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Home My WebLink About08-2177REBECCA ANN NEGLEY, Plaintiff V. ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, Defendants 2008- X2/V CIVIL TERM CIVIL ACTION -LAW PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO CURTIS R. LONG, PROTHONOTARY: Please issue a Writ of Summons against the defendants, ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, and enter my appearance on behalf of the plaintiff, REBECCA ANN NEGLEY. Please direct the Sheriff to serve the defendants as follows: ERIE INSURANCE GROUP- BRANCH OFFICE ERIE INSURANCE EXCHANGE 4901 LOUISE DRIVE ROSSMOYNE BUSINESS CENTER PO BOX 2013 MECHANICSBURG, PA 17055-0710 Respectfully submitted, IRWIN & Mc GHT G By: Marcus A. A4cKnight, III Es 60 West Pomfret Street, C lisle, A 17013 (717) 249-2353 Supreme C . . No: 25476 April 4, 2008 To: ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE You are hereby notified that REBECCA ANN NEGLEY, plaintiff, has commenced an action against you which you are required to defend or a default judgment may be entered against you. PROT NOTARY By: 4,1 ze ? /4- Date: 2008 : CUMBERLAND COUNTY, PENNSYLVANIA N C: C? ? C N aEi 1 .G" -0 W N CD q r SHERIFF'S RETURN - REGULAR CASE NO: 2008-02177 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NEGLEY REBECCA ANN VS ERIE INSURANCE GROUP ET AL NOAH CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ERIE INSURANCE GROUP the DEFENDANT , at 1400:00 HOURS, on the 9th day of April 2008 at 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 by handing to THOMAS MHANT, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: rf Docketing 18 . 00 ?, Ole Service 10.001. ?- Postage .41 Surcharge 10.00 R. Thomas Kline .00 38.41 04/10/2008 MARCUS MCKNIGHT Sworn and Subscibed to By: before me this day Deputy Sheriff of A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2008-02177 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NEGLEY REBECCA ANN VS ERIE INSURANCE GROUP ET AL NOAH CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ERIE INSURANCE EXCHANGE the DEFENDANT , at 1400:00 HOURS, on the 9th day of April 2008 at 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 by handing to THOMAS MHANT, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 00 16. 00 Sworn and Subscibed to before me this day of So Answers: ? P R. Thomas Kline 04/10/2008 MARCUS MCKNIGHT By: Deputy Sheriff A. D. Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, V. Plaintiff ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of John A. Statler, Esquire, of Johnson, Duffle, Stewart & Weidner, P.C. as counsel for Defendants Erie Insurance Group and Erie Insurance Exchange in the above-captioned case. DATE: U 1-j i f V7 JOH ON, DUFFIE, S WART & WEIDNER By: John A. Statler, ire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants 375952 22740-2475 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, S4 Pennsylvania, with first-class postage prepaid on the 3 1 day of a , 2009, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By. Joh tier, E uire Attorney I. D. 12 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Erie Insurance Group and Erie Insurance Exchange RED D TIM OF THE t,.,_.; ( a? - 2009 SEi - I PV, 1: 4 b i J': I-r C?.ev.?.. Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I. D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, Plaintiff V. Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ERIE INSURANCE GROUP and NO. 2008-2177 CIVIL TERM ERIE INSURANCE EXCHANGE, : Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter a Rule upon the Plaintiff, Rebecca Ann Negley, to file a Complaint within 20 days or suffer a judgment non pros seq. reg. JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. St015r,-E0quire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants RULE TO PLAINTIFF REBECCA ANN NEGLEY: You are hereby directed to file a Complaint in the above-captioned matter within 20 days or judgment non pros will be entered against you. DATE: _ 9?f If Lo? 5 OTHONO ARY .Dw 375960 CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 73 ( 'day of A V kft 'L 2009, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: J tatter, Esqui Attorney I.D. No. 12 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Erie Insurance Group and Erie Insurance Exchange QE THE ^ rARY 2009 SEP - I Pi.; I : 4; 5 Johnson, Duffie, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, V. Plaintiff ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly file of record the attached Certificate of Service of the Prothonotary's Rule to File a Complaint which was issued on September I , 2009 and served on the date reflected in the attached Certificate of Service. JO ON, DUFFIE, S EWART & WEIDNER By: John A. Statler, Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE:rl /0 9XD? Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I. D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, V. Plaintiff ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a certified copy of the Rule to File Complaint issued by the Prothonotary of Cumberland County on September I , 2009 upon counsel for Plaintiff, by depositing same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the q-4 day of September, 2009, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 JOONSQ N, DUFFIE,/SATEWART & WEIDNER By: \ John A. Sta sq 're Attorney I.D. No. 4-3812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants 375976 22740-2475 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the day of 2009, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. St squ e Attorney I.D. No. 43-9-12 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Erie Insurance Group and Erie Insurance Exchange BLED-f;.', `FiC E 2009 SEP 10 Ail 11: 5 3 NTY PEN A\ `tY 'VIVA, A REBECCA ANN NEGLEY, Plaintiff V. ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 2008 - 2177 CIVIL TERM CIVIL ACTION -LAW PRAECIPE TO WITHDRAW APPEARANCE To Curtis R. Long, Prothonotary: Please withdraw my appearance from this case on behalf of the Plaintiff, Rebecca Ann Negley. Respectfully submitted, IRWIN & NW(NIGH".C. By: Marcus/A. Mc iiht III, Esq. 60 West Pomfret reet Carlisle, PA 17013 Date: September 18, 2009 PRAECIPE TO ENTER APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the Plaintiff, Rebecca Ann Negley. Respectfully submitted, Date: S ?. "'T c f SCHMIDT KRAMER By: erry ma , Esq. 209 State S Harrisburg, PA 17101 CF THIF AR 2009 SEP 24 Pil 2• . SCHMIDT KRAMER PC BY: TERRY S. HYMAN, ESQUIRE I.D. #36807 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiff thyman(cDschmidtkramer com REBECCA ANN NEGLEY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff V. ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, : No. 2008-2177 CIVIL ACTION - LAW DECLARATORY JUDGMENT ACTION Defendants : JURY TRIAL DEMANDED 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 HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717/249-3166 SCHMIDT KRAMER PC , BY: TERRY S. HYMAN, ESQUIRE I.D. #36807 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiff thyman a schmidtkramer com REBECCA ANN NEGLEY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff V. No. 2008-2177 ERIE INSURANCE GROUP and CIVIL ACTION - LAW ERIE INSURANCE EXCHANGE, DECLARATORY JUDGMENT ACTION Defendants : JURY TRIAL DEMANDED AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717/249-3166 SCHMIDT KRAMER PC BY: TERRY S. HYMAN, ESQUIRE I.D. #36807 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiff thyman a schmidtkramer com REBECCA ANN NEGLEY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff V. No. 2008-2177 ERIE INSURANCE GROUP and CIVIL ACTION - LAW ERIE INSURANCE EXCHANGE, DECLARATORY JUDGMENT ACTION Defendants JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff Rebecca Negley, by and through her attorneys, SCHMIDT KRAMER, who respectfully sets forth as follows: 1. The Plaintiff, Rebecca Negley, is an adult individual residing in Cumberland County, Pennsylvania. 2. Defendant Erie Insurance Exchange (hereinafter, Erie) is an insurance company conducting business throughout the Commonwealth of Pennsylvania having a principle place of business at 100 Erie Insurance Place, Erie, Pennsylvania 16530 with places of business in Cumberland County. 3. Rebecca Negley suffered significant injuries in an automobile accident on January 14, 2000 when she was hit by a drunk driver. 4. At the time of the accident, Erie provided Underinsured Motorist (UIM) coverage to Ms. Negley. 5. The Parties have a dispute over the Statute of Limitations applicable to the UIM coverage provided under Erie's policy. 6. The Erie policy, applicable to this case, explicitly requires the Parties to resolve any statute of limitation issue under the UIM coverage in Common Pleas Court. 7. Plaintiff Rebecca Negley now brings this action in accordance with the Pennsylvania Declaratory Judgments Act, 42 Pa. C.S.A. 7351, et seq. which provides jurisdiction to determine rights under writings constituting a contract. 8. The Erie policy is an insurance contract between the Plaintiff and the Defendant. 9. Plaintiff settled her underlying case on April 1, 2004, with Erie's knowledge and consent, knowing that Plaintiff's injuries were in excess of underlying limits, and that Plaintiff fully intended to pursue her claim under the policies UIM coverage. 10. Plaintiff filed a Writ of Summons in order to assert its right to recover under the UIM coverage. 11. Erie did not file a Rule to file the Complaint until September 9, 2009. 12. Erie has denied UIM coverage claiming the Statute of Limitations on its insured's claim expired on April 1, 2008, three days prior to Plaintiff's Writ being filed on April 4, 2008. 13. Plaintiff submits that the issue of when the statute of limitations runs on UIM claim has not been decided by the Pennsylvania Courts, and numerous legal arguments support the proposition that the statute had not yet expired on April 4, 2008, when the instant Writ was filed. 14. The Parties' Stipulation of Facts attached hereto sets forth the facts and stipulations relevant to the parties' legal dispute over the timeliness of Plaintiff's Writ in preserving her rights to UIM coverage under Erie's policy. 15. The parties have agreed and stipulated, for the convenience of both parties, to convert Plaintiff's April 4, 2008 Writ of Summons to a declaratory Judgment Action even though it was originally filed as means to preserve Plaintiff's UIM claim under her policy with Erie. WHEREFORE, Plaintiff Rebecca Negley prays your Honorable Court will determine that Plaintiff's Writ of Summons of April 4, 2008 was timely filed preserving her UIM claim against Defendant Erie Insurance Company. Respectfully submitted, SCHMIDT KRAMER LOTSIT Date: NDvt.A N 240 7 Terry S. an' ire I.D. . 36807 D. Joseph Chap , Esquire I.D. No. 209519 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiff ATTORNEY VERIFICATION I, D. Joseph Chapman, Esquire, verify that I am attorney of record for the Plaintiff. I verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsifications to authorities. Date: mi.Ay !? zw !Q SCHMIDT KRAMER PC BY: TERRY S. HYMAN, ESQUIRE I.D. #36807 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiff thymana,schmidtkramer com REBECCA ANN NEGLEY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff V. ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, : No. 2008-2177 : CIVIL ACTION -LAW : DECLARATORY JUDGMENT ACTION Defendants : JURY TRIAL DEMANDED STIPULATION OF FACTS 1. The Erie Insurance Exchange Policy attached as Exhibit A is the Policy applicable to this case. 2. On January 13, 2004, Rebecca Negley orally agreed to settle her underlying claim with the carrier for the tortfeasor who caused her accident of January 14, 2000 for the sum of $87,500. (Confirmatory letter of January 13, 2004 from Donald Dorer, Esq. attached in Exhibit B). 3. Erie Insurance Exchange was aware of the settlement, approved the settlement and waived its right of subrogation under its UIM coverage on February 3, 2004. (Erie letter of February 3 attached in Exhibit B). 4. Erie Insurance Exchange was aware of Plaintiff's intention to pursue her Underinsurance Claim from at least February 3, 2004 onward. 5. Rebecca Negley executed a Release on April 1, 2004, completing the settlement with the tortfeasor who caused her accident of January 14, 2000 (Signed Release to Estate of Daniel N. Thundu attached in Exhibit B). 6. All relevant correspondence and emails between Erie Insurance Exchange and its representatives or counsel, and Rebecca Negley's then Counsel, Marcus McKnight, Esq., are attached as Exhibit B. 7. Exhibit B is the entire record of all relevant contacts, exchanges of information or actions taken by Erie Insurance Exchange or Rebecca Negley regarding her UIM claim for damages arising from the accident of January 14, 2000. 8. On April 4, 2008, Rebecca Negley initiated the instant suit against Erie Insurance Exchange after Attorney McKnight had a telephone conference that day with Erie's adjuster in which McKnight was advised that the statute of limitations had expired on the case. 9. On April 15, 2008 Erie Insurance Exchange, by letter, confirmed its position that the Statute of Limitations had expired on Rebecca Negley's UIM case. 10. On May 6, 2008, Erie Insurance Exchange offered $15,000 as non negotiable settlement to avoid litigation costs related to the statute of limitations issue. 11. On March 6, 2009, Attorney McKnight on behalf of Rebecca Negley declined the $15,000 offer and made a counter demand. 12, On March 11, 2009, Erie Insurance Exchange rejected Plaint'iff's counter dcTpand based on the Statute of Limitations. 13. On August 18, 2009, Attorney McKnight filed a Demand for Erie Znstirance Exchange to Appoint an Arbitrator. 14. On September 9, 2009 Erie Insurance Exchange's Counsel filed a Rule to File a Complaint. This was the first action taken by Erie Insurance Exchange on Plaintiffs April 4, 2008 Writ of Summons_ 15. The Parties stipulate that they have, for convenience, agreed to use the Writ oIApril 4, 2008 to present the statute of limitations issue to this Court as a Declaratory Judgment Action, even though that was not the Writ's original purpose. 16. The parties stipulate and agree, that if this Court determines that the statute of limitations did not expire on Rebecca Negley's UIM claim prior to the filing of the Writ on April 4, 2008, then Plaintiff can pursue her 'C_l'IM claim against Erie to settlement or arbitration. 