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HomeMy WebLinkAbout04-1242F:\FILES\DATAFILE\Doneg 3050\CLrcent\240.com C,e.t d 2/6104 1?13PM Rc,red. 3/23/04 929AM DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04- 12VA CIVILACTION-LAW 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 orby 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 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 TO HIRE 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 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 F:\FILES\DATAFILE\DonegaU050\Cw t\240. com Created'. 2/D04 11'.01 AM Re,medl 3112104 2J9PM DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04- /D4.), CIVILACTION- LAW DECLARATORY JUDGMENT ACTION COMPLAINT AND NOW, comes Plaintiff, Donegal Mutual Ins. Co., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and brings this action pursuant to the Pennsylvania Declaratory Judgment Act, and in support thereof, avers as follows: 1. Plaintiff is Donegal Mutual Ins. Co. (hereinafter, "Donegal"), and is licensed to do business as a property and casualty insurer in the Commonwealth of Pennsylvania. 2. Defendant, William D. Swank (hereinafter, "Swank"), is an adult individual residing at 4 East Willow Terrace Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 3. On or about February 23, 2002, Donegal issued to Swank a policy of automobile insurance, Policy Number PAE 057 23 45, effective February 23, 2002, through February 23, 2003. Pertinent portions of said Policy are attached hereto and marked as Exhibit "A." 4. This action is brought pursuant to the Pennsylvania Declaratory Judgment Act, 42 Pa. C.S. §7531 et seq. to determine whether there is coverage of Plaintiff's Underinsured Motorist Claim under the automobile insurance policy as described above and attached hereto as Exhibit "A." 5. The vehicle covered by the Policy is a 1987 Chevrolet S-10 Blazer, Vehicle Identification Number 1GNCT18RXH0183875, owned by Swank. 6. The said insurance policy provided for Underinsured Motorists Coverage in policy form PPD 04 17 02 96 (part of Exhibit "A") which contained the following exclusion: "A. We do not provide Underinsured Motorists Coverage for "bodily injury" sustained: 1. By you while "occupying," or when struck by, any motor vehicle you own which is not insured for this coverage under this policy." 7. On March 17, 2002, Swank was occupying a 1987 Plymouth Sundance when it collided with an alleged underinsured vehicle. 8. At the time of said collision, the 1987 Plymouth Sundance was owned by Swank. 9. At the time of the said Collision, the said 1987 Plymouth Sundance was not a "your covered auto" as defined by the policy, under Form PPD Of 510197. 10. A claim has been made to Donegal by Swank under the underinsured motorists coverage of the above stated policy, Exhibit "A." 11. Allparties necessary for the resolution of this matter and whose rights and obligations may be affected thereby, have been joined as parties to this action. 12. An actual controversy exists between the parties named herein and the Declaration sought will substantially aid in determining an appropriate resolution. WHEREFORE, Plaintiff, Donegal Mutual Ins. Co., requests this Court to enter a Declaratory Judgment regarding the parties respective rights, duties and legal relationship with respect to the insurance policy at issue, specifically: a. declaring that Swank was the owner of the vehicle he was operating at the time of the collision; b. declaring there was no underinsured motorists coverage on said vehicle; C. declaring that Swank's underinsured motorists claim is excluded from coverage under the policy as a result of his occupying an uninsured vehicle that he owned; d. declaring that Donegal, under the terms of the policy, is not obligated to compensate Swank for any underinsured motorists claims or losses suffered by him as a result of the collision; e. awarding costs of this Action to Donegal; and f. awarding such other relief as this Court may deem just and proper. Respectfully submitted, Date: MARTSON DEARDORFF WILLIAMS & OTTO By i cA-,.`c.-- uns, Esquire Thomas J. Wil1treet Ten East High Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DONEGAL eompaadee. GE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL OF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE =Q?IN'l:?Ull?ll:f ' ' I I IDI?:/:lelll6'19a11?IUIq?1h??ICI? EFFECTIVE A.M I PAE 0572345 1 02/23/0202/23/031 DONEGAL MUTUAL INS. CO. 1000425d00 %/1// /01-1717 SWANK WILLIAM D ACORDIA NORTHEAST INC 05 4 EAST WILLOW TERRACE DR 4900 RITTER RD 2ND FLOOR MECHANICSBURG PA 17055 P 0 BOX 1220 MECHANICSBURG PA 17055 DRIVER ID 01 APPLICABLE FO FORM # DATE PP0001 06/94 PAE001 12/89 PP0416 07/90 DRIVER NAM WILLIAM D RMS UNIT FORM # ALL PPDO151 ALL PP0309 001 PPD0417 DATE 01/97 04/86 02/96 LICENSE 1571157 UNIT FORM # ALL PP0305 001 PP0420 001 PP0551 NUMBER BIRTH DATE Z 10/24/52 DATE UNIT FORM # DATE UNIT 08/86 ALL IL0910 01/81 ALL 07/90 001 PPD0421 02/96 001 06/94 001 DAACP 02/92 001 01/16/02 PL-2 (9/88) ----- STATEMENT OF ACCOUNT ----- TOTAL PREMIUM $300.00 TOTAL AMOUNT RECEIVED $0.00 ACCOUNT BALANCE $300.00 pC.)•wu.y`!1 HwA..K.w?4J President PAYMENT PLAN ------- PAE0572345 01 05 TOTAL AMOUNT DUE 02/20/02...... $300.00 THANK YOU FOR LETTING US SERVE YOU DONEGAL ea„yj4 IMAGE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL QF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE ?JO?pY??tllllril:{q' ': i :D1q:?e1e1?6'1?:{?DlUla:?l0?laq EFFECTIVE 2: A.M PAE 0572345 102/23/021 02/23/031 DONEGAL MUTUAL INS. CO. SWANK WILLIAM D 4 EAST WILLOW TERRACE DR MECHANICSBURG PA 17055 ACORDIA NORTHEAST INC 4900 RITTER RD 2ND FLOOR P 0 BOX 1220 MECHANICSBURG PA BELOW YOU WILL FIND IMPORTANT INFORMATION REGARDING THESE POLICY DECLARATIONS. COVERAGE FOR RENTED AUTOS IF YOU PURCHASED COLLISION COVERAGE ON YOUR OWNED AUTO(S) UNDER THIS POLICY, COVERAGE EXTENDS TO COLLISION DAMAGE TO A PRIVATE PASSENGER AUTO THAT YOU OR A RESIDENT RELATIVE MAY RENT. THIS COVERAGE IS EXCESS OVER OTHER AVAILABLE INSURANCE AND APPLIES WHEN SUCH AUTO IS RENTED FOR 30 CONSECUTIVE DAYS OR LESS. IF YOU HAVE A COLLISION LOSS WITH THE RENTED AUTO, YOU MAY HAVE TO PAY THE LOWEST COLLISION DEDUCTIBLE AMOUNT SHOWN ON THE DECLARATIONS. BECAUSE THERE ARE MANY DIFFERENT AUTO RENTAL CONTRACTS, YOU SHOULD READ SUCH CONTRACTS CAREFULLY BEFORE REJECTING "COLLISION DAMAGE WAIVER COVERAGE" OFFERED BYAN AUTO RENTALAGENCY. (SEE YOUR POLICY FOR COVERAGE DETAILS.) PL-2 (9/88) CONTINUED ON REVERSE SIDE 000425 17055 041?IV...U-4- President 05 REFER TO FINAL PAGE FOR BILLING NOTICE Casy,a,DONEGAL ,Z GE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL OF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE 1 Kggq:/:?K?b?9:i?19U1q?11P?!'? olI1N7:11A0tl:{ : mu, -0 EFFECTIVE 12: 1 A.M PAE 0572345 1 02/23/0202/23/031 DONEGAL MUTUAL INS. CO. 10004255100 t/1// /01-1717 SWANK WILLIAM D ACORDIA NORTHEAST INC 05 4 EAST WILLOW TERRACE DR 4900 RITTER RD 2ND FLOOR MECHANICSBURG PA 17055 P O BOX 1220 MECHANICSBURG PA 17055 VEHICLES COVERED UNIT ST TER YR MAKE MODEL SERIAL NUMBER SYM CLASS MAX LT CHG DATE 001 PA 027 87 CHEVROLET S10 BLAZE 1GNCT18RXH0183875 11 885110 02/23/02 INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE ')VERAGE LIMITS OF LIABILITY PREMIUMS UNIT 1 FULL TORT OPTION APPLIES TO THIS POLICY YES SPLIT LIABILITY LIMITS PP0309 0486 BODILY INJURY LIABILITY $100,000 EACH PERSON $300,000 EACH ACCIDENT 104.00 PROPERTY DAMAGE LIABILITY $100,000 EACH ACCIDENT 60.00 UNINSURED MOTORIST BODILY INJURY PER PERSON $100,000 PER ACCIDENT $300,000 (NO STACKING OF COVERAGE) 52.00 UNDERINSURED MOTORIST BODILY INJURY PER PERSON $100,000 PER ACCIDENT $300,000 (NO STACKING OF COVERAGE) 12.00 MEDICAL EXPENSE COVERAGE $10,000 44.00 WORK LOSS COVERAGE $1,000 MONTH/$5,000 TOTAL 20.00 FUNERAL EXPENSE COVERAGE $2,500 8.00 PL-2 (9/88) Q ny.(? /? In,,A+M(.auaJ President 01/16/02 CONTINUED ON REVERSE SIDE REFER TO FINAL PAGE FOR BILLING NOTICE DONEGAL 6040 GE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL OF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE ?i111N'???UIPil:1q: •: ?PIq:Ie1q?1.y9:I?PlUId:?IP?1a? EFFECTIVE :01 A.M PAE 0572345 02/23/021 02/23/03 DONEGAL MUTUAL INS. CO. 10004255100 \/1// 101-1717 SWANK WILLIAM D ACORDIA NORTHEAST INC 05 4 EAST WILLOW TERRACE DR 4900 RITTER RD 2ND FLOOR MECHANICSBURG PA 17055 P 0 BOX 1220 MECHANICSBURG PA 17055 INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE COVERAGE LIMITS OF LIABILITY PREMIUMS UNIT 1 TOTAL BY UNIT 300.00 TOTAL TERM PREMIUM $300.00 A $24.00 ACCOUNT CREDIT HAS BEEN DEDUCTED IN DETERMINING YOUR TOTAL PREMIUM PL-2 (9/88) 0?1 President 01/16/02 CONTINUED ON NEXT PAGE REFER TO FINAL PAGE FOR BILLING NOTICE PERSONAL AUTO POLICY AGREEMENT In return for payment of the premium and subject to all the terms of this policy, we agree with you as follows: DEFINITIONS A. Throughoutthis policy, "you" and "your" referto: 1. The "named insured" shown in the Declarations; and b. A pickup or van that: (1) Has a Gross Vehicle Weight of less than 10,000 lbs.; and 2. The spouse if a resident of the same household. B. "We," "us" and "our" refer to the Company providing this insurance. C. For purposes of this policy, a private passenger type auto shall be deemed to be owned by a person if leased: 1. Under a written agreement to that person; and 2. For a continuous period of at least 6 months. Other words and phrases are defined. They are in quotation marks when used. D. "Bodily injury" means bodily harm, sickness or disease, including death that results. E. "Business" includes trade, profession or occupation. F. "Family member" means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child. G. "Occupying" means in, upon, getting in, on, out or off. H. "Property damage" means physical injury to, destruction of or loss of use of tangible property. "Trailer" means a vehicle designed to be pulled by a: 1. Private passenger auto; or 2. Pickup or van. It also means a farm wagon or farm implement while towed by a vehicle listed in 1. or 2. above. J. "Your covered auto" means: 1. Any vehicle shown in the Declarations. (2) Is not used for the delivery or transportation of goods and materials unless such use is: (a) Incidental to your "business" of installing, maintaining or re- pairing furnishings or equip- ment; or (b) For farming or ranching. This provision (J.2.) applies only if: a. You acquire the vehicle during the policy period; b. You ask us to insure it within 30 days after you become the owner; and c. With respect to a pickup or van, no other insurance policy provides coverage for that vehicle. If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insure a replacement vehicle within 30 days only if you wish to add or continue Coverage for Damage to Your Auto. If the vehicle you acquire is in addition to any shown in the Declarations, it will have the broadest coverage we now provide for any vehicle shown in the Declarations. 3. Any "trailer" you own. 4. Any auto or "trailer" you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its: 2. Any of the following types of vehicles on the a. Breakdown; d. Loss; or date you become the owner: b. Repair; e. Destruction. c. Servicing; a. A private passenger auto; or This provision (J.4.) does not apply to Coverage for Damage to Your Auto. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 1 of 13 PART A - LIABILITY COVERAGE INSURING AGREEMENT 5. Other reasonable expenses incurred at our request. A. We will pay damages for "bodily injury" or "property damage" for which any "insured" becomes legally EXCLUSIONS responsible because of an auto accident. Damages include prejudgment interest awarded against the A. We do not provide Liability Coverage for any "insured." We will settle or defend, as we consider "insured": appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay 1. Who intentionally causes "bodily injury" or " " all defense costs we incur. Our duty to settle or property damage. defend ends when our limit of liability for this 2. For "property damage" to property owned or coverage has been exhausted. We have no duty to being transported by that "insured." defend any suit or settle any claim for "bodily injury" or "property damage" not covered under this policy. 3. For "property damage" to property: B. "Insured" as used in this Part means: a. Rented to; 1. You or any "family member" for the ownership, b. Used by; or maintenance or use of any auto or "trailer." c. In the care of; 2. Any person using "your covered auto." that "insured." 3. For "your covered auto," any person or organization but only with respect to legal This exclusion (A.3.) does not apply to responsibility for acts or omissions of a person "property damage" to a residence or private for whom coverage is afforded under this Part. garage. 4. For any auto or "trailer," other than "your covered auto," any other person or organization but only with respect to legal responsibility for acts or omissions of you or any "family member" for whom coverage is afforded under this Part. This provision (B.4.) applies only if the person or organization does not own or hire the auto or "trailer." SUPPLEMENTARYPAYMENTS In addition to our limit of liability, we will pay on behalf of an "insured": 1. Up to $250 for the cost of bail bonds required because of an accident, incioding related traffic law violations. The accident must result in "bodily injury" or "property damage" covered under this policy. 4. For "bodily injury" to an employee of that "insured" during the course of employment. This exclusion (A.4.) does not apply to "bodily injury" to a domestic employee unless workers' compensation benefits are required or available for that domestic employee. 5. For that "insured's" liability arising out of the ownership or operation of a vehicle while it is being used as a public or livery conveyance. This exclusion (A.5.) does not apply to a share-the-expense car pool, 6. While employed or otherwise engaged in the "business" of: a. Selling; d. Storing; or b. Repairing; e. Parking; c. Servicing; 2. Premiums on appeal bonds and bonds to release attachments in any suit we defend. 3. Interest accruing after a judgment is entered in any suit we defend. Our duty to pay interest ends when we offer to pay that part of the judgment which does not exceed our limit of liability for this coverage. vehicles designed for use mainly on public highways. This includes road testing and delivery. This exclusion (A.6.) does not apply to the ownership, maintenance or use of "your covered auto" by: a. You; b. Any "family member"; or 4. Up to $50 a day for loss of earnings, but not other c. Any partner, agent or employee of you or income, because of attendance at hearings or trials at our request. any "family member." PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 2 of 13 7. Maintaining or using any vehicle while that "insured" is employed or otherwise engaged in any "business" (other than farming or ranching) not described in exclusion A.6. This exclusion (A.7.) does not apply to the maintenance or use of a: a. Private passenger auto; b. Pickup or van that: (1) You own; or (2) You do not own while used as a temporary substitute for "your covered auto" which is out of normal use because of its: (a) Breakdown; (b) Repair; (c) Servicing; (d) Loss; or (e) Destruction; or c. "Trailer" used with a vehicle described in a. or b. above. 8. Using a vehicle without a reasonable belief that that "insured" is entitled to do so. 9. For "bodily injury" or "property damage" for which that "insured": a. Is an insured under a nuclear energy liability policy; or b. Would be an insured under a nuclear energy liability policy but for its termination upon exhaustion of its limit of liability. A nuclear energy liability policy is a policy issued by any of the following or their successors: a. American Nuclear Insurers; b. Mutual Atomic Energy Liability Underwrit- ers; or c. Nuclear Insurance Association of Ca- nada. B. We do not provide Liability Coverage for the ownership, maintenance or use of: 1. Any vehicle which: a. Has fewer than four wheels; or b. Is designed mainly for use off public roads. This exclusion (B.1.) does not apply: a. While such vehicle is being used by an "insured" in a med- ical emergency; or b. To any "trailer." 2. Any vehicle, other than "your covered auto," which is: a. Owned by you; or b. Furnished or available for your regular use. 3. Any vehicle, other than "your covered auto," which is: a. Owned by any "family member"; or b. Furnished or available for the regular use of any "family member." However, this exclusion (B.3.) does notapply to you while you are maintaining or "occupying" any vehicle which is: a. Owned by a "family member"; or b. Furnished or available for the regular use of a "family member." 4. Any vehicle, located inside a facility designed for racing, forthe purpose of: a. Competing in; or b. Practicing or preparing for; any prearranged or organized racing or speed contest. LIMIT OF LIABILITY A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one auto accident. This is the most we will pay regardless of the number of: 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the auto accident. B. We will apply the limit of liability to provide any separate limits required by law for bodily injury and property damage liability. However, this provision (B.) will not change our total limit of liability. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 3 of 13 C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and: 1. Part B or Part C of this policy; or 2. Any Underinsured Motorists Coverage provided by this policy. OUT OF STATE COVERAGE If an auto accident to which this policy applies occurs in any state or province other than the one in which "your covered auto" is principally garaged, we will interpret your policy for that accident as follows: A. If the state or province has: 1. A financial responsibility or similar law specifying limits of liability for "bodily injury" or "property damage" higher than the limit shown in the Declarations, your policy will provide the higher specified limit. 2. Acompulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or prov- ince, your policy will provide at least the required minimum amounts and types of coverage. B. No one will be entitled to duplicate payments for the same elements of loss. FINANCIAL RESPONSIBILITY When this policy is certified as future proof of financial responsibility, this policy shall comply with the law to the extent required. OTHER INSURANCE If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance. PART B - MEDICAL PAYMENTS COVERAGE INSURING AGREEMENT 2. Sustained while "occupying" "your covered auto" when it is being used as a public or livery A. We will pay reasonable expenses incurred for conveyance. This exclusion (2.) does not apply necessary medical and funeral services because of to a share-the-expense car pool. "bodily injury": Caused by accident; and 3. Sustained while 'occupying' any vehicle located for use as a residence or premises. 2. Sustained by an "insured." We will pay only those expenses incurred for services rendered within 3 years from the date of the accident. B. "Insured" as used in this Part means: You or any "family member": a. While "occupying"; or b. As a pedestrian when struck by; a motor vehicle designed for use mainly on public roads or a trailer of any type. 2. Any other person while "occupying" "your covered auto." 4. Occurring during the course of employment if workers' compensation benefits are required or available for the "bodily injury." 