shall retain a c<lncellation fee if this policy is can-
celled at your request or if cancellation is for non-
payment of premium. The effective date of can-
cellation shown in a notice will be the end of the
policy period.
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NONRENEWAL
If we decide not to renew or continue this policy
we will mail notice 01 nonrenewal to the named
insurecl shown on the Declarations Page at the
last known address appearing in our records. If
nonrenewal is due to nonpayment of premium or
loss of driving privileges through suspension or
revocation of the named insured's operators li-
cense or motor vehicle registration, notice will be
mailecl at least filleen (15) days before the end of
the policy period.. If ~onrenewal is clue to any
other reason, notice will be mailed at least sixty
(60) clays before the end of the policy period. If
the policy period is other than one (1) year, we
Will have the nght not to renew or continue this
policy only at each anniversary of its original ef-
fective date or earlier if permitted by state law.
PROOF OF NOilCE
Proof of mailing of any notice will be sufficient
prool of notice.
COVERAGE CHANGES
If we make a change which broadens a coverage
you have under this edition 01 your policy, with-
out addllional charge. you Will receive the broad-
ened coverage. The broaclened coverage applies
on the date the coverage change is implemented
in your state. This provision does not apply to a
general program revision or our issuance of a
subsequent edition 01 your policy. Otherwise,
this policy can be changed only by endorsement
issued by us.
LEGAL ACTION AGAINST US
We may not be sued unless there is full compli-
ance with all the terms of this policy. We may not
be sued for payment under Part I - Uability To
Others until the obligation of an insured person
to pay is finally determined either by final judg-
ment against that person or by written agreement
of the insured person. the claimant, and us. No
41
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one will have any right to make us a party to a
lawsuit to determine the liability of an insured
person.
OUR RIGHTS TO RECOVER PAYMENT
In the event 01 any payment under this policy, we
are entitlecl to all the rights 01 recovery that the
insl!red person to whom payment was made has
against another. That insured person must sign
and deliver to us any legal papers relating to that
recovery, do whatever else is necessary to help
us exercise those rights, and do nothing aller an
accident or lass to prejudice our rights.
However, we may not assert rights 01 recovery
against: .
1. any person who was using a covered vehi-
cle with your express or implied permission
for any payment made under Part IV - Dam-
age To A Vehicle; or
2. the owner or operator of an uninsured mo-
tor vehicle or underinsured motor vehicle,
if the insured person under Part III -
UninsuredlUnderinsured Motorist Coverage
provides us with written notice thirty (30)
days prior to entering into a settlement that an
offer of settlement has been made by, or on
behalf 01, the owner or operator 01 an unin-
sured motor vehicle or underinsured mo-
lar vehicle, and we do not elect to pay to the
insured person an amount equai 10 the
amount offered in lull settlement by, or on be-
half of. the owner or operator of the unin-
sured motor vehicle or underinsured
motor vehicle.
,
.
When an insured person has been paid by us un-
cler this policy and also recovers from another
person, entity, or organization, the amount recov-
ered will be held by the insured person in trust for
us and reimbursed to us to the extent of our pay-
ment. However, this shall not apply to amounts
paid by us under Part II - First Party Benefits
Coverage.
42
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II recovery is made by an insured person under
this policy from a responsible party without our
written consent, the insured person's right to pay-
ment under any ,affected coverage will no longer
exist.
,
BANKRUPTCY
The bankruptcy or insolvency of an insured per-
son will not relieve us of any obligations under
this policy.
NAMED DRIVER EXCWSION
If you have asked us to exclude any person from
coverage under this Policy, then we will not pro-
vide coverage for any claim arising from an acci-
dent or loss involving a covered vehicle or
non-owned vehicle that occurs while it is being
operated by the excluded person. THIS IN-
CLUDES ANY CLAIM FOR DAMAGES MADE
AGAINST YOU, A RELATIVE. OR ANY OTHER
PERSON OR ORGANIZATION THAT IS VICARI.
OUSL Y LIABLE FOR AN ACCIDENT ARISING
OUT OF THE OPERATION OF A COVERED VE.
HICLE OR NON-OWNED VEHICLE BY THE EX-
CLUDED DRIVER.
However. this exclusion does not apply to the ex-
tent of the minimum First Party Benefits Coverage
for medical expenses required by 75 Pa. C. S.
Section 1711, et seq., as amended. if:
1. the driver's license of the excluded person
has not been under suspension or revocation
during the policy period; and
2. the excluded person does not have first party
benefits coverage available under any other
policy of insurance.
NAMED OPERATOR - NON-OWNEO
VEHICLE COVERAGE
II you elect Named Operator - Non-owned Ve-
hicle Coverage, you agree with us that this poi-
icy is amended as follows:
43
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1. General Detinitions:
a. The general policy definition of 'you' and
'your" is deleted and replaced by the
following:
"You" and "your" mean the person shown'
as the named insured on the Declarations
Page,
b, The general policy definitions of "covered
vehicle" and "non-owned vehicle" are
deleted and replaced by the following:
"Covered vehicle" and "nan-awned vehi-
cle" mean any vehicle that is not owned
by you, a relative. or your spouse. even if
not residing in the same household as
you.
2. Part I - Uability To Others
a. Additional Definition: When used in Part I,
the definition of "insured person" and "in-
sured persons' is deleted and replaced
by the following:
"Insured person" and "insured persons"
mean:
i. you, when operating or using a cov.
ered vehicle or non-owned vehicle
with the express or implied permission
of the owner: and
Ii. any person or organization with respect
only to vicarious liability for an acci.
dent arising out of the use of a cov-
ered vehicle or non-owned vehicle
by you with the express or implied per-
mission of the owner.
b. Exclusions: The following exclusion is de-
leted from Part l:
Coverage under this Part I, including our
duty to defend, does not apply to:
bodily injUry or property damage arising
out of an accident involving a vehicle
44
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while being used by a person while em-
ployed or engaged in the business of sell-
ing, leasing, repairing, parking, storing,
servicing, delivering, or testing vehicles.
However. this exclusion does not apply to
you. a relative. or an agent or employee
, of you or a relative, when using a cov-
ered vehicle;
and replaced by the following:
Coverage under this Part I, including our
duty to defend, does not apply to:
bodily injury or property damage arising
out of an accident involving a vehicle
while being used by a person while em-
ployed or engaged in the busi~ess of sell-
ing, leasing, repalnng, parking, stonng,
servicing, delivering, or testing vehicles.
c. Other I nsurance. The Other Insurance
provision under Part I is deleted and re-
placed by the follOWing:
OlliER INSURANCE
Any insurance we provide shall be excess
over any other applicable liability insur-
ance. seif-insurance, or bond.
3. Part II - First Party Benefits Coverage
Additional Definitions: When used in Part
II. the definition of "insured person" and
"Insured per!;ons" is deleted and re-
placed by the following:
"Insured person" means you while occu-
pying a covered vehicle or non-owned
vehicle, or when struck by a motor vehicle
or trailer while not occupying a motor
vehicle.
45
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'._ J.-.._~...;"'__'_ ~ :.-....:._ i..__ ",,_"
'rlr;-":,",,>,-.:;. ....
".-' .
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4. Part III - UninsuredlUnderinsured Motorist
Coverage
If you pay a premium for Uninsured/Under-
insured Motorist Coverage. and it is shown on
the Declarations Page:
a. When used in Part III, the Additional Defi-
nition of "insured person" and "insured
. ,.persons" is deieted and replaced by the
.. -. following:
"Insured person" and "Insured persons"
mean:
i. you: and
ii. any person who is entitled to recover
damages covered by Part III, because "
of bodily injury to you.
b. The Other Insurance provision under Part
III is deleted and repiaced by the following:
OlliER INSURANCE
If there is other applicable uninsured or
underinsured motorist coverage, any in-
surance we provide shall be excess over
any other collectible uninsured or underin-
sured motorist coverage.
We will not pay for any damages which
would duplicate any payment made for
damages under other insurance.
If you are injured while not occupying a
motor vehicle. the coverage provided un-
der this policy shall be excess to any unin-
sured or underinsured motorist coverage
provided by a policy under which you are
a named insured.
0-vH qJa
~~
Secretary
President
46
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APPENDIX
Pennsylvania Surcharge Disclosure Statement
Form 1996 (11/96)
In compliance with 75 Pa. C.S. Section 1793(b),
we provide this surcharge disclosure plan to ex-
plain our system of driving record points. This
statement provides an overview; more detailed
information is available on request.
Driving record points are assigned to operators
for chargeable accidents and violations. All acci-
dents and violations occurring in the 35-month
period prior to policy inception are considered in
developing a driver's policy premium. If a driver is
added mid-term, accidents and violations will be
charged for 1he entire 35-month period prior to the
driver being added to the policy.
Point surcharges follow the driver. To determine
if the accident or violation took place in the
chargeable period, we use the occurrence date
instead of the conviction date. We charge for ac-
cidents and violations occurring while a driver is
operating a private passenger automobile, com-
mercial vehicle. motorcycle. or recreational
vehicle.
Accidents. We assess a surcharge of approxi-
mately 30% for each at-fault accident charged to
an operator. Accidents are chargeable if, as a
result of the accident, the insurer incurs at least
$850 in losses in excess of any deductible for
personal injury or damage to property, including
the insured's.
Each accumulation of $650 in aggregate iosses
from incidents not otherwise charged represents
an at-fault accident. If the insured can demon-
strate that any of the facts of loss described in 31
Pa. Code Section 67.33 (non-chargeable acci-
dents) apply to an accident, the accident will not
be charged to the operator.
47
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Minor Violations. We assess a surcharge of ap-
proximately 15% for the second .an.d each sub~e.
quent conviction of routine traffic Infractlo~s like
speeding or failure to yield. Most of these Infrac-
tions are listed in 75' Pa. C.S. Section 1535.
Maj-;;r Violations. We assess ~ ~urcharg~ of ap-
proximately 45% for each conViction of a v!Ofation
which suggests the presence of a r:nate~ally In-
creased risk in a motorist. Such malar VIolations
include vehicular homicide, leaving the scene of
an accident involving death or injury, or fleeing a
police officer.
.,
Driving While Intoxicated. We assess a. s.ur-
charge ot approximately 15% for each Dnvlng
While Intoxicated infraction for conviction under
Section 3731 (Driving under the influence of alco-
hol or controlled substance), notice of Section
1534 (Acceptance of Accelerated Rehabilitative
Disposition), or any similar infraction.
.
:
48
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VERIFICATION
, who J's Casualty Representativ~ p . N rth
, or rogressJve 0 ern
Insurance Company and acknowledges that he/she has the authority to execute this Verification in
behalf of Progressive Northern Insurance Company certifies that the foregoing Complaint is based
upon information which has been gathered by my counsel in the preparation of the lawsuit. The
language of this Complaint is that of counsel and not my own. I have read the document and to the'
extent that the Complaint is based upon information which I have given to my counsel, it is true and
correct to the best of my knowledge, information and belief. To the extent that the content of the
Complaint is that of counsel, I have relied upon counsel in making this Verification.
This statement and Verification are made subject to the penalties of18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
Susan M. Epler
PROGRESSIVE NORTHERN INSURANCE
COMPANY
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RECEIVED
MAY 3 1 2000
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January 3, 2000
RAY GREENE
ANGELA ROHRER
135 EAST PENN STREET
CARLISLE PA 17013
Our Insured
Our Claim Number
Date of Loss
Ray Greene
993294291
July 16, 1999
Please be advised that we have completed our investigation of the above captioned loss.
Also, be advised that we must deny ALL coverage to you for the above captioned loss for the
following reason:
Please refer to the EXCLUSIONS section of your Progressive Northern auto policy, Form
9606, Edition 7/97, which states:
PART I - LIABILITY TO OTHERS
INSURING AGREEMENT - BODILY INJURY
EXCLUSIONS - READ THE FOLLOWING EXCLUSIONS
CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE WILL NOT
BE AFFORDED UNDER THIS PART I.
Coverage under this Part I, inclUding our duty to defend. does not apply to:
9. bodily injury or property damage caused by an Intentional act of an insured
person or at the direction of an insured person;
, If you have any questions regarding this matter, please feel free to contact the undersigned at
717561-7124.
PROGRESSIVE COMPANIES
S<<44lt "iIt, E~
Susan M. Epler
Claims Representative
SME:sma
cc: Matt Crosby, Esq.
DEfENDANT'S
EXHIBIT
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY l. VITALE,
Defendants
: DECLARATORY JUDGMENT ACTION
DEFENDANT. LAURA J. MYERS',
PRE-TRIAL MEMORANDUM
I. STATEMENT OF FACTS:
This case arises out of a motor vehicle versus pedestrian collision that occurred
on July 16, 1999. The Defendant, Laura J. Myers, was on or near the sidewalk outside
her home on Pomfret SI. in Carlisle, Cumberland County, Pennsylvania. Ms. Myers
was with her friend, Defendant, Terryl Vitale. At approximately 11 :30 p.m., Defendant,
Angela Rohrer, was operating a motor vehicle on Pomfret SI. in the area where
Defendants Myers and Vitale were located. At or about that same time, an altercation
took place between Defendant Rohrer, the passengers in her vehicle, and Defendants
Myers and Vitale. Shortly thereafter, Defendant Rohrer's vehicle struck and injured
Defendant Myers. At the time of the incident, Plaintiff, Progressive Northern Insurance
Co., (hereinafter, "Progressive") insured the vehicle that Defendant Rohrer was
operating. Plaintiff, Progressive, has instituted this Declaratory Judgment action and is
asking this Honorable Court to apply its "intentional act" exclusion, thereby excluding
Defendant Myers from recovery for non-economic damages under its policy.
Page-1-
-;-;.,.
,_ .,'_ ~,,"'~~, -",,~- ,= ~ ,'.', ~M"_.~__' -"'"" , ". "'-,'- ,,__r_,", ---,:,;~"Y.-,_", -_'-_c_,' " ,,':::::i,,-;j,,:_~~:-_-~-,
-~: ,t_; ,
II. PRINCIPAL ISSUE OF LIABILITY:
Progressive is seeking to disclaim coverage under its policy. Progressive first
contends that this incident was not an "accident," as that term is defined under the
policy. Therefore, Progressive contends that it is not obligated to provide liability
coverage to Defendant Rohrer. Alternatively, Progressive argues that a policy
exclusion, excluding coverage for "bodily injury or property damage caused by an
intentional act of an insured person" is applicable in this case. Defendant Myers
contends that Defendant Rohrer's own testimony establishes that the incident was,
indeed, an "accident" and, further, that it was not an "intentional act."