17. The Parties agree the policy applicable to the case limits resolution of any dispute concerning the statute of limitations to the Court of Common Pleas, and does not permit Arbitrators to decide the issue. Stipulated this 1 of November, 2009 by: John A. Statler, Esq. Terry S. Hyena *Negy Attorney for E rie Insurance Exchange D. Joseph apmAttorney for Rebec CERTIFICATE OF SERVICE AND NOW, this day of ?v2 2009, I, Jennifer Garcia, an employee of SCHMIDT KRAMER PC, do hereby certify that I have served a true and correct copy of the COMPLAINT in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: John Statler, Esquire Johnson Duffie 301 Market Street PO Box 109 Lemoyne, PA 17043-0109 Jen ifer arcia L: l 3 !; , 1 3 t i I Johnson, Duffie, Stewart & Weidner By: John A. Statler, Esquire I. D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, V. Plaintiff ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM DECLARATORY JUDGMENT ACTION STIPULATION AND NOW, come the parties to the above case, by their respective counsel, who hereby agree and stipulate as follows: 1 It is agreed and stipulated that Erie Insurance Group is dismissed as a Defendant from this case. ` 2. follows: It is agreed and stipulated that the caption of this case shall be amended to read as REBECCA ANN NEGLEY, Plaintiff v. ERIE INSURANCE EXCHANGE Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM DECLARATORY JUDGMENT ACTION Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. Sta squire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants SCHMIDT KBAAQER, P.C. By: DATE: 383800 22740-2475 Terry S.4-lyman, E uir Attorney I. D. No. 3 209 State Street Harrisburg, PA 17101 Telephone (717) 238-6570 Attorneys for Plaintiff Rebecca Ann Negley CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Stipulation upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 3,9 " day of 0? k% L,- , 2009, addressed to the following: Terry S. Hyman, Esquire Schmidt Kramer 209 State Street Harrisburg, PA 17101 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. Statler, Esquire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Erie Insurance Exchange FI C ` ;CE 2009 DEC - ! Ph 2: 2 f J DEC 0 1 2009 REBECCA ANN NEGLEY, Plaintiff V. ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM : DECLARATORY JUDGMENT ACTION ORDER AND NOW, this 3' day of , 2009, upon stipulation of the parties, it is HEREBY ORDERED that Erie Insurance Group is dismissed as a Defendant in this case. It is further ORDERED that the caption of this case shall be amended to read as follows: REBECCA ANN NEGLEY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM ERIE INSURANCE EXCHANGE Defendant DECLARATORY JUDGMENT ACTION BY THE COURT: J. 1-? rig 2C09 DEC --3 Ail 10: 41 Cut% !a f 3?vg - ? f ?? ? Johnson, Duffie, Stewart & Weidner By: John A. Statler, Esquire I. D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, V. Plaintiff ERIE INSURANCE EXCHANGE Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM DECLARATORY JUDGMENT ACTION NOTICE TO PLEAD TO: REBECCA ANN NEGLEY, Plaintiff c/o TERRY S. HYMAN, ESQUIRE Schmidt Kramer 209 State Street Harrisburg, PA 17101 Attorney for Plaintiff YOU ARE REQUIRED to plead to the within Answer With New Matter within 20 days of service hereof or a default judgment may be entered against you. DATE: /2' ?,, 0 7 JO DUFFIE, S WART & WEIDNER By: \ John A. Sfbtlw, Esq ire Attorney 1. D. No. 12 43 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Erie Insurance Exchange Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, V. Plaintiff ERIE INSURANCE EXCHANGE Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM DECLARATORY JUDGMENT ACTION ANSWER OF DEFENDANT ERIE INSURANCE EXCHANGE TO PLAINTIFF'S COMPLAINT INCLUDING NEW MATTER AND NOW, comes the Defendant, Erie Insurance Exchange, by its attorneys, Johnson, Duffie, Stewart & Weidner, P.C., who file the following Answer and New Matter in response to the Plaintiff's Complaint:: 1. Admitted. 2. Admitted with clarification. Defendant Erie Insurance Exchange (hereinafter "Erie") is a reciprocal insurance company. 3. It is admitted that Rebecca Negley claims to have suffered injuries in a motor vehicle accident on January 14, 2000. It is further admitted that the accident was allegedly caused by a drunk driver. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. It is admitted that Plaintiff settled her underlying case on April 1, 2004 with Erie's knowledge and consent. It is further admitted that it was believed that the Plaintiff intended to pursue a claim for UIM coverage against Erie. By way of further answer, Erie is without information sufficient to form a belief as to the truth or falsity of the averment that the Plaintiff's injuries were in excess of the underlying limits and, therefore, denies the same and demands strict proof at the time of trial if deemed material. 10. Admitted on information and belief. 11. Admitted. 12. Admitted. 13. Denied. The Pennsylvania Courts have decided the issue of when the statute of limitations runs on a UIM claim. By way of further answer, it is denied that any credible legal arguments support the proposition that the statute of limitations had not yet expired on April 4, 2008 when Plaintiff's former counsel filed the Writ of Summons. 14. Admitted. 15. Admitted. WHEREFORE, Defendant Erie Insurance Exchange respectfully requests this Honorable Court to declare that the statute of limitations for Rebecca Negley's UIM claim against Erie expired on April 1, 2008 and that the Plaintiffs claims for underinsured motorist benefits are barred by the applicable statute of limitations. NEW MATTER By way of additional answer and reply, Defendant Erie Insurance Exchange raises the following New Matters: 16. On April 1, 2004, Plaintiff Rebecca Ann Negley settled her third-party liability claim against the party at fault for the January 14, 2000 motor vehicle accident. 17. Attached hereto as Exhibit "A" is a true and correct copy of the Release signed by Rebecca Ann Negley on April 1, 2004 to memorialize the settlement of her third-party liability claim. 18. A claim for underinsured motorist benefits is an action under a contract and is subject to a four-year statute of limitations. 19. The statute of limitations for a claim for underinsured motorist benefits begins to run on the date that the injured party settles her third-party liability claim against the tortfeasor responsible for the accident. 20. The statute of limitations for Rebecca Ann Negley's claim for underinsured motorist benefits against Erie Insurance Exchange expired on April 1, 2008, four years after the date of the settlement of her third-party liability claim. 21. Rebecca Ann Negley did not file suit or take any other appropriate action to preserve her claim for underinsured motorist benefits against Erie Insurance Exchange prior to the expiration of the statute of limitations on April 1, 2008. 22. Rebecca Ann Negley's claim for underinsured motorist benefits against Erie Insurance Exchange is barred by the applicable statute of limitations. WHEREFORE, Defendant Erie Insurance Exchange respectfully requests this Honorable Court to declare that the statute of limitations for Rebecca Negley's UIM claim against Erie expired on April 1, 2008 and that the Plaintiff's claims for underinsured motorist benefits are barred by the applicable statute of limitations. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. , ui Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Erie Insurance Exchange DATE: t 2-13 1 Off' 383725 22740-2475 VERIFICATION hereby acknowledge that Erie Insurance Exchange is the Defendant in this action and that 1 am authorized to make this verification on its behalf; that I have read the foregoing Answer of Defendant Erie Insurance Exchange to Plaintiff's Complaint Including New Matter; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. ERIE INSURANCE EXCHANGE By: DATE: MJd %M POIDA30H %001 02H$-00008 RELEASE OF ALL CLAIMS COUNTY/DOCKET Cumberland County Docket No. 02-104 CLAIM KEY: 58 37 C 858-184 1/14/00 01 FOR AND IN CONSIDERATION OF the payment to me/us of the sum of (S 87,500400) Eighty-seven thousand five hundred dollars and 00/100------------------ Dollars, and other good and valuable consideration, I/we, being of lawful age, have released and discharged, and by these presents do for myself/ourselves, my/our heirs, executors, administrators and assigns, release, acquit and forever discharge Susan Thundu. Stephen D. Tiley, Esquire, Personal Representative and Administrator of the Estate of Daniel N. Thundu and Nationwide Mutual Insurance Company of and from any and all past, present and future actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation, third party actions, suits at law or in equity, including claims or suits for contribution and/or indemnity, of whatever nature, and all consequential damage on account of, or in any way growing out of any and all known and unknown personal injuries, death and/or property damage resulting or to result from an accident that occurred on or about the 14th day of January 20 00, at or near West Lisburn Road (SR 2004)and Fleming Drive, UPKr_ Allen Township. Cumberland County, Pennsylvania. I/we hereby acknowledge that I/we am/are responsible for satisfaction of any and all liens and claims of any nature including, but not limited to, Department of Public Welfare liens, Medicare/Medicaid liens, ERISA liens, worker's compensation liens and/or subrogation claims, and further agree to indemnify and hold harmless- Susan Thundu. Stephen D. Tiley Esquire, Personal Representative and Administrator of the Estate of Daniel N. Thundu and Nationwide Mutual Insurance Company for any such liens and claims should they be asserted against such individual and/or Insurance Company. Uwe hereby declare and represent that the injuries sustained may be permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that Vwe have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons; firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed. Uwe understand that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of the persons, firms and corporations hereby released by whom liability is expressly denied. It is agreed that distribution of the above sum shall be made as follows: Jump sum It is further agreed that upon execution of the release and receipt of the settlement funds, Plaintiff, Rebecca A. Negley. will cause her attorney to mark the aforementioned docket settled and discontinued. This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital. I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act. WITNESS my hand and seal this 1st -day of April , 2004 . 4??? IN THE PR EI)iCE OF., Name' CAUTION READ $ ORE SIGNING MARCUS A. McKNIG1i , I, ) Address 60 . POMFRE . , C ISLE, P? X ; (SEAL) (Rebecca A. eglev) Name J, t.? A : CAUTION! READ BEFORE SIGNING 5 ARON L. SMWAM- ) Address 60 W. POMFRET ST. , CALRISLE, P? X _ (SEAL) State of PENNSYLVANIA } ss. County of CUMBERLAND ) On this 1ST day of APRIL 2004 , before me personally appeared REBECCA A. NEGLEY to me known to be the person... described herein, and who executed the foregoing instrument and- ?". acknowledged that she voluntarily executed the same. My term expires COMMOMEALTH OF PENNSYLVAMA tJota?tat Seat pi CaAMe My Corrrt?eeion FaC{>iris Sept:A 2W7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Answer of Defendant Erie Insurance Exchange to Plaintiff's Complaint Including New Matter upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the ::j day of 1),102-w V2__t_1 2009, addressed to the following: Terry S. Hyman, Esquire Schmidt Kramer 209 State Street Harrisburg, PA 17101 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. St Es uire Attorney I.D. No. 812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Erie Insurance Exchange HLE FCE OF THE PRO1 OTARY 2009 DEC -8 AM 1 I : 10 P +JtiSYLV,'Vv ?. SCHMIDT KRAMER PC BY: TERRY S. HYMAN, ESQUIRE I.D. #36807 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiff thvman(&schmidtkramer. com REBECCA ANN NEGLEY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, . PENNSYLVANIA Plaintiff V. ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, Defendants No. 2008-2177 CIVIL ACTION -LAW DECLARATORY JUDGMENT ACTION JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO NEW MATTER 16. Admitted. 17. Admitted. 18. The allegation herein states a conclusion of law to which no response is necessary and, will be disputed by Plaintiff. 19. The allegation herein states a conclusion of law to which no response is necessary and, will be disputed by Plaintiff. 20. The allegation herein states a conclusion of law to which is in fact in dispute between the parties. 21. Admitted that Rebecca Negley did not file suit prior to April 1, 2008 but denied that she failed to take any appropriate action to preserve her claim for uninsured motorists' benefits. 22. The allegation herein states a conclusion of law to which no response is necessary and will be disputed by Plaintiff. WHEREFORE, Plaintiff Rebecca Negley prays your Honorable Court will determine that Plaintiffs Writ of Summons of April 4, 2008 was timely filed preserving her UIM claim against Defendant Erie Insurance Company. Respectfully submitted, SCHMIDT KRAMER PC By: Terry S. an, Esquire I.D. N .3 07 209 State Street Harrisburg, PA 17101 (717) 232-6300 Date: (Decem6er 1S, 2009 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 15th day of December, 2009, I, Mary Cook, an employee of SCHMIDT KRAMER PC, do hereby certify that I have served a true and correct copy of the Plaintiff's Response to New Matter in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: John Statler, Esquire Johnson Duffle 301 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043-0109 Mary Coo C OF THE ff ?' T r'"<IOT'RFY 2009 DcC 15 P 1: 28 Ci;AI "T` Dl- - ' fi -01TIM OF THE PROD40 OTARY 2010 JAN -5 AM l t : 57 Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I. D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com REBECCA ANN NEGLEY, V. Plaintiff ERIE INSURANCE EXCHANGE Defendant Attorneys for Defen N IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-2177 CIVIL TERM DECLARATORY JUDGMENT ACTION MOTION FOR SUMMARY JUDGMENT OF DEFENDANT ERIE INSURANCE EXCHANGE AND NOW, comes the Defendant, Erie Insurance Exchange, by its attorneys, Johnson, Duffie, Stewart & Weidner, P.C., who move this Honorable Court to enter a summary judgment in favor of the Defendant and against the Plaintiff based on the following: 1. Rebecca Ann Negley claims to have suffered injuries in a motor vehicle accident on January 14, 2000. 