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HomeMy WebLinkAbout09-3055MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs V. ERIE INDEMNITY COMPANY and ERIE INSURANCE EXCHANGE and ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2009- 3 d 5 J CIVIL TERM CIVIL ACTION - LAW PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO CURTIS R. LONG, PROTHONOTARY: Please issue a Writ of Summons against the defendants, ERIE INDEMNITY COMPANY and ERIE INSURANCE EXCHANGE and ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP and enter my appearance on behalf of the plaintiffs, MICHELE L. ORNER and JEFFREY K. ORNER. Please direct the Sheriff to serve the defendants as follows: ERIE INDEMNITY COMPANY and ERIE EXCHANGE and ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP BRANCH OFFICE 4901 LOUISE DRIVE ROSSMOYNE BUSINESS CENTER MECHANICSBURG, PA 17055 Respectfully submitted, By: Date: May 12, 2009 IRWIN & McWGHT, P.C. III, Esquire Pllarcu AMC 60 W t omfret eet, Cazlisle, PA 17013 (717) 9-2353 Supreme Court I.D. No: 25476 To: ERIE INDEMNITY COMPANY and ERIE INSURANCE EXCHANGE and ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP You are hereby notified that Michele L. Orner and Jeffrey K. Orner, plaintiffs, have commenced an action against you which you are required to defend or a default judgment may be entered against you. " /' Z?? ' PPROTHONOTALK By: ac?cQ CG? Date: DEP Y ,113 , 2009 0 FIL OF ?3-E p:'Tr-r?JOTARY 2009 MAY 13 P111 2: J U PEP, , $? 7fir- sC) pd n'4y &k 0, Uv7?- x7t- ySd F'3 Sheriffs Office of Cumberland County R Thomas Kline of 4c"Inhrr? h? Edward L Schorpp Sheri Solicitor O -? 1fi TP Ronny R Anderson P Jody S Smith Chief Deputy oMcE OF THE SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 05/14/2009 04:15 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on May 14, 2009 at 1615 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Erie Indemnity Company, by making known unto Michael McGaw, Claim's Supervisor, al 4901 Louise Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. 05/14/2009 04:15 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on May 14, 2009 at 1615 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Erie Exchange, by making known unto Michael McGaw, Claim's Supervisor, at 4901 Louise Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. 05/14/2009 04:15 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on May 14, 2009 at 1615 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Erie Insurance Company, by making known unto Michael McGaw, Claim's Supervisor, a- 4901 Louise Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $70.34 SO ANSWERS, May 15, 2009 2009-3055 Michelle Orner v Erie Indemnity R F r f • lC? i 7 ? 1 3 Cu U11 Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs V. Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ERIE INDEMNITY COMPANY,. ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and NO. 2009-3055 CIVIL TERM ERIE INSURANCE GROUP, Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: C-) m :za Please enter the appearance of John A. Statler, Esquire, of Johnson, Duffie, Stewart & Weidner, P.C. as counsel on behalf of Defendants Erie Indemnity Company, Erie Insurance Exchange, Erie Insurance Company and Erie Insurance Group in the above-captioned action. JO DUFFLE, ST WART & WEIDNER By: John A. Statler, quire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE: S! 2-1 /0 `7 366777 22740-2435 N Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 7614540 jas@jdsw.com Attorneys for Defendants MICHELE L. ORNER and IN THE COURT OF COMMON PLEAS JEFFREY K. ORNER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW ERIE INDEMNITY COMPANY,. ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and NO. 2009-3055 CIVIL TERM ERIE INSURANCE GROUP, Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of John A. Statler, Esquire, of Johnson, Duffle, Stewart & Weidner, P.C. as counsel on behalf of Defendants Erie Indemnity Company, Erie Insurance Exchange, Erie Insurance Company and Erie Insurance Group in the above-captioned action. JO DUFFIE, ST WART & WEIDNER By: John A. Statler, quire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE: S / 2-1 IU -7 366777 22740-2435 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all parties or counsel of record by depositing a copy of same in the United States Mail at S4 Lemoyne, Pennsylvania, with first-class postage prepaid on the 2-1 day of , 2009, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A' -r, Esqui Attorney I.D. No. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants i IL` L?... 20091'1A a 22 I:', 'I I • I ? R Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I. D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs V. ERIE INDEMNITY COMPANY,. ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and ERIE INSURANCE GROUP, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 2009-3055 CIVIL TERM PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter a Rule upon the Plaintiffs, Michele L. Orner and Jeffrey K. Orner, to file a Complaint within 20 days or suffer a judgment non pros seq. reg. JOH DUFFIE, ST WART & WEIDNER By: John A. Statler, Esgwre Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants RULE TO PLAINTIFFS MICHELE L. ORNER and JEFFREY K. ORNER: You are hereby directed to file a Complaint in the above-captioned matter within 20 days or judgment non pros will be entered against you. DATE: 5'/a.7 LOg 366778 22740-2435 1-f 0,11 . A'ki K 'PROTHONOTARY and _r CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 2_1Srday of 2009, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. StatlVo43481 Attorney I. D. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants RLEI OF THE IARY 20,C9 FlAY 22 P6 1: 17 Johnson, Duffle, Stewart & Weidner By: John A. Staler, Esquire I.D. No. 43812 Attorneys for Defendants 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com MICHELE L. ORNER and IN THE COURT OF COMMON PLEAS JEFFREY K. ORNER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW ERIE INDEMNITY COMPANY,. ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and NO. 2009-3055 CIVIL TERM ERIE INSURANCE GROUP, Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly file of record the attached Certificate of Service of the Prothonotary's Rule to File a Complaint which was issued on May 22, 2009 and served on the date reflected in the attached Certificate of Service. JOHNS UFFIE, STEWART & WEIDNER By: John A. Stat ire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE: --;,ST 1-2 ?, /O 7 Johnson, Duffle, Stewart & Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsybania 17043-0109 (717) 761-4540 jas@jdsw.com Attorneys for Defendants MICHELE L. ORNER and IN THE COURT OF COMMON PLEAS JEFFREY K. ORNER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. ERIE INDEMNITY COMPANY,. ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and ERIE INSURANCE GROUP, Defendants CIVIL ACTION - LAW NO. 2009-3055 CIVIL TERM CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that I have served a certified copy of the Rule to File Complaint issued by the Prothonotary of Cumberland County on May 22, 2009 upon counsel for Plaintiffs, by depositing same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the Z G day of tAt , 2009, addressed to the following: Marcus A. McKnight, 111, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 JOHN IE, STEW T & WEIDNER By: John A. 94 e , Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants 366782 22740-2435 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the ZG day of D , 2009, addressed to the following: Marcus A. McKnight, 111, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER C-- By: John A. Statler, "uu'!r?e Attorney I.D. No. 43812'-- 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants FE t!-... , 7 r'. i r .ri d 20x9 thil'' 27 fFli 2: 21 MICHELE L. ORNER and : IN THE COURT OF COMMON PLEAS OF JEFFREY K. ORNER, Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. 2009 - 3055 CIVIL TERM ERIE INDEMNITY COMPANY and ERIE INSURANCE EXCHANGE and ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP CIVIL ACTION - LAW Defendants NOTICE TO DEFEND 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, order and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 2 MICHELE L. ORNER and : IN THE COURT OF COMMON PLEAS OF JEFFREY K. ORNER, Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. 