5. Sustained while "occupying," or when struck by, any vehicle (other than "your covered auto") which is: a. Owned by you; or b. Furnished or available for your regular use. 6. Sustained while "occupying," or when struck by, any vehicle (other than "your covered auto") which is: a. Owned by any "family member"; or EXCLUSIONS b. Furnished or available for the regular use We do not provide Medical Payments Coverage for any of any "family member." "insured" for "bodily injury": However, this exclusion (6.) does not apply to 1. Sustained while "occupying" any motorized you. vehicle having fewer than four wheels. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 4 of 13 7. Sustained while "occupying" a vehicle without a. Competing in; or a reasonable belief that that "insured" is entitled to do so. b. Practicing or preparing for; 8. Sustained while "occupying" a vehicle when it any prearranged or organized racing is being used in the "business" of an "insured." or speed contest. This exclusion (8.) does not apply to "bodily LIMIT OF LIABILITY injury" sustained while "occupying" a: a. Private passenger auto; A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for each b. Pickup or van that you own; or person injured in any one accident. This is the most we will pay regardless of the number of: c. "Trailer" used with a vehicle described in a. orb. above. 1. "Insureds"; 9. Caused by or as a consequence of: 2. Claims made; a. Discharge of a nuclear weapon (even if 3. Vehicles or premiums shown in the accidental); Declarations; or b. War (declared or undeclared); 4. Vehicles involved in the accident. c. Civil war; B. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage d. Insurrection; or and: S. Rebellion or revolution. 1. Part A or Part C of this policy; or 10. From or as a consequence of the following, 2. Any Underinsured Motorists Coverage whether controlled or uncontrolled or however provided by this policy. caused: OTHERINSURANCE a. Nuclear reaction; b. Radiation; or c. Radioactive contamination. 11. Sustained while "occupying" any vehicle located inside a facility designed for racing, for the purpose of: If there is other applicable auto medical payments insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible auto insurance providing payments for medical or funeral expenses. PART C - UNINSURED MOTORISTS COVERAGE INSURING AGREEMENT A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury": 1. Sustained by an "insured"; and 2. Caused by an accident. B. "Insured" as used in this Part means: 1. You or any "family member." 2. Any other person "occupying" "your covered auto." 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1, or 2. above. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle." C. "Uninsured motor vehicle" means a land motor vehicle or trailer of any type: Any judgment for damages arising out of a suit 1. To which no bodily injury liability bond or policy brought without our written consent is not binding on applies at the time of the accident. US. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 5 of 13 2. To which a bodily injury liability bond or policy applies at the time of the accident. In this lase its limit for bodily injury liability must be less than the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which "your covered auto" is principally garaged. 3. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits: a. You or any "family member"; b. A vehicle which you or any "family member" are "occupying"; or c. "Your covered auto." 4. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company: a. Denies coverage; or b. Is or becomes insolvent. However, "uninsured motor vehicle" does not include any vehicle or equipment: 1. Owned by or furnished or available for the regular use of you or any "family member." 2. Owned or operated by a self-insurer under any applicable motor vehicle law, except a self-insurer which is or becomes insolvent. 3. Owned by any governmental unit or agency. 4. Operated on rails or crawler treads. 5. Designed mainly for use off public roads while not on public roads. 6. While located for use as a residence or premises. EXCLUSIONS A. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained: 1. By an "insured" while "occupying," or when struck by, any motor vehicle owned by that "insured" which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. 2. By any "family member" while "occupying," or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy. 1. If that "insured" or the legal repre- sentative settles the "bodily injury" claim without our consent. 2. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.2.) does not apply to a share-the- expense car pool. 3. Using a vehicle without a reasonable belief that that "insured" is entitled to do so. C. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. D. We do not provide Uninsured Motorists Coverage for punitive or exemplary damages. LIMIT OF LIABILITY A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the accident. B. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and: 1. Part A or Part B of this policy; or 2. Any Underinsured Motorists Coverage provided by this policy. C. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible. D. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. B. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained by any "insured": PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 6 of 13 OTHERINSURANCE If there is other applicable insurance available under one or more policies or provisions of coverage: Any recovery for damages under all such policies or provisions of coverage may equal but not exceed the highest applicable limit for any one vehicle under any insurance providing coverage on either a primary or excess basis. 2. Any insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing coverage on a primary basis. 3. If the coverage under this policy is provided: a. On a primary basis, we will pay only our share of the loss that must be paid under insurance providing coverage on a primary basis. Our share is the proportion that our limit of liability bears to the total of all applicable limits of liability for coverage provided on a primary basis. b. On an excess basis, we will pay only our share of the loss that must be paid under insurance providing coverage on an excess basis. Our share is the proportion that our limit of liability bears to the total of all applicable limits of liability for coverage provided on an excess basis. ARBITRATION A. If we and an "insured" do not agree: Whether that "insured" is legally entitled to recover damages; or 2. As to the amount of damages which are recoverable bythat"insured"; from the owner or operator of an "unin- sured motor vehicle," then the matter may be arbitrated. However, disputes concern- ing coverage under this Part may not be ar- bitrated. Both parties must agree to arbitration. If so agreed, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. B. Each party will: 1. Pay the expenses it incurs; and 2. Bear the expenses of the third arbitrator equally. C. Unless both parties agree otherwise, arbitration will take place in the county in which the "insured" lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to: 1. Whether the "insured" is legally entitled to recover damages; and 2. The amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which "your covered auto" is principally garaged. If the amount exceeds that limit, either party may de- mand the right to a trial. This demand must be made within 60 days of the arbitrators' decision. If this demand is not made, the amount of dam- ages agreed to by the arbitrators will be binding. PART D - COVERAGE FOR DAMAGE TO YOUR AUTO INSURING AGREEMENT If there is a loss to a "non-owned auto," we will provide the broadest coverage applicable to any A. We will pay for direct and accidental loss to "your '.your covered auto" shown in the Declarations. covered auto" or any "non-owned auto," including their equipment, minus any applicable deductible B. "Collision" means the upset of "your covered auto" shown in the Declarations. If loss to more than one or a "non-owned auto" or their impact with another "your covered auto" or "non-owned auto" results vehicle or object. from the same "collision," only the highest applicable deductible will apply. We will pay for loss to "your Loss caused by the following is considered other than covered auto" caused by: "collision": 1. Other than "collision" only if the Declarations 1. Missiles or S. Hail, water or indicate that Other Than Collision Coverage is falling objects; flood; provided for that auto. 2. Fire; 7. Malicious mischief 3. Theft or larceny; or vandalism; 2. "Collision" only if the Declarations indicate that 4. Explosion or 8. Riot or civil Collision Coverage is provided for that auto. earthquake; commotion; 5. Windstorm; PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 7 of 13 9. Contact with bird 10. Breakage of glass or animal; or If breakage of glass is caused by a "collision," you may elect to have it considered a loss caused by "collision." C. "Non-owned auto" means: 1. Any private passenger auto, pickup, van or "trailer" not owned by or furnished or available for the regular use of you or any "family member" while in the custody of or being operated by you or any "family member"; or 2. Any auto or "trailer" you do not own while used as a temporary substitute for "your covered auto" which is out of normal use because of its: a. Breakdown; b. Repair; c. Servicing; TRANSPORTATION EXPENSES 2. Ending when "your covered auto" or the "non-owned auto" is returned to use or we pay for its loss. If the loss is caused by other than theft of a "your covered auto" or a "non-owned auto," we will pay only expenses beginning when the auto is withdrawn from use for more than 24 hours. Our payment will be limited to that period of time reasonably required to repair or replace the "your covered auto" or the "non-owned auto." EXCLUSIONS We will not pay for: 1. Loss to "your covered auto" or any d. Loss; or "non-owned auto" which occurs while it is e. Destruction. being used as a public or livery conveyance. This exclusion (1.) does not apply to a share-the-expense car pool. In addition, we will pay, without application of a deductible, up to $15 per day, to a maximum of $450, for: 1. Temporary transportation expenses incurred by you in the event of a loss to "your covered auto." We will pay for such expenses if the loss is caused by: a. Other than "collision" only if the Declarations indicate that Other Than Collision Coverage is provided for that auto. b. "Collision" only if the Declarations indicate that Collision Coverage is provided for that auto. 2. Loss of use expenses for which you become legally responsible in the event of loss to a "non-owned auto." We will pay for loss of use expenses if the loss is caused by: a. Other than "collision" only if the Declarations indicate that Other Than Collision Coverage is provided for any "your covered auto." b. "Collision" only if the Declarations indicate that Collision Coverage is provided for any "your covered auto." If the loss is caused by a total theft of "your covered auto" or a "non-owned auto," we will pay only expenses incurred during the period: 2. Damage due and confined to: a. Wear and tear; b. Freezing; c. Mechanical or electrical breakdown or failure; or d. Road damage to tires. This exclusion (2.) does not apply if the damage results from the total theft of "your covered auto" or any "non-owned auto." 3. Loss due to or as a consequence of: a. Radioactive contamination; b. Discharge of any nuclear weapon (even if accidental); c. War (declared or undeclared); d. Civil war; e. Insurrection; or f. Rebellion or revolution. 4. Lossto: a. Any electronic equipment designed for the reproduction of sound, including, but not limited to: (1) Radios and stereos; 1. Beginning 48 hours after the theft; and (2) Tape decks; or (3) Compact disc players; PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 8 of 13 b. Any other electronic equipment that receives or transmits audio, visual or data signals, including, but not limited to: (1) Citizens band radios; (2) Telephones; (3) Two-way mobile radios; (4) Scanning monitor receivers; (5) Television monitor receivers; (6) Video cassette recorders; M Audio cassette recorders; or (8) Personal computers; c. Tapes, records, discs, or other media used with equipment described in a. orb.; or d. Any other accessories used with equipment described in a. or b. This exclusion (4.) does not apply to: a. Equipment designed solely for the reproduction of sound and accessories used with such equipment, provided: (1) The equipment is permanently installed in "your covered auto" or any "non-owned auto"; or (2) The equipment is: (a) Removable from a housing unit which is permanently installed in the auto; (b) Designed to be solely operated by use of the power from the auto's electrical system; and normally used by the man- ufacturer for installation of a radio. 5. A total loss to "your covered auto" or any "non-owned auto" due to de- struction or confiscation by govern- mental or civil authorities. This exclusion (5.) does not apply to the inter- ests of Loss Payees in "your covered auto." 6. Loss to a camper body or "trailer" you own which is not shown in the Declarations. This exclusion (6.) does not apply to a camper body or "trailer" you: a. Acquire during the policy period; and b. Ask us to insure within 30 days after you become the owner. 7. Loss to any "non-owned auto" when used by you or any "family member" without a reasonable belief that you or that "family member" are entitled to do so. 8. Loss to: a. Awnings or cabanas; or b. Equipment designed to create additional living facilities. 9. Loss to equipment designed or used for the detection or location of radar or laser. 10. Loss to any custom furnishings or equipment in or upon any pickup or van. Custom furnishings or equipment include but are not limited to: a. Special carpeting and insulation, furniture or bars; b. Facilities for cooking and sleeping; c. Height-extending roofs; or (c) In or upon "your covered auto" ' " d. Custom murals, paintings or other decals or any non-owned auto ; or graphics. at the time of the loss. 11. Loss to any "non-owned auto" being main- b. Any other electronic equipment that is: tained or used by any person while employed or otherwise engaged in the "business" of: (1) Necessary for the normal operation of the auto or the monitoring of the a. Selling; d. Storing; or auto's operating systems; or b. Repairing; e. Parking; c. Servicing; (2) An integral part of the same unit housing any sound reproducing vehicles designed for use on public highways. equipment described in a. and per- This includes road testing and delivery. manently installed in the opening of " 12. Loss to any "non-owned auto" being main- the dash or console of your cov- " " " tained or used by any person while employed or any non-owned auto ered auto PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 9 of 13 or otherwise engaged in any "business" not described in exclusion 11. This exclusion'(12.) does not apply to the maintenance or use by you or any "family member" of a "non-owned auto" which is a private passenger auto or "trailer." 13. Loss to "your covered auto" or any "non-owned auto," located inside a facility designed for racing, for the purpose of: a. Competing in; or b. Practicing or preparing for; any prearranged or organized racing or speed contest. 14. Loss to, or loss of use of, a "non-owned auto" rented by: a. You; or b. Any "family member"; if a rental vehicle company is precluded from recovering such loss or loss of use, from you or that "family member," pursuant to the provisions of any applicable rental agreement or state law. LIMIT OF LIABILITY A. Our limit of liability for loss will be the lesser of the: 1. Actual cash value of the stolen or damaged property; 2. Amount necessary to repair or replace the property with other property of like kind and quality. However, the most we will pay for loss to any "non-owned auto" which is a trailer is $500. B. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total loss. C. If a repair or replacement results in better than like kind or quality, we will not pay for the amount of the betterment. damaged or stolen property. We may, at our ex- pense, return any stolen property to: 1. You; or 2. The address shown in this policy. If we return stolen property we will pay for any damage resulting from the theft. We may keep all or part of the property at an agreed or appraised value. If we pay for loss in money, our payment will include the applicable sales tax for the damaged or stolen property. NO BENEFIT TO BAILEE This insurance shall not directly or indirectly benefit any carrier or other bailee for hire. OTHER SOURCES OF RECOVERY If other sources of recovery also cover the loss, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a "non-owned auto" shall 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 auto"; 2. Any other applicable physical damage insurance; 3. Any other source of recovery applicable to the loss. APPRAISAL A. If we and you do not agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will select a competent appraiser. The two appraisers will select an umpire. The appraisers will state separately the actual cash value and the amount of foss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will: 1. Pay its chosen appraiser; and 2. Bear the expenses of the appraisal and umpire equally. PAYMENT OF LOSS B. We do not waive any of our rights under this policy by We may pay for loss in money or repair or replace the agreeing to an appraisal. PART E - DUTIES AFTER AN ACCIDENT OR LOSS We have no duty to provide coverage under this policy A. We must be notified promptly of how, when and unless there has been full compliance with the following where the accident or loss happened. Notice should duties: also include the names and addresses of any injured persons and of any witnesses. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 10 of 13 B. A person seeking any coverage must: C. A person seeking Uninsured Motorists Coverage must also: 1. Cooperate with us in the investigation, settlement or defense of any claim or suit. 1. Promptly notify the police if a hit-and- run driver is involved. 2. Promptly send us copies of any notices or legal papers received in connection with the accident 2. Promptly send us copies of the legal or loss, papers if a suit is brought. 3. Submit, as often as we reasonably require: D. A person seeking Coverage for Damage to Your Auto must also: a. To physical exams by physicians we select. We will pay for these exams. 1. Take reasonable steps after loss to protect "your covered auto" or any "non-owned auto" b. To examination under oath and subscribe and their equipment from further loss. We will the same. pay reasonable expenses incurred to do this. 4. Authorize us to obtain: 2. Promptly notify the police if "your covered a. Medical reports; and auto" or any "non-owned auto" is stolen. b. Other pertinent records. 3. Permit us to inspect and appraise the damaged property before its repair or disposal. 