2. On April 1, 2004, Rebecca Ann Negley signed a release and settled her third-party liability case against the party at fault for the January 14, 2000 accident. 3. At the time of the January 14, 2000 accident, Rebecca Ann Negley was insured by Erie Insurance Exchange under a written contract of insurance that provided, inter alia, underinsured motorist coverage. 4. A claim for underinsured motorist benefits is an action under a written contract and is subject to a four-year statute of limitations. 5. The four-year statute of limitations for a claim for underinsured motorist benefits begins to run on the date that the injured party settles her third-party liability claim against the tortfeasor responsible for the accident. 6. The statute of limitations for Rebecca Ann Negley's claim against Erie Insurance Exchange for underinsured motorist benefits expired on April 1, 2008, four years after the date of settlement of her third-party liability claim. 7. Rebecca Ann Negley did not file suit against Erie Insurance Exchange or take any other appropriate action to preserve her claim for underinsured motorist benefits prior to the expiration of the statute of limitations on April 1, 2008. 8. Rebecca Ann Negley, through her former counsel, filed a Praecipe for Writ of Summons against Erie Insurance Exchange on April 4, 2008, three days after the statute of limitations had expired on her claim for underinsured motorist benefits. 9. Rebecca Ann Negley's claim against Erie Insurance Exchange for underinsured motorist benefits is barred by the applicable statute of limitations. 10. There is no genuine issue of any material fact in this case and judgment may be entered as a matter of law. WHEREFORE, Defendant Erie Insurance Exchange respectfully requests this Honorable Court to enter a summary judgment in favor of Erie Insurance Exchange and against Rebecca Ann Negley and to declare that Rebecca Ann Negley's claim against Erie Insurance Exchange for underinsured motorist benefits is barred by the applicable statute of limitations. Respectfully submitted, JOH DUFFIE, ST WART & WEIDNER By: John A. Statler, Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Erie Insurance Exchange DATE: ( I q11 0 385149 22740-2475 CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Motion for Summary Judgment of Defendant Erie Insurance Exchange upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the day of 'j 'M M , 2010, addressed to the following: Terry S. Hyman, Esquire Schmidt Kramer 209 State Street Harrisburg, PA 17101 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. s uire Attorney I.D. No. 4 812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Erie Insurance Exchange r PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Argument Court.) CAPTION OF CASE (entire caption must be stated in full) REBECCA ANN NEGLEY vs. ERIE INSURANCE EXCHANGE (List the within matter for th ext= G ---------------------------------- e_ ISO CA to Q% No. 2008-2177 , CIVIL Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motiori of Deferidarit Erie Insurance Exchange for Sinmary Judg Brit 2. Identify all counsel who will argue cases: (a) for plaintiffs: Terry S. Hymari, Esquire (Name and Address) 209 State Street, Harrisburg, PA 17101 (b) for defendants: Johri A. Statler, Esquire (Name and Address) 301 Market Street, Lemoyrie, PA 17043 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 17, 2010 Signature Johri A. Statler, Esquire Print your name Def eridant Attorney for Date: Jariuary 4. 2010 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is resisted. C CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe for Listing Case for Argument upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the y day of nA (A i , 2010, addressed to the following: Terry S. Hyman, Esquire Schmidt Kramer 209 State Street Harrisburg, PA 17101 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. tikler, Es uire Attorney I.D. 12 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Erie Insurance Exchange to SCHMIDT KRAMER PC BY: TERRY S. HYMAN, ESQUIRE I.D. #36807 209 State Street Harrisburg, PA 17101 (717) 232-6300 REBECCA ANN NEGLEY, Plaintiff V. ERIE INSURANCE GROUP and ERIE INSURANCE EXCHANGE, Defendants 'li?O FEB09ZUwb ql? Attorneys for -Plaigiff : IN THE COURT OF COMM ?P LWAS 9 : CUMBERLAND COUNTY, f. .:.. : PENNSYLVANIA "' r'' c nS < No. 2008-2177 ' <n CIVIL ACTION - LAW DECLARATORY JUDGMENT ACTION JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT OF DEFENDANT ERIE INSURANCE EXCHANGE 1. Admitted. 2. Admitted that Rebecca Negley signed a Release on April 1, 2004 settling her third party liability case against the party of fault for her January 14, 2000 accident. The Release, however, was for less than the underlying limits with a credit to be given to Erie Insurance Exchange for the difference between the underlying limits and the settlement amount. 3. Admitted. 4. Admitted. 5. Denied. This is the essence of the dispute between the parties. 6. Denied. 7. Denied as stated. Admitted that Rebecca Negley did not file suit against Erie Insurance Exchange until April 4, 2008. It is also admitted that Rebecca Negley's counsel at the time did not request arbitration prior to April 1, 2008. "? :?.. °,? 4*y, ? NEW MATTER 8. The Parties executed a Stipulation of Facts which was attached to the Complaint in this action and is again attached to this Response as Exhibit 1, for the convenience of the Court in deciding the Statute of Limitations issue. Exhibit 1 does not include all of the correspondence between Erie and Ms. Negley's counsel as it is not relevant to the issue beyond the facts stated in the Stipulation and in this response to Defendant's Summary Judgment. Exhibit 1 does have a copy of the Underinsurance provisions of the Erie policy applicable to this case. /Q?/? Date: Respectfully submitted, SCHMIDT KRAMER PC By: Zzl? erry S. Hyman, Esquire I.D. No. 36807 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiff 11/11/2009 15'59 FAX 711 761 3915 110 W U00 1!004 NOV-Ii-2009 WON FROM-SCHWIDf,RON KRAWR PC 717 131 6467 T-327 P.002/004 F-509 SCHMIDT KRAMER PC BY: rrr171 y s. T-TYMAN, Esaoipm I.D. 036807 209 State Street Harrisburg, PA 17101. (717) 232.6300 Attorneys for Plaintiff :hvmanfc?Dsch midtkramen com RLDECCA ANN NEGLEY, : IN THE COURT OF COMMON PLEAS : CUKEERLAND COUNTY, : PENNSYLVANIA Plaintiff V. No. 2008-2177 RIUR INSURANCE GROUP and CIVIL ACTION - LAW ERIE INSURANCE EXCHANGE, DECLARATORY JUDGMENT ACTION Defendants JURY TRIAL DEMANDED ;STIFULATION OF FACTS 1. The Erie Insurance Exchange Policy attached as Exhibit A is the Policy applicable to this case. 2. On January 13, 2004, Rebecca Negley orally agreed to settle her underlying claim with the carrier for the tortfeasor who caused her accident of January 14, 2000 for the sum of $87,500. (Confirmatory letter of January 13, 2004 from Donald Dorer, Esq. attached in Exhibit 8). 3. Erie Insurance Exchange was aware of the settlement, approved the settlement and waived its right of subrogation under its UTM coverage on February 3, 2004. (Erie letter of February 3 attached in Exhibit B). 