III. SUMMARY OF LEGAL ISSUES:
In its Praecipe listing this matter for trial, Plaintiff, Progressive, demands a jury
trial. Defendant Myers takes the position that Plaintiff has waived any right it may have
had to a trial by jury, pursuant to Pa. R. C. P. Rules 1601 and 1007.1.
IV. WITNESSES:
1. Laura Myers.
2. Terryl Vitale.
3. Angela Rohrer.
Defendant Myers also reserves the right to call any of the witnesses listed by the
Plaintiff. Defendant Myers further reserves the right to seasonably supplement her
witness list.
Page -2-
'u ~""_'"''''' ""-'~"~'--"b-;;.h,.;l'._;l,,_-,,"-, .;,>;[,:,. ';." c..'S, i'0.d.'.;'-{:"<.in',,> c"._ _,
V. EXHIBITS:
1. Progressive policy in effect at the time of this loss. Defendant Myers has
stipulated to the admission of this policy.
2. Transcribed recorded statements.
3. Police Accident Report.
4. Pleadings.
5. Deposition transcripts.
Defendant Myers reserves the right to use any exhibits identified by the Plaintiff
in this case. Defendant Myers also reserves the right to seasonably supplement her
Exhibit list.
Also note that Defendant Myers has outstanding Discovery requests to both
Plaintiff, Progressive, and Defendant, Angela Rohrer.
VI. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS:
Progressive continues to deny coverage in this case.
VII. SCHEDULING PROBLEMS:
Defendant Myers' counsel also has a case on the Dauphin County trial list for
the week of April 30, 2001. That case, Garcia v. Garisto, is currently No. 15 on the
Page -3-
,.
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Dauphin County list. This marks the second time that the Garcia case has been listed
in Dauphin County.
Respectfully submitted,
HANDLER, HENNING & ROSENBERG
j
BY:
DATE: 4i!J/Of
Matthew S. Crosby, Esq.
Supreme Court ID No. 69367
1300 Linglestown Rd.
P.O. Box 1177
Harrisburg, PA 17108
Tel. No.: 717-238-2000
Attorneys for Defendant
Laura J. Myers
Page -4-
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on the
Plaintiff and interested parties by sending a copy of the same to their counsel of
record, as follows, by first-class United States Mail, in Harrisburg, Pennsylvania on
April _, 2001:
George B. Faller, Jr., Esq.
MARTSON, DEARDORFF, WilLIAMS & OTTO
10 East High St,
Carlisle, PA 17013
Attorneys for Plaintiff, Progressive Northern Insurance Co.
Karl Rominger, Esq.
155 South Hanover St.
Carlisle, PA 17013
Attorneys for Defendant Terryl Vitale
Ms. Angela Rohrer
724 North Hanover St.
Carlisle, PA 17013
HANDLER, HENNING & ROSENBERG
DATE: 4 (7/0/
B
Matthew S. Crosby, Esq.
Attorney I.D. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorneys for Defendant
laura J. Myers
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F:\FILESIDATAf'ILE\Prgdoc.cur\105_pre:.lImah
Crtated: 04106/01 09:52:50 AM
Revised: 04/06/0104:12:19PM
7837,105
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS, aQ.d
TERRYL. VITALE: .
Defendants
DECLARATORY JUDGMENT ACTION
PLAINTIFFS PRE TRIAL MEMORANDUM
I. STATEMENT OF FACTS:
On July 16, 1999, in the late evening, Defendant Angela Rohrer was driving around Carlisle
with her sister in the passenger's seat and two unidentified black males in the back seat. As they
were approachil).g the intersection of Pomfret and South Spring Garden Street, they encountered
Defendants Laura 1. Myers and Terry L. Vitale screaming at each other on the sidewalk. Defendant
Rohrer, who had been heading towards Giant Food Stores on South Spring Garden Street, made a
right tum onto Pomfret Street heading up the street towards Castles Lumber. She stopped her car
and an altercation enslled between the passengers who got out of the rear of her four door car. There
was at least some evidence that there were racial implications regarding this altercation.
After the black males re-entered the rear of her car, Angela Rohrer's car was still facing
directly west bound on Pomfret Street. There was nothing in front of her car and she could have
driven away, but Angela Rohrer put her car into reverse and began to back up. As she backed up
the car, she changed the angle of the car approximately 45 degrees so that it was pointing towards
the curb on the right hand side ofthe roadway where Defendants Myers and Vitale were standing.
Then DefendantRohrer intentionally put the car back into drive or forward and then intentionally
put her foot on the accelerator. It was her testimony at her deposition that she intended to drive at
the other two Defendants to only scare them, but she did strike them. The independent eye witness
who observed this incident from the parking lot across the street from Castles Lumber has testified
that the only thing that stopped her car from running the two Defendants completely over was the
curb.
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Defendant Angela Rohrer testified that she was extremely high that evening after smoking
several marijuana cigars and Defendants Laura Myers and Terry Vitale had indicated they were both
"pretty drunk".
II. ISSUE OF LIABILITY:
1. Was this an accident under the definition in the insurance policy?
2. Is this incident excluded under the policy as bodily injury or property damage caused
by an intentional act of an insured person?
III. I,EGAL ISSUES:
None. No coverage under the Progressive Policy.
IV. LIST OF WITNESSES:
1. Laura Myers.
2. Terry Vitale.
3. Angela Rohrer.
4. Jay Redcay.
5. Officer Stephen M. Latshaw.
V. LIST OF EXHIBITS:
1. Policy which has been stipulated to.
2. Recorded statements of witnesses.
3. Pleadings.
4. Deposition transcripts.
5. Diagrams ofthe scene or photographs of the scene.
VI. STATUS OF SETTLEMENT NEGOTIATIONS:
,
Not applicable.
VII. SCHEDULING PROBLEMS:
~ .-, '--Jh,,:':
Counsel for Plaintiff has a case listed for Trial, Pierce v. Giant Food Stores. LLC, listed for
Dauphin County Court the week of April 30, 2001.
By
G . Faller, Jr., Esquire
LD. Number 49813
Ten East High Street
Carlisle, P A 17013-3093
(717) 243-3341
LIAMS & OTTO
Attorneys for Plaintiff Progressive
Northern Insurance Company
Date: April 6, 2001
...w'~>"_
-
CERTIFICATE OF SERVICE
I, Melinda A. Hall, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Plaintiff s Pre-Trial Memorandum was served this date by
depositing sanle in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as
follows:
Dated: April 6, 2001
Matthew S. Crosby, Esquire
HANDLER, HENNING & ROSENBERG
P.O. Box 1177
Harrisburg, PA 17108
Karl Rominger, Esquire
155 South Hanover Street
Carlisle, P A 17013
Ms. Angela Rohrer
724 North Hanover Street
Carlisle, P A 17013
MARTSON DEARDORFF WILLIAMS & OTTO
By' 1f\~dl'wU- LL1krt
~A. Hall
Ten East High Street
Carlisle, P A 17013
(717) 243-3341
,.l"~
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SHERIFF'S RETURN - REGULAR
c
CASE NO: 2000-03530 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PROGRESSIVE NORTHERN INSURANCE
VS
ROHRER ANGELA ET AL
HAROLD WEARY
, Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
ROHRER ANGELA
the
DEFENDANT
, at 0017:10 HOURS, on the 12th day of June
, 2000
at 135 EAST PENN STREET
CARLISLE, PA 17013
NICOLE GREENE (ADULT SISTER)
by handing to
a true and attested copy of COMPLAINT & NOTICE
together with
DECLARATORY JUDGEMENT ACTION
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
3.10
.00
10.00
.00
31.10
So Answers:
~~ 1-~~!
R. Thomas Kline
06/13/2000
MARTSON, DEARDORFF, WILLIAMS
Sworn and Subscribed to before
By:
1L4 g)/
Deputy Sh~f
me this 7&
day of
0tCo:: )j,.", ~~~
Prothonotary
,i
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SHERIFF'S RETURN - REGULAR
..
CASE NO: 2000-03530 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PROGRESSIVE NORTHERN INSURANCE
VS
ROHRER ANGELA ET AL
HAROLD' WEARY
, Sheriff or Deputy Sheriff of
Cumberland County, pensylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
VITALE TERRY L
the
DEFENDANT
, at 0014:17 HOURS, on the 12th day of June
, 2000
at 241 EAST LOUTHER STREET
CARLISLE, PA 17013
by handing to
TERRY L. VITALE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
6.00
.00
.00
10.00
.00
16.00
So Answers: ~"':
r~A~<:.,~ "
R. Thomas Kline
06/13/2000
MART SON , DEARDORFF, WILLIAMS
Sworn and Subscribed to before
By:
kbA-&/ t)/"fjr
Deputy Sher.
me this 1 tu day of
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rothonotary
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
,~
(CheCk one)
x
for JURY triai at the next term of civil court.
CAPTION OF CASE
(entire caption must be stated in full)
(check one)
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for trial without a jury.
.
Assumpsit
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Trespass (Motor Vehicle)
PROGRESSIVE NORTHERN INSURANCE COMPANY,
(Plaintiff)
(X
Declaratory JudQment Action
(other,
vs.
ANGELA ROHRER, LAURA J. MYERS and
TERRY L. VITALE,
The trial list will be called on April 3, 2001
and
(Defendant)
Trials commence on April 30, 2001
Pretrials will be held on April 11, 2001,
(Briefs are due 5 days before pretrials.)
(The party listing this case tor trial shall provide
forthwith a copy of the praecipe to all counsel.
pursuant to local Rule 214.1.)
vs.
No. 00-3530 Civil
.19
Indicate the attorney whO will try case for the party whO files this praecipe: George B. Faller, Esq.
MARTSON DEARDORFF WILLIAMS & OTTO, Ten East High Street, Carlisle, PA 17013
Indicate trial counsel tor other parties It known: Matthew S. Cro~l2Y~sq.:'t. HA~DL~_~ WIE"ER
319 Market Street, P.O. Box 1177, Harrisburg, PA 17108-1177 and Karl E. Rominger, Esq.,
--------
Street Car1is~e PA
Signed:
This case IS readY for trial.
Print Name: George B. Faller, Jr
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PLAINTIFF'S
EXHIBIT
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS,
TERRY L. VITALE,
Defendants
DECLARATORY JUDGMENT ACTION
ORDER
AND NOW, on this (q f{, day of /1v0l' 2001, and upon consideration of Defendant
Myers' Motion to make the Order dated April 24, 2001 Absolute, it is hereby ORDERED that
Defendant Myers' Motion is GRANTED, and the Defendant, Angela Rohrer, will deliver to
Defendant Myers full and complete answers and responses to Defendant Myers' Interrogatories and
Requests for Production of Documents, including production of a copy of Defendant l\o~r' s
ZDi-l,e:. c!;;k.
juvenile criminal file that has been produced to Plaintiff, within f.en (13) days ofw~\l;pt nfthis
order or suffer such sanction as this Honorable Court deems appropriate.
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS,
TERRY L. VITALE,
Defendants
DECLARATORY JUDGMENT ACTION
DEFENDANT MYERS' MOTION TO MAKE RULE ABSOLUTE
AND NOW, comes the Defendant, Laura J. Myers, by and through her attorneys,
HANDLER, HENNING & ROSENBERG, by Matthew S. Crosby, Esquire, and hereby moves
this Honorable Court to make the Order dated April 24, 2001 Absolute and Compel the Defendant,
Angela Rohrer, to fIle full, complete, specific and responsive Answers to Defendant Myers' First
Set of Interrogatories and Defendant Myers' Requests for Production of Documents, including
production of a copy of Defendant Rohrer's juvenile criminal fIle that has been produced to
Plaintiff, and in support thereof, and aver the following:
I. On or about June 9, 2000, Plaintiff, Progressive Northern Insurance Company
(Progressive), filed a Declaratory Judgment Complaint in the Court of Common Pleas of
Cumberland County to determine, inter alia, its rights and responsibilities under automobile policy
number 55598090-0 issued to Ray Green.
2. Progressive asserts that it is under no duty to defend or indemnify Defendant Rohrer
for injuries caused to Defendants Myers and Vitale because it believes that Defendant Rohrer
1
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intentionally caused her vehicle to collide with Myers and Vitale.
3. On or about March 13, 2001, Defendant Myers served a set of Interrogatories on
Defendant Rohrer.
4. On or about March 13,2001, Defendant Myers served Requests for Production of
Documents on Defendant Rohrer.
5. On or about April 18, 2001, Defendant Myers filed a Motion to seeking to Compel
Defendant Rohrer and Plaintiff to provide Answers to Defendant Myers' discovery requests.
6. On April 24, 2001, this Honorable Court issued a Rule upon Defendant Myers and
Plaintiff to show cause why the relief in the Motion to Compel Discovery should not be granted.
The Rule was returnable within 20 days of service.
7. Plaintiff has since provided responses to discovery requests, but no responses have
been provided by Defendant Rohrer to date.
8. To date, Defendant Rohrer has failed to respond to Rule to Show Cause and has
failed
to give any reason why Plaintiff's Motion to Compel should not be granted.
9. Plaintiff hereby requests this Honorable Court make the Order dated April 24, 2001
Absolute, and Compel the Defendant Rohrer to provide the requested answers and documents.
2
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WHEREFORE, Defendant, LauraJ. Myers, respectfully requests that this Honorable Court
issue a Rule Absolute and compel Defendant, Angela Rohrer, to file full, complete, specific and
responsive Answer to DefendantMyers' Interrogatories and Requests for Production of Documents,
including production of a copy of Defendant Rohrer's juvenile criminal file that has been produced
to Plaintiff, within fifteen (15) days or suffer such sanctions as this Court may deem just.