2009 - 3055 CIVIL TERM ERIE INDEMNITY COMPANY and ERIE INSURANCE EXCHANGE and ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP CIVIL ACTION - LAW Defendants COMPLAINT AND NOW, this 14th day of July 2009, comes the Plaintiffs, MICHELE L. ORNER and JEFFREY K. ORNER, by their attorneys, Irwin & McKnight, P.C., and makes the following Complaint against the defendants ERIE INDEMNITY COMPANY, ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP: 1 The Plaintiffs are Michele L. Omer and Jeffrey K. Omer, adult individuals residing at 1485 Lutztown Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 2. The Defendants are Erie Indemnity Company and Erie Exchange and Erie Insurance Company t/d/b/a Erie Insurance Group, Branch Office, 4901 Drive, Rossmoyne Business Center, Mechanicsburg, Pennsylvania 17055. 3. On May 31, 2003, the Plaintiff, Michele L. Omer and her children, Brandon, Omer and Shawn Omer, were involved in an automobile collision with a vehicle operated by Robert H. Sparks, Jr. and owned by Jodene Sparks. 4. In the collision, Michele L. Omer, Brandon Omer, and Shawn Omer were injured when Robert H. Sparks, Jr. was intoxicated and ran a yellow light and struck the vehicle in which the Plaintiffs occupied. 3 5. The Plaintiffs brought suit against the Defendant, Robert H. Sparks, Jr. and Jodene Sparks, at Docket Number 2005-1912 which is still pending and waiting for final disposition. 6. If the Defendants are not insured by Progressive Insurance when the Plaintiffs obtain judgment, the Plaintiffs have a claim against their own insurance policy with Erie Insurance Company for uninsured coverage. The issue is whether the Defendant, Robert H. Sparks, Jr., was an authorized driver at the time of the collision. 7. The Plaintiffs have filed suit to protect their interests as well as the interests of their minor children, Brandon Omer who is now thirteen (13) years of age, and Shawn Omer who is now eight (8) years of age. By this suit, the Plaintiffs seek to toll the statute of limitations which may be applicable in this case. 8. The Plaintiffs seek coverage from the Defendants when judgment is obtained against Jodene Sparks and Robert H. Sparks, Jr. at Docket Number 2005-1912, Court of Common Pleas, Cumberland County, Pennsylvania. WHEREFORE, the Plaintiffs, Michele L. Omer and Jeffrey K. Omer, request compensation and coverage from the Defendants in the amount of any judgment obtained against the Defendants, Richard H. Sparks, Jr., and Jodene Sparks, at Docket Number 2005-1912, Court of Common Pleas, Cumberland County, Pennsylvania. Respectfully submitted, IRWIN &MCKNIGHT, P.C. By: Marcus A. McKn gh III, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 /Supreme Court I.D. No. 25476 Date: July 14, 2009 Attorney for plaintiffs 4 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and us in the preparation of this action. We have head the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. MICHELE L. ORNER J FFREY K. ORNER Date: July 14, 2009 6 MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs V. ERIE INDEMNITY COMPANY and ERIE INSURANCE EXCHANGE and ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2009 - 3055 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: John Statler, Esq. Johnson Duffle 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 By: Date: July 14, 2009 IRWIN & P.C. 60 West Pomfret Sit Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 5 ???r ?`? ??< ?• ?C ZC???3..._ . ?: .^., 15 .. Llily Johnson, Duffie, Stewart 8 Weidner By: John A. Statler, Esquire 1. D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs v. ERIE INDEMNITY COMPANY, ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and ERIE INSURANCE GROUP, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-3055 CIVIL TERM NOTICE TO PLEAD TO: MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs c/o MARCUS A. McKNIGHT, III, ESQUIRE Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs YOU ARE REQUIRED to plead to the within Answer With New Matter within 20 days of service hereof or a default judgment may be entered against you. DATE JOH ON, DUFFIE, STEWART & WEIDNER By: John A. Sta sq 're Attorney I.D. No. 4 12 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 / 3 /~q, Attorneys for Defendants Johnson, Duffie, Stewart 8~ Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717)761-4540 jast~jdsw.com MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs v. ERIE INDEMNITY COMPANY ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and ERIE INSURANCE GROUP, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-3055 CIVIL TERM ANSWER OF DEFENDANTS ERIE INDEMNITY COMPANY AND ERIE INSURANCE EXCHANGE AND ERIE INSURANCE COMPANY t/d/b/a ERIE INSURANCE GROUP TO PLAINTIFFS' COMPLAINT INCLUDING NEW MATTER AND NOW, come the Defendants, Erie Indemnity Company and Erie Insurance Exchange and Erie Insurance Company t/d/b/a Erie Insurance Group (hereinafter "Erie"), by their attorneys, Johnson, Duffie, Stewart & Weidner, P.C., who file the following Answer and New Matter in response to the Plaintiffs' Complaint: 1. Admitted. 