4. Erie Insurance Exchange was aware of Plaintiff's intention ra pursue her Uziderinsurancc Clauza from at least February 3, 2004 onward. 11/11/2009 15 59 FAX 717 761 3015 JAS:a 01),;o0 4 NOV-11-2009 04:45PM FROM-SCNMIOT,RON KRAMER PC 717 232 6467 T-327 P.003/004 F-M S. Pebecca Negley executed a Release on April 1, 2004, completing tht settlement with the tortfeasor who caused her accident of January 14, 2000 (Signed Release to Estate of Daniel N. ThUndll attached in Exhibit B). 6. All relevant correspondence and emails between Erie Insurance Exchange and its representatives or counsel, and Rebecca Negley's then Counsel, Marcus McKnight, Esq., are attached as Exhibit B. 7. Exhibit B is the entire record of all relevant contacts, exchanges of information or actions taken by Erie Insurannce Exchange or Rebecca Negley regarding her UIM claim for da=ages arising from the accident of January 14, 2000. 8. On April 4, 2008, Rebecca Negley initiated the instant suit against Erie Insurance Exchange after Attorney McKnight had a telephone conference that dray with Erie's adjuster in which McKnight was advised that the statute of limitations had expired on the case. 9_ On April 15, 2008 Erie Insurance Exchange, by letter, confirmed its position that the Statute of Limitations had expired on Rebecca Negley's UIM case. 10. On May 6, 2008, Erie lzisurance Exchange offered $15,000 as non negotiable settlement to avoid litigation costs related to the statute of limitations issue. 11. On March 6, 2009, Attorney McKnight on behalf of Rebecca Negley declined the $15,000 offer and made a counter demand. 11/11/2009 16:00 FAX 717 761 3015 ,JOSU U00ait?04 NOV-11-2009 04:45PM FROM-SCHMIDT,RON KRAM6R ?C TIT 232 6467 T-327 P. 004/004 F-300 12. On March 11, 2009, Erie Insurance Exchange rejected Plaintiff's counter demand based on the Statute of Limitations. 13, On August 18, 2009, Attorney McKnight filed a Demand for Erie Insurance Exchange to Appoint an Arbitrator. 14. On September 9, 2009 Erie Insurance Exchange's Counsel filed a Rule tv File a Complaint. This was the first action taken by Erie Insurance Exchange on Plaintiff's April 4, 2008 Writ of Summons- 15. The Parties stipulate that they have, for convenience, agreed to use the Writ of April 4, 2006 to present the statute of limitations issue to this Court as a Declaratory Judgment Action, even though that was not the Writ's original purpose. 16. The parties stipulate and agree, that if this Court determines that the statute of limitations did not expire on Rebecca Negley's UIM claim prior to the filing of the Writ on April 4, 2008, then Plaintiff can puzsue her UIM clairri against Erie to settlement or arbitration. 17. The Parties agree the policy applicable to the case limits resolution of any dispute concerning the statute of limitations to the Court of Common Pleas, and does not permit Arbitrators to decide the issue. Stipulated this 1 l of November, 2009 by: John A_ Statler, Esq. Terry S. Hyma sq. Attorney for Erie Insurance Exchange D. Joseph apmie,, Esq. ?`? 5t Attorney for Rebecca Nets v t; . I ERIE INSURANCE GROUP ERIE e? PRIVATE PASSENGER AUTO AFPU01 (Ed. 4/99) OF-8805 UNINSURED/UNDERINSURED MOTORISTS COVERAGE ENDORSEMENT -- PENNSYLVANIA DEFINITIONS Words in bold type are used as defined in the policy or in this form. "underinsured motor vehicle" means a motor vehicle for which the limits of available liability bonds or insurance or self-insurance at the time of the accident are insuffi- cient to pay losses and damages. "Extraordinary Medical Benefits Coverage" means cov- erage for injury arising out of the maintenance or use of a motor vehicle for which medical treatment and rehabilitative services exceed $100,000. "First Party Benefits" means Pennsylvania motor vehicle insurance first party benefits (medical benefit, income loss benefit, funeral benefit, accidental death benefit, combination benefit) in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law. "serious injury" means a personal injury resulting in death, serious impairment of body function or perma- nent, serious disfigurement. "uninsured motor vehicle" means: I. a motor vehicle for which there is no liability bond or insurance or self-insurance at the time of the acci- dent; 2. a motor vehicle for which the insuring company denies coverage or is or becomes insolvent; or 3. a "hit-and-run" motor vehicle which causes you bodily injury. The identity of the driver and owner of the "hit-and-run" vehicle must be unknown. The accident must be reported to the police or other proper governmental authority within 24 hours or as soon as possible. You must notify us as soon as possible. Uninsured motor vehicle does not include: I. motor vehicles insured for Liability Protection under this policy; 2. motor vehicles that are owned or operated by a self- insurer within the meaning of the financial responsi- bility laws, motor carrier laws or similar laws, unless the self-insurer becomes insolvent; 3. motor vehicles owned by any governmental unit or agency; or 4. motor vehicles designed for use mainly off public roads. 5. motor vehicles owned or rented by, furnished to or available for the use of a Named Insured, a spouse or resident relative of a Named Insured. Underinsured motor vehicle does not include: 1. motor vehicles insured for Liability Protection under this policy; or 2, motor vehicles owned by any governmental unit or agency; or 3, motor vehicles designed for use mainly off public roads. OUR PROMISE If Uninsured Motorists Coverage is indicated on the Declarations, we will pay damages for bodily injury that the law entitles you or your legal representative to recover from the owner or operator of an uninsured motor vehicle. If Underinsured Motorists Coverage is indicated on the Declarations, we will pay damages for bodily injury that the law entitles you or your legal repre- sentative to recover from the owner or operator of an underinsured motor vehicle. Damages must result from a motor vehicle accident arising out of the ownership or use of the uninsured motor vehicle or underinsured motor vehicle as a motor vehicle and involve bodily injury to you or others we protect. Bodily injury means physical harm, sickness, disease or resultant death to a person. Payment of medical expenses will not exceed 110% of the: 1. prevailing charge at the 75th percentile; or 2, applicable fee schedule, the recommended fee or the inflation index charge; or 3. diagnostic-related groups (DRG) payment; or 4, fee established by the Insurance Commissioner, whichever pertains to the specialty service involved, determined to be applicable in the Commonwealth of Pennsylvania under the Medicare Program for compa- rable services at the time the services were rendered, or the provider's usual and customary charge, whichever is less. If a fee, charge or payment has not been calculated under the Medicare program for a particular treatment, accom- modation, product or service the amount of the payment may not exceed 80% of the provider's usual and cus- tomary charge. If acute care is provided in an acute care facility to a Patient with an immediately life-threatening