Respectfully Submitted,
HANDLER, HENNING & ROSENBERG
Date:
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By:
Matthew S. Crosby, Esquire
Supreme Court I.D. #69367
1300 Linglestown Road
P.O. Box 1177
Harrisburg, Pa. 17110-1177
(717) 238-2000
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on the
following:
1) Plaintiff, PROGRESSIVE NORTHERN INSURANCE COMPANY:by sending a
copy of the same to their counsel of record, George B. Faller, Jr., Esq.MARTSON,
DEARDORFF, WilLIAMS & OTTO, Ten East High Street, Carlisle, PA 17013;
2) Defendant, Angela Rohrer by sending a copy of the same to her directly at
724 North Hanover St., Carlisle, PA 17013; and
3) Defendant, Terry L. Vitale a/k/a Terryl Vitale, by sending a copy of the same
to her counsel of record, Karl E. Rominger, Esq., 155 S. Hanover St., Carlisle, P A
17013
all by first-class United States Mail, regular service, in Harrisburg, Pennsylvania on
May ;;?3 , 2001.
DATE:
~hk71
I I
~NNING~ ROSENBERG
Matthew S. Crosby, Esq.
Attorney 1.0. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorneys for Defendant, laura J. Myers
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PROGRESSIVE NORTHERN,
INSURANCE COMPANY
Plaintiff
: IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE
: CIVIL ACTION - LAW
Defendants
: DECLARATORY JUDGMENT ACTION
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the following Discovery documents were
served on the Plaintiff, PROGRESSIVE NORTHERN INSURANCE COMPANY:
1) Defendant Laura J. Myers' First Set of Interrogatories Propounded Upon
the Plaintiff, Progressive Northern Insurance Company, and
2) Defendant Laura J.Myers' First Request for Production of Documents Propounded
Upon the Plaintiff, Progressive Northern Insurance Company.
by sending a copy of the same to their counsel of record, George B. Faller, Jr. , Esq.
MARTSON, DEARDORFF, WILLIAMS & OTTO, Ten East High Street, Carlisle, PA 17013, by
United States Mail, regular service, in Harrisburg, Pennsylvania on March 13, 2001
AND
I hereby certify that a true and correct copy of the following Discovery documents were
served on the Defendant, Angela Rohrer:
1) Defendant Laura J. Myers' First Set of Interrogatories Propounded Upon
the Defendant, Angela Rohrer, and
2) Defendant Laura J. Myers' First Request for Production of Documents
Propounded Upon Defendant, Angela Rohrer.
by sending a copy of the same to her directly at 724 North Hanover St., Carlisle, PA 17013 by
United States Mail, regular service, in Harrisburg, Pennsylvania on March 13, 2001.
I further certify a complete copy of above-referenced Discovery was provided to Defendant,
Terry L. Vitale a/k1a Terryl Vitale, by sending a copy of the same to her counsel of record, Karl
E. Rominger, Esq., 155 S. Hanover St., Carlisle, PA 17013 by United States Mail, regular
service, in Harrisburg, Pennsylvania on March 13, 2001
DATE:
'3\ l3! or
HANDLE~~ENBERG
By ~I
Matthew S. Crosby, Esq.
Attorney 1.0. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorneys for Defendant, Laura J. Myers
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
v.
NO. 00-3530 CIVIL TERM
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE,
Defendants
DECLARATORY JUDGMENT ACTION
IN RE: PRETRIAL CONFERENCE
A Pretrial Conference was held in the chambers of
Judge Oler on Wednesday, April 11, 2001, in the above captioned
case. Present on behalf of the Plaintiff was George B. Faller,
Jr., Esquire (participating by telephone); present on behalf of
Defendant Laura J. Myers was David H. Rosenberg, Esquire, standing
in for Matthew S. Crosby, Esquire, who will be trying the case;
present on behalf of Defendant Terry L. vitale was Karl E.
Rominger, Esquire (who will not be presenting any witnesses at the
trial and who did not file a pretrial memorandum for that reason);
Defendant Angela Rohrer was not present at the pretrial
conference, nor was she represented by counsel.
This is a declaratory judgement action brought by an
automobile insurance company against its insured (Angela Rohrer)
and two individuals (Laura J. Myers and Terry L. Vitale) whom she
struck with her vehicle on July 16, 1999, in the Borough of
Carlisle, Cumberland County, Pennsylvania. Plaintiff seeks a
declaration that the incident was excluded from coverage because
it was an intentional act.
Pursuant to an agreement of counsel, this will be a
nonjury trial, scheduled by separate Order of Court for Monday,
June 11, 2001, at 9:30 a.m. in Courtroom No.1, Cumberland County
Courthouse, Carlisle, Pennsylvania. The estimated duration of
trial is one half day.
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It has been indicated by counsel that discovery is
not yet complete, but will be in the near future. With respect to
settlement negotiations, counsel are engaging in discussions but
at this point it does not appear to the Court that the declaratory
judgment action will be resolved by agreement.
The Court has indicated to counsel that it at one
time represented Eugene Rohrer, Angela Rohrer's grandfather, and
no counsel has expressed any dissatisfaction with the Court's
trying this case.
By the Court,
George B. Faller, Jr., Esquire
10 East High St.
Carlisle, PA 17013
For Plaintiff
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Karl E. Rominger, Esquire
155 South Hanover St.
Carlisle, PA 17013
For Defendant vitale
David H. Rosenberg, Esquire
1300 Linglestown Road
Box 1177
Harrisburg, PA 17108
For Defendant Myers
Ms. Angela Rohrer
135 East Penn St.
Carlisle, PA 17013
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
v.
NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE,
Defendants
IN RE:
DECLARATORY JUDGMENT ACTION
NONJURY TRIAL SCHEDULED
ORDER OF COURT
AND NOW, this 11th day of April, 2001, following a
pretrial conference held in the chambers of the undersigned judge
and pursuant to an agreement of counsel, a nonjury trial in this
Declaratory Judgment Action is scheduled for Monday, June 11,
2001, at 9:30 a.m. in Courtroom No.1, Cumberland County
Courthouse, Carlisle, Pennsylvania.
By the Court,
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George B. Faller, Jr., Esqui e
For plaintiff
Karl E. Rominger, Esquire
For Defendant Vitale
David H. Rosenberg, Esquire
For Defendant Myers
Ms. Angela Rohrer
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F;\FILES~ATAFILE\trgdoc,cur\105-res,l/mah
Created: 04/06/01 09:52:50 AM
Revised: 04/30/0109:36:19AM
7837.105
PROGRESSNE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CNIL ACTION - LAW
v.
NO. 00-3530
ANGELA ROHRER,
LAlJRJ\J.11Y1ERS,and
TERRY L. VITALE,
Defendants
DECLARATORY JUDGMENT ACTION
PLAINTIFFS RESPONSE TO DEFENDANT LAURA J. MYERS' 110TION TO
COMPEL DISCOVERY
1-9. Admitted.
10. Admitted as stated when the Motion was filed. Plaintiff Progressive Northern has
now answered Defendant Myers Discovery as evidenced by the cover letter attached hereto as
Exhibit "A".
11-15. Admitted.
16. Denied. To the contrary Plaintiff Progressive Northern has now responded.
17. Admitted.
18. Admitted.
WHEREFORE, Plaintiff Progressive Northern requests that the Motion to Compel as to its
answers to discover be dismissed as moot.
By
Attorneys for Plaintiff Progressive
Northern Insurance Company
Date: April 30, 2001
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ATfORNEYS Ilc CoUNSEUORS AT lAw
WII.UAM F. MARTsoN
JOHN B. FOWLER III
EOWARD L. SCHaRP.
DANIEL K. DiwtnoaFf
THOMAS J. WILLIAMS'
lvo V. Otro III
. GEORGE B. FALLER JR."
CARL C. RISCH
MARK A. DENLINGER
.B~ CEaTlFrED CML TAW. S'ECJAUST
TEN EAsr HIGH STREET.
CARLISLE, PENNSYLVANIA 17013
TELEPHONE (717) 243-3341
FACSIMILE (717) 243-1850
INTERNET www.mdwo.com
April 18,2001
Matthew S. Crosby, Esquire
HANDLER, HENNING ANDROSENBERG
1300 Lingiestown Road
Harrisburg, P A 17110
RE: Progressive Northern Insurance Company v. Angela Rohrer, Laura J. Myers and
TerryL. Vitale
Our File No. 7837.105
Dear Matt:
Enclosed pleliSe find Plaintiffs Response to. Defendant, Laura J. Myers' Request for
Production of Dpcuments and Plaintiff's Answers to Defendant; Laura J. Myers' First Set of
Interrogatories. If you have any questions, please feel free to call.
Very truly yours,
MARTSON DEARDORFF WILLIAMS & OTTO
George B. Faller, Jr.
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cc: Karl Rominger, Esquire (w/enc.)
Ms. Angela Rohrer (w/enc.)
Ms. Tyeddie L. Desmarais (Claim #993294291) (w/enc.)
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INFORMATION. ADVICE' ADVOCACy'M
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CERTIFICATE OF SERVICE
I, Melinda A. Hall, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Plaintiffs Response to Defendant Laura J. Myers' Motion to
Compel was served this date by depositing same in the Post Office at Carlisle, P A, first class mail,
postage prepaid, addressed as follows:
Matthew S. Crosby, Esquire
HANDLER, HENNING & ROSENBERG
P.O. Box 1177
Harrisburg, P A 171 08
Karl Rominger, Esquire
155 South Hanover Street
Carlisle, P A 17013
Ms. Angela Rohrer
724 North Hanover Street
Carlisle, P A 17013
MARTSON DEARDORFF WILLIAMS & OTTO
By [lid 911 ~ Q. (L~JJ
Me~ A. Hall
Ten East High Street
Carlisle, P A 17013
(717) 243-3341
Dated: April 30, 2001
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
: DECLARATORY JUDGMENT ACTION
PRAECIPE
TO THE PROTHONOTARY:
Please substitute the attached Verification for the Verification that was filed with the
Answer and New Matter in the Cumberland County Court on July 21,2000.
Thank you.
Respectfully submitted,
Date:
1/(./0<5
,
HAn:ING & :OSENBERG
By.
Matthew S. Crosby, Esquire
Attorney 1.0. # 69367
1300 Linglestown Rd., P.O. Box 1177
Harrisburg, PA 17110-1177
(717) 238-2000
Attorneys for Defendant
Laura J. Myers
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VERIFICATION
THE UNDERSIGNED hereby verifies thatthe statements in the foregoing document
are based on information that was gathered by counsel in preparation of this lawsuit. The
language of the above-named document is of counsel and not of my own. I have read the
said document and, to the extent that it is based on information that I gave to counsel, it is
true and correct to the best of my knowledge, information and belief. To the extent that the
contents of the said document is that of counsel, I have relied upon my counsel in preparing
this Verification.
THE UNDERSIGNED also understands that the statements therein are made subject
to the penalties of 18 PaRC.P. 2252(d), relating to unsworn falsification to authorities.
DATE: 1~r1t/-()O
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-03530 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PROGRESSIVE NORTHERN INSURANCE
VS
ROHRER ANGELA ET AL
SHAWN HARRISON
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within SUBPOENA
was served upon
ROHRER ANGELA
the
DEFENDANT
, at 0018:15 HOURS, on the 23rd day of October ,2000
at 724 N. HANOVER ST
CARLISLE, PA 17013
by handing to
ANGELA ROHRER
a true and attested copy of SUBPOENA
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So
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18.00
3.10
.00
10.00
.00
31.10
R. Thomas Kline
10/24/2000
MARTSON, DE
Sworn and Subscribed to before
me this "I{. ~ day of
By:
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION LAW
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE,
No. 00-3530
Defendants
DECLARATORY mDGMENT ACTION
PRAECIPE
TO THE PROTHONOTARY:
Please enter my appearance on behalf of the Defendant, Terry L. Vitale.
Date: D et-
/1/UtJcf
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Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
(717)241-6070
Supreme Court ill No. 81924
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F:\FILES\OAT AFILE\Prgdoc.cur\105-cert,ar/drg
Created: 12/27/0003:31:10PM
Revised: 12/27/0004:10:43PM
7837.105
...
AFFIDAVIT OF SERVICE OF DEFENDANT ANGELA ROHRER
I, David R. Galloway, an authorized agent of MARTSON DEARDORFF WILLIAMS &
OTTO, hereby certifY that a copy of the Notices to Take Depositions was served this date by handing
same to the person in charge, Eugene Rohrer, at Angela Rohrer's place of employment.
Pizza Queen
724 North Hanover Street
Carlisle, PA 17013
MARTSON DEARDORFF WILLIAMS & OTTO
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By
avid R. Galloway
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: December 27,2000
pro~re.S5(Ve., MrI-~erl\ I;,SL-lIMCe..
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CERTIFICATE OF SERVICE
I, David R. Galloway, an authorized agent of MARTS ON DEARDORFF WILLIAMS &
OTTO, hereby certify that a copy of the foregoing Affidavit of Service of Defendant Angela Rohrer
was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage
prepaid, addressed as follows:
Matthew S. Crosby, Esquire
HANDLER, HENNING and ROSENBERG
1300 Linglestown Road
Harrisburg, P A 17110
Ms. Angela Rohrer
724 North Hanover Street
Carlisle, PA 17013
Karl E. Rominger, Esquire
155 S. Hanover Street
Carlisle, PA 17013
By
J
vld R. Galloway
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: December 27,2000
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Created: 08/01100 09:20:26 AM
Revised' 08/01l001l:17:S6AM
7837.105
PROGRESSNE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-3530
ANGELA ROHRER,
LAtntAJ.1fYERS,and
TERRY L. VITALE,
Defendants
DECLARATORY JUDGMENT ACTION
PLAINTIFF'S REPLY TO NEW MATTER OF
DEFENDANT LAURA J. MYERS
17. The averments of paragraphs 1 through 16 of the Complaint are hereby incorporated
by reference.
18-19. Denied to the contrary. See the averments stated in Plaintiffs Complaint. It is
believed and therefore averred that Angela Rohrer did intend to injure the Defendants and was
substantially certain that her actions would cause injuries to Laura J. Myers and Terry L. Vitale.
MARTSON DEARDORFF WILLIAMS & OTTO
By
Geo B. Faller, Jr., E q e
LD. Number 49813
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attomeys for Plaintiff
Date: August 1, 2000
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CERTIFICATE OF SERVICE
I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Plaintiff s Reply to New Matter of Defend ant Angela Rohrer was
served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage
prepaid, addressed as follows:
Matthew S. Crosby, Esquire
HANDLER, HENNING and ROSENBERG
1300 Linglestown Road
Harrisburg, P A 17110
Ms. Angela Rohrer
801 East Park Drive, Suite 105
Harrisburg, P A 17111
Mr. Terry L. Vitale
241 East Louther Street
Carlisle, P A 17013
MARTSON DEARDORFF WILLIAMS & OTTO
ByJ0-cJ1MJ Y1, fJ1'1fM>>
Nichole L. Myers .
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: August 1, 2000
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INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
: DECLARATORY JUDGMENT ACTION
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
court without further notice for any money claimed in the complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HA VEA LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone (717) 249-6166
NNING & ROSENBERG
Matthew . Crosby, Esq.
1.0. #69367
1300 Linglestown Rd.,
P.O. Box 1177
Harrisburg, PA 17110-1177
(717) 238-2000
Attorneys for Defendant,
Laura J. Myers
DATE:
'1/20/&0
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jci\answer\myers
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
: DECLARATORY JUDGMENT ACTION
ANSWER
AND NOW, comes the Defendant, Laura J. Myers, by and through her attorneys,
HANDLER, HENNING & ROSENBERG, by Matthew S. Crosby, Esquire, and answers
Plaintiffs Complaint as follows:
1. Admitted.
2. Admi<<ed.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted in part and denied in part. It is admitted that Defendant Myers
suffered various injuries as a result of the aforementioned accident. After
reasonable investigation, Defendant Myers is without knowledge or
information to form an opinion as to the truth or falsity of the remainder of
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said averment. Strict proof thereof is demanded. By way offurther answer,
Progressive's "belief' as to the intent of Defendant Rohrer is of no
significance in determining coverage.
8. Denied. After reasonable investigation, Defendant Laura Myers, is without
knowledge or information sufficient to form an opinion as to the truth or falsity
of said averment. Strict proof thereof is demanded.
9. Admitted in part. Denied in part. It is submitted that Plaintiff's insurance
policy speaks for itself. It is further submitted that Plaintiff's insurance policy
must be read in its entirety before any attempt at interpreting the language
can be made.
10. Admitted in part. Denied in part. It is submitted that Plaintiff's insurance
policy speaks for itself. It is further submitted that Plaintiff's insurance policy
must be read in its entirety before any attempt at interpreting the language
can be made.
11. Denied. The allegations contained in paragraph 11 of Plaintiff's Complaint
contain conclusions of law to which no response is required. If a response
is deemed necessary, Ms. Myers denies the allegation with strict proof
thereof demanded at trial, if deemed material.
2
n
12. Denied. The allegations contained in paragraph 12 of Plaintiff's Complaint
contain conclusions of law to which no response is required. If a response
is deemed necessary, Ms. Myers denies the allegation with strict proof
thereof demanded at trial, if deemed material.
13. Admitted.
14. Admitted.
15. Denied. The allegations contained in paragraph 15 of Plaintiff's Complaint
contain conclusions of law to which no response is required. If a response
is deemed necessary, Ms. Myers denies the allegation with strict proof
thereof demanded at trial, if deemed material.
16. Admitted.
NEW MATTER
17. Paragraphs 1 through 16 are incorporated herein by reference and made a
part hereof as if fully set forth.
18. Defendant, Angela Rohrer, did not intend to injure Defendant, Laura J.
Myers, and/or Defendant Terry L. Vitale, a/kla Terryl Vitale.
19. Defendant, Angela Rohrer, was not substantilly certain that her actions
would cause the various injuries suffered by Defendant, Laura J. Myers,
and/or Defendant Terry L. Vitale, a/kla Terryl Vitale.
3
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WHEREFORE, Defendant, Laura Myers, requests that this Court when entering a
Declaratory Judgment regarding the parties' respective rights, duties and legal
relationships with respect to the insurance policy at issue:
1. Declare that there is no evidence to show that the underlying incident
was anything but an "accident" as defined by the aforementioned
insurance policy;
2. Declare that there is no evidence indicating that the accident was
caused by Defendant Rohrer with the intent to cause the
consequences that followed;
3. Declare that Progressive owes its insured driver, Defendant Rohrer,
the duty to defend and indemnify claims and/or lawsuits made against
her as a result of this accident; and
4. Declare that Progressive, under the terms of the aforementioned
insurance contract, is obligated to compensate Defendants Myers and
Vitale for claims or losses suffered by them as a result of this accident.
1( ?J5!(f)Q
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itted,
ING & ROSENBERG
Date:
By:
Matthew S. Crosby, Esquire
Attomey 1.0. # 69367
1300 Linglestown Rd., P.O. Box 1177
Harrisburg, PA 17110-1177
(717) 238-2000
Attorneys for Defendant
Laura J. Myers
4
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VERIFICATION
PURSUANT TO Pa. R.C.P. No. l024(c)
MATTHEW S, CROSBY, ESQ. states that he is the attorney for the party
filing the foregoing document; that he makes this Affidavit as an attorney and verifies that
it is correct and accurate to the best of his knowledge, information and belief and that this
statement is made subject to the penalties of 18 Pa. C.S.A., Section 4904 relating to
unsworn falsification to authorities.
()
MATTHEW S. CROSBY, ESQ,
DATE:
7hb / DO
I I
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served on the
Plaintiff, PROGRESSIVE NORTHERN INSURANCE COMPANY, by sending a copyofthe
same to their counsel of record, George B. Faller, Esq., MARTSON, DEARDORFF,
WilLIAMS & OTTO, Ten East High St., Carlisle, PA 17013-3093, by United States Mail,
regular service, in Harrisburg, Pennsylvania on July 20, 2000.
HANDLER, HENNING
and ROS BERG
ew S. Crosby, Esq.
Attorney I.D. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorneys for Defendant,
laura J. Myers
DATE:~U) In ()
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jci\memo\myers-trial.wpd
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
)
v.
CIVIL ACTION - LAW
~
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L, VITALE,
Defendants
NO, 00-3530
DECLARATORY JUDGMENT ACTION
DEFENDANT LAURA MYERS' TRIAL MEMORANDUM
I. STATEMENT OF FACTS:
The clear majority of the facts in this case are not in dispute. Progressive Northem Insurance
Company's ("Progressive") recitation of the facts in its trial memorandum are fairly accurate. It
should be noted, however, that on no fewer than three occasions, the Defendant, Angela Rohrer, has
testified, under oath, that she did not intend to injury and/or strike Laura Myers. (Rohrer Dep. at
page 23 lines 24-25, at page 24 line 1, at page 24 lines 11-15, and at page 48 lines 1-7.)
II. QUESTION PRESENTED:
UNDERPENNSYL VANIA LAW, DOES PROGRESSIVE HAVE AN OBLIGATION
TO INDEMNIFY DEFENDANT ROHRER FOR INJURIES SUSTAINED BY
PEDESTRIANS, WHEN DEFENDANT ROHRER DID NOT INTEND TO STRIKE
AND/OR INJURE THOSE PEDESTRIANS?
<Answer proposed in the affirmative,)
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Ill, ARGUMENT:
PROGRESSIVE IS OBLIGATED, PURSUANT TO PENNSYLVANIA LAW, TO
INDEMNIFY DEFENDANT ROHRER FOR INJURIES SUSTAINED BY
PEDESTRIANS WHERE DEFENDANT ROHRER DID NOT INTEND TO CAUSE
HARM TO THE PEDESTRIANS BUT RATHER ONLY INTENDED TO SCARE
THEM,
Progressive insured Defendant Rohrer at the time of this incident. In denying coverage to
Defendant Rohrer, Progressive has cited two policy provisions. The first provision reads:
We will pay damages ...for bodily injury for which an insured person becomes legally
responsible because of an accident arising out of the ownership, maintenance, or use of a
vehicle.
"Accident," is defmed in the policy as:
A sudden, unexpected and uuiutended occurrence.
Progressive also asserts that the incident is excluded from coverage under a policy exclusion which
provides:
Coverage [under this policy,] ...does not apply to: bodily injury or property damage caused
by an intentional act of an insured person or at the direction of an insured person.
Regardless of which of the above policy provisions Progressive asserts as its basis for denying
coverage, the issue is the same. Both provisions use a form of the word, " intent." Progressive must
show that its insured, Defendant Rohrer, intended to cause Laura Myers harm.
In United Services Automobile Association v. Elitzkv. 517 A.2d 982 (pa.Super. 1986),
appeal denied, 528 A.2d 957 (pa. 1987), our Superior Court did an extensive review of the law
2
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interpreting the word "intent" as it has been used in exclusionary clauses similar to those contained
in Progressive's policy. The Elitzky court concluded that such clauses are susceptible to several
reasonable interpretations and held "as a matter oflaw, such clauses are ambiguous and must be
construed against the insurer." Elitzkv at 987 (citing Erie Insurance Exchange v. Transamerica Ins.
Co., 507 A.2d 389, 392 (Pa.Super. 1986)) (emphasis added). Any ambiguity in the language of an
insurance contract is to be interpreted in a light most strongly favoring the insured. Moho v.
American Casualtv Co. of Reading, 326 A.2d 346 (pa. 1974).
The E1itzkv court wrote, "Pennsylvania law is clear on at least one of the issues involved.
In our state, the exclusionary clause applies only when the insured intends to cause a harm.
Insurance coverage is not excluded because the insured's actions are intentional unless he also
intended the resultant damage." Elitzkv at 987 (emphasis added). The Superior Court
specifically rejected an objective standard by stating "[t]he exclusion is inapplicable even if the
insured should reasonably have foreseen the injury which his actions caused." Elitzkv at 987.
By looking at the subjective intent of Defendant Rohrer, it is clear that Progressive must
provide coverage. Defendant Rohrer has denied that she intended to harm Ms. Myers or Ms. Vitale.
In fact, she has repeatedly testified that her intent was to scare the two pedestrians, not to injure
them. (Rohrer Dep. at page 23 lines 24-25, at page 24 line 1, at page 24 lines 11-15, and at page
48 lines 1-7.)
"Whether an act is accidental or intentional must, for purposes of determining coverage, be
determined from the viewpoint of the insured." State Farm Mutual Automobile Insurance Co. v.
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Martin, 660 A.2d 66, 67 (pa.Super. 1995). Furthermore, if the actor does not have the ability to
formulate an intent, the resulting act cannot be intentional. Stidham at 953; Nationwide Mut. Ins.
Co. v. Hassinger, 473 A.2d 171, 176 (Pa.Super. 1984). Intoxicants imbibed by a motorist must be
considered in determining whether the motorist had the ability to formulate an intent. Id. When
analyzing whether DefendantRohrer had the ability to formulate an intent to cause the consequences
of her actions, the amount of alcohol and/or drugs that she consumed prior to the accident must be
considered. Defendant Rohrer has admitted to having smoked several marijuana cigars and claims
that at the time of the incident she was "really, really, really high." (Rohrer Dep. at page 32 lines
14-23, and page 33 lines14-15.) She has also testified that "something may have been in it (the
marijuana cigar), because I really never felt like that before." (Rohrer's Dep. at page 35, lines 15-
16).
The appellate courts of this Commonwealth have previously addressed policy provisions
similar or identical to those in the Progressive policy at issue. For the purposes of the insurance
policy provision excluding coverage for expected or intended injuries by the insured, "an insured
intends an injury ifhe desired to cause the consequences of his act or ifhe acted knowing that such
consequences were substantially certain to result. Elitzkv. 517 A.2d 982,989 (pa.Super. 1986)
(emphasis added).
Progressive attempts to compare the present situation to other cases wherein an insured
driver committed an intentional assault and battery. In Esmond v. Lisch 224 A.2d 793 (pa.Super.
1966), the insured opened his car door for the sole purpose of striking a pedestrian. In Esmond. the
4
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trial court, after hearing the evidence, ordered a finding that the insured's actions were an intentional
assault and not simply wanton, unintentional conduct. In Nationwide Mut. Ins. Co. v. Hassinger.
the insured driver, Hassinger, drove his car over a curb and across a sidewalk before striking a
pedestrian. A witness testified that, after the insured driver struck the decedent with his car, he got
out of his car and said: "I told you I would get the son-of-a-bitch." In State Farm Mut. Auto Ins.
Co. v. Martin. 660 A.2d 66 (pa.Super. 1995), the insured drove his truck twice into the rear of his
estranged wife's vehicle, then, when his wife emerged from the house, he mounted the lawn with
his truck and struck his wife. Id. Thereafter, when his wife's sons were able to pull her away from
the truck and take her into the house, the insured proceeded to drive the truck into the wall of the
house an additional three times. Id. (emphasis added). Finally, he drove the truck into a vehicle
owned by his wife's boyfriend. Id. It is absolutely clear from the facts of those cases that the actors
intended the harm thatthey caused. In the present matter, however, it is clear that Defendant Rohrer
did not have that requisite intent. Defendant Rohrer has testified, under oath, on no fewer than three
separate occasions that she was only attempting to scare Laura Myers and TerrI Vitale and did not
intend to harm them in any way. (Rohrer Dep. at page 23 lines 24-25, at page 24 line 1, at page 24
lines 11-15, and at page 48 lines 1-7.)
"For a resulting injury to be excluded from coverage, the test to be applied is not whether
the insured intended his actions, but whether the insured specifically intended to cause harm.
Elitzkv mandates a 'subjective intent' analysis for determining coverage under an exclusionary
clause in most Pennsylvania insurance cases." Aetna Life and Casualtv Comoanv v. Barthelemv.
5
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33 F.3d 189, 191 (3d. Cir. 1994) (citing Elitzkv)' In order for Progressive to prevail in this action,
it must show that Defendant Rohrer subjectively intended to injure the pedestrians Myers and Vitale.
It is not sufficient, and in fact is irrelevant, that Defendant Rohrer intended to put her car in gear or
intended to press the accelerator. Rather, DefendantRohrermusthave specifically intended to cause
harm. See Elitzkv at 987; Eisenman v. Hornberger. 264 A.2d 673,674-75 (Pa. 1970); Wilev v.
State Farm Fire & Casualty Co.. 995 F.2d 457 (3d Cir. 1993).
WHEREFORE, Defendant, LauraMyers, requests that this Honorable Court, when entering
a Declaratory Judgment regarding the parties' respective rights, duties and legal relationships with
respect to the insurance policies at issue:
1. Declare that as a matter of law, the clauses at issue in the Progressive policy are
ambiguous and must be construed against the insurer;
2. Declare that under Pennsylvania law the underlying incident is an "accident";
3. Declare that under Pennsylvania law the underlying incident was not "intentional";
4. Declare that Progressive has a duty to indemnify Defendant Rohrer for the injuries
suffered by Defendants Myers and Vitale;
5. Declare that Progressive has a duty to defend Defendant Rohrer against claims which
may be made;
6. Declare that Progressive, pursuant to the terms of the policy and Pennsylvania law,
is obligated to compensate Defendant Myers for any claims or losses suffered as a result of this
accident.
6
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7. Declare that Defendant Myers is entitled to other relief as this Court may deem just
and proper.
Respectfully submitted,
HANDLER, HENNING & ROSENBERG
Date:
?!:t /0 1
By:
Matthew S. Crosby, Esq.
Attorney I.D. # 69367
1300 Linglestown Road
P.O. Box 1177
Harrisburg, PA 17110-1177
(717) 238-2000
Attorneys for Defendant Myers
7
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on the
following:
Plaintiff, PROGRESSIVE NORTHERN INSURANCE COMPANY:by faxing a
copy of the same to their counsel of record, George B. Faller, Jr., Esq.MARTSON,
DEARDORFF, WILLIAMS & OTTO, Ten East High Street, Carlisle, PA 17013 at 243-
1850; and
Defendant, Terry L. Vitale a/kla Terryl Vitale, by faxing a copy of the same to
her counsel of record, Karl E. Rominger, Esq., 155 S. Hanover St., Carlisle, PA 17013,
at 241-6878.
in Harrisburg, Pennsylvania on August 8, 2001.
, HENNING & ROSENBERG
DATE: o~!() l
By
Matthew S. Crosby, Esq.
Attorney I.D. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorneys for Defendant, Laura J. Myers
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
, -." . F_"_' ,~'-' .",i" ;"<,-.",, ,0. ,"" ,-- " , ~", ,- ""-'.{I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
ANGELA ROHRER, LAURA J.
MYERS, and TERRYL.
VITALE,
Defendants
NO. 00-3530 CIVIL TERM
ORDER OF COURT
AND NOW, this 24th day of April, 2001, upon consideration of Defendant Laura
J. Myers' Motion To Compel Discovery, a Rule is hereby issued upon Plaintiff and
Defendant Angela Rohrer to show cause why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
George B. Faller, Jr., Esq.
10 East High Street
Carlisle, FA 17013
Attorney for Plaintiff
Angela Rohrer
724 North Hanover Street
Carlisle, FA 17013
Defendant, Pro Se
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01 APR 26 PI; I: 02
CUM8ERLAND COUNlY
PENNSYLVANIA
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Matthew S. Crosby, Esq.
1300 Linglestown Road
P.O. Box 1177
Harrisburg, P A 17108
Attorney for Defendant
Laura J. Myers
Karl Rominger, Esq.
155 South Hanover Street
Carlisle, P A 17013
Attorney for Defendant
Terry L. Vitale
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
ANGELA ROHRER,
LAURA J, MYERS, and
TERRY L. VITALE,
Defendants
NO. 00-3530
DECLARATORY JUDGMENT ACTION
ORDER
AND NOW, this
day of
, 2001, upon consideration
of Defendant, Laura Myers', Motion to Compel Discovery,
IT IS HEREBY ORDERED that Plaintiff, Progressive Northem, respond to Defendant
Laura Myers' Interrogatories and Request for Production of Documents within
days of
the issuance of this Order.
BY THE COURT:
J.
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PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
v.
CIVIL ACTION - LAW
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
NO. 00-3530
DECLARATORY JUDGMENT ACTION
ORDER
AND NOW, this
day of
,200 I, upon consideration
of Defendant, Laura Myers', Motion to Compel Discovery,
IT IS HEREBY ORDERED that Defendant, Angela Rohrer, respond to Defendant Laura
Myers' Interrogatories and Request for Production of Documents within
days of the
issuance of this Order.
BY THE COURT:
J.
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jci\motions\myers-compeldisc.wpd
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
NO. 00-3530
DECLARATORY JUDGMENT ACTION
DEFENDANT LAURA J. MYERS' MOTION TO COMPEL DISCOVERY
AND NOW, comes the Defendant, Laura J. Myers, by and through her attorneys,
HANDLER, HENNING & ROSENBERG, by Matthew S. Crosby, Esq., and hereby moves this
Honorable Court to compel the Plaintiff, Progressive Northern Insurance Company, and the
Defendant, Angela Rohrer, to file full, complete, and responsive Answers to Defendant's First Set
of Interrogatories and Defendant's Requests for Production of Documents, and in support thereof,
avers the following:
1. Defendant, Laura Myers, is an adult individual currently residing at 38 South Spring
Garden Street, Carlisle, Cumberland County, PA 17013.
2. Plaintiff, Progressive Northern Insurance Company, is a corporation licensed to do
business in the Commonwealth of Pennsylvania, with a business address of 801 East Park Drive,
Suite 105, Harrisburg, Dauphin County, PA 17111.
3. Defendant, Angela Rohrer, is an adult individual currently residing at 724 North
Hanover St., Carlisle, Cumberland County, PA 17013.
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4. On or about June 9,2000, Plaintiff, Progressive Northern, filed a Complaint in the
Court of Common Pleas of Cumberland County to detennine, inter alia, its rights and
responsibilities under automobile insurance policy number 55598090-0 issued to Ray Green.
5. Essentially, Progressive Northern asserts that it is under no duty to defend or
indemnify Defendant Rohrer for injuries caused to Defendants Myers and Vitale because it believes
that Defendant Rohrer intentionally caused her vehicle to collide with Myers and Vitale.
6. On or about March 13, 2001, Plaintiff, Progressive Northern, was served with
Defendant Laura Myers' First Set of Interrogatories. A copy of said Interrogatories is attached
hereto, made a part hereof, and marked as "Exhibit A."
7. On or about March 13, 2001, Defendant, Angela Rohrer, was served with Defendant
Laura Myers' First Set ofInterrogatories. A copy of said Interrogatories is attached hereto, made
a part hereof, and marked as "Exhibit B."
8. Pursuant to Pa.R.Civ.P. 4006(a)(2), "[t]he answering party shall serve a copy of the
answers, and objections if any, within thirty days after service of the interrogatories."
9. Answers to Defendant Laura Myers' Interrogatories should have been served on or
before April 12, 2001.
10. To date, neither Plaintiff, Progressive Northern, nor Defendant, Angela Rohrer, has
provided Defendant Myers with Answers to Interrogatories.
2
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11. On or about March 13, 2001, Plaintiff, Progressive Northern, was served with
Defendant Laura Myers' Request for Production of Documents, A copy of said Request for
Production of Documents is attached hereto, made a part hereof, and marked as "Exhibit C."
12. On or about March 13, 200 I, Defendant, Angela Rohrer, was served with Defendant
Laura Myers' Request for Production of Documents. A copy of said Request for Production of
Documents is attached hereto, made a part hereof, and marked as "Exhibit D. "
13. On March 20, 2001, a Certificate of Service regarding service of said Discovery on
Plaintiff, Progressive Northern, and on Defendant, Angela Rohrer, was filed with the Court. A copy
of said Certificate of Service is attached hereto, made a part hereof, and marked as "Exhibit E."
14. Pursuant to PaRCiv.P. 4009, 12(a), "[t]he party upon whom the request is served
shall within thirty days after service of the request (1) serve an answer including objections to each
numbered paragraph in the request, and (2) produce or make available to the party submitting the
request those documents and things described in the request to which there is no objection."
15. Answers to Defendant Laura Myers' Requests for Production of Documents should
have been served on or before April12, 2001.
16. To date, neither Plaintiff, Progressive Northern, nor Defendant, Angela Rohrer, has
provided Defendant Myers with Answers to the Requests for Production.
17. Trial for this Declaratory Judgment action is scheduled for June 11,2001.
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18. Defendant Myers believes, and, therefore, avers, that the information that could be
gained by responses to her initial discovery requests is necessary and vital in order for her to
properly litigate her claim.
WHEREFORE, Defendant, Laura Myers, respectfully requests that this Honorable
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Court issue an Order compeling Plaintiff, Progressive Northern, and Defendant, Angela Rohrer, to
respond to the initial Discovery requests served upon them on March 13, 200 I.
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Date:
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Respectfully Submitted,
HANDLER, HENNING & ROSENBERG
Matthew S. Crosby, Esquire
Supreme Court l.D. #69367
1300 Linglestown Road
P.O. Box 1177
Harrisburg, Pa. 171 08
(717) 238-2000
Attorneys for Defendant Myers
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Kas/ discovery /interrogatories/m yers-progressive. wpd
PROGRESSIVE NORTHERN, : IN THE COURT OF COMMON PLEAS
INSURANCE COMPANY :CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE
: CIVIL ACTION - LAW
Defendants
: DECLARATORY JUDGMENT ACTION
DEFENDANT LAURA J. MYERS' FIRST SET OF INTERROGATORIES
PROPOUNDED UPON THE PLAINTIFF, PROGRESSIVE NORTHERN INSURANCE
COMPANY
To: Plaintiff, Progressive Northern Insurance Compauy:
c/o: George Faller, Esquire
10 East High Street
Carlsile, PA 17013
PLEASE TAKE NOTICE, that pursuant to the provisions of Pa.R.C.P, Nos. 4005 and
4006, et sea., as amended, Laura Myers, Defendant in this action, serves the within Interrogatories
on Plaintiff, Progressive Northern Insurance Company, and demands on Defendant to file the
original of her Answers and objections, if any, in writing and under oath, to the following
Interrogatories within thirty (30) days after service of the Interrogatories.
The Answers shall be inserted in the spaces provided following each Interrogatory. If there
is insufficient space to answer an Interrogatory, the remainder of the Answer shall follow on a
supplemental sheet.
These Interrogatories shall be deemed to be continuing in nature, in accordance with the
provisions ofPa.R.C.P. No. 4007.4, et sen., as amended. If, between the time ofthe filing of your
original Answers to these Interrogatories, and the time of trial of this matter, you or anyone acting
on your behalf gain knowledge of discoverable facts and the identity of persons expected to be
called as witnesses (non-expert and expert) not disclosed in your original Answers; or, if you or an
expert witness obtain information upon the basis of which you or he knows that an Answer, though
correct when made, is no longer true, then you shall promptly supplement your original Answers
under oath to the undersigned.
EXtUBIT A
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DEFINITIONS - The following definitions are applicable to these standard interrogatories:
"Document" means any written, printed, typed, or other graphic matter of any kind or nature,
however produced or reproduced, including photographs, microfilms, phonographs, video and audio
tapes, punch cards, magnetic tapes, discs, data cells, drums, and other data compilations from which
information can be obtained.
"Identify" or "Identity" means when used in reference to --
(I) A natural person, his or her:
(a) full name; and,
(b) present or last known residence and employment address (including
street name and number, city or town, and state or county);
(2) A document:
(a)
(b)
(c)
(d)
(e)
(f)
its description (e.g., letter, memorandum, report, etc.), title, and date;
its subject matter;
its author's identity;
its addressee's identity; and,
its present location; and
its custodian's identity;
(3) an oral communication:
(a) its date and the place where it occurred;
(b) its substance;
(c) the identity of the person who made the communication; and,
(d) the identity of each person to whom such communication was made,
and each person who
was present when such communication was made;
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(4) a corporate entity:
(a) its full corporate name;
(b) its date and place of incorporation, if known, and,
(c) its present address and telephone number;
(5) Any other context: a description with sufficient particularity that the thing may
thereafter be specified and recognized, including relevant dates and places, and the
identification of relevant people, entities, and the documents.
(6) The term "identify" when used with respect to any other person, means to give the
person's official, legal and formal name and/or the name under which the person acts
or conducts business; the address of the person's place of business, profession,
commerce or home: and the identity of the person's principal or chief executive
officer or person who occupies a position most closely analogous to a chief
executive.
(7) If you CidL1Ll lU<.-ll lUi..: ~UUJl..:l..:l HJ.l.1lll..:1 Ui a UULlUU\,;Ul VI ural CUUllllUlllcaLlull 1::)
privileged, you need not set forth the substance of the document or oral
communication called for above. You shall, however, otherwise "identify" such
document or oral communication and shall state each ground on which you claim that
such document or oral communication is privileged.
"Incident" means the occurrence that forms that basis of a cause of action or claim for relief
set forth in the Complaint or similar pleading.
"Person" means a natural person, partnership, association, corporation, or government
agency.
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1. Identify all persons who assisted in preparing responses to these interrogatories, giving the
full names, residence, business addresses and occupations, and the office you hold with
Progressive Northern or your relation thereto.
ANSWER:
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2. Identify each person in the employ of Progressive Northern who has any knowledge or has
taken any action on behalf of Progressive Northem with regard to handling the claim that is
the subject matter of this action. This interrogatory seeks the name of every employee of
defendant who had anything to do with the claim, including the adjusters, branch claim
representatives, regional or home office claims auditors or claims examiners, all claims
managers and claims supervisors at any level, executive officers of the company, and all
members of any review committee or claims committee.
ANSWERS:
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3. Identify each person not in the employ of Progressive Northern who has any knowledge or
has taken any action on behalf of Progressive Northern with regard to the claim that is the
subject of this action. This interrogatory seeks the name of every person, firm, or
company with whom you have had any contact, including independent adjusters or
independent adjusting firms, private investigators, accident reconstructionists, engineers,
physicians or medical consultants, economists, accountants, attorneys, or any other person,
firm. or company. concerning the claim and for each such person identified state the person's
professional title and the nature of the function or service provided Iw such person in
connection with the claim.
ANSWERS:
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4. Describe each file that was opened, created, or maintained by you relating in any way to the
policy or the claim, including the complete name or title of the file, its complete file number
or other identifying designation, its present custodian and physical location within
Progressive Northern, and its general purpose or business classification. This interrogatory
seeks the identification of each "claims file" and each "underwriting file," under
whatever designation or description, and every copy or duplicate thereof which may exist
within Progressive Northern.
ANSWERS:
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5. State whether or not any information or data of any kind pertaining to the policy, the claim,
the claims-handling or underwriting activities of Progressive Northern, or any reports,
communications, or data of any kind, are maintained on any electronic media, such as
computer data files, electronic mail, or any equivalent and if so describe the contents of such
electronically stored information, whether or not hard copies of such material exist, the
custodian of such data, and the appropriate location within the company for the retrieval of
such data.
ANSWERS:
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6. Indicate whether you are aware of any statements, whether oral, written, or recorded, that
relate in any fashion to the substance of the allegations raised in your complaint. If so, then
for each statement of which you are aware, provide the name of the person making the
statement, the date the statement was made, identify all persons present when the statement
was made, and identify each person having copies, transcripts, or summaries thereof.
ANSWERS:
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7. List every ground upon which you base you denial of coverage and for each ground
identified:
a. all persons who have knowledge of the basis of the denial;
b. every document which supports you denial of coverage;
c. every fact which you intend to rely in support ofthe denial of the claim.
ANSWERS:
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8. Identify all employees and agents of Progressive Northern who dealt with any parties to this
action, including Angela Rohrer, her representatives in processing any claims submitted as
a result of the accident.
ANSWERS:
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9.
Do you have claims manuals and written procedures and protocol concerning the handling
of claims where intentional torts is an issue? If so, identify all persons who are in possession,
custody, or control of such manuals and written procedures.
ANSWERS:
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I O. Describe all contact between you and any party concerning this matter, including the names,
addresses, and phone numbers of those persons acting on your behalf, and the substance of
any conversations or written communications.
ANSWERS:
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11. State the name, address, and occupation of any person who you expect to call as an expert
witness at trial, and with regard thereto, state:
(a) The subject matter on which the expert is to testify;
(b) The facts and opinions to which the expert is to testify;
(c) A summary of the grounds of each opinion;
(d) The name of any report, memorandum, or transcript used to substantiate
each opinion;
(e) Any code, regulation or standard, gover)1mental or otherwise, alleged by the
expert to have been violated, in whole or in part;
(f) Any standard scientific principle alleged by the expert to have been violated.
in whole or in part;
U!,) ;Ul) ollllHiilru 11lilllulilcrurillg priucipic iliicgcu U) lilC expert to have been
violated, in whole or in part;
(h) The date, name, and author of any textbook, document, or other source
relied upon by the expert in rendering his opinion and testimony.
ANSWERS:
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12. With regard to each individual you expect to call as an expert witness at trial, state
the following:
(a) Date of birth;
(b) Name and address of present employer and, if self-employed, name and
address of the business;
C c) Full formal educational background, with date of attendance and degrees
obtained;
Cd) A list of all writings and/or documents of any kind prepared in whole or in part
by the expert; and
(e) Names and addresses of all persons, firms or corporations who have
retained this expert in the past tcn (10) years to render a report or testify as
an expert witness.
ANSWERS:
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13. If you know of the existence of any photographs, motion pictures, video recordings, maps,
diagrams, or models relevant to the incident and/or injuries, state:
(a) The date(s) when they were made and what they are;
(b) The identity of the person that prepared or made them;
(c) The subject that each represents or portrays; and,
(d) Please consider this a Motion to Produce such materials.
ANSWERS:
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14. Identify all exhibits that you intend to use at the trial of this matter and state whether they
will be used during the liability or damages portions ofthe trial.
ANSWERS:
Respectfully Submitted,
HANDLER, HENNING, & ROSENBERG
Date: 6113/0f
I I
By:
Matthew S. Crosby, Esquire
Attorney I.D. #69367
1300 Linglestown Road
P.O. Box 1177
Harrisburg, P A 17110-1177
(717) 238-2000
Attorney for the PlaintitI
17
PROGRESSIVE NORTHERN,
INSURANCE COMPANY
Plaintiff
: IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
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Kas/discoverylinlerrogalories/mva/myers-roh rer-pro, wpd
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE
: CIVIL ACTION - LAW
Defendants
: DECLARATORY JUDGMENT ACTION
DEFENDANT LAURA J. MYERS' FIRST SET OF INTERROGATORIES
DIRECTED TO DEFENDANT. ANGELA ROHRER
To: Angela Rohrer
724 North Hanover St.
Carlisle, PA 17013
PLEASE TAKE NOTICE, that pursuant to the provisions of Pa.R.C.P. Nos. 4005
and 4006, et seq., as amended, Laura Myers, Defendant in this action, serves the within
Interrogatories on Defendant, Angela Rohrer, and demands on Defendant to file the
original of her Answers and objections, if any, in writing and under oath, to the following
Interrogatories within thirty (30) days after service of the Interrogatories.
The Answers shall be inserted in the spaces provided following each Interrogatory.
If there is insufficient space to answer an Interrogatory, ths rsrnainder of the Answer shall
follow on a supplemental sheet.
These Interrogatories shall be deemed to be continuing in nature, in accordance
with the provisions of Pa.R.C.P. No. 4007.4, et seq., as amended. If, between the time of
the filing of your original Answers to these Interrogatories, and the time of trial of this
matter, you or anyone acting on your behalf gain knowledge of discoverable facts and the
identity of persons expected to be called as witnesses (non-expert and expert) not
disclosed in your original Answers; or, if you or an expert witness obtain information upon
the basis of which you or he knows that an Answer, though correct when made, is no
longer true, then you shall promptly supplement your original Answers under oath to the
undersigned.
EXHIB1T B
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"Document" means any written, printed, typed, or other graphic matter of any kind
or nature, however produced or reproduced, inclUding photographs, microfilms,
phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells,
drums, and other data compilations from which information can be obtained.
"Identify" or "Identity" means when used in reference to --
(1) A natural person, his or her:
(a) full name; and,
(b) present or last known residence and employment address
(including street name and number, city or town, and state or
county);
(2) A document:
(a) its description (e.g., letter, memorandum, report, etc.), title, and
date;
(b) its subject matter;
(c) its author's identity;
(d) its addressee's identity; and,
(e) its present location; and
(f) its custodian's identity;
(3) an oral communication:
(a) its date and the place where it occurred;
(b) its substance;
(c) the identity of the person who made the communication; and,
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(d) the identity of each person to whom such communication was
made, and each person who
was present when such communication was made;
(4) a corporate entity:
(a) its full corporate name;
(b) its date and place of incorporation, if known, and,
(c) its present address and telephone number;
(5) Any other context: a description with sufficient particularity that the thing
may thereafter be specified and recognized, including relevant dates and
places, and the identification of relevant people, entities, and the documents.
(6) The term "identify" when used with respect to any other person, means to
give the person's official, legal and formal name and/or the name under
which the person acts or conducts business; the address of the person's
place of business, profession, commerce or home; and the identity of the
person's principal or chief executive officer or person who occupies a
position most closely analogous to a chief executive.
(7) If you claim that the subject matter of a document or oral communication is
privileged, you need not set forth the substance of the document or oral
communication called for above. You shall, however, otherwise "identify"
such document or oral communication and shall state each ground on which
you claim that such document or oral communication is privileged.
"Incident" means the occurrence that forms that basis of a cause of action or claim
for relief set forth in the Complaint or similar pleading.
"Person" means a natural person, partnership, association, corporation, or
government agency.
1. Please state:
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(a) Your full name;
(b) Each other name, if any, which you have used or by which you have been
known;
(c) The name of your spouse at the time of the accident and the date and place
of your marriage to such spouse;
(d) Your present residence address and the address of each other residence
which you have had during the past five years;
(e) Present occupation and the name and address of your employer;
(f) Date of your birth;
(g) Your Social Security Number;
(h) Your military service, if any, and positions held; and,
(i) The schools you have attended and the degrees or certificates, if any,
awarded.
ANSWERS:
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2.
If you are covered by any type of insurance, including any excess or umbrella
insurance, that might be applicable to the incident in this matter, state the following
with respect to each such policy:
(a) The name of the insurance carrier which issued the policy;
(b) The named insured under each policy and the policy number;
(c) The type of each policy and the effective dates;
(d) The amount of coverage provided for injury to each person, for each
occurrence, and in the aggregate for each policy;
(e) Each exclusion, if any, in the policy which is applicable to any claim
thereunder and any reasons why you or the carrier claim the exclusion is
applicable; and,
(f) Please consider this a formal Request to Produce a copy of the declaration
pagers) of said insurance policy or policies.
ANSWERS:
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3. With respect to all motor vehicles involved in the incident, state the identity of the
owners and operators of each vehicle, the identity of the passengers in each
vehicle, and the make, madel, and year of each vehicle.
ANSWERS:
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4.
If you were not the owner of the motor vehicle but were the operator, give the name
and address of the party who gave you the authority to use the vehicle you were
driving at the time the incident in question Occurred and state what instructions, if
any, were given to you prior to operating the vehicle.
ANSWERS:
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5.
State with particularity the factual basis for each claim or defense you are asserting
in this case.
ANSWERS:
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6. (A) Identify each person who:
(1) Was a witness to the incident through sight or hearing; and/or,
(2) Has knowledge of facts concerning the happening of the incident or
conditions or circumstances at the scene of the incident prior to, after,
or at the time of the incident.
(8) With respect to each person so identified, state that person's exact location
and activity at the time of the incident.
ANSWERS:
7. State whether you were (1) performing any act in connection with your employment
at the time of the incident in question, or (2) acting on behalf of or for another at the
time of the incident in question.
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8. Have you ever been convicted of a crime? If so, state:
(a) The nature of the conviction;
(b) The date and location of said conviction;
(c) The penalty imposed; and
(d) The issuing authority.
ANSWERS:
9. Have you ever previously been involved in a lawsuit? If so, state:
-11-
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(a) The date and location of the action;
(b) The nature of the action;
(c) The name(s) and address(es) of the party(ies);
(d) The disposition of the action; and
(e) The name and address of the attorney who represented you.
ANSWERS:
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10. State the name, address, and occupation of any person who you expect to call as
an expert witness at trial, and with regard thereto, state:
(a) The subject matter on which the expert is to testify;
(b) The facts and opinions to which the expert is to testify;
(c) A summary of the grounds of each opinion;
(d) The name of any report, memorandum, or transcript used to substantiate
each opinion;
(e) Any code, regulation or standard, governmental or otherwise, alleged by the
expert to have been violated, in whole or in part;
(f) Any standard scientific principle alleged by the expert to have been violated,
in whole or in part;
(g) Any standard manufacturing principle alleged by the expert to have been
violated, in whole or in part;
(h) The date, name, and author of any textbook, document, or other source
relied upon by the expert in rendering his opinion and testimony.
ANSWERS:
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11. With regard to each individual you expect to call as an expert witness at trial, state
the following:
(a) Date of birth;
(b) Name and address of present employer and, if self-employed, name and
address of the business;
(c) Full formal educational background, with date of attendance and degrees
obtained;
(d) A list of all writings and/or documents of any kind prepared in whole or in part
by the expert; and
(e) Names and addresses of all persons, firms or corporations who have
retained this expert in the past ten (10) years to render a report or testify as
an expert witness.
ANSWERS:
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12. Please state the names, home and business addresses and telephone numbers of
all non-expert witnesses whom you expect to call at the time of trial of this matter,
and for each person identified state your relationship with the witness and give a
brief summary of the facts to which each will testify.
ANSWERS:
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13. If you intend to use any admission(s) of a party at trial, identify such admission(s).
ANSWERS:
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14. If you know of the existence of any photographs, motion pictures, video recordings,
maps, diagrams, or models relevant to the incident and/or injuries, state:
(a) The date(s) when they were made and what they are;
(b) The identity of the person that prepared or made them;
(c) The subject that each represents or portrays; and,
(d) Please consider this a Motion to Produce such materials.
ANSWERS:
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15. If you intend to use any book, magazine, or other such writing at trial state the name
of the writing, the author of the writing, the publisher of the writing, the date of
publication of the writing, and the identity of the custodian of the writing.
ANSWERS:
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16. Do you or did you have any medical and/or physical conditions which impair your
ability to operate a motor vehicle and did you suffer from any medical or physical
conditions which impaired your ability to operate a motor vehicle at the time of the
incident? If your answer to either of the questions in this Interrogatory is in the
affirmative, please describe this condition and/or impairment and state the name
and address of the physician and/or health care practitioner that treats and/or
treated the same.
ANSWERS:
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17. With respect to the motor vehicle that was involved in the incident, state the nature
of any damage existing prior to the incident, the identity of any person who
performed repairs to the vehicle following the incident, the total amount of repair
bills, or the total estimated cost of repairing the motor vehicle if not yet repaired and
the identity of the person furnishing such estimate, the date and place of last
inspection prior to the incident and identity of person making said inspection and
the nature of any defect in or problem with the vehicle and the length of time
such defect or problem existed.
ANSWERS:
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18. Have you made any statement, whether in writing, tape recording or otherwise, to
any person(s) regarding any of the events referred to in the complaint? If so, state:
(a) The name(s) and address(es) ofthe person(s) to whom such statement was
made;
(b) The date of such statement;
(c) The form of the statement, Le., written, oral, recording device or
stenographer;
(d) Whether such statement, if written, was signed;
(e) The name(s) and address(es) of the person(s) presently having custody of
such statement; and
(f) The essence of your statement.
ANSWERS:
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19. If you know of anyone that has given any statement (as defined by the Rules of Civil
Procedure) concerning this action or its subject matter, state:
(a) The identity of such person;
(b) When, where, by whom and to whom each statement was made, and
whether it was reduced to writing or otherwise recorded;
(c) The identity of any person who has custody of any such statement that was
reduced to writing or otherwise recorded; and
(d) Please consider this a Requestto Produce copies of each such statement(s).
ANSWERS:
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20.
Identify all exhibits that you intend to use at the trial of this matter and state whether
they will be used during the liability or damages portions of the trial.
ANSWERS:
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21. Identify documents (except reports of experts subject to Pa.R.C.P. No. 4003.5)
which describe the incident or the cause thereof. Please consider this a Request
to Produce such documents.
ANSWERS:
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22. If you, or someone not an expert subject to Pa.R.C.P. 4003.5, conducted any
investigations of the incident, identify:
(a) Each person, and the employer of each person, who conducted any
investigations;
(b) All notes, reports or other documents prepared during or as a result of the
investigations and the persons who have custody thereof; and,
(c) Please consider this a Request to Produce such documents, except those
portions which are protected from discovery.
ANSWERS:
-25-
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23. Did you have a valid driver's license at the time of the accident which is the subject
of this litigation? If your answer to this interrogatory is in the affirmative, please
state whether you had any restrictions on your driver's license.