2. Admitted with clarification. The proper Defendant is Erie Insurance Exchange. 3. Admitted. 4. Admitted. 5. It is admitted that the Plaintiffs filed a Writ of Summons against Robert H. Sparks, Jr. and Jodene Sparks at Docket Number 2005-1912 which is still pending on the docket. 6. It is denied that the Plaintiffs have a claim against Erie for uninsured motorist coverage since any such claim is barred by the applicable statute of limitations. 7. Denied. It is denied that the Plaintiffs' suit protects their interests or the interests of their minor children, Brandon Orner and Shawn Orner. It is further denied that the filing of this suit tolled the statute of limitations which was applicable to this case. Rather, the statute of limitations had already expired prior to the date that the Plaintiffs filed this suit. 8. Denied. It is denied that the Plaintiffs are entitled to uninsured motorist coverage from Erie and denied that the Plaintiffs will be entitled to coverage from Erie when judgment is obtained against Jodene Sparks and Robert H. Sparks at Docket Number 2005-1912, Court of Common Pleas, Cumberland County, Pennsylvania. WHEREFORE, Defendants Erie Indemnity Company and Erie Insurance Exchange and Erie Insurance Company, t/d/b/a Erie Insurance Group, respectfully request that the Plaintiffs' Complaint be dismissed and that judgment be entered in favor of the Defendants and against the Plaintiffs in this case. NEW MATTER By way of additional answer and reply, Defendants raise the following New Matters: 9. The Plaintiffs' claims are barred by the applicable statute of limitations. 10. On August 23, 2004, Plaintiffs' counsel Marcus A. McKnight wrote a letter to Erie Insurance Group advising Erie that Progressive Insurance Company had denied coverage to Robert Sparks, Jr. and Jodene Sparks for this accident and requested that Erie open an uninsured motorist file and assign the claim to an adjuster. Prior to August 23, 2004, Plaintiffs, through their counsel, Marcus A. McKnight, III, Esquire, knew or should have known that Progressive Insurance Company was denying liability coverage to Robert Sparks, Jr. and Jodene Sparks as a result of the May 31, 2003 motor vehicle accident. 11. The statute of limitations for an uninsured motorist claim in Pennsylvania is four years from the date on which a reasonable individual knows or has reason to know of the uninsured status of the other party. 12. As of August 23, 2004, Plaintiffs Michele L. Orner and Jeffrey K. Orner knew or should have known of the uninsured status of Jodene Sparks and Robert Sparks, Jr. since Progressive Insurance Company denied liability coverage to them for the accident of May 31, 2003. 13. The statute of limitations for the Plaintiffs claims for uninsured motorist benefits from Erie expired on August 23, 2008. 14. Plaintiffs did not commence this action against the Erie Defendants until May 13, 2009, after the expiration of the statute of limitations. WHEREFORE, Defendants Erie Indemnity Company and Erie Insurance Exchange and Erie Insurance Company t/d/b/a Erie Insurance Group respectfully request that the Plaintiffs' Complaint be dismissed and that judgment be entered in favor of the Defendants and against the Plaintiffs in this case. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. Statler, uire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE: $ l3 ~~~ 371849 22740-2435 VERIFICATION I, ~ON~ I~OT ~ l ~tl l , iiiereby~acknowledge that Erie Indemnity Company, Erie Insurance Exchange and~Erie~Inaurance~Group t/d/b/a Erie Insurance Group are the Defendants in this action and that I am.authorized.to make this~verificatibn on its behalf; that I have read the #oregoing;.and that the feats stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. ERIE INDEMNITY COMPANY, ERlE INSURANCE EXCHANGE and ERIE INSURANCE COMPANY Vdlbla ERIE IN~IRANCE GROUP ey: Title: ~~-~mS' ~~~~~/~~IU~ DATE: 37#885 2274Q-2435 CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Answer of Defendants Erie Indemnity Company, Erie Insurance Exchange, and Erie Insurance Company t/b/b/a Erie Insurance Group to Plaintiffs' Complaint Including New Matter upon all parties or counsel of record by depositing a copy of same in the nited States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the day of ~V~j US ~ 2009, addressed to the following: Marcus A. McKnight, III, Esquire Irwin ~ McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. Statler, e Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants ~~~ i~I A Johnson, Duffie, Stewart 8~ Weidner By: John A. Statler, Esquire I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com MICHELE L. ORNER and JEFFREY K. ORNER, Plaintiffs v. ERIE INDEMNITY COMPANY, ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY and ERIE INSURANCE GROUP, Defendants r,~4p--~;j~ ICE ~ Z~tO ,1A-i -8 R~ $~ 23 Attorneys for Defen n ~~;~ r ~~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-3055 CIVIL TERM DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND NOW, come the Defendants, by their attorneys, Johnson, Duffie, Stewart & Weidner, P.C., who move this Honorable Court to enter a summary judgment in favor of the Defendants and against the Plaintiffs based on the following: 1. Plaintiffs Michelle L. Orner and Jeffrey K. Orner claim uninsured motorist benefits from Erie as a result of injuries sustained by Michelle L. Orner in a motor vehicle accident on May 31, 2003. 2. At the time of the May 31, 2003 accident, Michelle and Jeffrey Orner were insured by Erie Insurance under a policy of automobile insurance that provided, inter alia, uninsured motorist coverage. 3. On August 23, 2004, Plaintiffs' counsel, Marcus A. McKnight, wrote a letter to Erie Insurance Group advising Erie that Progressive Insurance Company had denied coverage to Robert Sparks, Jr. and Jodene Sparks for this accident and requested that Erie open an uninsured motorist file and assign the claim to an adjuster. (A true and correct copy of the correspondence of August 23, 2004 with enclosure is attached hereto as Exhibit "A"). 4. Prior to August 23, 2004, Plaintiffs, through their counsel, Marcus McKnight, knew or should have known that Progressive Insurance Company was denying liability coverage to Robert Sparks, Jr. and Jodene Sparks as a result of the May 31, 2003 motor vehicle accident. 5. Robert Sparks, Jr. was the tortfeasor responsible for the accident of May 31, 2003. 6. A claim for uninsured motorist benefits is an action under a written contract and is subject to a four-year statute of limitations. 7. The four-year statute of limitations for a claim for uninsured motorist benefits begins to run on the date on which a reasonable individual knows or has reason to know of the uninsured status of the tortfeasor. 8. As of August 23, 2004, Plaintiffs Michelle L. Orner and Jeffrey K. Orner knew or should have known of the uninsured status of Robert Sparks, Jr. and Jodene Sparks since Progressive Insurance Company had denied liability coverage to them for the accident of May 31, 2003. 9. The four-year statute of limitations for the Plaintiffs' claim against Erie for uninsured motorist benefits began to run on or before August 23, 2004 and expired on or before August 23, 2008. 10. Plaintiffs did not file suit against Erie or take any other appropriate action to preserve their claim for uninsured motorist benefits prior to the expiration of the statute of limitations on August 23, 2008. 11. Plaintiffs did not commence this action against Erie until May 13, 2009, nearly nine months after the expiration of the statute of limitations. 12. The Plaintiffs' claims against Erie for uninsured motorist benefits are barred by the applicable statute of limitations. 