5. Submit a proof of loss when required by us. PART F - GENERAL PROVISIONS BANKRUPTCY implemented with a general program revision that includes both broadenings and restrictions in Bankruptcy or insolvency of the "insured" shall not relieve coverage, whether that general program revision is us of any obligations under this policy. implemented through introduction of: CHANGES A. This policy contains all the agreements between you and us. Its terms may not be changed or waived except by endorsement issued by us. 1. A subsequent edition of your policy; or 2. An Amendatory Endorsement. FRAUD B. If there is a change to the information used to develop the policy premium, we may adjust your premium. Changes during the policy term that may result in a premium increase or decrease include, but are not limited to, changes in: 1. The number, type or use classification of insured vehicles; 2. Operators using insured vehicles; 3. The place of principal garaging of insured vehicles; 4. Coverage, deductible or limits. We do not provide coverage for any "insured" who has made fraudulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under this policy. LEGAL ACTION AGAINST US A. No legal action may be brought against us until there has been full compliance with all the terms of this policy. In addition, under Part A, no legal action may be brought against us until: 1. We agree in writing that the "insured" has an obligation to pay; or 2. The amount of that obligation has been finally If a change resulting from A. or B. requires a premium determined by judgment after trial. adjustment, we will make the premium adjustment in accordance with our manual rules. B. No person or organization has any right under this C. If we make a change which broadens coverage under policy to bring us into any action to determine the 9a 9a liability of an "insured." this edition of your policy without additional premium charge, that change will automatically apply to your OUR RIGHT TO RECOVER PAYMENT policy as of the date we implement the change in your state. This paragraph (C.) does not apply to changes A. If we make a payment under this policy and the person to or for whom payment was made has a right PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 11 of 13 to recover damages from another we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them. However, our rights in this paragraph (A.) do not apply under Part D, against any person using "your covered auto" with a reasonable belief that that person is entitled to do so. B. If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. Reimburse us to the extent of our payment. POLICY PERIOD AND TERRITORY A. This policy applies only to accidents and losses which occur: 1. During the policy period as shown in the Declarations; and 2. Within the policy territory. B. The policy territory is: 1. The United States of America, its territories or possessions; 2. Puerto Rico; or 3. Canada. This policy also applies to loss to, or accidents involving, "your covered auto" while being transported between their ports. TERMINATION A. Cancellation. This policy may be cancelled during the policy period as follows: 1. The named insured shown in the Declarations may cancel by: a. Returning this policy to us; or b. Giving us advance written notice of the date cancellation is to take effect. 2. We may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy; a. At least 10 days notice: (1) If cancellation is for non- payment of premium; or (2) If notice is mailed during the first 60 days this policy is in effect and this is not a renewal or continuation policy; or b. At least 20 days notice in all other cases. 3. After this policy is in effect for 60 days, or if this is a renewal or continuation policy, we will cancel only: a. For nonpayment of premium; or b. If your driver's license or that of: (1) Any driver who lives with you; or (2) Any driver who customarily uses "your covered auto"; has been suspended or revoked. This must have occurred: (1) During the policy period; or (2) Since the last anniversary of the original effective date if the policy period is other than 1 year; or c. If the policy was obtained through material misrepresentation. B. Nonrenewal. If we decide not to renew or continue this policy, we will mail notice to the named insured shown in the Declarations at the address shown in this policy. Notice will be mailed at least 20 days before the end of the policy period. If the policy period is: 1. Less than 6 months, we will have the right not to renew or continue this policy every 6 months, beginning 6 months after its original effective date. 2. 1 year or longer, we will have the right not to renew or continue this policy at each anniversary of its original effective date. C. Automatic Termination. If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer. If you obtain other insurance on "your covered auto," any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 12 of 13 D. Other Termination Provisions. We may deliver any notice instead of mailing it. Proof of mailing of any notice shall be sufficient proof of notice. 2. If this policy is cancelled, you may be entitled to a premium refund. If so, we will send you the refund. The premium refund, if any, will be computed according to our manuals. However, making or offering to make the refund is not a condition of cancellation. 3. The effective date of cancellation stated in the notice shall become the end of the policy period. TRANSFER OF YOUR INTEREST IN THIS POLICY A. Your rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for: The surviving spouse if resident in the same household at the time of death. Coverage applies to the spouse as if a named insured shown in the Decla- rations; and 2. The legal representative of the de- ceased person as if a named insured shown in the Declarations. This applies only with respect to the representative's legal responsibility to maintain or use "your covered auto." B. Coverage will only be provided until the end of the policy period. TWO OR MORE AUTO POLICIES If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under any one policy. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 13 of 13 PPD 01 5101 97 AMENDMENT OF POLICY PROVISIONS - PENNSYLVANIA DEFINITIONS This provision (4.) does not ap- ply to Coverage For Damage To The Definitions section is amended as follows: Your Auto. A. Definition J. is replaced by the following: B. The following is added to the Definitions "Your covered auto" means: section: 1. Any vehicle shown in the Declarations. K. "Non-economic loss" means pain and suffering and other non-monetary detri- 2. Any of the following types of vehicles on ment. the date you become the owner: L. "Serious injury" means an injury resulting a. A private passenger auto; or in death, serious impairment of body function or permanent serious disfigure- b. A pickup or van that: ment. (t) Has a Gross Vehicle Weight II. PART A- LIABILITY COVERAGE not exceeding 9,0001bs.; and Part A is amended as follows: (ll) Is not principally used in any "business" other than farming A. Paragraph A. of the Insuring Agreement is or ranching. replaced by the following: This provision (2.) applies only if: INSURING AGREEMENT a. You acquire the vehicle during the We will pay damages for "bodily injury" or policy period; "property damage" for which any "in- sured" becomes legally responsible be- b. You ask us to insure it within 30 days cause of an auto accident. We will settle after you become the owner; and or defend, as we consider appropriate, any claim or suit asking for these dam- c. With respect to a pickup or van, no ages. In addition to our limit of liability, we other insurance policy provides will pay all defense costs we incur. Our coverage for that vehicle. duty to settle or defend ends when our If the vehicle you acquire replaces one limit of liability for this coverage has been shown in the Declarations, it will have the exhausted. We have no duty to defend same coverage as the vehicle it replaced. any suit or settle any claim for "bodily in- " " " You must ask us to insure a replacement jury or property damage not covered vehicle within 30 days only if you wish to under this policy. add or continue Coverage For Damage To B. Paragraph B.2, of the Insuring Agreement is Your Auto. replaced by the following: If the vehicle you acquire is in addition to B.2. An person using "your covered any shown in the Declarations, it will have auto" with your permission. s ion. the broadest coverage we now provide for any vehicle shown in the Declarations. C. The following is added to the Supplementary Payments Provision: 3. Any" trailer" you own. SUPPLEMENTARY PAYMENTS 4. Any auto or "trailer" you do not own while used as a temporary substitute for any In addition to our limit of liability we will pay other vehicle described in this definition on behalf of an "insured": which is out of normal use because of its: Prejudgment interest awarded against the a. Breakdown; d. Loss; or "insured" on the part of the judgment we b. Repair; e. Destruction. pay. Any prejudgment interest awarded c. Servicing; against the insured is subject to the appli- cable Pennsylvania Rules of Civil Proce- dure. PPD 01 51 01 97 Contains copyrighted material of Insurance Services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 1 of 4 III. PART E - DUTIES AFTER AN ACCIDENT OR LOSS Part E is replaced by the following: DUTIES AFTER AN ACCIDENT OR LOSS If an accident or loss occurs, the following must be done for the terms of the policy to apply: A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. B. A person seeking any coverage must: 1. Cooperate with us in the investigation, settlement or defense of any claim or suit. 2. Promptly send us copies of any notices or legal papers received in connection with the accident or loss. 3. Submit, as often as we reasonably re- quire: a. To physical exams by physicians we select. We will pay for these exams. b. To examination under oath and sub- scribe the same. 3. Permit us to inspect and ap- praise the damaged property before its repair or disposal. IV. PART F- GENERAL PROVISIONS Part F is amended as follows: A. The Termination provision is replaced by the following: TERMINATION Cancellation. This policy may be cancelled during the policy period as follows: 1. The named insured shown on the Decla- rations may cancel by: a. Returning this policy to us; or b. Giving us advance written notice of the date cancellation is to take ef- fect. 2. We may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy: a. At least 15 days notice of cancellation: (1) If notice is effective within the 4. Authorize us to obtain: first 60 days this policy is in ef- fect and this is not a renewal or a. Medical reports; and continuation policy; b. Other pertinent records. (2) For nonpayment of premium; 5. Submit a proof of loss when required by (3) If the driver's license of the US. named insured shown in the C. A person seeking Uninsured Motorists Cover- Declara ti ons has been sus- age must also: pended or revoked after the effective date if this policy has 1. Promptly notify the police if a hit-and-run been in effect less than one driver is involved. year; or if the policy has been in effect longer than one year, 2. Promptly send us copies of the legal pa- since the last anniversary of pers if a suit is brought. the original effective date; or D. A person seeking Coverage For Damage To b. At least 60 days notice if the policy Your Auto must also: was obtained through material mis- representation. 1. Take reasonable steps after loss to pro- tect "your covered auto" or any "non- Our right to cancel this policy is subject to the owned auto" and their equipment from limitations contained in the applicable further loss. We will pay reasonable ex- Pennsylvania Statutes. penses incurred to do this. Nonrenewal. If we decide not to renew or 2. Promptly notify the police if "your covered continue this policy, we will mail to the named auto" or any "non-owned auto" is stolen. insured shown in the Declarations at the address shown in this policy: PPD 01 51 01 97 Contains copyrighted material of Insurance Services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 2 of 4 I. At least 15 days notice before the end of event a court, from which there is no the policy period: appeal, declares or enters ajudgment the effect of which is to render the a. For nonpayment of premium; or provisions of such statute invalid or b. If the driver's license of the named unenforceable in whole or in part, we insured shown in the Declarations will have the right to recompute the has been suspended or revoked premium payable for the policy and void or after the effective date if this policy amend the provisions of the policy, subject to has been in effect less than one the approval of the Insurance Commissioner. year; or if the policy has been in V. JOINT OWNERSHIP COVERAGE ENDORSE- effect longer than one year, since MENT the last anniversary of the orginial effective date. If the Joint Ownership Coverage Endorsement is attached to this policy, the provisions of the Joint 2. At least 60 days notice before the and of Ownership Coverage Endorsement apply except as the policy period in all other cases. follows: However, our right to nonrenew this policy is Paragraphs A. and B.2.b. of the Definitions section subject to the limitations contained in the are replaced by the following: applicable Pennsylvania Statutes. Automatic Termination. If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer. If you obtain other insurance on "your covered auto," any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance. Other Termination Provisions. 1. We may deliver any notice instead of mailing it. Proof of mailing of any notice shall be sufficient proof of notice. 2. If this policy is cancelled, you may be entitled to a premium refund. If so, we will send you the refund. The premium refund, it any, will be computed according to our manuals. However, making or offering to make the refund is not a condition of cancellation. 3. The effective date of cancellation stated in the notice shall become the end of the policy period. B. The following provision is added: CONSTITUTIONALITY CLAUSE A. For the purpose of the coverage provided by this endorsement, "you" and "your" refer to two or more: Individuals, other than husband and wife, residing in the same household; or 2. "Non-resident relatives"; whojointly own: A private passenger auto; or 2. A pickup or van that: a. Has a Gross Vehicle Weight not exceeding 9,000lbs.; and b. Is not principally used in any "business" other than farming or ranching. B. "Your covered auto" means: 2. Any of the following types of vehicles on the date you become the owner: b. A pickup or van that: (1) Has a Gross Vehicle Weight not exceeding 9,000 lbs.; and (2) Is not principally used in any "business" other than farming or ranching. VI. MISCELLANEOUS TYPE VEHICLE ENDORSE- The premium for, and the coverages of, this MENT policy have been established in reliance upon the provisions of the Pennsylvania Motor If the Miscellaneous Type Vehicle Endorsement is Vehicle Financial Responsiblity Law. In the attached to this policy, the provisions of the PPD 01 51 01 97 Contains copyrighted material of insurance services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 3 of 4 Miscellaneous Type Vehicle Endorsement apply except as follows: Paragraph B.2.b. of the Definitions section is replaced by the following: B. "Your covered auto" means: 2. Any of the following types of vehicles on the date you become the owner: b. A pickup or van that: (1) Has a Gross Vehicle Weight not exceeding 9,000 lbs.; and (2) Is not principally used in any "business" other than farming or ranching. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PPD 01 51 01 97 Contains copyrighted material of Insurance Services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 4 of 4 PP 03 05 08 86 LOSS PAYABLE CLAUSE Loss payee: Loss or damage under this policy shall be paid, as interest may appear, to you and the loss payee shown in the Declarations or in this endorsement. This insurance with respect to the interest of the loss payee, shall not become invalid because of your fraudulent acts or omissions unless the loss results from your conversion, secretion or embezzlement of "your covered auto". However, we reserve the right to cancel the policy as permitted by policy terms and the cancellation shall terminate this agreement as to the loss payee's interest. We will give the same advance notice of cancellation to the loss payee as we give to the named insured shown in the Declarations. When we pay the loss payee we shall, to the extent of payment, be subrogated to the loss payee's rights of recovery. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PP 03 0508 86 Copyright, Insurance Services Office, Inc., 1986 PENNSYLVANIA NOTICE IL0910/HO291 (Ed. 0181) An Insurance Company, its agents, employees, or service contractors acting on its behalf, may provide services to reduce the likelihood of injury, death or loss. These services may include any of the following or related services incident to the application for, issuance, renewal or continuation of, a policy of insurance: 1, surveys; 2. consultation or advice; or 3. inspections. The "Insurance Consultation Services Exemption Act" of Pennsylvania provides that the Insurance Company, its agents, employees or service contractors acting on its behalf, is not liable for damages from injury, death or loss occurring as a result of any act or omission by any person in the furnishing of or the failure to furnish these services. The Act does not apply: if the injury, death or loss occurred during the actual performance of the services and was caused by the negligence of the Insurance Company, its agents, employees or service contractors; 2. to consultation services required to be performed under a written service contract not related to a policy of insurance; or 3. if any acts or omissions of the Insurance Company, its agents, employees or service contractors are judicially deter- mined to constitute a crime, actual malice, or gross negligence. Instruction to Policy Writers Attach the Pennsylvania Notice to all new and renewal policies and renewal certificates insuring risks located in Pennsylvania. IL 09 10/HO 291 (Ed. 01 81) AMENDMENT OF POLICY PROVISIONS - PERSONAL AUTO POLICY COST OF BAIL BONDS LOSS OF EARNINGS Supplementary Payments The provisions that apply to Supplementary Payments also apply to this endorsement except as amended by this endorsement. Item 1 shall be amended to read: Up to $350 for the cost of bail bonds required because of an accident, including related traffic law violations. The accident must result in bodily injury or property damage covered under this policy. Item 4 shall be amended to read: Up to $100 a day for loss of earnings, but not other income, because of attendance at hearings or trials at our request. PAE-001 ED 12/89 SPLIT LIABILITY LIMITS Refer to declaration page for limit of Liability and Premium. SCHEDULE Bodily Injury Liability Property Damage Liability The first paragraph of the Limit of Liability provision in Part A is replaced by the following: LIMIT OF LIABILITY The limit of liability shown in the Schedule or in the Declarations for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of "bodily injury" sustained by any one person in any one auto accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Bodily Injury Liability is our maximum limit of liability for all damages for "bodily injury" resulting from anyone auto accident. The limit of liability shown in PP0309 0486 each person each accident each accident the Schedule or in the Declarations for each accident for Property. Damage Liability is our maximum limit of liability for all "property damage" resulting from any one auto accident. This is the most we will pay regardless of the number of: 1. "Insureds;" 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the auto accident. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PP0309 0486 Copyright, Insurance Services Office, Inc.,1985 SPLIT UNINSURED MOTORISTS LIMITS - PENNSYLVANIA (NON-STACKED) PP 04 20 07 90 Coverage is provided where a premium and limit of liability Is shown for the coverage on the declaration page. SCHEDULE UNINSURED MOTORISTS COVERAGE $ each person $ each accident Paragraph A. of the Limit of Liability provision in the Uninsured Motorists Coverage is our maximum limit Uninsured Motorists Coverage - Pennsylvania (Non- of liability for all damages for "bodily injury" resulting Stacked) endorsement is replaced by the following: from any one accident. This is the most we will pay LIMIT OF LIABILITY regardless of the number of: A. The limit of liability shown in the Schedule or in the 1. "Insureds"; Declarations for each person for Uninsured Motorists 2. Claims made; Coverage is our maximum limit of liability for all dam- ages, including damages for care, loss of services or 3. Vehicles or premiums shown in the Declare- death, arising out of "bodily injury" sustained by any tions; or one person in any one accident. Subject to this limit q, Vehicles involved in the accident. for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for This endorsement must be attached to the Change Endorsement when issued after the policy is written. Copyright, Insurance Services Office, Inc., 1990 PP 04 20 07 90 UNINSURED MOTORISTS COVERAGE - PENNSYLVANIA (NON-STACKED) PPD 04 21 02 96 Coverage is provided where a premium and limit of liability is shown for the coverage on the declaration page. With respect to the coverage provided by this endorsement, the provisions of the policy apply unless modified by this endorsement. 1. Part C - Uninsured Motorists Coverage Is replaced by the following: SCHEDULE UNINSURED MOTORISTS COVERAGE Description Limit of of Vehicle Liability Premium INSURING AGREEMENT C. A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury": 1. Sustained by an "insured"; 2. Caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle." No judgment for damages arising out of a suit brought against the owner or operator of an "uninsured motor vehicle" is binding on us unless we: 1. Received reasonable notice of the pendency of the suit resulting in the judgment; and 2. Had a reasonable opportunity to protect our interests in the suit. B. "Insured" as used in this endorsement means: 1. You or any "family member"; 2. Any other person "occupying" "your covered auto." 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1. or 2. above. "Uninsured motor vehicle" means a land motor vehicle or trailer of any type: 1. To which no bodily injury liability bond or policy applies at the time of the accident. 2. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in "bodily injury" without hitting: a. you or any "family member"; b. a vehicle which you or any "family member" are "occupying"; or c. "yourcoveredauto." If there is no contact with the hit-and-run vehicle, the facts of the accident must be proved. If the accident was allegedly caused by an unidentified hit-and-run vehicle and the operator nor the owner can be identified, the accident must be reported to the police or proper governmental authority within 30 days from the date of the accident. Notice of the accident must be given to us within 30 days, or as soon as practicable thereafter. 3. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company: a. denies coverage; or PPD 04 21 02 96 Page 1 of 4 b. is or becomes: (1) insolvent; or (2) involved in insolvency proceedings. However, "uninsured motor vehicle" does not include any vehicle or equipment: 1. Owned by or furnished for the regular use of you or any "family member." 2. Owned or operated by a self-insurer under any applicable motor vehicle law, except a self-insurer which is or becomes insolvent. 3. Owned by any governmental unit or agency. 4. Operated on rails or crawler treads. 5. Designed mainly for use off public roads while not on public roads. 6. While located for use as a residence or premises. EXCLUSIONS A. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained: 1. By you while "occupying," or when struck by, any motor vehicle you own which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. 2. By a "family member": a. Who owns an auto, while "occupying," or when struck by, any motor vehicle owned by you or any "family member" which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. b. Who does not own an auto, while "occupying," or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy. B. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained by any "insured": 1. If that "insured" or the legal representative settles the bodily injury claim without our written consent. However, this exclusion (B.1.) does not apply if such settlement does not adversely affect our rights. 2. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.2.) does not apply to a share-the- expense car pool. 3. Using a vehicle without the permis- sion of the owner. C. We do not provide Uninsured Motorists Coverage for "non-economic loss" sustained by any "insured" to whom the limited tort alternative applies, resulting from "bodily injury" caused by an accident involving an "uninsured motor vehicle," unless the "bodily injury" sustained is a "serious injury." This exclusion (C.) does not apply: If the owner or operator of the "uninsured motor vehicle": a. Is convicted, or accepts Accelerated Rehabilitative Disposition, for driving under the influence of alcohol or a controlled substance in that accident; b. Is operating a motor vehicle registered in another state; or c. Intends to injure himself or another person, provided that the individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury if the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person. 2. If that "insured" is injured while "occupying" a motor vehicle insured under a commerical motor vehicle insurance policy. D. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. E. We do not provide Uninsured Motorists Coverage for punitive or exemplary damages. LIMIT OF LIABILITY A. The limit of liability shown in the Schedule or in the Declarations for Uninsured Motorists Coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: PPD 04 21 02 96 Page 2 of 4 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Schedule or in the Declarations; or 4. Vehicles involved in the accident. B. Any amounts payable for damages under this coverage shall be reduced by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid for an "insured's" attorney either directly or as part of the amount paid to the "insured." It also includes all sums paid under Part A of this policy. C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and any other coverage provided by this policy. D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible. E. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or a similar law: 1. Any group or individual contract or program that provides benefits for any element of loss; 2. Workers' compensation law; or 3. Disability benefits law. OTHERINSURANCE If there is other applicable similar insurance available under more than one policy or provision of coverage: The following priorities of recovery apply: First The Uninsured Motorists Coverage applicable to the vehicle the "insured" was "occupying" at the time of the accident. Second The policy affording Uninsured Motorists Coverage to the "insured" as a named insured or family member. 1. When there is applicable insurance available under the First priority: a. The limit of liability applicable to the vehicle the "insured" was "occupying," 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 vehicle under any one pol- icy in the Second priority ex- ceeds the limit applicable under the policy in the First priority. 2. When there is no applicable insurance available under the First priority, the maximum recovery under all policies in the Second priority shall not exceed the highest applicable limit for any one vehicle under any one policy. If two or more policies have equal priority, the insurer against whom the claim is first made shall process and pay the claim as if wholly responsible for all insurers with equal priority. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim. If we are the insurer against whom the claim is first made, we will pay, subject to the limit of liability shown in the Schedule or in the Declarations for Uninsured Motorists Coverage, after we and all other contributing insurers agree: 1. Whether the "insured" is legally entitled to recover damages from the owner or operator of an "uninsured motor vehicle"; and 2. As to the amount of damages. ARBITRATION A. SELECTION OF ARBITRATORS If we and an "insured" disagree whether the "insured" is legally entitled to recover damages from the owner or operator of an "uninsured motor vehicle" or do not agree as to the amount of damages, either party may make a written demand for arbitration. Except for the authorities and rights stated in paragraphs B., C. and D. of these arbitration provisions, arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. Each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs and bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county in which the "insured" resides. PPD 04 21 02 96 Page 3 of 4 B. LIMITATION OFARBITRATORS' AUTHORITY The authority of the arbitrators shall be limited to deciding the liability of the owner or operator of an '.uninsured motor vehicle" and amount of damages recoverable from the owner or operator of an .'uninsured motor vehicle." The amount of any award may be up to but not in excess of the Limit of Liability shown in the Schedule or Declarations for Uninsured Motorists Coverage. The arbitrators may not render decisions on disagreements between any party making a claim and us regarding whether the party is entitled to coverage under this policy or the applicable Limits of Liability for this coverage. All disagreements regarding coverage questions or the applicable Limits of Liability for this coverage must be decided by the court having jurisdiction. C, DISCOVERY RIGHTS Each party shall have the right of full dis- covery including, but not limited to, deposi- tions of any involved party, requests for production of documents such as employ- ment and medical records, and the right to perform periodic medical examinations on any person making a claim under this cov- erage. D. APPEAL RIGHTS Each party shall have the right to appeal to the court having jurisdiction an award of the arbitrators provided the appeal is based upon an error of law, an arbitration decision that exceeds the stated authority of the arbitrators and any right of appeal provided under common law arbitration. There shall be no right of appeal on questions of fact regarding the liability of the owner or operator of the "uninsured motor vehicle" or the amount of damages determined to be recoverable from the owner or operator of an .'uninsured motor vehicle." This endorsement must be attached to the Change Endorsement when issued after the policy is written. Contains Copyrighted Material of Insurance Services Office, Inc., with their permission. Copyright, Insurance Services Office, Inc., 1994 PPD 04 21 02 96 Page 4 of 4 SPLIT UNDERINSURED MOTORISTS LIMITS - PENNSYLVANIA (NON-STACKED) Coverage is provided where a premium and limit of liability Is shown for the coverage on the declaration page. SCHEDULE UNDERINSURED MOTORISTS COVERAGE $ PP 0416 07 90 each person each accident Paragraph A. of the Limit of Liability provision in the for Underinsured Motorists Coverage is our maxi- Underinsured Motorists Coverage - Pennsylvania (Non- mum limitof liability for all damages for "bodily injury" Stacked) endorsement is replaced by the following: resulting from any one accident. This is the most we LIMIT OF LIABILITY will pay regardless of the number of: A. The limit of liability shown in the Schedule or in the 1. "Insureds"; Declarations for each person for Underinsured Mo- 2. Claims made; torists Coverage is our maximum limit of liability for all damages, including damages for care, loss of ser- 3. Vehicles or premiums shown in the Declara- vices or death, arising out of "bodily injury" sustained tions; or by any one person in any one accident. Subject to 4. Vehicles involved in the accident. this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident This endorsement must be attached to the Change Endorsement when issued after the policy is written. Copyright, Insurance Services Office, Inc., 1990 PP 04 16 07 90 UNDERINSURED MOTORISTS, COVERAGE - PENNSYLVANIA (NON-STACKED) PPD 0417 02 96 Coverage is provided where a premium and limit of liability Is shown for the coverage on the declaration page. With respect to the coverage provided by this endorsement, the provisions of the policy apply unless modified by this endorsement. SCHEDULE UNDERINSURED MOTORISTS COVERAGE Description of Vehicle INSURING AGREEMENT Llmit of Liability A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "underinsured motor vehicle" because of "bodily injury": Sustained by an "insured"; and 2. Caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "underinsured motor vehicle." We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements. However, we must be provided with prompt written notification of any tentative settlement between.the "insured" and the insurer of the "underinsured motor vehicle" or any other party. No settlement of the "insured's" bodily injury liability claim may be made without our written consent. No judgment for damages arising out of a suit brought against the owner or operator of an "underinsured motor vehicle" is binding on us unless we: t. Received reasonable notice of the pendency of the suit resulting in the judgment; and 2. Had a reasonable opportunity to protect our interests in the suit. Premium B. "Insured" as used in this endorsement means: 1. You or any "family member"; 2. Any other person "occupying" "your covered auto." 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1. or 2. above. C. "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 the amount paid for "bodily injury" under that bond or policy to an "insured" is not enough to pay the full amount the "insured" is legally entitled to recover as damages. However, "underinsured motor vehicle" does not include any vehicle or equipment: 1. Owned by or furnished for the regular use of you or any "family member." 2. For which liability coverage is provided under Part A of this policy. 3. Owned by any governmental unit or agency. 4. Operated on rails or crawler treads. 5. Designed mainly for use off public roads while not on public roads. 6. While located for use as a residence or premises. PPD 04 17 02 96 Page 1 of 4 EXCLUSIONS A. We do not provide Underinsured Motorists Coverage for "bodily injury" sustained: By you while "occupying," or when struck by, any motor vehicle you own which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. 2. By a "family member": a. Who owns an auto, while "occupying," or when struck by, any motor vehicle owned by you or any "family member" which is not insured for this coverage under this policy. This includes a trailer of any type D used with that vehicle. b. Who does not own any auto, while "occupying," or when struck by, any motor vehicle you own which is insured for this coverage on primary basis under any other policy. B. We do not provide Underinsured Motorists Coverage for "bodily injury" sustained by any "insured": 1. If that "insured" or the legal representative settles the bodily injury claim without our written consent. 2. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.2.) does not apply to a share-the-expense car pool. 3. Using a vehicle without the permission of the owner. E. c. Intends to injure himself or an- other person, provided that the individual does not intentionally injure himself or another person merely because his act orfailure to act is intentional or done with his realization that it creates a grave risk of causing injury if the act or omission causing the in- jury is for the purpose of avert- ing bodily harm to himself or another person. 2. If that "insured" is injured while "occupying" a motor vehicle insured under a commerical motor vehicle insurance policy. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law: Workers' compensation law; or 2. Disability benefits law. We do not provide Underinsured Motorists Coverage for punitive or exemplary damages. LIMIT OF LIABILITY A. The limit of liability shown in the Schedule or in the Declarations for Underinsured Motorists Coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: 1. "Insureds"; 2. Claims made; C. We do not provide Underinsured Motorists Coverage for "non-economic loss" sustained by any "insured" to whom the limited tort alternative applies, resulting from "bodily injury" caused by an accident involving B an "underinsured motor vehicle," unless the "bodily injury" sustained is a "serious injury." This exclusion (C.) does not apply: If the owner or operator of the "underinsured motor vehicle": a. Is convicted, or accepts Accelerated Rehabilitative Disposition, for driving under the influence of alcohol or a controlled substance in that accident; b. Is operating a motor vehicle registered in another state; or 3. Vehicles or premiums shown in the Schedule or in the Declarations; or 4. Vehicles involved in the accident. The limit of liability shall be reduced by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid for an "insured's" attorney either directly or as part of the amount paid to the "insured." It also includes all sums paid under Part A of this policy. C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and any other coverage provided by this policy. D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible. PPD 04 17 02 96 Page 2 of 4 E. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or a similar law: 1. Any group or individual contract or program that provides benefits for any element of loss; 2. Workers' compensation law; or 3. Disability benefits law. OTHERINSURANCE If there is other applicable similar insurance available under more than one policy or provision of coverage: The following priorities of recovery apply: First The Underinsured Motorists Coverage applicable to the vehicle the "insured" was "occupying" at the time of the accident. Second The policy affording Underinsured Motorists Coverage to the "insured" as a named insured or family member. 1. When there is applicable insurance available under the First priority: a. The limit of liability applicable to the vehicle the "insured" was "occupying," 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 vehicle under any one policy in the Second priority exceeds the limit applicable under the policy in the First priority. 2. When there is no applicable insurance available under the First priority, the maximum recovery under all policies in the Second priority shall not exceed the highest applicable limit for any one vehicle under any one policy. If two or more policies have equal priority, the insurer against whom the claim is first made shall process and pay the claim as if wholly responsible for all insurers with equal priority. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits and the costs of processing the claim. If we are the insurer against whom the claim is first made, we will pay, subject to the limit of liability shown in the Schedule or in the Declarations for Underinsured Motorists Coverage, after we and all other contributing insurers agree: Whether the "insured" is legally enti- tled to recover damages from the owner or operator of an "underin- sured motor vehicle"; and 2. As to the amount of damages. ARBITRATION A. SELECTION OF ARBITRATORS If we and an "insured" disagree whether the "insured" is legally entitled to recover damages from the owner or operator of an "underinsured motor vehicle" or do not agree as to the amount of damages, either party may make a written demand for arbitration. Except for the authorities and rights stated in paragraphs B., C. and D. of these arbitration provisions, arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. Each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs and bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county in which the "insured" resides. B. LIMITATION OFARBITRATORS' AUTHORITY The authority of the arbitrators shall be limited to deciding the liability of the owner or operator of an "underinsured motor vehicle" and amount of damages recoverable from the owner or operator of an "underinsured motor vehicle." The amount of any award may be up to but not in excess of the Limit of Liability shown in the Schedule or Declarations for Underinsured Motorists Coverage. The arbitrators may not render decisions on disagreements between any party making a claim and us regarding whether the party is entitled to coverage under this policy or the applicable Limits of Liability for this coverage. All disagreements regarding coverage questions or the applicable Limits of Liability for this coverage must be decided by the court having jurisdiction. C. DISCOVERYRIGHTS Each parry shall have the right of full discovery including, but not limited to, depositions of any involved party, requests for production of documents such as employment and medical records, and the right to perform periodic medical examinations on any person making a claim under this coverage. PPD 04 17 02 96 Page 3 of 4 D. APPEAL RIGHTS Each party shall have the right to appeal to the court having jurisdiction an award of the arbitrators provided the appeal is based upon an error of law, an arbitration decision that exceeds the stated authority of the arbitrators and any right of appeal provided under common law arbitration. There shall be no right of appeal on questions of fact regarding the liability of the owner or operator of the "underinsured motor vehicle" or the amount of damages determined to be recoverable from the owner or operator of an "underinsured motor vehicle." ADDITIONAL DUTY A person seeking Underinsured Motorists Coverage must also promptly notify us in writing of a tentative settlement between the "insured" and the insurer of the "underinsured motor vehicle" or any other party. Prior to any settlement with the insurer of the "underinsured motor vehicle" or any other party, the "insured" must receive our written consent to finalize any such settlement. GENERAL PROVISIONS Part F is amended as follows: A. The following is added to the Our Right To Recover Payment provision: OUR RIGHT TO RECOVER PAYMENT Our rights do not apply under Paragraph A. with respect to Underinsured Motorists Coverage if we: 1. Have been given prompt written notice of a tentative settlement between an "insured" and the insurer of an "underinsured motor vehicle" or any other party; and 2. Have given the"insured" our written consent to settle the bodily injury claim. This endorsement must be attached to the Change Endorsement when issued after the policy is written. Contains Copyrighted Material of Insurance Services Office, Inc., with their permission. Copyright, Insurance Services Office, Inc., 1994 PPD 04 17 02 96 Page 4 of 4 PP 05 51 06 94 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY, FIRST PARTY BENEFITS COVERAGE - PENNSYLVANIA With respect to coverage provided by this endorsement, the provisions of the policy apply unless modified by the endorsement. SCHEDULE BASIC FIRST PARTY BENEFIT Benefit Medical Expenses Limit Of Liability $5,000 If indicated below or in the Declarations, the following options apply instead of the Basic First Party Benefit: ? Added First Party Benefits Benefits Medical Expenses Work Loss Funeral Expenses Accidental Death ? Combination First Parry Benefits Benefits Limit Of Liability $ subject to a maximum of $ per month Limit of Liability Medical Expenses Work Loss Funeral Expenses Accidental Death Maximum Limit of Liability For The Total of All Combination First Party Benefits No specific dollar amount No specific dollar amount $2,500 NOTE: If Added First Party Benefits or Combination First Party Benefits are not shown as applicable in the Schedule or Declarations, only the Basic First Party Benefit applies. DEFINITIONS The Definitions section is amended as follows: A. "The Act" refers to the Pennsylvania Motor Ve- hicle Financial Responsibility Law. B. The following definitions are replaced: 1. "Bodily injury" means accidental bodily harm to a person and that person's result- ing illness, disease or death. 2. "Your covered auto" means a "motor ve- hicle", a. To which Part A of this policy applies and for which a specific premium is charged; and b. For which First Parry Benefits Cov- erage required by the Act is main- tained. C. The following definition is added: "Motor vehicle" means a self-propelled vehicle operated or designed for use upon public roads. However, "motor vehicle" does not include a vehicle operated: 1. By muscular power; or PP 05 51 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 1 of 4 2. On rails or tracks. D. "Insured" as used in this endorsement means: You or any "family member". 2. Any other person while: a. "Occupying" "your covered auto"; or b. Not "occupying" a "motor vehicle" if injured as a result of an accident in Pennsylvania involving "your cov- ered auto". If "your covered auto" is parked and un- occupied it is not a "motor vehicle" in- volved in an accident unless it is parked in a manner which creates an unreasonable risk of injury. FIRST PARTY BENEFITS COVERAGE INSURING AGREEMENT A. BASIC FIRST PARTY BENEFIT We will pay, in accordance with the Act, the Basic First Parry Benefit to or for an "insured" who sustains "bodily injury". The "bodily in- jury" must be caused by an accident arising out of the maintenance or use of a "motor vehicle". Subject to the limit shown in the Schedule or Declarations, the Basic First Parry Benefit con- sists of: Medical expenses. Reasonable and necessary medical expenses incurred for an "insured's": Care; 2. Recovery; or 3. Rehabilitation. This includes remedial care and treatment ren- dered in accordance with a recognized religious method of healing. Medical expenses will be paid if incurred within 18 months from the date of the accident caus- ing "bodily injury". However, if within 18 months from the date of the accident, it can be determined with reasonable medical probability that additional expenses may be incurred after this period, the 18 month time limit will not apply to the payment of the additional medical ex- penses. B. ADDED FIRST PARTY BENEFITS If the Schedule or Declarations indi- cates that Added First Party Benefits apply, we will pay Added First Party Benefits instead of the Basic First Parry Benefit to or for an "insured" who sustains "bodily injury". The "bodily injury" must be caused by an accident arising out of the maintenance or use of a "motor vehicle". These benefits are sub- ject to the provisions of the Act. Subject to the limits shown in the Schedule or Declarations, Added First Parry Benefits con- sist of the following: Medical expenses as described in the Basic First Party Benefit. 2. Work loss. a. Loss of income. Up to 80% of gross income actually lost by an "insured" as a result of the accident. b. Reasonable expenses actually in- curred to reduce loss of income by hiring: (1) Special help, thereby enabling an "insured" to work; or (2) A substitute to perform the work a self-employed "in- sured" would have performed. However, work loss does not include: a. Loss of expected income or ex- penses incurred for services per- formed after the death of an "insured"; or b. Any loss of income, or expenses in- curred for services performed, dur- ing the first 5 working days the "insured" did not work due to "bod- ily injury". 3. Funeral expenses. Funeral or burial ex- penses actually incurred if "bodily injury" causes an "insured's" death within 24 months from the date of the accident. 4. Accidental death. A death benefit paid if "bodily injury" causes the death of you or any "family member" within 24 months from the date of the accident. We will pay accidental death to the execu- tor or administrator of the deceased "in- sured's" estate. If there is no executor or administrator, the benefit shall be paid to: PP 05 51 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 2 of 4 a. The deceased "insured's" surviving spouse;or b. If there is no surviving spouse, the deceased "insured's" surviving children; or c. If there is no surviving spouse or children, to the deceased "in- sured's" estate. C. COMBINATION FIRST PARTY BENEFITS If the Schedule or Declarations indicates that Combination First Party Benefits apply, we will pay Combination First Party Benefits instead of the Basic First Party Benefit to or for an "in- sured" who sustains "bodily injury". The "bodily injury" must be caused by an accident arising out of the maintenance or use of a "mo- tor vehicle". These benefits are subject to the provisions of the Act. Subject to the limits shown in the Schedule or Declarations, Combination First Party Benefits consist of the following, as described in the Basic First Party Benefits and Added First Party Benefits. 1. Medical expenses. 2. Work loss. 3. Funeral expenses. 4. Accidental death. EXCLUSIONS A. We do not provide First Party Benefits Cover- age for "bodily injury" sustained by any "in- sured": 1. While intentionally causing or attempting to cause "bodily injury" to himself or any other person. We will not pay accidental death on behalf of that" insured". 2. While committing a felony. 3. While seeking to elude lawful apprehen- sion or arrest by a law enforcement offi- cial. 4. While maintaining or using a "motor vehi- cle" knowingly converted by that "in- sured". This exclusion (A.4.) does not apply to: a. You; or b. Any "family member". a. The owner of one or more registered "motor vehi- cles", none of which have in effect the financial re- sponsibility required by the Act; or b. "Occupying" a "motor vehicle" owned by that "insured" for which the financial responsibility required by the Act is not in effect. 6. Maintaining or using a "motor vehicle" while located for use as a residence or premises. 7. While "occupying" a: a. Recreational vehicle designed for use off public roads; or b. Motorcycle, moped or similar-type vehicle. B. We do not provide First Party Benefits Cover- age for "bodily injury": 1.. Sustained by a pedestrian if the accident occurs outside of Pennsylvania. This ex- clusion (B.1.) does not apply to: a. You; or b. Any "family member". 2. Caused by or as a consequence of: a. Discharge of a nuclear weapon (even if accidental); b. War (declared or undeclared); c. Civil war; d. Insurrection; or e. Rebellion or revolution. 3. From or as a consequence of the follow- ing, whether controlled or uncontrolled or however caused: a. Nuclear reaction; b. Radiation; or c. Radioactive contamination. LIMIT OF LIABILITY A. The limits of liability shown in the Schedule or Declarations for the first party benefits that ap- ply are the most we will pay to or for each "in- 5. Who, at the time of the accident, is: PP 05 51 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 3 of 4 sured" as the result of any one accident, regardless of the number of: 1. Claims made; 2. Vehicles or premiums shown in the Dec- larations; 3. Vehicles involved in the accident; or 4. Insurers providing first party benefits. B. If Combination First Parry Benefits are afforded, we will make available at least the minimum limit required by the Act for the Basic First Party Benefit. This provision (B.) will not change our maximum limit of liability. C. Any amounts payable under this coverage shall be excess over any amounts: 1. Paid; 2. Payable; or 3. Required to be provided; to an "insured" under any workers' compen- sation law or similar law. PRIORITIES OF POLICIES A. We will pay first party benefits in accordance with the order of priorities set forth by the Act. We will not pay if there is another insurer at a higher level of priority. The First category listed below is the highest level of priority and the Fourth category is the lowest level of priority. The priority order is: First The insurer providing benefits to the "insured" as a named in- sured. a. "Occupying" a "motor ve- hicle"; and b. Provided first party bene- fits under any other auto- mobile policy. An unoccupied parked "motor vehicle" is not a "motor vehicle" involved in an acci- dent unless it is parked in a manner which creates an unreasonable risk of injury. B. If 2 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 then entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim. If such contribution is sought among insurers 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 "insured" will not exceed the applica- ble limit of liability for First Party Benefits Coverage shown in the Schedule or Dec- larations. 3. The maximum recovery under all policies will not exceed the amount payable under the policy with the highest limit of liability. NON-DUPLICATION OF BENEFITS No one will be entitled to recover duplicate payments for the same elements of loss under this or any other similar insurance including self-insurance. Second The insurer providing benefits to 111. the "insured" as a family member who is not a named insured under another policy providing cover- age under the Act. Third The insurer of the "motor vehi- cle" which the "insured" is "oc- cupying" at the time of the accident. Fourth The insurer of any "motor vehi- cle" involved in the accident if the "insured" is not: PART F - GENERAL PROVISIONS Part F is amended as follows: The Our Right To Recover Payment provision does not apply. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PP 05 51 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 4 of 4 DONEGAL AUTOMOQILE ACCOUNT CREDIT PLAN DAACP (Ed. 2-92) We agree to credit this risk, as it has met all of the eligibility requirements for the Donegal Automobile Account Credit Plan (DAACP). All other provisions of this policy apply. Donegal Mutual Insurance Company DAACP (Ed. 2-92) I VERIFICATION I, Janet L. Weisberg, Vice President of B.I. Claims of Donegal Mutual Ins. Co., acknowledge I have the authority to execute this Verification on behalf of Donegal Mutual Ins. Co. and certify the foregoing Declaratory Judgment Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this Declaratory Judgment Complaint is that of counsel and not my own. I have read the document and to the extent the Declaratory Judgment 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 the content of the Declaratory Judgment Complaint is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Donegal Mutual Ins. Co. et L. Weisberg, Vice President o B.I. Claims FkFILES\DATAFILE? ne a13050?Curt ttl 40s m CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Declaratory Judgment Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: P. Richard Wagner, Esquire MANCKE, WAGNER, TULLY & SPREHA 2233 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO BY 'Y- Ten D. Eckenroa Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: / f IQ/Ld P?31 NC .D UI d F\FILES\DATAFILE\Done aD050\Curtent\240-aaeser Created 2/6/04 1-13PM Revised'. 3/24/04 II.23AM DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1242 CIVIL ACTION-LAW DECLARATORY JUDGMENT ACTION ATTORNEY'S ACCEPTANCE OF SERVICE I, P. Richard Wagner, Esquire, attorney for Defendant William D. Swank, in the q ab ve- ptioned action, hereby accept service of the Complaint in the above action on 3 , o `f on his behalf and certify that I am authorized to do so. Date: By 223 AGNER, TULLY & SPREHA PA 17110 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Acceptance of Service was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: P. Richard Wagner, Esquire MANCKE, WAGNER, TULLY & SPREHA 2233 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO By Tricia J. Eckenro d Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: April 5, 2004 r .ip O J iCl DONEGAL MUTUAL INS. CO., PlainK V. WILLIAM D. SWANK, Defendant. TO: Donegal Insurance Company C/o Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 04-1242 Civil Action DECLARATORY JUDGMENT ACTION You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. Respectfully submitted, MANCKE, WAGNER & SPREHA Attorneys for Defendant DATE: H /s/6 Harrisburg, PA 17110 (717) 234-7051 DONEGAL MUTUAL INS. CO., Plaintiff, V. WILLIAM D. SWANK, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 04-1242 Civil Action DECLARATORY JUDGMENT ACTION ANSWER TO COMPLAINT FOR DECT ARATORY >T D =NIENT AND NOW, comes the Defendant, William D. Swank, by and through his attorneys, Mancke, Wagner & Spreha, and files the following Answer to Complaint for Declaratory Judgment: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. It is denied that at the time of the collision the 1987 Plymouth Sundance was owned by Swank. 9. Denied. It is denied that at the time of the collision that the 1987 Plymouth Sundance was not a `your covered auto' as defined by the policy. 10. Admitted. 11. Admitted. 12. Admitted. WHEREFORE, Defendant requests this Court to enter a declaratory judgment and declare that Swank is covered under the provisions of his automobile policy. NEW MATTER 13. Paragraphs 1 through 12 above are incorporated herein by reference and made a part hereof. 14. At the time of the aforementioned accident, the 1987 Plymouth Sundance was owned by Christina Miller of Mechanicsburg, Cumberland County, Pennsylvania. 15. At the time of the aforementioned accident, the 1987 Plymouth Sundance was not owned by Swank, but was owned by another in whose name the vehicle was titled. 16. At the time of the aforementioned collision, nor at any time before or after the collision was the 1987 Plymouth Sundance titled in the name of Swank. -2- WHEREFORE, Defendant requests this Court to grant judgment in favor of the Defendant and declare the policy of Donegal to be applicable for underinsured motorist benefits in favor of Swank. Respectfully submitted, Mancke, Wagner & Spreha P, Iffdr-Wagner, Esquire 1.D. #23103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for Defendant Date: <1 8 e -3- VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE : W/7/0? CERTIFICATE QF SERVICE I, Debra K. Spinner, Secretary in the law firm of MANCKE, WAGNER, and SPREHA, do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 Debra K. Spinne , Secretary MANCKE, WAGNER, & SPREHA 2233 North Front Street Harrisburg, PA 17110 P. Richard Wagner, Esquire Attorneys for Defendant DATE: y q p 7.: i T n fJ .1 `i v , `F?\FILES\DATAPILE\Done a13050\Cmrtnt\240_nptI Created: 2/6/04 1 13PM Revised'. N9104 259PM DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1242 CIVIL ACTION - LAW DECLARATORY JUDGMENT ACTION MOTION FOR SUMMARY JUDGMENT AND NOW, comes Plaintiff, Donegal Mutual Ins. Co., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and brings this Motion for Summary Judgment, and in support thereof, moves as follows: I . This declaratory judgment action was commenced by Plaintiff, Donegal Mutual Ins. Co. ("Donegal'), by way of Complaint filed on March 24, 2004, in the Court of Common Pleas of Cumberland County, against Defendant, William D. Swank ("Swank'), as a Declaratory Judgment Action. 2. Donegal is seeking a declaration that Swank is not entitled to Underinsured Motorists Coverage under his insurance policy. 