or urgent injury by a Level I or Level 11 trauma center accredited by the Pennsylvania Trauma Systems Foundation under the Emergency Medical Services Act (P.L.164,. No. 45), or to a major burn injury patient by a bum facility which meets all the service standards of the American Burn Association, the amount of payment may not exceed the usual and customary charge. Peer Review Organizations PRO), which have been approved by the Insurance Commissioner to evaluate whether or not: 1. treatment; 2. health care services; 3. products; or 4. accommodations; which were provided conform to professional standards of performance and were medically necessary and eco- nomically provided, may be used by us. The injured person may request a reconsideration by the PRO within 30 days of the PRO's initial determination. If we refuse payment of a provider's bill and do not chal- lenge it before a PRO within 90 days of receipt (90 day provision does not apply to continuing treatment or ser- vices), the injured person may ask the court to review our refusal to pay. We will not be bound by a judgment against the owner or operator of the uninsured motor vehicle or underinsured motor vehicle on issues of liability or amount of damages unless it is obtained with our written consent. OTHERS WE PROTECT 1. Any relative. 2. Anyone else, while occupying any owned auto we insure other than: a. one while hired by or rented to others for a fee, or while available for hire by the public. "Fee" does not include payment received it a car pool or for trips for non-profit social, educational or charitable agencies. b. one being used without the permission of the owner. 1 Anyone else who is entitled to recover damages because of bodily injury to any person protected by this coverage; 4. Anyone else while occupying a non-owned auto we insure other than: a, one you are using that is owned by another person residing in your household. b. one fumished or available for the regiilar use of you or anyone residing in your household, c. one being operated by anyone other than you or a relative. ?,l d. one while hired by or rented to others for a fee, or while available for hire by the public. "Fee" does not include payment received in a car pool or for trips for non-profit social, educational or charitable agencies. e. one being used without the permission of the owner. LIMITATIONS ON OUR DUTY TO PAY What We Do Not Cover - Exclusions This insurance does not apply to: 1. damages sustained by anyone we protect if he, she or a legal representative settled with anyone who may be liable for the damages, without our written consent. 2. the benefit of any workers' compensation or disa- bility benefits carver or anyone qualifying as a self- insurer under a workers' compensation, disability benefits or similar law. 3. damages sustained by anyone we protect while occu- pying or being struck by a motor vehicle owned by you or a relative, but not insured for Uninsured or Underinsured Motorists Coverage under this policy, 4. punitive or exemplary damages and related defense costs. 5. non-economic damages sustained in a motor vehicle accident by anyone we protect unless such person sustained serious in?ury, or such damages were caused by a person w to: a. was convicted of, or has accepted Accelerated } Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in the accident; or b. was operating a motor vehicle registered in another state; or c, intentionally injured himself or another person. Exclusion 5. applies only when the LIMITED TORT option is selected. 6, bodily injury sustained by anyone we protect resulting from the use of any weapon. 7. bodily injury sustained by anyone we protect resulting from assault and/or battery. 8. bodily injury sustained by anyone we protect while involved to committing a crime. LIMITS OF PROTECTION Limitations of Payment If coverage is purchased on a "Split Limits" basis, your Declarations will show a per PERSON and per ACCI- DENT limit for Uninsured and/or Underinsured Motor- ists Bodily Injury, The per PERSON limit for Bodily Injury for one auto is the most we will pay for damages anstng out of bodily injury or death to one person in any one accident. The per ACCIDENT limit for Bodily Injury for one auto is the most we will pay for damages arising out of bodily injury or death to all persons resulting from any one accident, subject to the per PERSON limit. If coverage is purchased on a "Single Limit" basis, your Declarations will show a per ACCIDENT limit for Uninsured and/or Underinsured Motorists Bodily Injury. The per ACCIDENT limit for one auto is the most we will pay for all damages arising out of bodily injury resulting from any one accident. Uninsured/Underinsured Motorists coverage does not apply to a miscellaneous vehicle unless the miscellaneous vehicle is listed on the Declarations and a premium is shown for this coverage. Uninsured/Underinsured Motorists coverage is not pro- vided for any trailer, whether or not the trailer is attached to another motor vehicle or miscellaneous vehicle. No separate limit of protection for Uninsured/Underinsured Motorists coverage is available for a trailer, whether attached or unattached to a motor vehicle or miscellaneous vehicle. No one will be entitled to receive duplicate payments for the same elements of loss. If an individual's damages derive from, arise out of, or otherwise result from bodily to another person injured in the accident or the injury death of another person killed in the accident, we will pay only for such damages within the per PERSON limit available to the person injured or killed in the accident. Stacked Coverage If Stacked Uninsured Motorists and/or Stacked Underinsured Motorists Coverage is purchased and the injured person is you or a relative, we will pay no more than the applicable sum of the Uninsured or Underinsured Motorists Coverage limits shown on the Declarations. If the injured person is other than you or a relative, we will pay no more than the applicable Uninsured or Underinsured Motorists Coverage limits shown on the Declarations for the auto involved in the accident, regardless of the number of persons we protect, autos we insure, premiums paid, claims made or autos involved in the accident. If none of the autos are involved in the accident, the highest limit of Uninsured or Underinsured Motorists Coverage applicable to any one auto will apply. Unstacked Coverage If Unstacked Uninsured Motorists and/or Unstacked Underinsured Motorists Coverage is purchased, we will pay no more than the Uninsured or Underinsured Motorists Coverage limits shown on the Declarations for the auto involved in the accident, regardless of the number of persons we protect, autos we insure, pre- miums paid, claims made or autos involved in the acci- dent. If none of the autos are involved in the accident, the highest limit of Uninsured or Underinsured Motor- ists Coverage applicable to any one auto will apply. Reductions The amount of damages paid or payable under this Uninsured or Underinsured Motorists Coverages will be reduced by: 1. the amounts paid or payable by or for those liable for bodily injury to anyone we protect. 