13. There is no genuine issue of any material fact in this case and judgment may be entered as a matter of law. WHEREFORE, Defendants respectfully request this Honorable Court to enter a summary judgment in favor of the Defendants and against the Plaintiffs in this case. Respectfully submitted, JOHN FFIE, ST ART & WEIDNER By: John A. Statler, Esq Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 DATE: ~ ~ (o l~ Q Attorneys for Defendants 386394 LAW OFFICES IRWIN £~ McKNIGHT ROGER B. IRWIN MARCUSA. McKNIGH7; III DOUGLAS G. MILLER WEST POMFRET PROFESSIONAL BUILD/NG 60 WEST POMFRET STREET CARLISLE, PENNSYL SAN/A 17013-3222 (717) 249-2353 FAX (717) 249-6354 E-MAIL: OFF/CES@/MHL.4 W. COM August 23, 2004 BETTY WILLIAM5, MEDICAL ADJUSTER ERIE INSURANCE GROUP BRANCH OFFICE-ROSSMOYNE BUSINESS CENTER 4901 LOUISE DRIVE P. O. BOX 2013 MECHANICSBURG, PA i'i055-u71"v RE: MICHELE L. ORNER JEFFREY K. ORNER BRANDON ORNER, a minor SHAWN ORNER, a minor DATE OF ACCIDENT: MAY 31, 2003 CLAIM N0.030820177 Dear Betty: HAROLD S. IRWIN (1925-1977) HAROLD S. IRWIN, JR. (1954-1986) IRWIN, IRWIN &IRWIN (1956-1986) IRWIN, IRW/N & McKN/GHT (1986-1994) IRWIN, McKNlGHT & HUGHES (1994-2003) IRWIN & McKNIGHT (2003- ) Please be advised that I represent Michele Orner who was involved in a traffic accident on May 31, 2003. Her vehicle was broadsided by an automobile driven by Robert Sparks, Jr., who pled guilty on June 18, 2004 to DUI and driving under suspension DUI related. Enclosed please find the following: 1. A copy of the police report; 2. A copy of the photograph of the damage to the Omer van; and 3. A letter dated June 13, 2003, which denied coverage for this accident. Please open an uninsured file and have this claim assigned to an adjuster as soon as possible. We would like to resolve this claim when it has been assigned to the uninsured adjuster. rkase also send to me a copy o~ your fu~st pu: ty f',ie. Very truly yours, McKNIG ~~ ~// A. McKni h , MAM:sIs Enclosures cc: Ms. Michele L. Omer Mr. Jeffrey K. Orner (~-- ~A~tRiSBt~~~ ~~ ~ ~ l~ June 13, 2003 Jodene Sparks 1550 Williams Grove # 104 Mechanicsburg, PA 17055 Our Insured Jodene Sparks Our Claim Number 030620! 77 Date of loss May 3 I , 2003 t ~- PROGREl V ~~~~ 5CL~3 ittei Road, uife 7 Mechanics~urg, PA 17055 'e.'ephone: t-800-PAOGRcSSIVE facsimile: 777 697-6T ( 7 progressive. corn Please be advised that we have completed our investigation of the above captioned loss. Please also be advised that we must deny ALL coverage to you for the above captioned loss for the following reason: • The operator of your insured vehicle was a npn-permissive uaer of our insureds velticle_ Your Progressive policy clearly states that rw person shall be considered an insured person if a person uses a vehicle without permission of the owner of the vehicle. If you have any questions regarding this matter, please feel free to cotrtact the undersigned. Sincerely, D xe~ David Klick Claims Representative DRK:mab Cc: Michele Orner Erie insurance CERTIFIED MAIL/RETURN RECEIPT REQUESTED CO~~ HARRISBUI JUN 16 ~, ; Z d Xd~ 13C'213Sd1 dH 6Z=9I LOOZ BZ daS CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Defendants' Motion for Summary Judgment upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the ~ day of `1 , 2010, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA .17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. Statler, lie Attorney I.D. No. 4381 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants ' ~ CA~AL PRAECIPE FOR LISTING CASE FOR ARGUMENT ~, ,~~ _ r ILL J ~ l~,,~ (Must be typewritten and submitted in triplicate) ~%~ ~«. ~~ ;~; i~~;?\,`~'(,r1~Y TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within ~~~~r.~~Itt~~n Hf'f ~: Argument Court.) z2 CAPTION OF CASE (entire caption must be stated in full) MICHELE L. ORNER ar;d JEFFREY K. ORNER °A ~~. ~t~.. ... . vs. ERIE INDEMNITY COMPANY, ERIE INSURANCE EXCHANGE, ERIE INSURANCE COMPANY ar;d ERIE INSURANCE GROUP No. 2009-3055 CIVIL Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defer;darits' Motior; for Summary Judgmer;t 2. Identify all counsel who will argue cases: (a) for plaintiffs: Marcus A. McKr;ight, III, Esquire (Name and Address) 60 West Pomfret Street, Carlisle, PA 17013 (b) for defendants: Johr; A. Statler, Esquire (Name and Address) 301 Market Street, Lemoyr;e, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 17, 2010 Signature Johr; A. Statler, Esquire Print your name Def er;dar;ts Attorney for Date: Jar;uary 4, 2010 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe for Listing Case for Argument upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the day of ~Al~~r , 2010, addressed to the following: Marcus A. McKnight, III, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: John A. Statler, Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants