HomeMy WebLinkAbout09-8604DARYL SHAFFER,
Plaintiff,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. QQ 6L L?FJL.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD 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 LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
DARYL SHAFFER, IN THE COURT OF COMMON PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
V. No.
NATIONAL UNION FIRE INSURANCE CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA.,
Defendant. JURY TRIAL DEMANDED
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas
que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los
proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. ST
USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR LIN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE
CUALIFICAN.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
SMIGEL, ANDERSON & SACKS, LLP Peter M. Good, Esquire
River Chase Office Center I.D. No. 64316
4431 North Front Street, 3rd Floor Jessica E. Mercy, Esquire
Harrisburg, PA 17110-1778 I.D. No. 206405
(717) 234-2401 Attorneys for Plaintiff
DARYL SHAFFER, IN THE COURT OF COMMON PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
NATIONAL UNION FIRE INSURANCE, CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA.,
Defendant. JURY TRIAL DEMANDED
COMPLAINT
A. Parties
1. Plaintiff Daryl Shaffer (hereinafter "Shaffer") is an adult individual and
Pennsylvania resident who resides at 11 Hillcrest Drive, Bowmansdale, Cumberland County,
Pennsylvania 17055.
2. Defendant National Union Fire Insurance Company of Pittsburgh, Pa. (hereinafter
"National Union") is a Pennsylvania corporation with an address and principal place of business
at 70 Pine Street, New York, NY 10270.
3. National Union, at all times relevant hereto, is in the business of providing
various insurance products and has provided, among other things, accident insurance.
B. Jurisdiction and Venue
4. This Honorable Court has jurisdiction over the parties and subject matter of this
case.
5. Venue is proper in Cumberland County, Pennsylvania pursuant to Pennsylvania
Rules of Civil Procedure 1006 and 2179 as the insurance contract that is the subject matter of
this Complaint was made and performed in Cumberland County and the transactions and/or
occurrences out of which the cause of action arose took place in Cumberland County.
C. Factual Background
6. At all times relevant hereto, Shaffer was covered by an accident insurance policy
issued by National Union to Shaffer, Master Policy No. 9540476 (hereinafter "the Policy"). A
true and correct copy of the Policy is attached hereto as Exhibit "A."
7. Shaffer obtained the Policy in 2005, when he and his wife entered into a
forbearance agreement with their mortgage company.
8. Shaffer is a "Named Insured" under the Policy, which includes coverage for, but
is not limited to, claims made and reported to United National during the effective period of the
Policy, resulting from, among other things, injuries sustained by a Named Insured as a direct
result of an unintended, unanticipated accident, which directly causes the Named Insured to be
rendered permanently totally disabled within ninety (90) days of the date of the accident.
9. Under the terms of the Policy, the Named Insured is required to provide notice to
National Union within twenty (20) days after sustaining a loss or as soon thereafter as reasonably
possible.
10. After receiving notice of the claim, National Union is required to pay one hundred
percent (100%) of the permanent total disability maximum amount, or one million dollars
($1,000,000.00), to the Named Insured at the end of twelve (12) consecutive months of
permanent total disability.
11. The Policy became effective on August 1, 2005. See Schedule of Insurance, a true
and correct copy which is attached hereto as Exhibit "B."
12. Shaffer became permanently totally disabled on September 27, 2005, during the
effective dates of the Policy., due to an injury that he sustained as the direct result of an
2
unintended, unanticipated accident; he sustained a right hip four-part intertrochanteric hip
fracture as the result of an accidental fall in his yard. See Medical Report of Raymond E. Dahl,
D.O., a true and correct copy of which is attached hereto as Exhibit "C"; Vocational Assessment
of Terry P. Leslie, M.Ed, CRC, D/ABVE, LCP, a true and correct copy of which is attached
hereto as Exhibit "D."
13. Shaffer first learned that he was covered by the Policy in the summer of 2008,
when his wife (hereinafter "Mrs. Shaffer") noticed an additional payment to Premier Safety Net
on their mortgage statement.