3. On or about February 23, 2002, Donegal issued to Swank an automobile insurance policy, Policy Number PAE 057 23 45, effective February 23, 2002, through February 23, 2003 (the "insurance policy"). Pertinent portions of the insurance policy are attached to the Complaint as Exhibit "A" and incorporated herein by reference. 4. The insurance policy provided for Underinsured Motorists Coverage, which has the following exclusion: a. "We do not provide Underinsured Motorists Coverage for `bodily injury' sustained: By you while `occupying,' or when struck by, any motor vehicle you own which is not insured for this coverage under this policy." 5. Swank owned and was driving a 1987 Plymouth Sundance ("Sundance" ), which was not covered under the insurance policy, at the time Swank collided with another vehicle (the "collision'). See Exhibit "A" attached to the Complaint and incorporated by reference. 6. Swank has made several claims to Donegal, which Donegal has rejected as not being covered under his insurance policy. 7. Swank stated in his sworn deposition that he owned the Sundance and that it was given to him by the mother of his child (the "mother") in return for a vehicle he bought for her. The understanding between Swank and the mother was that he could sell the vehicle and keep the proceeds. (Swank's Depo. at p. 26-27). 8. Further, Swank stated that he maintained possession of the Sundance even though it was not titled in his name. He had owned the vehicle for approximately 3 to 6 months before the date he was involved in the collision. (Swank's Depo. at p. 25-26). 9. Swank admitted ownership of the Sundance in his sworn deposition and that he had possession of the vehicle at all relevant times. The fact that title of the vehicle was in another person's name is not conclusive evidence of ownership. 10. Swank is not entitled to coverage under the insurance policy because he was the owner of the Sundance at the time of the collision and the vehicle was not covered under the insurance policy. Therefore, Donegal is entitled to judgment as a matter of law. WHEREFORE, Plaintiff respectfully requests that this Court grant its Motion for Summary Judgment against Defendant. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO Christopher E. Rice, Esquire Attorney I.D. No. 90916 Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: June 3, 2004 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Christopher E. Rice, hereby certify that a copy of the foregoing Motion for Summary Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: P. Richard Wagner, Esquire MANCKE, WAGNER, TULLY & SPREHA 2233 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO By ea'p- ? - e- Christopher E. Rice Dated: June 3, 2004 _, ? =, ;, ?; ? ?,:..;^ ?, -ES\DATAFTLE\D.ne9a3050\C.V (U40.pr4 1c 216/04 L13PM An& 6/3/04 11 20AM DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1242 CIVIL ACTION-LAW DECLARATORY JUDGMENT ACTION PRAECIPE TO THE PROTHONOTARY: Please file the attached Transcribed Deposition of William D. Swank of record in support of Plaintiff's Motion for Summary Judgment. Date: June 3, 2004 Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By ( l Christopher E. Rice, Esquire Attorney I.D. No. 90916 Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff I IN RE: Statement Under Oath COPY TRANSCRIPT OF PROCEEDINGS Deposition of: WILLIAM D. SWANK Before: Linda C. Larson Court Reporter - Notary Public Date: October 24, 2003, 1:30 p.m. Place: Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, Pennsylvania APPEARANCES: MANCKE, WAGNER & SPREHA BY: RICHARD WAGNER, ESQUIRE FOR - PLAINTIFF MARTSON, DEARDORFF, WILLIAMS & OTTO BY: THOMAS J. WILLIAMS, ESQUIRE FOR - DONEGAL INSURANCE +C,entral sylvan"ia }y,>4durt Reporting Services 8900-863-3657 • 717-258-3657 • 717-258-0383 fax cowltreporter4u @aol. cam z 1 INDEX TO TESTIMONY 2 WITNESS EXAMINATION PAGE 3 William D. Swank Thomas J. Williams 3 4 5 6 7 8 9 10 11 12 INDEX TO EXHIBITS 13 NO. DESCRIPTION PAGE 14 (None.) 15 16 17 18 19 20 21 22 23 24 25 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S WILLIAM D. SWANK, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. WILLIAMS: Q. My name is Tom Williams. We've just been introduced. I'm representing Progressive Insurance with regard to the underinsured motorist claim that you made against it. I'm going to ask you some questions concerning that claim. And in response to my questions I'd like you to give all the information that you have. Okay? A. Okay. Q. If you, however, base your answer on something that you heard someone say or that you read somewhere, please state that as part of your answer, otherwise we'll assume that your testimony is based upon your own personal knowledge. Okay? A. Okay. Q. Have you ever given testimony before? A. Q• truth? A. No. Never raised your hand and swore to tell the No. 4 I Q. Been questioned by a lawyer? 2 A. No. 3 Q. You've probably seen it on TV though? 4 A. Yes, I have. 5 Q. All right. Well, this is a little different 6 than what you 've seen on TV because we're looking to get 7 all the information that you have. 8 As you can see, it's not a court proceeding 9 but a stenogr apher is here to record the words that are 10 spoken here t oday and we want to make sure that it's done 11 accurately. 12 Some rules for that are, first of all, we 13 need to take turns talking. Okay? 14 A. Okay. 15 Q. I promise to wait until you finish your 16 answer before I ask the next question and I ask you to 17 promise to wa it until I finish my question before you give 18 the answer. Okay? 19 A. I understand. 20 Q. Also, we need to speak words. While I can 21 see you noddi ng your head yes and I know exactly what that 22 means, we nee d to be sure that that gets down by the 23 stenographer in answers, yes or no, or whatever words you 24 want to use. Okay? 25 A. I understand. 5 1 Q. I would ask you not to answer my question 2 unless you know what the answer is. We don't want you to 3 guess. It 's okay to give an estimate as long as you tell 4 us that, i f that's appropriate. But if you don't know the 5 answer to the question, please don't try to answer it. 6 Just say y ou don't know and I'll ask you another question. 7 Okay? 8 A. Okay. 9 Q. Also, if you don't understand my question, 10 again don' t try to answer it. Just say you didn't 11 understand it and I'll rephrase the question until you're 12 satisfied you do understand that. Okay? 13 A. Okay. 14 Q. Same thing if you don't hear my entire 15 question, don't try to answer it. Just say you didn't hear 16 it all and I'll have the question repeated for you in its 17 entirety. Okay? 18 A. I understand. 19 Q. We want you to be comfortable here today. So 20 if at any point you want to take a break, just tell us that 21 and we'll adjourn until you're ready to continue. Okay? 22 A. Okay. 23 Q. If you for any reason find yourself unable to 24 concentrat e, you feel tired or ill in any way, again tell 25 us that an d we'll adjourn until you're ready to continue. 6 1 A. Okay. 2 Q. Have you taken any medications today that 3 might cause you to be drowsy? 4 A. No. 5 Q. All right. Healthwise okay? 6 A. I'm taking medication for gout, but, you 7 know, I'm used to it. You know, it doesn't throw me off in 8 any way. 9 Q. What kind of medication do you take for gout? 10 A. I take point six milligrams of colchicine and 11 I take Naprosyn. I'm not sure I think it's 500 grams, 12 milligrams. I'm not sure exactly how much. 13 Q. When were you first diagnosed with gout? 14 A. Oh, about 20 years ago when I was about 30 15 years old. 16 Q. Is there a physician now that's following you 17 for that go ut? 18 A. Yes. Dr. Snoke, Stephen Snoke, Snoke Family 19 Practice in Camp Hill. 20 MR. WAGNER: Off the record. 21 (Off the record.) 22 THE WITNESS: I have been on daily medication 23 for about n ine or ten years now and that seems to control 24 it. 25 BY MR. WILL IAMS: 7 I Q. That's what I was wondering if the medication 2 controlled it pretty well. 3 A. Yes. 4 Q. But you still have the bumps? 5 A. Yes. That's something that will never go 6 away. You know, like I said, my orthopedic surgeon said he 7 can remove those, but there is no guarantee that they, you 8 know, wouldn't come back. And it doesn't really hurt. I 9 mean, if I bang it on something, it would. But it's very 10 unsightly, but I can live with that. 11 Q. Who is your orthopedic surgeon? 12 A. That was Dr. Mark Holencik at the time. 13 Q. How do you spell Holencik? 14 A. H-o-1-e-n-c-i-k. He's no longer practicing 15 at this po int in time. 16 MR. WAGNER: That you're aware of. 17 THE WITNESS: That I'm aware of. 18 MR. WAGNER: He's actually back in practice. 19 THE WITNESS: Well, he has a place here in 20 Carlisle. 21 MR. WAGNER: Yes. 22 THE WITNESS: He's not operating anymore. He 23 still has a practice, but he's not doing surgery. 24 BY MR. WIL LIAMS: 25 Q. Do you have a different orthopedic surgeon 8 1 today? 2 A. Well, this accident that I was in I went 3 through a Hanks, Greg Hanks. He is part of OIP, Orthopedic 4 Institute of Pennsylvania. He's the last person -- he was 5 the one who operated on my leg from this accident that 6 we're dealing with. 7 Q. Yes. He's the knee specialist; isn't he? 8 A. Yes, I believe he is. 9 Q. How did that turn out, that last operation? 10 A. It's good. I mean, you know, I was happy 11 with everything, you know, the way it went with what was 12 wrong with me. 13 I still have metal plates in my leg which I 14 don't know if I should get removed or not. He said that's 15 my call. And, you know, I have pain with it, you know, 16 just about daily, but it's nothing I can't deal with. 17 I don't know whether -- I don't know. I 18 don't look forward to going under a knife. So for me to 19 make that decision to have it -- he said if it doesn't 20 bother me that much, I can let it in there forever. 21 Q. Where are the metal plates? 22 A. They are on the right side of my leg. My 23 femur broke right here where it connects. And there is a 24 plate in here with some screws, and there are about 10 or 25 12 screws. 9 1 MR. WAGNER: Let's stop for a second. She 2 can't get that. If we read that back right here, it 3 doesn't mean anything. You're pointing to the? 4 THE WITNESS: On the outside of my right leg 5 right where the I guess it's the femur connects to the knee 6 joint, I believe. 7 I don't know that much about medicine. I 8 looked at enough pictures, you know, x-rays when they took 9 them. 10 But the metal plate was put in there I guess 11 to hold the bone together so it would heal, so it would 12 heal quicker. That's what they do I guess these days. 13 BY MR. WILLIAMS: 14 Q. Have you ever had that done before? 15 A. No. 16 Q. The internal fixation? 17 A. No. I mean, I had -- like I said, I was in a 18 motorcycle accident in '98, and I had a ruptured quadricep 19 on my left leg. But they just went in -- that's when Dr. 20 Holencik, he just wrapped that back together and tied it 21 up, but there is no metal in there or anything. 22 Q. That didn't involve the bone, though, that 23 '98 accident? 24 A. No, no. It was just the muscle. It was 25 actually the muscle on top of the kneecap there. He told 10 1 me it was - - he used to do a lot of sports, you know, 2 operations on athletes and stuff, and he had said he'd seen 3 that a lot of times in, like, football players or something 4 that they t ore, tore that muscle loose, but he never saw it 5 from an acc ident. 6 Q. Did he have to reattach -- I'm sorry. 7 A. Go ahead. 8 Q. I'm sorry. Did he have to reattach it to the 9 bone? 10 A. No. He said he drilled holes. He had 11 drilled hol es in the muscle end, I guess the top of the 12 kneecap. 13 Q. Yes. 14 A. And tied it together in a knot, you know, 15 knotted it up. And he said while I was still under 16 anesthetic, he took and went like this. He threatened to 17 do that when I went back to have it tested and I said no. 18 That was a lot of rehab with that. 19 Q. Yes. 20 A. Quite a bit. 21 Q. That's the same as an ACO or a PCO injury? 22 A. It knocked me out for about nine months 23 before I could get moving around regular. 24 Q. That was in your left leg; wasn't it? 25 A. That was the left leg, yes. 11 1 Q. Left leg. Okay. Had you ever seen Dr. Hanks 2 before this particular injury? 3 A. No. 4 Q. How did you get referred to him? 5 A. I was in an automobile accident and, you 6 know, they called somebody in. They did x-rays and they 7 just called somebody in. They said, you know, who I would 8 have requested was not available and so they brought 9 somebody in. 10 They said, would this be okay with you? And 11 I said, fine. You know, the people on call at Holy Spirit 12 Hospital, you know. 13 Q. Dr. Hanks happened to be on call that night 14 or day I guess it was. 15 A. Yes, yes. It was in the evening. It was 16 Sunday night by that time. 17 Q. You were taken to the Holy Spirit ER; weren't 18 you? 19 A. Yes. 20 Q. How long ago did -- well, let me rephrase 21 that. When Dr. Hanks -- did Dr. Hanks come into the Holy 22 Spirit ER and see you then? 23 A. He came to see me the Sunday night after the 24 accident and looked at the x-rays. And he said there was 25 definitely a break there and they operated on me the next 12 1 day. They operated on me on Monday, late Monday afternoon 2 I think it was. 3 Q. Yes. 4 A. But I was not familiar with him at all before 5 that. 6 Q. All right. Did he operate on you any time 7 after that or was that the only one? 8 A. No, he operated on my leg that was it. 9 Q. Okay. And then you came back to have him 10 check that a couple of times? 11 A. Yes. I did regular checkups. You know, I 12 did, I don't know, 30, 60 days, and then six months. I 13 missed the last. You know, he said he wanted to see me at 14 a year, that was March of 2002. 15 And he said he'd let me know, but they never 16 -- they never let me know. And I never called back to have 17 another, you know, have it checked again. But the last 18 time he saw me he said everything looked fine, and I should 19 go about my merry way. 20 Q. How does it feel today? 21 A. It's just -- I know there is something there, 22 but it's nothing. Like I said, you know, I don't think I 23 walk with a noticeable limp or anything. I, you know, walk 24 fairly good. It's not -- like I said, once in a while I 25 get a lot of pain from it, you know. I take a pain pill 13 1 every once in a while, but I don't like taking them. I 2 only do it if it's really bothering me. 3 Q. What kind of pain pills do you have? 4 A. It's a generic Vicodin. Hydrocodone is what 5 it is. 6 Q. Who prescribed that? 7 A. He prescribed it originally and then when I 8 went back to Dr. Snoke, my family physician, he gave me an 9 additional prescription for it. 10 Q. And how often do you take the Vicodin? 11 A. Maybe on the average once every ten days, two 12 weeks. I don't know. Like I said, I don't like how they 13 make feel, so I don't take them unless it's really 14 bothering me. That's the only time I take it. 15 Q. You also had a fracture of the -- of an 16 interartic ular lateral condyle? 17 A. I'm not sure if I understand that term or 18 not, but I had a crushed larynx, voice box; is that what 19 they're ca lling that? 20 Q. No, lateral condyle is in your knee. 21 A. Oh, I was not aware of that. 22 MR. WAGNER: Tom, clarify for me, please, 23 when you s aid you had, as a result of this accident or some 24 previous t ime? 25 MR. WILLIAMS: I have this off the Holy 14 1 Spirit ER record. 2 MR. WAGNER: Suggesting it was as a result of 3 this accident ? 4 MR. WILLIAMS: Uh-huh. 5 MR. WAGNER: Okay. Thank you. 6 THE WITNESS: All I was told is I had a 7 broken femur. It was snapped clean and they had to roll it 8 back together . 9 BY MR. WILLIAMS: 10 Q. Fracture of the larynx? 11 A. Yes. I had a crushed voice box because I hit 12 the steering wheel with my neck. 13 Q. Did that heal okay? 14 A. Yes. That's another thing I'm aware -- I'm 15 aware that I went through that, but I really don't have any 16 repercussions from it. I have a tight throat because I had 17 a trache for a while, but... 18 Q. I understand they put the trache in as a 19 precautionary measure? 20 A. Yes. They were afraid it would cut off my 21 windpipe and I wouldn't be able to breath. 22 Q. They didn't want to put it in quickly. They 23 wanted one th ere just in case. 24 A. Yes. 25 Q. Yes. 15 1 A. That was actually more scary than the leg 2 operation. T hat was very frightening. 3 Q. Okay. There is also noted in the -- well, 4 you had eight stitches to close your forehead and ten 5 stitches to c lose your chin? 6 A. Yes. I had lacerations in my forehead and in 7 my chin. 8 Q. Are they still -- I don't see them. 9 A. No, that's all healed up and everything, you 10 know. 11 Q. Is that because of hitting the steering wheel 12 too? 13 A. Yes, well, actually I hit the steering wheel 14 and the winds hield. So I think I hit -- I think my 15 forehead hit the windshield, then I braced myself against 16 the steering wheel and bent it back. 17 But I still -- I didn't have my seatbelt on. 18 So when I was thrust forward, the top of the steering wheel 19 caught my neck and probably, you know, that would have 20 touched my ch in too. But my forehead split the windshield, 21 so... 22 Q. The medical records also note some 23 hypertrophic spondylosis. Do you know what that is, in 24 your neck? 25 A. No. 16 1 Q. Did they talk to you about that? 2 A. I never heard of that. 3 Q. I think it's just a note, something about 4 your bone stru cture. It's a deformity, but I don't think 5 it's accident related. It didn't appear to be an accident 6 related thing. It just seemed to be something they noted. 7 A. I'm not familiar with that term. I know they 8 did extensive tests and x-rays and had all kinds of, you 9 know, machines, you know, things going down taking pictures 10 and they even showed me stuff where they made a VCR tape, 11 you know, and had me stuck these things and taking all 12 kinds of pictu re in there. And they showed me everything, 13 swallowing and everything, and showing how things are 14 opening and closing. 15 Q. Do you have any problems with your neck? 16 A. No. 17 Q. Okay. So basically the leg, the right leg 18 and knee, and then your throat, and the injuries to your 19 head? 20 A. That was it. 21 Q. All right. Were you admitted to the 22 hospital? 23 A. Yes. 24 Q. For how many days? 25 A. I spent I believe 21 days in the hospital. I 17 1 was in ICU for seven days, then I think I was in a regular, 2 you know, regular room for four or five days, then I went 3 to, well, I went to rehab for like, I don't know, 12 or 13 4 days. 5 Q. The 21 days includes rehab? 6 A. Yes. 7 Q. And did you do any rehab outpatient? I 8 imagine you did. 9 A. Yes, I did. I don't even remember anymore. 10 Q. Where did you go, Healthsouth? 11 A. There on Wesley Drive. I can't think of the 12 name of it, Healthsouth. 13 Q. That's the one I think. 14 A. Yes, it's Healthsouth. 15 Q. I believe it was Healthsouth. They're the 16 ones we wer e having trouble getting records from. 17 A. Yes, it was Healthsouth. 18 Q. You saw Dr. Inners there? 19 A. Yes, I did see a Dr. Inners. 20 Q. What -- Inners is a -- he's kind of an 21 infectious disease guy. What did he see you for? 22 A. He was like a nose, ear, and throat 23 specialist. So I think, you know, he was for my throat 24 basically. He wasn't anything to do with my leg. 25 Q. Okay. He was just taking care of you in 18 1 rehab, checking your throat? 2 A. Yes. He followed me daily for the first four 3 or five days I was there and, you know, he made, you know, 4 prescribed a lot of things. I had to do a lot of breathing 5 exercises, you know, different things. They brought 6 machines in and, you know, tested my breathing. 7 Q. So your rehab was both for your neck injury 8 -- I mean, your throat injury plus your knee injury? 