ANSWERS:
-26-
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Date:
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HANDLER, HENNING & ROSENBERG
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By:
Matthew S. Crosby, Esquire
1.0. No. 69367
1300 Linglestown Road
Harrisburg, PA 17110
(717) 238-2000
Attorney for Plaintiff
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Ras/ discovery /rfp/m yers-pro gressive. wpd
PROGRESSIVE NORTHERN,
INSURANCE COMPANY
Plaintiff
: IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE
: CIVIL ACTION - LAW
Defendants'
: DECLARATORY JUDGMENT ACTION
DEFENDANT LAURA J. MYERS' RE UEST FOR PRODUCTION OF DOCUMENT
PROPOUNDED UPON THE PLAINTIFF PROGRESSIVE NORTHERN INSURANC
COMPANY
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To: Plaintiff, Progressive Northern Insurance Company:
c/o: George Faller, Esquire
10 East High Street
Carlsile, PA 17013
INSTRUCTIONS
1. If you object to the production of any documents on the grounds that the attorney-
client, attorney work product or any other privileges applicable thereto, with respect to that
document, state:
(a) Its date;
(b) identify its author;
(c) identify each person who prepared or participated in preparation of the
document;
(d) identify each person who received it;
(e) identify each person from whom the documents were received;
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(g) identify each person who has ever had possession, custody or control of it
or a copy thereof;
(h) provide additional information conceming the document and the
circumstance thereof to explain The claim of privilege and to permit the
adjudication of the propriety of that claim.
2. The term "identify" as used with respect to documents means to state the date,
author, addressee, type of document (e.g. letter), to identify its last-known custodian and location
and the exhibit number of the document if it has been marked during the course of a court
proceeding.
3. The term "identify" when used with respect to any other person, means to give the
person's official, legal and/or formal name and/or the name under which the person acts or
conducts business: the address of the person's place of business, profession, commerce or home;
and the identity of the person's principal or chief executive officer or person who occupies a
position most clearly analogous to a chief executive.
4. The term "identify" as used with respect to non-written communication means
state the date, persons that participated in the communication, type of communication (e.g.
telephone conversation) and substance of the communication.
5. The term "identify" when used with respect to an individual, means to give the
person's full name, all known aliases, present and last known business and home address, present
and last known telephone number and present position or business affiliation.
6. When used in the requests that fqllow, the term "document" means every writing
of every type and description in the possession, custody, or control of Plaintiff(s), or in the
possession, custody, or control of any agent or employee ofPlaintiff(s), and includes, without any
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limitation whatsoever, the following, whether printed, reported, stored on computer, filmed or
reproduced by any process, or written or produced by hand, and whether an original, master, or
duplicate copy: letters; notes; correspondence; communications; messages; memoranda;
contracts; agreements; checks; canceled checks; drafts; receipts; atlidavits; statements, including
any statement by any individual; books; records; books of account; reports; applications;
summaries; minutes and records of telephone conversations, meetings and conferences (including
lists of persons attending meetings or conferences); lists; worksheets; financial statements;
expense reports and records; summaries and records of personal conversations or interviews;
manuals; publications; diaries; charts; logs; cablegrams; telegrams; mailgrams; income
statements; balance sheets; transcriptions; voice recordings and transcriptions thereof; electronic
mail; plans; sketches; drawings; photographs; reports or summaries of investigations or surveys:
opinions and reports of consultants; opinions of counsel; reports and summaries of negotiations:
brochures; pamphlets; proposals; designs; catalogs; catalog sheets; specifications;
advertisements; circulars; invoices; work orders; purchase orders; studies and calculations; and
the originals thereof or, if the original of any such document is not available or is not in
Plaintiff s possession, custody, or control, all copies of the original such document and all copies
of any documents that are not identical to the original thereof or which contains any writing or
notations that do not appear on the original thereof.
7. The term "Plaintiff(s)" includes Progressive Northern Insurance Company and all
present or former employees thereof, and any of its present or former subsidiaries, affiliates,
parent companies, agents, employees, attorneys, representatives, and any other person acting or
purporting to act on the company's behalf.
8. If any document requested hereby are lost, missing, damaged, or destroyed,
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provide a description of each such document, the circumstances of its loss or destruction, and the
identity of the person last in possession of each lost, damaged, or destroyed document.
DOCUMENTS REQUESTED
I. A copy of all claims files for policy number 55598090-0 generated as a result of
your review of claims made as a result of the incident involving thel992 Chevy Corsica
ooperated by Angela Rohrer that occurred on or about July 16, 1999.
2. A copy of all documents generated by any of your adjusters, claim examiners, or
other agents or employees that reference or relate to the claim at issue in this litigation in any
fashion. whether or not such document is contained within the aforementioned claims file.
3. A copy of all committee reports, committee minutes, or written notes prepared or
taken in connection with any claims committee meetings held on the claim.
4. Produce a copy of all statements, signed statements, transcripts of recorded
statements or interviews of any person or witness relating to the claims filed as a result of the
July 16. 1999 accident.
5. Any and all documents containing the names and home and business addresses of
all individuals who may be potential witnesses in this case.
6. All documents and/or exhibits which you intend to rely upon or introduce at trial
of this litigation.
7. All documents, photographs and or diagrams prepared and or taken concerning
this incident.
8. The entire file accumulated by you relating to the incident which is the subject
matter of this litigation, including, but not limited to, any item within the definition of documents
explained above, as well as any other document, intangible object, correspondence, memoranda,
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notes, telephone log, photographs, videos, guidelines, in your possession and control which in
any way relate to the incident which is the subject matter of this litigation.
9. All expert opinions, reports, summaries or other writings which relate to the
subject matter of this litigation.
10. The minutes or records of any claims committee action on the subject claim.
11. Correspondence and reports between Progressive and Angela Rohrer. any
employees, agents, and/or owners thereof that relate in any way to the subject matter of this
action.
12. Correspondence and reports between progressive and any other party to this
action, including their agents, employees or represenatives.
13. Copies of all written logs or summaries of any telephone calls between any
adjusters, claims examiners. or other agents or employees and any parties to this action or their
representatives.
14. Copies of all written logs, summaries, memoranda, or any other correspondence
between agents, employees, claims examiners, or adjusters employed by Progressive or acting on
behalf of Progressive.
15. Copies of all investigation reports and/or any documents that in any way relate to
any investigation of the claims that are the subject matter of this action including all reports or
documents prepared by employees, agents, claims examiners, or adjusters regardless of whether
such employees, agents, claims examiners, or adjusters were employed by Progressive.
16. Please also consider this a formal request for production of all documents
referenced in your Answers to the Interrogatories.
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Respectfully Submitted,
HANDLER, HENNING, & ROSENBERG
By:
Matthew S. Crosby, Esquire
Attorney J.D. #69367
1300 Linglestown Road
P.O. Box I 177
Harrisburg, P A 17110-1 177
(717) 238-2000
Attorney for the Plaintiff
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PROGRESSIVE NORTHERN,
INSURANCE COMPANY
Plaintiff
: IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-3530
ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE
: CIVIL ACTION - LAW
Defendants
: DECLARATORY JUDGMENT ACTION
DEFENDANT LAURA J. MYERS FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS PROPOUNDED UPON DEFENDANT. ANGELA ROHRER
To: Angela Rohrer
724 North Hanover St.
Carlisle, PA 17013
Pursuant to Pa. Rule of Civil Procedure 4009, you are hereby requested to produce
the below listed documents and/or items for purposes of discovery. This material will be
examined and/or photocopied; photography negatives will be processed and photographs
reproduced. Said documents obtained will be reproduced at the offices of Handler,
Henning & Rosenberg, 1300 Linglestown Road, PO Box 1177, Harrisburg, Pennsylvania,
17108, within thirty (30) days of the date of service hereof and supplemented thereafter.
Date: J i (~ I c /
J .
HANDL~~~ING & ROSENBERG
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By: '- __
Matthew S. Crosby, Esquire
1.0. No. 69367
1300 Linglestown Road
Harrisburg, PA 17108-1177
(717) 238-2000
Attorneys for Plai ntiff
EXHIBIT D
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INSTRUCTIONS
If you object to the production of any documents on the grounds that the attorney-
client privilege, attorney work product or any other privileges are applicable thereto, with
respect to that document:
1. State its date;
2. Identify its author;
3. Identify each person who prepared or participated in preparation of
the document;
4. Identify each person who received it;
5. Identify each person for whom the documents were received;
6. State the present location of the document and all copies thereof;
7. Identify each person who has ever had possession, custody or control
of the document, or a true and correct copy thereof; and
8. Provide sufficient information concerning the document and the
circumstance thereof to substantiate the claim of privilege and to
permit the adjudication of the propriety of that claim.
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DEFINITIONS
1. "Defendant" means Laura Myers, individually.
2. "Defendant" means Angela Rohrer, individually.
3. "Document" means any writing of any kind, including written, recorded, or
graphic matter, however, produced or reproduced. It includes all matters that relate to or
refer to in whole or in part to the subject referred to in any Interrogatory. If a document has
been prepared in several copies, or if additional copies have been made and the copies
are not identical (or by reason of subsequent modification by the addition of notations or
other modifications, copies are no longer identical) each non-identical copy is a separate
"document." The term "document" includes but is not limited to: correspondence, personal
and intra-office memoranda, notes, diaries, log books, calendars, statistics, analyses,
projections, indices, letters, telegrams, minutes, contracts, agreements, reports, studies,
diagrams, drawings, check statements, receipts, returns, summaries, pamphlets, books,
inter-office and intra-office communications, notations, or memoranda of conversations,
bulletins, printed matter, computer printouts, tapes, data processing storage units, films
including surveillance films, videotapes including surveillance videotapes, photographs
including surveillance photographs, surveillance reports, teletypes, invoices, recordings,
work sheets, work papers, and all drafts, alterations, modifications, changes, and/or
amendments of any of the foregoing.
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4. "All documents" means every document as defined above known to you, and
every such document which may be located or discovered by reasonable effort.
5. The term "possession, custody, or control" includes the joint and several
possession, custody, or control not only by Defendant, but also by each and every person
acting or purporting to act in concert with or on behalf of the Defendant, whether as an
employee, attorney, accountant, or otherwise.
6. "Identify" or "Identification" when used in reference to any natural person
means to state the full name of any such person, if known, his or her present or last known
address, telephone number, his or her present or last known position and/or business
affiliation, and his or her business address and telephone number.
7. "Identify" or "Identification" when used in reference to a document means to
state the type of document (for example, letter, memorandum, telegram, etc.), its date, the
number of the addressee or addresses, the number of the sender or senders, and title or
heading. If the document is pre-printed, state the present location of the document and
all known copies. If a document is not in the Defendant's possession, custody, or control,
state what disposition has been made of the document and all its copies.
8. The term "identify" as used with respect to non-written communication means
state the date, persons that participated in the communication, type of communication (e.g.
telephone conversation) and substance of the communication.
9. "Accident" or "Incident" or similar reference, as used herein, refers to the
incident described in Plaintiff's complaint unless otherwise defined herein.
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DOCUMENTS REQUESTED
1. Identify and produce all statements, signed statements, transcripts of
recorded statements or interviews of any person or witness relating to, referring to or
describing the incident which gave rise to this action, and any defenses thereto.
2. Identify and produce any and all documents, photographs taken or diagrams
prepared concerning this matter or any instruments involved therein.
3. Identify and produce any and all documents containing the names and home
and business addresses of all individuals who may be potential witnesses in this case.
4. Identify and produce all documents which you intend to rely upon or
introduce at trial of this litigation.
5. Identify and produce the entire file accumulated by you or your Criminal
Defense attorney (s) relating to the incident which is the subject matter of this litigation,
including, but not limited to, any item within the definition of documents explained above,
as well as any other document, intangible object, correspondence, memoranda, notes,
telephone log, guidelines, in the possession, custody, or control of you or your criminal
defense attorney(s) which in any way relate to the incident which is the subject matter of
this litigation.
6. Identify and produce all expert opinions, reports, summaries or other writings
in the custody or control of you or your attorney(s) or insurers, which relate to the subject
matter of this litigation.
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7. Identify and produce all exhibits intended to be used at trial.
8. Please also consider this a formal request for production of all documents
referenced in your Answers to the within Interrogatories.
HANDLER, HENNING & ROSENBERG
Date:
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By:
Matthew S. Crosby, Esquire
1.0. No. 69367
1300 Linglestown Road
Harrisburg, PA 17110
(717) 238-2000
Attorney for Plaintiff
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PROGRESSIVE NORTHERN,
INSURANCE COMPANY
Plaintiff
: IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-3530
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ANGELA ROHRER,
LAURA J. MYERS and
TERRY L. VITALE
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: CIVIL ACTION - LAW ~;~
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: DECLARATORY JUDGMENT ACTION:
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the following Discovery documents were
served on the Plaintiff, PROGRESSIVE NORTHERN INSURANCE COMPANY:
1) Defendant Laura J. Myers' First Set of Interrogatories Propounded Upon
the Plaintiff, Progressive Northern Insurance Company, and .
2) Defendant Laura J .Myers' First Request for Production of Documents Propounded
Upon the Plaintiff, Progressive Northern Insurance Company.
by sending a copy of the same to their counsel of record,George B. Faller, Jr. , Esq.
MARTSON, DEARDORFF, WILLIAMS & OTTO, Ten East High Street, Carlisle, PA 17013, by
United States Mail, regular service, in Harrisburg, Pennsylvania on March 13, 2001
AND
I hereby certify that a true and correct copy of the following Discovery documents were
served on the Defendant, Angela Rohrer:
1) Defendant Laura J. Myers' First Set of Interrogatories Propounded Upon
the Defendant, Angela Rohrer, and
2) Defendant Laura J. Myers' First Request for Production of Documents
Propounded Upon Defendant, Angela Rohrer.
by sending a copy of the same to her directly at 724 North Hanover St., Carlisle, PA 17013 by
United States Mail, regular service, in Harrisburg, Pennsylvania on March 13, 2001.
I further certify a complete copy of above-referenced Discovery was provided to Defendant,
Terry L. Vitale a/kfa Terryl Vitale, by sending a copy of the same to her counsel of record, Karl
E. Rominger, Esq., 155 S. Hanover St., Carlisle, PA 17013 by United States Mail, regular
service, in Harrisburg, Pennsylvania on March 13, 2001
DATE:
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HANDLER, HENNING & ROSENBERG
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Matthew S. Crosby, Esq.