14. At that time, Mrs. Shaffer contacted her mortgage company and discovered that
she and her husband were covered under the Policy.
15. After first learning that he was covered under the Policy, Shaffer provided notice
of his claim to National Union.
16. Such notice was provided to National Union as soon as reasonably possible after
sustaining the loss.
17. Mrs. Shaffer first contacted National Union on or about July 9, 2008 and
requested a copy of the Policy to determine whether Shaffer's loss was covered under the terms
of the Policy.
18. National Union failed or refused to provide Mrs. Shaffer with a copy of the Policy
and Mrs. Shaffer again contacted National Union on or about July 23, 2008 and made a second
request for a copy of the Policy.
19. National Union again failed or refused to provide Mrs. Shaffer with a copy of the
Policy and Mrs. Shaffer contacted National Union a third time on or about August 1, 2008 and
made another request for a copy of the Policy.
3
20. National Union again failed or refused to provide Mrs. Shaffer with a copy of the
Policy and on or about September 25, 2008, Mrs. Shaffer again contacted National Union and
informed the representative that she had still not received a copy of the Policy, but that she
would be submitting a claim despite the fact that she could not review the Policy to determine
whether Shaffer's loss was covered under the terms of the Policy.
21. Shaffer did not receive a copy of the Policy until he had submitted the claim.
22. In November 2008, after having the claim forms completed by Shaffer's
physician, Mrs. Shaffer attempted to submit the forms to National Union.
23. However, the claim forms contained incorrect fax numbers and addresses for the
submission of the forms to National Union.
24. Following the submission of the claim, National Union has denied Shaffer's claim
on three different occasions.
25. The first denial was received by Shaffer on or about January 20, 2009 and
indicated that the claim was being denied because the accidental injury occurred before the
effective date of the Policy.
26. The second denial was received by Shaffer on or about January 27, 2009 and
indicated that the claim was being denied because the loss date was prior to the enrollment date.
27. However, both denials were made in bad faith without any investigation of the
claim because the accidental injury occurred on September 27, 2005 and the effective date of the
Policy was August 1, 2005.
28. The third denial, dated February 24, 2009, indicated that the claim was being
denied because the disability must be due to dismemberment.
29. However, the denial was again made in bad faith and without any investigation of
4
the claim because the Policy clearly states that the dismemberment requirement only applies to
Missouri residents.
30. Shaffer appealed National Union's denial of his claim by letter dated July 9, 2009.
31. Shaffer did not: receive any response to such appeal from National Union.
32. To date, National Union has failed and continues to fail to pay Shaffer for his
covered loss.
COUNTI
Breach of Contract
33. Shaffer hereby incorporates by reference paragraphs 1 through 32 of the within
Complaint as it fully set forth herein.
34. National Union executed and delivered a written policy of insurance to Shaffer,
whereby National Union contracted to pay for injuries sustained by Shaffer as a direct result of
an unintended, unanticipated accident, which directly causes the Named Insured to be rendered
permanently totally disabled within ninety (90) days of the date of the accident.
35. Shaffer is an insured under the Policy and National Union owes Shaffer a duty to
promptly investigate losses covered by the Policy and to promptly pay for such losses.
36. National Union breached its duty under the Policy by failing to promptly
investigate Shaffer's loss and pay for any claim that is covered under the Policy.
37. As a direct and proximate result of National Union's material breach of the
Policy, Shaffer was injured and had sustained damages in the claim amount of $1,000,000.00
plus incidental and consequential damages and attorneys' fees.
WHEREFORE, Plaintiff Daryl Shaffer respectfully requests that this Honorable Court
enter judgment in his favor and against Defendant National Union Fire Insurance Company of
Pittsburgh, Pa. in an amount in excess of $50,000.00, requiring Defendant National Union Fire
5
Insurance Company of Pittsburgh, Pa. to pay all monetary damages suffered by Daryl Shaffer
including, without limitation, compensatory damages, consequential damages, prejudgment
interest, post judgment interest, attorneys' fees and costs, together with any other relief that this
Court may deem necessary or appropriate.