2, the amounts paid or payable to anyone we protect under the Liability Protection of this policy. Payment under these coverages to or for anyone we protect will reduce the amount of damages they may be entitled to recover from those protected under the Liability Protection of this policy. A person who recovers damages under Uninsured Motorists Coverage cannot recover damages under Underinsured Motorists Coverage for the same accident. In any action for damages for Uninsured Motorists bene- fits or Underinsured Motorists benefits arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under First Party Benefits cov- erages shall be precluded from recovering the amount of: 1. required benefits paid or payable under First Party Benefits; and 2. medical and rehabilitation expenses which were paid or are payable under Extraordinary Medical Benefits Coverage, if purchased. OTHER INSURANCE If anyone we protect has other similar insurance that applies to the accident, we will pay our share of the loss, subject to the other terms and conditions of the policy and this endorsement. Our share will be the proportion the limit of protection of this insurance bears to the total Limit of Liability of all applicable insurance. For bodily injury to anyone we protect while occupying a motor vehicle you do not own, we will ay the amount of the loss up to the applicable limit(s) shown on the Declarations, less the amount paid or payable by other insurance. When the accident involves underinsured motor vehicles, we will not pay until all other forms of insurance under all bodily injury liability bonds and insurance policies and self-insurance plans applicable at the time of the accident have been exhausted by payment of their limits or have been resolved by settlement or by final resol- ution of the court. ARBITRATION Disagreement over the legal right to recover damages from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle or the amount of damages shall be settled by arbitration. The decision of the arbitrators will be binding on these two issues. However, the amount of damages can never exceed the Uninsured or Underinsured Motorists Coverage limits shown on the Declarations. All other disagreements shall be decided by a court of competent jurisdiction and not by arbitration. Disagree- ments to be determined by such court include, but are not limited to: 1. stacking; 2, residency; 3. statutes of limitations; 4. whether a claimant is a person we protect under this endorsement; or 5. the validity of coverage selections or waivers exe- cuted pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law. A decision shall not be binding on any issue not prop- erly the subject of arbitration. Either party may stay arbitration or execution of any, judgment or award until the final resolution of whether an issue is properly subject to arbitration. After written demand for arbitration by either arty, each party will select an arbitrator. These two will select a third. If no selection is made within 30 days, the Judge of the Court of Record in the county of your legal domicile at the time of the accident will appoint the third arbitrator. Unless the parties agree otherwise, the arbitration will take place in the county and state where you live, and will follow the local rules of procedure and evidence. Each party will pay the arbitrator he chooses and equally bear the expenses for the third and all other expenses of the arbitration. Fees to lawyers and expert witnesses are to be paid by the party hiring them. In all other respects, any arbitration will follow the arbi- tration provisions of the Arbitration Act of 1927. PAYMENT OF LOSS When multiple policies apply, payment shall be made in the following order of priority: 1. A policy covering the motor vehicle the injured person is occupying at the time of the accident. 2. A policy covering a motor vehicle not involved in the accident with respect to which the injured person is an insured. If two or more policies have equal priority, the insurer against which the claim is first made shall process and pay the claim as if wholly responsible. Thereafter, the insurer is entitled to recover a pro rata contribution from any other insurer for the benefits paid and claims costs incurred. If we are the insurer against which the claim is first made, we will not pay more than our Limit of Pro- tection. At our option, we will pay: 1. anyone we protect; or 2. the surviving spouse; or 3. the legal representative; or 4. anyone legally entitled to recover. TRUST AGREEMENT 1. When we owe payment to anyone under this cov- erage, they will: a. hold in trust for us all rights of recovery against ; the other party; 1 b. do whatever is required to secure these rights, and do nothing to harm them; and c. sign and deliver to us all relevant papers. 2. When we pay anyone under this coverage, they will. a. repay us out of any damages recovered from the legally liable party; b, take any action necessary to recover payments made under this coverage, through a lawyer chosen by us; and c, repay us from any recovery for expenses, costs or lawyers' fees we paid in the action. RIGHTS AND DUTIES - GENERAL POLICY CONDITIONS WHAT TO DO WHEN AN ACCIDENT OR LOSS HAPPENS The following duties are added, If claimants or their representatives bring action for damages, copies of suit papers must be sent to us at once. In an action against us, we may require anyone we protect to join with us to bring those we allege to be .i liable into the action as party defendants, LAWSUITS AGAINST US The entire section is changed to read: You must comply with the terms of the policy before you may sue us. OTHER PROVISIONS All other provisions of the policy apply. CERTIFICATE OF SERVICE AND NOW, this 3rd day of February, 2010, I, Janice S. Harmon, an employee of SCHMIDT KRAMER PC, do hereby certify that I have served a true and correct copy of the Plaintiffs Response to Motion for Summary Judgment of Defendant Erie Insurance Exchange in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: John Statler, Esquire Johnson Duffie 301 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043-0109 J ice S. armon REBECCA ANN NEGLEY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ERIE INSURANCE EXCHANGE, DEFENDANT 08-2177 CIVIL TERM BEFORE GUIDO, J. AND MASLAND. J ORDER OF COURT AND NOW, this .-,-2 day of February, 2010, upon consideration of defendant's motion for summary judgment, the briefs filed by the parties and after argument, the court finds as follows: In the absence of clear direction from the Pennsylvania Supreme Court on the issue of the statute of limitations in matters involving underinsured motorists, the court is persuaded by the logic of State Farm Mutual Automobile Insurance Company v. Rosenthal, 484 F.3d 251 (3d Cir. 2007), which adopted the approach followed by Pennsylvania courts in uninsured motorist cases (See Boyle v. State Farm Mut. Auto. Ins. Co., 465 A.2d 156 (Pa. Super. 1983)). Therefore, plaintiff's failure to file suit within four years of the date on which she settled her third-party liability claim requires the court to enter summary judgment in favor of defendant. By the Court, Terry S. Hyman, Esquire For Plaintiff F?John A. Statler, Esquire For Defendant ` ?/zrjty Albert H. Masi and, ?J?D rx, :sal