Attorney 1.0. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorneys for Defendant, Laura J. Myers
EXHIBIT. E
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on the
Plaintiff and interested parties by sending a copy of the same to their counsel of
record, as follows, by first-class United States Mail, in Harrisburg, Pennsylvania on
April fl, 2001:
George B. Faller, Jr., Esq.
MARTSON, DEARDORFF, WilLIAMS & OTTO
10 East High St.
Carlisle, PA 17013
Attorneys for Plaintiff, Progressive Northern Insurance Co.
Karl Rominger, Esq.
155 South Hanover St.
Carlisle, PA 17013
Attorneys for Defendant Terryl Vitale
Ms. Angela Rohrer
724 North Hanover St.
Carlisle, PA 17013
, HENNING & ROSENBERG
DATE: #~/O/
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Matthew S. Cros ,Esq.
Attorney 1.0. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238-2000
Attorneys for Defendant
laura J. Myers
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SHERIFF'S RETURN - REGULAR
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CASE NO: 2000-03530 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PROGRESSIVE NORTHERN INSURANCE
VS
ROHRER ANGELA ET AL
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SHAWN HARRISON
~ Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
LATSHAW STEPHEN (WITNESS)
the
DEFENDANT
, at 2145:00 HOURS, on the 23rd day of July
, 2001
at CARLISLE PD
53 W SOUTH ST
CARLISLE, PA 17013
by handing to
STEPHEN LATSHAW
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
3.25
.00
10.00
.00
19.25
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R. Thomas Kline
07/25/2001
MDW&O
Sworn and Subscribed to before
By:
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me this
"'~ day of
G; _I AD
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othonotary
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SHERIFF'S RETURN - REGULAR
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CASE NO: 2000-03530 P
COMMONWEALTH ,OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PROGRESSIVE NORTHERN INSURANCE
VS
ROHRER ANGELA ET AL
DAWN KELL
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
REDCAY JAY (WITNESS)
the
DEFENDANT , at 2054:00 HOURS, on the 24th day of July
, 2001
at 2260 RITNER HIGHWAY
CARLISLE, PA 17013
by handing to
LINDA REDCAY, WIFE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
3.25
.00
10.00
.00
31. 25
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R. Thomas Kline
07/25/2001
MDW&O
Sworn and Subscribed to before
By:
D~>> ~~J
Deputy Sheriff
me this
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PROGRESSIVE NORTHERN,
INSURANCE COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
ANGELA ROHRER
LAURA J. MYERS AND
TERRY L. VITALE,
Defendants
00-3530 CIVIL TERM
AND NOW, this 9th day of August, 2001, upon
consideration of the complaint for a declaratory judgment in the
above-captioned matter, and following a nonjury trial, the record
is declared closed and the matter is taken under advisement.
By the Court,
George B. Faller, Esquire
Ten East High Street
Carlisle, PA 17103
For the plaintiff
Matthew S. Crosby, Esquire
P.O. Box 1177
Harrisburg, PA 17108
For the Defendant Laura J. Myers
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Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17103
For the Defendant Terry L. Vitale
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Angela Rohrer, Defendant Pro Se
301-B North Bedford Street
Carlisle, PA 17013
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PROGRESSIVE
NORTHERN
INSURANCE
COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
ANGELA ROHRER,
LAURAJ.~RS,and
TERRY L.VITALE,
Defendants
NO. 00-3530 CIVIL TERl\1
IN RE: ADJUDICATION
BEFORE OLER, J.
DECREE NISI
AND NOW, this 17th day of August, 2001, upon consideration of Plaintiffs
complaint for declaratory judgment in the above-captioned case, and following a
nonjury trial held on August 9, 2001, it is ordered, adjudged, decreed and declared
that the incident occurring on or about July 16, 1999, in which Plaintiffs insured,
Defendant Angela Rohrer, struck Defendants Laura J. Myers and Terry L. Vitale
with her vehicle on Pomfret Street in the Borough of Carlisle, Cumberland
County, Pennsylvania, is not covered by the liability insurance policy issued by
Plaintiff which is the subject of this action.
THIS DECREE NISI shall automatically become a final decree, without
further order of court, if no party in interest files a timely motion for post-trial
relief in accordance with Pennsylvania Rule of Civil Procedure 227.1.
BY THE COURT,
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George B. Faller, Jr., Esq.
10 East High Street
Carlisle, PA 17013
Attorney for Plaintiff
Matthew S. Crosby, Esq.
1300 Linglestown Road
Harrisburg, P A 1711 0
Attorney for Defendant
Laura J. Myers
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
Terry L. Vitale
Angela Rohrer
724 North Hanover Street
Carlisle, P A 17013
Defendant, Pro Se
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PROGRESSIVE
NORTHERN
INSURANCE
COMPANY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
ANGELA ROHRER,
LAURA J. MYERS, and
TERRY L. VITALE,
Defendants
NO. 00-3530 CIVIL TERM
IN RE: ADJUDICATION
BEFORE QLER, J.
OPINION and DECREE NISI
OLER, J., August 17,2001.
In this declaratory judgment action, an automobile insurance company has
sued an insured and two persons injured by the insured. The insurance company
seeks a declaration that the incident in which the injuries occurred was intentional
on the part of the insured and thus not covered by the policy.
A non jury trial was held on August 9,2001. For the reasons stated in this
opinion, the court will find in favor of the insurance company.
FINDINGS OF FACT
1. On or about Friday, July 16, 1999, at around 11:00 p.m., a car driven by
Defendant Angela Rohrer, who was 16 years old, struck and injured two
pedestrians, Defendants Laura 1. Myers and Terry L. Vitale.
2. The incident occurred on Pomfret Street, west of its intersection with
Spring Garden Street, in the Borough of Carlisle, Cumberland County,
Pennsylvania.
3. The incident concluded an argument between occupants of Defendant
Rohrer's vehicle and Defendants Myers and Vitale.
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4. Immediately prior to the argument, Defendant Rohrer had been driving
around Carlisle, smoking marijuana.
5. The argument had begun when words were exchanged between the
pedestrians and the occupants of Defendants' vehicle as it drove by. The
pedestrians had not been previously acquainted with Defendant or the occupants
of her vehicle.
6. During the course of the argument, a shoe had been thrown at Defendant
Rohrer's vehicle.
7. The injuries to Defendants Myers and Vitale resulted from the acts of
Defendant Rohrer in backing her vehicle up, aiming the vehicle at Defendants
Myers and Vitale, accelerating the vehicle forward, and striking them with the
front of her car.
8. The instrumentality which stopped the forward movement of Defendant
Rohrer's vehicle after contact with Defendants Myers and Vitale, and prevented
more serious injuries to them, was a sidewalk curb bordering the cartway.
9. Following her vehicle's contact with Defendants Myers and Vitale and
with the curb, Defendant Rohrer backed her vehicle up and fled the scene.
10. The acts of Defendant Rohrer, including the striking of Defendant
Myers and Vitale with her vehicle, occurred during a period of anger on her part
toward them and were intentiona1.!
11. Litigation has been commenced by the filing of praecipes for writs of
summons on behalf of Defendants Myers and Vitale against Defendant Rohrer for
personal injuries resulting from being struck by her vehicle.2
1 Defendant Rohrer's testiony at the trial in this declaratory judgment action included the
following exchange:
Q At any point in time did you intend to strike either of those women with your
car?
A Yes, I did intend to do it.
2 See Myers v. Rohrer, No. 2001-2327 Civil Term (Cumberland Co.) (filed April 20, 2001); Vitale
v. Myers, No. 2001-4319 Civil Term (Cumberland Co.) (filed July 17,2001).
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12. At the time of the incident, Defendant Rohrer was "an insured person"
under a motor vehicle insurance policy issued by Plaintiff Progressive Northern
Insurance Company.3
13. The policy covered Defendant Rohrer for liability for bodily injuries to
others "because of an accident arising out of . . . use of [the vehicle in question].4
14. The policy defined an "accident" as "a sudden, unexpected, and
unintended occurrence."s
15. The policy expressly excluded from liability coverage "bodily
injury. . . caused by an intentional act of an insured person. . . .,,6
16. The injuries suffered by Defendants Myers and Vitale (a) were not the
result of an accident as defmed by the policy, (b) were the result of an intentional
act of Defendant Rohrer, an insured person, and (c) were not within, and were
expressly excluded from, the liability coverage ofthe policy.
DISCUSSION
"In interpreting insurance contracts, our courts have relied upon the
traditional principles of contract interpretation which hold that the court must
ascertain the intent of the parties from the wording of the written agreement, and
in the absence of ambiguous language, enforce the plain meaning of the contract."
Kovaleski v. Erie Ins. Group, 398 Pa. Super. 519, 522, 581 A.2d 585,586 (1990)
(citation omitted). At the same time, it is also the rule that "[p ]olicy clauses
providing coverage are interpreted in a manner which affords the greatest possible
protection to the insured." Geisler v. Motorists Mut. Ins. Co., 382 Pa. Super. 622,
626, 556 A.2d 391, 393 (1989). "[E]xclusionary clauses for 'expected or
intended' damage. . . must be construed against the insurer. . .." Germantown
3 The terms of this policy are contained in Plaintiff's Exhibit I, at 6, Trial, August 9, 2001
(hereinafter Plaintiff's Exhibit I).
4 Plaintiff's Exhibit I, at 5.
5 Plaintiff's Exhibit I, at 2.
6 Plaintiff's Exhibit I, at 8.
3
"""'''-'"'';'--
Ins. Co. v. Martin, 407 Pa. Super. 326, 331, 595 A.2d 1172,1175 (1991), appeal
denied, 612 A.2d 985 (Pa. 1992).
"An inquiry into whether a loss is within policy coverage is [normally] a
question oflaw . . . ." Donegal Mut. Ins. Co. v. Ferrera, 380 Pa. Super. 588, 592,
552 A.2d 699,700 (1989).
Insurers do not generally provide liability coverage for intentional acts of
harm. The moral hazard implicit in such coverage is obviously at a high level,1
and premiums are normally not calculated on the basis of the assumption of such
an obligation.8 In addition, "[i]t is against the public policy of this
Commonwealth to provide insurance coverage for intentional acts." Nationwide
Mut. Ins. Co. v. Hassinger, 325 Pa. Super. 484, 489, 473 A.2d 171, 173 (1984).
"[A] willful and malicious assault, being an intentional tort, is not an
accident. As such, it is not covered by a policy agreeing to indemnify against
damages caused by accident. Indeed, in such cases, the insurer does not even owe
a duty to defend its insured." State Farm Mut. Auto. Ins. Co. v. Martin, 442 Pa.
Super. 442, 444, 660 A.2d 66, 67 (1995) (citations omitted), appeal denied, 678
A.2d 366 (Pa. 1996).
Thus, liability coverage for bodily injury will generally not apply where an
insured motorist intentionally strikes a pedestrian. See Nationwide Mut. Ins. Co. v.
Hassinger, 325 Pa. Super. 484, 473 A.2d 171, 173 (1984).9
In the present case, Plaintiffs insured intentionally struck Defendants
Myers and Vitale with her vehicle in a moment of anger. The occurrence was not,
7 See generally Erie Ins. Exch. v. Commonwealth, Ins. Dept., 129 Pa. Commw. 120, 564 A.2d
1312 (1989).
8 See generally Royal Indemnity Co. v. T.E. Smith, 121 Ga. App. 272, 275, 173 S.E.2d 738, 740
(1970).
9 In the context of this type of exclusion, it has been noted that, "while voluntary intoxication may
so cloud the mind as to deprive it of the power of premeditation and deliberation, it will not
prevent the formation of the general intent necessary for the commission of an assault and
battery." State Farm Mut. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442, 444, 660 A.2d 66, 67
(1995) (citations omitted), appeal denied, 678 A.2d 366 (Pa. 1996).
4
,. .
-'~'-- - " <'''......;--~
, ~.
in the court's view, an accident in the sense of being "sudden, unexpected, and
unintended." Although the insured may not have foreseen each specific injury
which the impact caused to each victim, the purpose of her conduct was battery.
Under these circumstances, neither the terms of the insurance contract nor the
public policy of the Commonwealth will admit of a holding that Plaintiff is
responsible for liability coverage of the insured in connection with the incident in
question. 10
;
CONCLUSIONS OF LAW
1. The court has jurisdiction over the parties and subject matter of this
litigation.
2. The incident occurring on or about July 16, 1999, in which Plaintiffs
insured, Defendant Angela Rohrer, struck Defendants Laura J. Myers and Terry L.
Vitale with her vehicle on Pomfret Street in the Borough of Carlisle, Cumberland
County, Pennsylvania, is not covered by the liability insurance policy sub judice.
For the foregoing reasons, the following decree nisi will be entered. II
DECREE NISI
AND NOW, this 17th day of August, 2001, upon consideration of Plaintiffs
complaint for declaratory judgment in the above-captioned case, and following a
nonjury trial held on August 9,2001, it is ordered, adjudged, decreed and declared
that the incident occurring on or about July 16, 1999, in which Plaintiffs insured,
Defendant Angela Rohrer, struck Defendants Laura J. Myers and Terry L. Vitale
with her vehicle on Pomfret Street in the Borough of Carlisle, Cumberland
County, Pennsylvania, is not covered by the liability insurance policy issued by
Plaintiff which is the subject of this action.
10 This type of case is distinguishable, it is believed, from those where a wrongful and intentional
act produces a type of harm quite different from that which would be, and was, expected by the
insured. See, e.g., Eisenman v. Hornberger, 438 Pa. 46, 264 A.2d 673 (1970).
11 "The practice and procedure [in actions for declaratory relief] shall follow, as nearly as may be,
the rules governing the Action in Equity." Pa. R.c.P. 1601(a); see Pa. R.C.P. l517(a) (contents
of adjudication in equity).
5
THIS DECREE NISI shall automatically become a final decree, without
further order of court, if no party in interest files a timely motion for post-trial
relief in accordance with Pennsylvania Rule of Civil Procedure 227.1
BY THE COURT,
/s/ J. Wesley Oler. Jr.
1. Wesley Oler, Jr., J.
George B. Faller, Jr., Esq.
10 East High Street
Carlisle, PA 17013
Attorney for Plaintiff
Matthew S. Crosby, Esq.
1300 Linglestown Road
Harrisburg, P A 17110
Attorney for Defendant
Laura 1. Myers
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
Terry L. Vitale
Angela Rohrer
724 North Hanover Street
Carlisle, PA 17013
Defendant, Pro Se
6