COUNT II
Insurance Bad Faith
38. Shaffer hereby incorporates by reference paragraphs 1 through 37 of the within
Complaint as it fully set forth herein.
39. National Union owed and owes Shaffer a duty under both the common law and 42
Pa. C.S.A. § 8371 to act in good faith and in a reasonable manner in connection with any and all
obligations to Shaffer under the Policy.
40. National Union breached this duty and instead acted in bad faith by:
a. Failing to provide Shaffer with a copy of the Policy upon request;
b. Failing to provide Shaffer with accurate contact information to submit his
claim;
C. Failing to promptly or accurately investigate Shaffer's claim; and
d. Failing to promptly pay Shaffer's claim despite no reasonable basis to
dispute such claim.
41. National Union has failed to pay Shaffer's claim and continues to fail to pay
Shaffer's claim without any reasonable basis and with the knowledge and/or reckless disregard
for the lack of a reasonable basis to fail to pay such claim.
42. At all times, National Union was aware of its obligation under the Policy to
promptly investigate claims and pay claims in accordance with the terms of the Policy.
43. National Union acted without a reasonable basis and knew or recklessly
6
disregarded the lack of a reasonable basis in refusing to promptly investigate and pay any
pending and unresolved claims covered by the Policy.
44. As a direct and proximate result of National Union's breach of its duty, Shaffer
was and continues to be injured and prejudiced.
WHEREFORE, Plaintiff Daryl Shaffer respectfully requests that this Honorable Court
enter judgment in his favor and against Defendant National Union Fire Insurance Company of
Pittsburgh, Pa. in an amount in excess of $50,000.00 as to Count II as follows:
(a) An award of interest in Plaintiff's favor and against Defendant on the
amount of the claim from the date the claim was made by Shaffer in an amount equal to
the prime rate of interest plus 3% pursuant to 42 Pa. C.S.A. § 8371(1);
(b) An award of punitive damages in Plaintiff's favor and against Defendant
pursuant to 42 Pa. C.S.A. § 8371(2);
(c) An award of damages in Plaintiff's favor and against Defendant in an
amount that will fully compensate Plaintiff for attorney's fees, expenses and court costs
incurred to date and in the future by Plaintiff in pursuing his coverage rights by bringing
this action pursuant to 42 Pa. C.S.A. § 8371(3); and
(d) An award of any other relief that this Court may deem necessary or
appropriate.
COUNT III
Violation of Unfair Trade Practices Act
45. Shaffer hereby incorporates by reference paragraphs 1 through 44 of the within
Complaint as it fully set forth herein.
46. 73 P.S. § 201-1, et. seq., is known as the Unfair Trade Practices and Consumer
Protection Law (hereinafter the "Law")
7
47. The sale of insurance is within the purview of the Law.
48. Section 301-3 ("unlawful acts or practices; exclusions") of the Law declares
unlawful certain unfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce as more specifically set forth in sub-clauses (i) through (xxi)
of clause (4) of § 201-2 of the Law.
49. National Union made affirmative representations in its Policy that it would
promptly pay Shaffer for covered losses under the Policy.
50. National Union's aforesaid oral and written false representations to Shaffer that it
would promptly pay for covered losses and that it was unable to pay Shaffer for losses incurred
under the Policy were false, unfair, deceptive and constituted "unfair or deceptive acts or
practices" as set forth in § 201-2 of the Law in that they:
a. "Cause[ed] likelihood of confusion or of misunderstanding as to the
source, sponsorship, approval or certification of goods or services";
b. "Caus[ed] likelihood of confusion or of misunderstanding as to affiliation,
connection or association with, or certification by, another";
C. "Represent[ed] that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits or quantities that they do not have"; and
d. Engag[ed] in any other fraudulent or deceptive conduct which creates a
likelihood of confusion or of misunderstanding."
51. National Union knew or should have known that said representations were false
when made.
52. Shaffer justifiably relied on the false representations and did purchase the Policy
from National Union.
8
53. As a proximate result of his justifiable reliance on said false representations,
Shaffer was damaged insofar as he purchased the Policy and is entitled to be paid by National
Union for covered losses and therefore requests the following damages pursuant to § 201-9.2 of
the Law:
a. Actual damages in the amount of $1,000,000.00;
b. An award of up to three times such actual damages;
C. Costs of suit; and
d. Attorneys' fees.
WHEREFORE, Plaintiff Daryl Shaffer respectfully requests that this Honorable Court
enter judgment in his favor and against Defendant National Union Fire Insurance Company of
Pittsburgh, Pa. in an amount in the amount of $1,000,000.00, together with treble damages,
lawful interest thereon, attorneys' fees, costs of suit and any other relief that this Court deems
necessary or appropriate.
Respectfully submitted,
SMIGEL, ANDERSON & SACKS, L.L.P.
Date: December 10, 2009 By:
Peter M. Good, Es uire
I.D. Number: 64316
Jessica E. Mercy, Esquire
I.D. Number: 206405
River Chase Office Center
4431 North Front Street
Harrisburg, PA 17110-1778
(717) 234-2401
Attorneys for Plaintiff
9
VERIFICATION
I, Daryl Shaffer, verify that the statements contained in the foregoing document are true
and correct to the best of my knowledge, information and belief I understand that false
statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn
falsification to authorities.
Date:
d9
IAShaff r'
>-
N ?. ./.
Blanket
Accident Insurance
Description of Coverage
American International Companies@
Insurance Provided by Members of Ameriqan International Group, Inc,
National Union Fire Insurance Company of Pittsburgh, Pa
Executive Offices: 70 Pine Street, New York, NY 10270
(herein referred to as the Company)
PLEASE READ THIS DESCRIPTION OF COVERAGE CAREFULLY
The Policy, described by this Description of Coverage, provides ACCIDENT-ONLY coverac
The Policy provides limited benefits which are supplemental to any other coverage You may have. No medical bene 1 are provided in this plan.
The Policy does not provide automobile liability insurance coverage.
z7r
S. Li'
X11 ? i
Description of Coverage
This Description of Coverage describes blanket accident insurance coverage pro-
vided to You against Injuries that occur while participating in Covered Activities.
(except as limited by the Exclusions.)
Eligibility
You are eligible for coverage as a customer of the Participating Financial Institution
identified on the Schedule of Benefits until You attain age 70.
Definitions
IMMEDIATE FAMILY MEMBER - means a person who is related to You in a, y : i
the following ways: spouse, brother-in-law, sister-in-law, son-in-law, daughter-
law, mother-in-law, father-in-law, parent (includes stepparent), brother or s s
(includes stepbrother or stepsister), or child (includes legally adopted or stepcr it
[FOR RESIDENTS OF PENNSYLVANIA: IMMEDIATE FAMILY MEMBER. F :i
the purpose of the definition of a Physician, means a person who is related to Y
in any of the following ways: spouse child, parent, brother or sister or persons w' is
ordinarily reside in the Insured's household.
Covered Activities
You will be covered for all activities except when traveling in a commercial airplane
as a fare-paying passenger.
Right to Examine
This Description of Coverage is issued to You as the Insured and can be returned
to the Company for any reason within 60 days after it is received. Any premium
paid will be refunded, and the coverage will be treated as if it were never effective.
Insured's Effective and Termination Dates
EFFECTIVE DATE. Your coverage begins on the Coverage Effective Date speck
fied on the Schedule of Benefits.
TERMINATION DATE. Your coverage ends on the earliest of: (1) the date the
Policy is terminated (2) the premium due date if premiums are not paid when due;
(3) the date You request, in writing, that coverage be terminated; (4) the date You
cease to be a customer of the Participating Financial Institution; or (5) the date you
attain age 70.
Termination of coverage will not affect a claim for a covered loss that occurred
while Your coverage was in force under the Policy.
Benefits
ACCIDENTAL DEATH BENEFIT. If You suffer an Injury that results in death with-
in 90 days of the date of the accident that caused the Injury, the Company will pay
100% of the Accidental Death Maximum Amount shown in the Benefit Schedule.
PERMANENT TOTAL DISABILITY BENEFIT. If, as a result of an Injury, You are
rendered Permanently Totally Disabled as defined herein within 90 days of the
accident that caused the Injury, the Company will pay 100% of the Permanent
Total Disability Maximum Amount shown in the Benefit Schedule at the end of 12
consecutive months of such Permanent Total Disability.
The Company reserves the right, at the end of the 12 consecutive months of
Permanent Total Disability to determine, on the basis of all the facts and circum-
stances, that You are Permanently Totally Disabled, including, but not limited to,
requiring an independent medical examination provided at the expense of the
Company.
[for residents of Missouri:
PERMANENT TOTAL DISMEMBERMENT BENEFIT.. If, as a result of an
Injury, You or Your Insured Spouse is rendered Permanently Totally Dismembered
as defined herein within 90 days of the accident that caused the Injury, the
Company will pay 100% of the Permanent Total Dismemberment Maximum
Amount shown in the Benefit Schedule at the end of 12 consecutive months of
such Permanent Total Dismemberment.
The Company reserves the right, at the end of the 12 consecutive months of
Permanent Total Dismemberment to determine, on the basis of all the facts and
circumstances, that You or Your Insured Spouse is Permanently Totally
Dismembered, including, but not limited to, requiring an independent medical
examination provided at the expense of the Company.]
INJURY - means bodily injury: (1) which is sustained as a direct result of an uni
tended, unanticipated accident that [for residents of Illinois, Missouri, Nr vv
Hampshire or Pennsylvania or South Carolina: occurs while the injured persor's
coverage under the Policy is in force] [for residents of Mississippi: is external to tl ie
body and that occurs while Your coverage under the Policy is in force]; (2) whi :h
occurs while such person is participating in a Covered Activity; and (3) whi ;h
directly (independent of sickness, disease, mental incapacity, bodily infirmity, [I.-J[
residents of Mississippi, Missouri, New Hampshire, Pennsylvania or South
Carolina: or any other cause]) causes a covered loss.
INSURED - means a person: (1) who is a customer of the Participating Financ al
Institution identified on the Benefit Schedule who has enrolled for coverage and er
the Policy; and (2) for whom premium has been paid when due.
PERMANENTLY TOTALLY DISABLED [FOR RESIDENTS OF MISSOURI: DI3-
MEMBERED]IPERMANENT TOTAL DISABILITY FOR RESIDENTS OF MIS-
SOURI: DISMEMBERMENT] - means:
a. loss of both hands or feet; or
b. loss of one hand and one foot; or
c. loss of sight in both eyes; or
d. loss of speech and hearing in both ears; or
e. loss of speech or hearing in both ears; and
You are permanently unable to perform the material and substantial duties
of any occupation for which You are qualified by reason of educatic n,
experience or training; and
[for residents of Missouri and South Carolina: You are permanently unable
to perform the material and substantial duties of Your occupation for a
period of 12 months; and thereafter, are unable to perform the material a is
substantial duties of any occupation for which You are qualified by reason
of education, experience or training; and]
3. You are under the supervision of a Physician unless You have reached th ;
maximum point of recovery.
"Loss of a hand or foot" means complete severance through or above the
wrist or ankle joint. "Loss of sight in both eyes" means total and
irrecoverable loss of the entire sight in both eyes. "Loss of hearing in both
ears" means total and irrecoverable loss of the entire ability to hear in boi h
ears. "Loss of speech" means total and irrecoverable loss of the entire
ability to speak.
PHYSICIAN - means a licensed practitioner of the healing arts acting within IhC
scope of his or her license who is not: 1) You; 2) an Immediate Family Member; o'
3) retained by the Participating Financial Institution.
YOU, YOUR - means the Insured.
` - -: ': a, .?, a it` y ? ? ? ?r q ? ? ry' •s 3 s ?.. ?" ! f,n%r
for any period for You are not covered due active duty status will be refund
ed) (Loss caused while on short-term National Guard or reserve duty for
regularly scheduled training purposes is not excluded).
(8) travel or flight in or on (including getting in or out of, or on or off of) any
vehicle used for aerial navigation, if You are:
a. riding as a passenger in any aircraft not intended or licensed
for the transportation of passengers; or
b. performing, learning to perform or instructing others to
perform as a pilot or crew member of any aircraft; or
c. riding as a passenger in an aircraft owned, leased or
operated by the Participating Financial Institution orYour
employer;
(9) being under the influence of intoxicants [for residents of New Hampshire:
being legally intoxicated as defined by the laws of the jurisdiction where the
accident occurred];
(10) being under the influence of drugs unless taken under the advice of and as
specified by a Physician; [for residents of Pennsylvania: being under the
influence of any narcotic unless taken under the advice of and as specified
by a Physician;]
(11) [For residents of Illinois: the medical or surgical treatment of sickness, dis-
ease, mental incapacity or bodily infirmity] the medical or surgical treatment
of sickness, disease, mental incapacity or bodily infirmity whether the loss
results directly or indirectly from the treatment;
(12) stroke or cerebrovascular accident or event; cardiovascular accident or
event; myocardial infarction or heart attack; coronary thrombosis;
aneurysm;
(13) any condition for which You are entitled to benefits under any Workers'
Compensation Act or similar law;
(14) riding in or driving any type of motor vehicle as part of a speed contest or
scheduled race, including testing such vehicle on a track, speedway or
proving ground; or
(15) any loss incurred while outside the United States, its Territories, or Canada.
?'`
30% PCW
f `remier
j f e yNet
t+_' IUZUre is fuii of promise, but no L1dF CI',0e_'S.
Maria Shaffer
PO Box 159
Grantham, PA 17027
Dear Maria Shaffer:
Nurse Helpline:1-800-982-2401
Premier Medifile:l-800-633-4345
SafetyNet Emergency Travel Assistance;
1-888-965-9500
Benefit— Pian" Maria Shaffer
ID Number: LS28936365
Sponsor: Ocwen Loan Servicing LLC (F4)
Customer Service: 1-800-289-6163
Re: Ocwen Loan Servicing LLC (F4)
Membership Fee Starts: 9/05
Congratulations on your membership. You have a clear picture of what's important: your family, home, investments and
health. Behind that picture is your earning ability. If you experience a catastrophic injury, who is going to help when your
savings are gone?
Your answer is Premier SafetyNet Benefit Plan. According to the National Safety Council, every 10 minutes about 370 people will
suffer a disabling injury. On the average, there are about 2,210 disabling injuries every hour during the year.' Unfortunately, some
of these disablities can be permanent. You have provided your family with a future of financial stability, security and peace of mind
through a unique array of benefits:
• $1,000,000 benefit for catastrophic loss of use
• Emergency Travel Assistance
Please see the enclosed membership guide for details on each of the benefits. The total monthly fee for the membership and
insurance benefits of $23.95 will simply be collected with your mortgage payment as of 09/01/05. The Premier SafetyNet Benefit
Plan gives you peace of mind, 24 hours a day, no matter where you are. We are just a phone call away. If you have any questions
or would like to cancel your membership, simply contact our customer help line at 1-800-289-6163, Monday through Friday from
7:00 a.m. to 8:00 p.m. CST.
Sincerely, 4ease ?e see enclosed description of coverage document for specific details Certain restrictions apply. Insurance protection
underwritten by AIG American International Companies S. Emergency Travel Assistance is offered through Intersections
Insurance Services Inc.
Diane Flanagan
Program §0Wi@Wch and affix to the enclosed 1 "si??`t ?°o "?f ". L}t?'ffioce°"?Sild keep with your important documents
Policy Holder: Ocwen Loan Servicing LLC (F4) Master Policy Number: 9540476
Insured's Name: Daryl Shaffer Coverage: Joint Coverage
Maria Shaffer
Coverage Effective Date: 08/01/2005
Policy Number: 34243279
The Maximum Amounts are used to determine amounts payable under each Benefit. Actual amounts payable will not exceed the
maximums, and may be less that the maximums under circumstances specified in the Description of Coverage.
0211.026A
30% PCW
BALINT BALOG, M.D.