9 A. Correct. 10 Q. Dr. Shapiro, do you remember him? 11 A. Yes. I saw a Dr. Shapiro. I believe he was 12 -- he saw me for -- wait a minute. Shapiro, I might be 13 confused here. He may have been the doctor that operated 14 on my throat. In fact, now that I think of it, I'm sure 15 that's who it was. It was Dr. Shapiro that did my 16 tracheotomy. 17 Q. At Holy Spirit? 18 A. Yes. 19 Q. All right. And there is a Shabih, Kahn 20 Shabih, Dr. Shabih, S-h-a-b-i-h. 21 A. I'm not sure. I'm not sure where -- of that 22 name. I had another doctor that came to see me because I 23 couldn't take medication because I couldn't swallow 24 obviously. 25 So after like two days of being there, I 19 1 wasn't on my gout medicine or my gout medication, I kept 2 telling them I had to have it because I could feel, you 3 know, everything getting tight on me. 4 And they were already putting me through 5 rehab for my knee. And I said I can't, you know, I 6 couldn't even begin to do that without my -- I needed 7 colchicine and I had to have it, you know. They would give 8 it to me in the IV because I couldn't -- I obviously 9 couldn't swallow anything. And a guy came to see me quite 10 regularly about that, but I don't remember what his name 11 was. 12 Q. Oh, I see. Shapiro did do the tracheostomy. 13 A guy named Fornadley did the intubation. 14 A. Fornadley was -- he was like a specialist I 15 saw after the fact. He came in to check on me a few times. 16 He never actually operated on me, but he did a lot of tests 17 on me. I went to see him both at his Camp Hill and his 18 Annville offices. 19 Q. For the throat? 20 A. Paul Myer, yes. 21 Q. And so he wasn't at Holy Spirit? 22 A. He came -- yes, he came in to see me at Holy 23 Spirit. But he didn't actually -- he didn't do any of the 24 operation. 25 Q. Did you see anybody from Susquehanna 20 1 surgeons, a surgeon for anything? 2 A. Susquehanna, I vaguely remember seeing some 3 correspondence from them. I think that might have been the 4 doctor that called on me or, you know, was on my gout 5 medication. 6 Q. Dr. Cummings, does that sound familiar? 7 A. Cummings. 8 Q. Gary Cummings the third, MD, internal 9 medicine, you may have seen him in ICU? 10 A. I don't recall. They had me very highly 11 medicated for seven days. I mean, I was watching rats 12 crawl around the wall for a while. They had me on morphine 13 or something. I said, you know, that they had to get me 14 off this. You know, it was driving me crazy. I know I 15 needed something for the pain I was in, but so it was, you 16 know, a lot of sketchy parts there. 17 Q. How long were you in Healthsouth? 18 A. Healthsouth, I think about ten days. That's 19 a guess. 20 Q. When you got out of there, were you on 21 crutches? 22 A. Yes. 23 Q. How long were you on crutches? 24 A. Well, I was on crutches for, oh, let's see 25 that was March, ten weeks anyway, about ten weeks after I 21 1 got out. 2 Q. And when you got off crutches, were you able 3 to resume normal activities? 4 A. You know, I don't think I could. You know, I 5 mean, I couldn't go run or jump or anything like that. I 6 mean, you know, I walk around. It took me a long time to 7 get my strength back in my leg and everything even though I 8 had done rehab three days a week. I forget for exactly how 9 long, two or three months, but... 10 Q. Okay. You were at Holy Spirit for 21 days, 11 Healthsouth for 10 days? 12 A. No. I was -- 21 days was the total. 13 Q. Total? 14 A. Total between Holy Spirit and Healthsouth. 15 Q. Oh, okay. 16 A. I want to say roughly 11 days at Holy Spirit 17 and 10 at Healthsouth. I'm not exactly, you know, that 18 might be a day or two off one way or the other. 19 Q. All right. So when you talk about the rehab 20 three days a week, that was after the 21 days you were 21 discharged? 22 A. Yes, yes. 23 Q. How did you get to rehab? 24 A. My father. I stayed with my parents for 25 three months after the accident because I live alone and 22 1 there was no way -- I had no way of getting around, so I 2 stayed wi th my parents for that period of time. 3 Q. Did you have a driver's license at that time? 4 A. No. 5 Q. I had a note that you were charged as a 6 result of this accident. You had a suspended license? 7 A. Yes, I did not have a current driver's 8 license. It was under suspension when the accident 9 happened. 10 Q. When you say you were on crutches ten weeks, 11 you mean ten weeks after you got out of the hospital? 12 A. Yes. 13 Q. And during that time you were going to rehab? 14 A. Yes. 15 Q. Three times a week? 16 A. Yes. 17 Q. How long did you go to rehab? 18 A. For how long a period of time? 19 Q. Yes. 20 A. I'd say about ten weeks. I was just -- it 21 was about the time that I got off -- you know, by the time 22 I quit rehab, they actually, you know, the insurance 23 wouldn't cover it anymore. 24 So they went about -- you know, I was down to 25 one crutch and then I was at the point where I didn't need 23 1 crutches when I got to rehab. That was a ten week period 2 after my discharge. 3 Q. You mentioned about your father taking you 4 and your license being suspended. How long was your 5 license suspended for? 6 A. Initially my license was suspended for one 7 year. 8 Q. And when you say initially, you're talking 9 about from when to when? 10 A. Well, it was from July of 2001 until August 11 of 2002. 12 Q. And did you mean to imply that it was added 13 on to that because of this charge? 14 A. Well, yes, since I was charged with driving 15 under suspension, I got an additional one year suspension 16 on my driver's license. 17 Q. Which brings it up to August of 2003? 18 A. Yes, I just -- yes, I just got my license 19 back two months ago. 20 Q. All right. So to get around you had somebody 21 drive you or what? How do you get around? You probably 22 don't take the bus. 23 A. No. My parents mostly and then, you know, 24 friends would give me rides here and there. If I was just 25 going -- I actually stayed in town close to everything in 24 1 Mechanicsburg and walked a lot of places and that was good 2 therapy for me also. 3 Q. Did you own a car at that time? 4 A. Technically, yes. I mean, the car that I was 5 driving -- the car belonged to the mother of my child. 6 Okay? The car was in a bad state of repair. 7 I bought her a new car, a newer car, and she 8 left the car with me. I was going to do some work on it 9 because it needed some mechanical repair work. I was going 10 to fix it and sell it and if I could get her some money for 11 it. It was a $500 car. 12 Q. Was that Kristina Miller? 13 A. Yes. 14 Q. Did you say you bought her another car? 15 A. Yes. I helped her get a car. I went and 16 found it and I actually bought it for her and she paid me 17 back. 18 Q. When you say bought it for her, you mean you 19 put it in her name? 20 A. Yes, yes. 21 Q. And why were you doing these things for 22 Kristina? 23 A. She's the mother of my daughter. 24 Q. I know a lot of people in that situation that 25 hardly talk t o each let alone buy each other cars. 25 1 A. We had a very close relationship and, you 2 know, we do work together to raise the child correctly and 3 there is no animosity between us. 4 Q. Obviously I must have misunderstood. You're 5 living toge ther? 6 A. No, no, we don't live together. 7 Q. Okay. When you say you're raising the child 8 together, you mean together but in separate homes? 9 A. Well, we have joint custody. I mean, she 10 spends as m uch time with me as she does with her mother. 11 Well, not - - close to it. We have a very amicable 12 relationship, and... 13 Q. Okay. So this car was titled to Kristina 14 Miller at t he time of the accident? 15 A. That is correct. 16 Q. How long had you been driving it? 17 A. That was March. I forgot when I bought that 18 car. I had the car for three or four months anyway. I 19 can't tell you exactly how long. I think I got that car 20 for her in October so it might have been five or six 21 months. 22 Q. October 2001, about two years ago; is that 23 right? 24 A. Correct. I didn't understand that question. 25 Q. You bought it in October of 2001? 26 1 A. The car she's driving now? 2 Q. The car she had at the time of the accident. 3 I don't kn ow whether she's still driving it now. 4 A. Yes, she still has that same vehicle. You 5 have that information there. I was guessing October of 6 2001 that she got -- that I got the car for her. I wasn't 7 sure exactly. 8 Q. Okay. Did she have insurance on that car? 9 A. On the car that I was driving? 10 Q. Yes. 11 A. No. 12 Q. But it was titled in her name; right? 13 A. It was titled in her name. 14 Q. Okay. So when you say technically you didn't 15 have a car, was there -- 16 A. I had possession of the vehicle. It was 17 still titled -- nothing was ever done with the title. It 18 was still titled in her name. I had possession of the 19 vehicle. 20 Q. It was kind of your car but titled in her 21 name? 22 A. Correct. 23 Q. Because you bought her another car? 24 A. Because I helped her get a new car, she said 25 here take this. If you can get anything out of it, you 27 1 know, sell it and apply it towards, you know, the money 2 that I loaned her to get the new car, the newer car. 3 Q. You were trying to sell it for her? 4 A. I was. That's what I was going to do 5 eventually, y es. 6 Q. But in the meantime it was the car that you 7 used to get a round? 8 A. I drove it once in a while when I wasn' t 9 supposed to, yes. 10 Q. When was the last time you and Kristina lived 11 together, if you ever did? 12 A. We never lived together. We were never 13 married. 14 Q. Your child together is a daughter? 15 A. Yes. 16 Q. Does she have a room in your house too? 17 A. Yes. 18 Q. Does Kristina still owe you that money? 19 A. No. In fact, she made her last payment last 20 month. It's paid off. 21 Q. Wow, that's pretty good. 22 A. I deducted it from the child support I paid 23 her. That worked that way. That was her agreement, you 24 know, so... 25 Q. You paid through the courts? 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. You pay directly? A. No, I pay directly. Q. Okay. A. We never went through the court system for that. Q. Who was Gail Young? A. Gail Young is an acquaintance of mine I've known for 15, 20 years. She was also a customer of mine at a business I owned at one time. Q. Did she give you the registration plates to put on that car? A. She didn't give them to me. She left them at the garage to be thrown out and I kept them. Q. Were they expired registration plates? A. No, they were actually still current. Q. What kind of business were you in? A. Automotive repair. I wasn't at that time. I sold the business in January of 2000, but I still own the property, you know. And so I lease the property to the current owner of the business who is a personal friend of mine and I spend a lot of time there. Not a lot but I'm there a fair amount. Q. Do you help them out? A. I give them a hand now and then, sure. 29 1 Q. I guess when you bought Kristina the new car, 2 you transferred the license plates? 3 A. Yes. The registration was transferred to the 4 newer vehicle. 5 Q. Meaning that the car, the other car, the 6 Sundance did not have registration? 7 A. Did not have current registration, no. 8 Q. Why didn't she transfer the title of that car 9 to you? 10 A. I never really wanted the car put in my name. 11 I thought if I did anything with it, you know, if I fixed 12 it and could sell it, then I would handle it as a 13 transaction from her to the buying party. 14 Q. You were to sell the car, correct, and 15 whatever you got for it went against the loan to you? 16 A. Correct. 17 Q. And in the meantime it was available for 18 whatever? 19 A. I had it at my disposal, yes. It was on my 20 property, so ... 21 Q. She didn't want it anymore? 22 A. No. 23 Q. And who is Jennifer Miller? 24 A. Jennifer Miller is Kristina's sister. 25 Q. You used to own this car. You used to own 30 1 this car. Do you remember? 2 A. This Sundance? 3 Q. Yes. 4 A. No, I never owned the car. I think her 5 sister did maybe. Are you reading that wrong? 6 Q. Maybe I'm reading it wrong. 7 A. I think -- I don't know why her sister's name 8 would even be brought into that. I think that was her 9 sister Jen nifer's car at one time and she sold it or gave 10 it to Kristina. 11 Q. Jennifer was a prior owner of the car. 12 A. Okay. 13 Q. Before Kristina. 14 A. Okay. That's her sister. She got a new 15 vehicle and gave her her vehicle. 16 Q. Jennifer bought it off you? 17 A. No. 18 Q. That's what they tell me. 19 A. No. I never owned that car. That car was 20 never titled in my name. 21 Q. Did you ever buy and sell cars as part of 22 your business? 23 A. I did buy and sell cars over the years a lot, 24 yes, but I never owned that car. You have me thinking now, 25 but I'm su re I didn't. 31 1 Q. They traced the title for me and your name 2 was on it before Jennifer Miller's was on it. They tell 3 me. Maybe they're wrong. 4 A. I have to disagree with that. To the best of 5 my knowled ge I never owned that car. That car was never 6 titled in my name. And I didn't even help, you know. I 7 mean, I di dn't even help arrange a sale or something for 8 her to get the car. I was never involved in it in any way 9 before it was Kristina's. 10 Q. Let's cover some background stuff. Where do 11 you live n ow? 12 A. 4 East Willow Terrace Drive. 13 Q. Could you say that again? 14 A. 4 East Willow Terrace Drive. Excuse me. 15 Q. Is that a house or apartment? 16 A. It's a house. 17 Q. Do you own or rent? 18 A. I own it. 19 Q. How long have you owned it? 20 A. 23 years. 21 Q. You lived there 23 years? 22 A. Yes. 23 Q. okay. Are you personally employed? 24 A. No, not now. 25 Q. When did you last work? 32 1 A. As far as being on somebody's payroll 2 regularly? 3 Q. Well, let's start with that question. I like 4 your question better. 5 A. I last worked in 2001. I worked for 6 Harrisburg Au to Auction. I left there in December of 2001, 7 2000, Decembe r of 2000. 8 Q. And why did you leave there? 9 A. I just -- I wasn't happy with it. I didn't 10 like the work . 11 Q. Is that a full time job? 12 A. No. It was actually like three days a week. 13 They hired me to do one job and they switched me to do 14 another one. The same rate of pay, and I didn't -- 15 Q. And would I be correct to say that since 16 then, I mean since December of 2002, whatever work you did 17 you did as yo ur own boss? 18 A. Yes. You know, I help people out. You know, 19 I know people in the construction business, restaurant 20 business, dif ferent things. You know, I'm like emergency 21 help. If I c an give somebody a hand, they give me a call. 22 Q. Apparently the auto repair business too? 23 A. Yes. Although I don't like turning wrenches 24 anymore. 25 Q. I even have -- by the way on November 23, 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1998 you transferred title to the 1987 Plymouth Sundance to Jennifer R. Miller. A. Boy, I'd have to go back to my memory bank, but I don't remember ever owning that car. I seriously do not. That's confusing to me. Like I said, I bought and sold a lot of cars over the years, but I don't recall ever having that car, owning that car, or having it titled in my name. Q. Wrong book. A. Is that information from PennDot, that came from PennDot that that car was titled in my name? Q. Indirectly, yes. They have a title or a transfer thing where you transferred it to Jennifer R. Miller 11/23/98. A. You've got me thinking now. I've got to go back and ask Kristina about that. But I just don't -- I have a pretty good memory, but that's just not in there anywhere. Q. Then on 12/31/99 you closed your business. A. That is correct. Q. Went to work for somebody as an auto mechanic? A. I didn't work for anybody until I went to work for the auto auction. I only worked there six months. Q. Did you ever file bankruptcy? 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. Did you file tax returns in the past few years? A. Yes. Q. Declaring income from where? A. I have investment properties. I own, as I said, I own a garage, commercial property where I used to have a business. And I also own another investment property, five acres of ground on Hogestown Road in Mechanicsburg that I lease out. Q. That's where you make money? A. That's where my income comes from. Q. Your income to live on? A. Yes. I have no outstanding debts. All the properties ar e paid for. Q. Great. Do you have any outstanding medical bills or did insurance cover it all? A. No, all the bills are paid, as far as I know. Q. And today do you have limitations? A. Physical or mental? Q. Yes. Physical, yes. A. No, no. I have none. Q. I have a police report of course. But tell me in your ow n words how the accident happened? A. I was traveling I guess it would be south on 35 1 Route 114 at approximately 5:30 on a Sunday evening. It 2 was snowing very heavily. There was probably already about 3 three or four inches of snow on the road, very treacherous 4 conditions. I just drove in it. 5 I was driving in the tracks of the vehicle 6 that went before. That's -- if you got out of the tracks, 7 the snow would throw you. The snow came fast and hard. 8 So I was going approximately 35 miles an hour 9 on a straight stretch of road. And I noted, observed 10 another vehicle coming towards me heading north that got 11 out of the snow tracks and lost control and went into a 12 slide and just headed directly into me. 13 1 pulled to the right side of the road 14 as far as I could. There was a guardrail right there. 15 They hit me head on in my lane of traffic. 16 Q. Did your car have seatbelts in it? 17 A. It did, but it was not operational. It 18 wasn't working. 19 Q. Have you had other admissions to the hospital 20 besides this one or have you been admitted to other 21 hospitals before in your life? 22 A. Yes. 23 Q. For what? 24 A. I had a motorcycle accident in -- that was in 25 September of 198. 36 1 Q. That was where you hurt your quads? 2 A. Yes, my left quad. 3 Q. Ripped it up? 4 A. Tore my left quadricep. That was the result 5 of a moto rcycle accident. 6 Q. Any other hospital admissions? 7 A. I was in an automobile accident in 1983. I 8 had a bro ken jaw. 9 Q. And you were admitted to the hospital then? 10 A. I was admitted to the hospital. They were 11 going to -- I had my ear lacerated severely and they 12 stitched that up and then they were going to send me home 13 and then the doctor looked at me and realized my jaw was 14 broken. 15 That was a Friday afternoon and they couldn't 16 do much t o my jaw until Monday. They operated on me on 17 Monday. I didn't spend much time in the hospital. They 18 let me go a couple days after that. But my jaw was wired 19 shut for six weeks. 20 Other than that, when I was about 15 years 21 old, I wa s hospitalized for three or four days for 22 infectiou s mononucleosis. That's the only other time I was 23 in the ho spital that I'm aware since when I was a baby. 24 Q. How about surgeries other than the ones that 25 you have already described, any other surgeries? 37 1 A. No. 2 Q. In the past few years have you ever owned a 3 Plymouth Vo yager? 4 A. Plymouth Voyager? 5 Q. Yes. 6 A. Yes. 7 Q. Tell me about that. 8 A. I still have that Plymouth Voyager. It's 9 sitting in my driveway. It hasn't been on the road for a 10 few years. 11 Q. Is it registered? 12 A. No. 13 Q. Is it titled in your name? 14 A. No, it's not. 15 Q. Who is it titled in? 16 A. There was a -- I'm not sure who it's titled 17 to. There was a mess up in the title work. A friend came 18 to me. He had it through a breakup and apparently he had 19 bought this vehicle for his girlfriend. He bought it 20 through me. They had a breakup and he wanted to unload it 21 and I gave him money and took it off his hands. 22 But it's -- the title work has never been 23 straightene d out on it. I have the title in my possession, 24 but I can't even tell you the person's name it is titled 25 to. I Q. So it's owned by you, not titled in your 2 name? 3 A. Correct. 4 Q. What was the name of that friend? 5 A. Jimmy Neidert. 6 Q. How do you spell that? 7 A. N-e-i-d-e-r-t, James Neidert. 8 Q. And how long ago did all this happen? 9 A. I've had that vehicle probably -- that was 10 198 or '99 probably when I got that from him. 11 Q. And it's been -- you say it's been in your 12 driveway ever since? 13 A. Yes, it sits in my driveway. 14 Q. You don't drive it? 15 A. No. 16 Q. There are registration plates on it that 17 don't go with the car. 18 A. There is a plate on it. It's expired or 19 something. I don't know what plate would even be on it. 20 Q. Do you own any other cars? 21 A. Yes. I own quite a few vehicles. I own a 22 1967 Pontiac GTO. 23 Q. 1967? 24 A. Yes. It sits in my garage. And, no, it's 25 not :registere d. It hasn't been on the road for 12 or 14 38 39 1 years. 2 Q. The title is where? 3 A. I have possession of the title. It's titled 4 in my name. 5 Q. Any other vehicles? 6 A. Vehicles titled in my name, I have a -- I 7 think it's an '83 Pontiac Firebird titled in my name. I 8 possess the title to it. 9 Q. Also on your property? 10 A. That's sitting at the property that I lease 11 at the gara ge, my old business. I also own a -- you know, 12 I'm not sur e on that '83. It might be an '81 Pontiac. I 13 own a 1983 Chevy half ton pickup truck. It's also sitting 14 at the gara ge. I own a Harley Davidson motorcycle. Do you 15 want that part too? 16 Q. No, just four wheels. 17 A. None of those vehicles are registered. They 18 haven't been on the road for years. 19 Q. Are there plates on any of them? 20 A. If they are, they're expired. They weren't 21 registered. You know, they were legally registered for the 22 road at one time but not anymore and they haven't been. 23 Q. Yes. 24 A. When I had the business, I had a fleet of 25 vehicles. You know, I gave loaner cars out. The truck I 40 1 used actually, you know, in my business too, you know, for 2 running car s or picking up stuff or hauling things. 3 But since I sold the business, I didn't have 4 a need for those vehicles. I should have gotten rid of 5 them, but I just never did. The Pontiac, the GTO, that's 6 actually an investment, a collector car I bought years ago. 7 That's why. 8 Q. I'm not a car enthusiast, but I do recognize 9 that one. 10 A. Yes. 11 Q. Even wrote a song about it. Didn't they? 12 A. Yes, they did. Little GTO. 13 MR. WAGNER: Why don't you give us a couple 14 verses of i t, Bill? 15 THE WITNESS: My singing career is over. 16 It's going through my head, though. 17 BY MR. WILL IAMS: 18 Q. Are there other cars that you have possession 19 of but are not titled in your name? 20 A. There is another vehicle sitting on my 21 property th at's, I think, an '83 Buick. I think it's a 22 LeSabre. It should have went to the junkyard a long time 23 ago. 24 Q. Do you have the title to that? 25 A. No, never saw a title for it. 41 1 Q. Okay. Are any of those cars insured say 2 within the past three years? 3 A. Not in the past three, no. The Chevy truck 4 was insured up until the time I sold my business and then I 5 dropped it. I droppe d the insurance probably I think in 6 maybe June of 2000. That's a rough, you know, don't hold 7 me to that exactly. I let the registration run out on it. 8 It was an expense tha t I didn't need, so I just left it 9 sit. 10 Q. Do you know Kimberly Hoffman? 11 A. Yes, I do. 12 Q. How do you know her? 13 A. She's m y girlfriend. 14 Q. Do you live together? 15 A. No. 16 Q. Do you own or have possession of a Chevy S10 17 Blazer? 18 A. Do I? 19 Q. Yes. 20 A. No. Sh e does. 21 Q. One or more than one? 22 A. Oh, I'm sorry. Do I own a Chevy S10 Blazer. 23 Q. Yes. 24 A. Yes, I do. I'm sorry. Yes, I do own a Chevy 25 S10 Blazer . 42 1 Q. What color? 2 A. Blue and brown, it's sitting right out front. 3 Q. Dark blue? 4 A. Yes, dark blue. 5 Q. Does it have a yellow gold stripe on it? 6 A. Yellow gold stripe, I don't think so. 7 Q. Does Kimberly also drive a blazer, a S10, a 8 black one? 9 A. Kim owns a blazer. It's a 2001 so mines a 10 lot older than hers is. 11 Q. How long have you had yours? 12 A. That 187 blazer I've owned since probably '93 13 or '94. I 'm guessing on that, maybe not that long. 14 Q. So it's been about ten years you've owned it? 15 A. Yes, probably not -- I don't remember exactly 16 when I bou ght it. 17 Q. That would be your best estimate? 18 A. Yes. Now that I think of it, though, I 19 probably d idn't buy it until '95 or '96, but I can't say 20 exactly. I'd have to check. I've gone through so many 21 vehicles. I can't keep track of it. 22 Q. I noticed. But you didn't mention it when 23 you went t hrough the vehicles that I asked you about, 24 whether you owned those. 25 A. I'm sorry. I'm sorry. It totally slipped my 43 1 mind. That's the vehicle that I drive everyday. It's 2 registered. It's insured. I wasn't trying to withhold 3 information. It just slipped by me. 4 Q. Who is it insured with? 5 A. Progressive. 6 Q. Why weren't you driving that on the day of 7 the accident? 8 A. It wasn't at my house. When I lost my 9 license, I left the vehicle at my brother's house. I think 10 he requested I do that so that I wouldn't be tempted to 11 drive. 12 Q. But you're saying it has always been insured, 13 titled, and registered, and legal in all respects? 14 A. Yes. Well, it was without insurance from the 15 time that Donegal dropped my insurance after this accident. 16 When they found out that I was unlicensed, Donegal dropped 17 me. So there was a time from there until the time I just 18 got my license reinstated that, you know, that it didn't 19 have insurance. 20 Q. Okay. 21 A. It sat. Nobody was driving it. It was just 22 sitting, you know. 23 Q. Did Donegal used to insure it? 24 A. Yes. 25 Q. At the time of the accident? 44 1 A. Yes. 2 Q. All right. 3 A. When I questioned you about something at the 4 start of this, you said this was about Progressive 5 Insurance Company, but this is actually Donegal that you're 6 represent ing. 7 Q. Yes, I was confused by that. 8 MR. WILLIAMS: I think that's all the 9 questions I have. Anything else you want to put on the 10 record? 11 MR. WAGNER: We're fine. Thank you. 12 (Whereupon, the hearing was concluded at 2:43 P.M.) 13 14 15 16 17 18 19 20 21 22 23 24 25 45 1 COMMONWEALTH OF PENNSYLVANIA ) SS. 2 COUNTY OF CUMBERLAND ) 3 4 I, LINDA C. LARSON, a Court Reporter - Notary 5 Public authorized to administer oaths and take depositions 6 in the trial of causes, and having an office in Carlisle, 7 Pennsylvania, do hereby certify that the foregoing is the 8 testimony of WILLIAM D. SWANK. 9 I further certify that before the taking of 10 said deposition, the witness was duly sworn; that the 11 questions and answers were taken down stenotype by the said 12 Reporter - Notary, approved and agreed to, and afterwards 13 reduced to computer printout under the direction of said 14 Reporter. 15 I further certify that the proceedings and 16 evidence are contained fully and accurately in the notes 17 taken by me on the within deposition, and that this copy is 18 a correct transcript of the same. 19 In testimony whereof, I have hereunto 20 inscribed my hand this 18th day of November, 2003. 21 NOTARIAL SEAL 2 2 tha C. Lemon, Notatry PuWb dCMrIN. cwrb hnd County w ErIpYN AI- A 4.2006 23 24 Notary Public 25 CERTIFICATE OF SERVICE I, Christopher E. Rice, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: P. Richard Wagner, Esquire MANCKE, WAGNER, TULLY & SPREHA 2233 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO By 1 , Christopher E. Rice Dated: June 3, 2004 r? ?:. <.; <:? -? .._, ;;- ?;, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) DONEGAL MUTUAL INS. CO. (Plaintiff) VS. WILLIAM D. SWANK (Defendant) No, 1242 Civil LAW SS 2004 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 2. Identify counsel who will argue case: (a) for plaintiff: CHRISTOPHER E. RICE ESQUIRE THOMAS WILLIAMS, ESQUIRE Address: 10 EAST HIGH STREET CARLISLE CARLISLE, PA 17013 (b) for defendant: Address: P. RICHARD WAGNER, ESQUIRE 2233 NORTH FRONT STREET HARRISBURG, PA 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: JULY 28, 2004 JUNE 7, 2004 ??? F Dated: Attorney for ?. ?-? c: _- ?r -? - ?=: ?? DONEGAL MUTUAL INS., CO., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM D. SWANK, Defendant NO. 04-1242 CIVIL ACTION - LAW DECLARATORY JUDGMENT ACTION DEFENDANT'S RESPONSE TO PLAINTIFF'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Procedural History Donegal Mutual Insurance Company issued a policy of insurance unto William D. Swank. On March 17, 2002, Mr. Swank, was operating an automobile owned by Kristina M. Miller at which time he was involved in an accident. There was no insurance on the 1987 Plymouth Sundance being operated by Mr. Swank, owned by Kristina Miller. Mr. Swank submitted an Underinsured Motorists Claim against Donegal which has denied the claim. Donegal Mutual has filed a declaratory judgment action seeking to determine whether coverage under Donegal's policy applies to Mr. Swank, to which Mr. Swank has filed an appropriate Answer with New Matter. Donegal Mutual filed a Motion for Summary Judgment arguing that the policy does not apply to Mr. Swank. FACTS William D. Swank, ("Swank"), was issued an automobile policy from Donegal Mutual Insurance Company ("Donegal") effective between February 23, 2002 and February 23, 2003. On March 17, 2002, Swank was involved in an automobile accident while operating a motor vehicle titled to Kristina M. Miller which automobile was a 1987 Plymouth Sundance. The vehicle was uninsured. Swank settled his claim with the third party carrier, Erie, (representing the party at fault for the accident) and then sought an Underinsured Motorists Claim against his carrier Donegal. As a result, Donegal took a statement from Swank and specifically asked questions concerning the 1987 Plymouth Sundance. Mr. Swank admitted that he and Kristina Miller had a child together, but the parties did not live together. [Record 27] The Sundance was a vehicle that Mr. Swank loaned the money to Kristina Miller to buy. [Record 27] Kristina Miller got a newer vehicle and Mr. Swank was attempting to sell the Sundance for Kristina and apply the money towards the loan owed to him. [Record 27] Mr. Swank drove the vehicle once in a while. The vehicle was titled in Kristina Miller's name. [Record 26] Mr. Swank never owned the vehicle. [Record 30] The vehicle was never titled in the name of Mr. Swank, but was owned by Kristina Miller's sister, Jennifer, who was a prior owner and sold it to Kristina. [ Record 30] Mr. Swank never owned the vehicle or the vehicle was never titled in his name. [Record 31] LEGAL PRINCIPLE NO .1 MR. SWANK IS ENTITLED TO PROCEED WITH AN UNDERINSURED MOTORISTS CLAIM AGAINST DONEGAL. See: Ibarra v. Prudential P'rooerty and Casualtv Insurance, 402 Pa. Super. 27, 585 A.2d 1119 (1991). Mr. Swank was involved in an automobile accident on March 17, 2002 while operating a 1987 Plymouth Sundance when it collided with an underinsured vehicle for which third party -2- benefits have fully been received. At the time of the accident, Mr. Swank had an automobile policy through Donegal Mutual Insurance Company that provided in pertinent part: "We do not provide Underinsured Motorists Coverage for `bodily injury' sustained: By you while `occupying,' or when struck by, any motor vehicle you own which is not insured for this coverage under this policy." Donegal alleges that the 1987 Sundance titled in the name of Kristina Miller was actually owned by Swank and therefore Swank is not entitled to coverage. Ownership is not defined by the Donegal Policy. Ownership is however defined in the Motor Vehicle Code as follows: "a person other than a lien holder having the property right in or title to a vehicle. The term includes a person entitled to the use and possession of the vehicle subject to a security interest in another person but excludes a lessee under a lease not intended as security" See: 75 Pa. C.S.A. § 102. It is clear that Mr. Swank did not have title to the vehicle and therefore is a question if he had a property right in the vehicle. Our Superior Court in Ibarra v. Prudential Property and Casualty Insurance, 402 Pa. Super. 27,585 A.2d 1119 (1991) was confronted with a vehicle title in the name of the estranged husband of a wife and determined that the wife was not an owner of the vehicle despite a proprietary interest under the Divorce Code. In Ibarra, Supra. the Court determined that the wife was not an owner, did not have title and had no property right in the vehicle of her estranged husband. Similarly, herein Mr. Swank did not have title to the 1987 Sundance nor did he have any property right in it. He was not married to Kristina Miller, didn't even live with her and only occasionally use the vehicle in question. He did admit that he was attempting to assist Ms. Miller in selling the vehicle to generate -3- enough funds to repay Mr. Swank the money he loaned Ms. Miller to buy another vehicle. The issue of ownership is set forth in Bethea V. Pennsylvania Financial Responsibility Assigning Claims Plan, 407 Pa. 57, 595 A.2d, 122 (1991) and Allen v. Merriweather, 413 Pa. Super. 410, 605 A.2d, 424 (1992). Petition for Allowance of Appeal denied, 533 Pa. 622, 620 A.2d, 489, (1993) can be distinguished from Ibarra, Supra. In both Bethea and Allen, Supra, the Court concluded that the spouse had an interest in the other spouse's car by virtue of purchasing the vehicle after marriage. Further, the spouses were living together, were married and the vehicle was the only vehicle in the household. That is distinguished from the case herein. Mr. Swank and Ms. Miller did not reside together, and Mr. Swank only occasionally used the 1987 Sundance. Therefore, because there is no property right of that Mr. Swank has the 1987 Sundance and clearly he does not have it titled in his name or did he ever, he is not the owner of an uninsured vehicle. He is therefore entitled to coverage under the policy. Respectfully submitted, & SPREHA i'. *mtrdfd Wagner, Esquire I.D. #23103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for Defendant -4- CERTIFICATE OF SERVICE I, Debra K. Spinner, Secretary in the law firm of MANCKE, WAGNER & SPREHA, do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 Debra K. Spinner, ecretary MANCKE, WAGNER & SPREHA 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 P. Richard Wagner, Esquire Attorneys for Defendant DATE: / (-. no C- c- ; ^ c_ ? ? _" r ?._. __ -,.?;? ° I ,J . _. .. ? =:J ,? 4: DONEGAL MUTUAL INS., CO., PLAINTIFF V. WILLIAM D. SWANK, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1242 CIVIL TERM BEFORE BAYLEY J. ORDER OF 000R7- AND NOW, this Z- day of August, 2004, the motion of plaintiff for summary judgment, IS DENIED. By the ve`hristopher E. Rice, Esquire For Plaintiff A . Richard Wagner, Esquire For Defendant :sal Edgar 4.f\ J tr T N.e:i C. C 1 _ I . :.i S( 1? 1?- I t Thomas.]. Wilhams,Es(Jnire MARTSON DEARDORFF W ILLIAMS & OTTO I.D. 17512 10 Fast High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DONEGAL MUTUAL INS. CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 04-1242 CIVIL ACTION - LAW WILLIAM D. SWANK, Defendant DECLARATORY JUDGMENT ACTION PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above captioned case settled and discontinued and issue a certificate reflecting same. MARTSON DEARDORFF WILLIAMS &: OTTO By ! ) OvS 4? Thomas J. Williams, Esquire I.D. Number 17512 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: February 28, 2005 CERTIFICATE OF SERVICE. I, Tricia D. ECkellroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, First class mail, postage prepaid, addressed as follows: P. Richard Wagner, Esquire MANCKE, WAGNER, TULLY & SPREHA 2233 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO By Tricia D. Eckenroa Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 28, 2005 ?? N - l .` ?,i ?i ' 7 _ T 'J { r.- t _.7ni ? rz 'D !? k L ,- "' ? ?? L-, ??. y„ ` ? w r? _ ?? 4. F:\FILES\DATAFILE\Donega13050\CwTent\240\replyI /nlm George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO f' I.D. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 fay ller((-i)mdwo.com Attorneys for Plaintiff DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1242 CIVIL ACTION - LAW : DECLARATORY JUDGMENT ACTION PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff Donegal Mutual Insurance Companies, and hereby responds to Defendant's New Matter as follows: 22. No response required. 23. Denied as stated. To the contrary, if Mr. Swank had been given the vehicle in question by Ms. Miller after he purchased another vehicle, he should have insured it. 24. Denied. To the contrary, see the Response to Paragraph 23. 25. Denied. To the contrary, Ms. Miller has given sworn testimony saying that Mr. Swank did not have permission and in fact knew he was not supposed to use the vehicle. 26. Denied as stated. To the contrary, the Donegal policy is a written document which speaks for itself. 27. The averments of this paragraph are a conclusion of law to which no response is required. To the extent a response may be deemed required, this averment is denied. To the contrary, Mr. Swank is not entitled to UIM coverage under the Donegal Insurance policy. Date: December 1, 2006 MAR N D O WILLIAMS & OTTO By George B. Faller, Jr., Esqui 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff VERIFICATION I, Janet L. Weisberg, Vice President ofB.I. Claims of Donegal Mutual Ins. Co., acknowledge I have the authority to execute this Verification on behalf of Donegal Mutual Ins. Co. and certify the foregoing Plaintiff's Reply to Defendant's New Matter is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this Reply is that of counsel and not my own. I have read the document and to the extent the Reply 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 the content of the Reply is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities, which provides that if l knowingly make false averments, I may be subject to criminal penalties. Donegal Mutual Ins. Co. et L. Weisberg, Vice President of B.I. Claims F:\FILES\DAT kFILE\Donega13050\Curtent\240\rep1y I E 0 :8 v 1 Z- 130 goof 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 Defendant's New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John A. Statler, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. 301 Market Street P.O. Box 109 Lemoyne, pA 17043-0109 MARTSON DEARDORFF WILLIAMS & OTTO By j(1?1,?'?e?° I(V?, Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: December 1, 2006 d a ? : rrl mip . t rn e - F:\FQ..ES\CtientslDonega13050\Curtent\24013050.240.pra2/nlm Created: 9/20/04 0:06PM Revised: 9/17/07 3:38PM 3050.240 George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1242 CIVIL ACTION - LAW DECLARATORY JUDGMENT ACTION PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark the above-referenced matter as settled, discontinued and ended. LAW By Ge B. Faller, Jr., Esquire MARTSON LAW OFFICES I.D.49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: September 18, 2007 CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent for MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John A. Statler, Esquire LAW OFFICES OF JOHNSON DUFFIE 301 Market Street P.O. Box 109 Lemoyne, PA 17043 MARTSON LAW OFFICES By Nichole L. Myers 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 18, 2007 C? 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