RICHARD J. BOAL, M.D.
RAYMOND E. DAHL, D.O.
ROBERT R. DAHMUS, M.D.
STEPHEN W. DAILEY, M.D.
STEVEN M. DELUCA, D.O.
WILLIAM W. DEMUTH, M.D., F.A.C.S.
JOHN R. FRANKENY 11, M.D., F.A.C.S.
CURTIS A. GOLTZ, D.O.
RICHARD H. HALLOCK, M.D.
OIP
ORTHOPEDIC INSTITUTE
OF PENNSYLVANIA
771/'-_ 3 _-a
GREGORY A. HANKS, M.D.
BRETT A. HIMMELWRIGHT. D.O.
ROBERT R. KANEDA, D.O., F.A.C.O.S.
RONALD W. LIPPE, M.D., F.A,C.S.
WILLIAM J. POLACHECK, JR., M.D.
ERNEST R. RUBBO, M.D.
MICHAEL R. WERNER, M.D,
STEVEN B. WOLF, M.D.
KATHRYN O. MUELLER, PA-C
JEFFREY W. PEARY, PA-C
TELEPHONE: (717) 761-5530 • TOLL FREE (800) 834-4020 • FAX: (717) 737-7197 - www.oip.com
April 6, 2009
Smigel, Anderson & Sacks, LLP
Attorneys At Law
River Chase Office Center 3rd Floor
4431 North Front Street
Harrisburg, PA 17110
RE: Daryl A. Shaffer
1 I - J V
V
Dear Attorney D'Amico:
Mr. Shaffer is a 61-year-old male who I met on 09/28/05. He was walking
around the back of his truck when he slipped and fell, and landed on his
right side. He sustained a four-part intertrochanteric hip fracture with
subtrochanteric extension--this was a highly unstable fracture.
He subsequently underwent a trochanteric fixation nail for the right hip. He
has been unable to return to work since his injury. I have been asked to
answer the following questions, and these questions are answered with a
reasonable degree of medical certainty.
1. When did Mr.. Shaffer come under my care for his hip condition?
September 28, 2005.
2. What history did he provide regarding his right hip condition?
He fell on his right side sustaining a right hip fracture.
3. What was the cause of his right hip condition?
Status post fall.
4. What is your diagnosis regarding the right hip condition?
Right hip four-part intertrochanteric hip fracture with some
trochanteric extension.
5. Would you kindly summarize the treatment offered for the right
hip condition?
He was admitted to my service. He underwent appropriate medical
clearance and then underwent a right hip trochanteric fixation nail.
ORTfIOPEDIC SURGEORS. LTD.
ADDRESS ALL CORRESPONDENCE TO: 3399 TRINDLE ROAD, CAMP HILL, PA 17011
CAMP HILL OFFICE HARRISBURG OFFICE HERSHEY OFFICE
3399 TRINDLE RD., CAMP HILL, PA 17011 450 POWERS AVE., HARRISBURG, PA 17109 32 NORTHEAST DR., STE. 201, HERSHEY, PA 17033
RE: SHAFFER, DARYL A.
PAGE 2
April 6, 2009
6. If the hip condition was related to an injury would you please state
whether or not the hip injury directly resulted in any restrictions
on Mr. Shaffer's work activities.
Mr. Shaffer, at this time, is totally disabled from any occupation
secondary to pain caused from prolonged sitting and standing. He has
the inability to walk more than 300 feet. He cannot do repetitive
bending, kneeling or squatting. His ambulation is very slow. I feel
with a reasonable degree of medical certainty that all of these
restrictions were caused as a result of his fall on September 28, 2005
which resulted in a four-part intertrochanteric hip fracture that
requir°: surgicall inter erti?.
7. If the answer to the previous question was in the affirmative would
you please describe any work restrictions.
Those restrictions were outlined in question six.
8. Please note the date those restrictions became effective and whether
or not they changed over time.
His restrictions became effective on September 28, 2005 and they have
not changed over time.
9. Were the restrictions that you provided temporary or permanent?
Those restrictions are permanent and they became permanent on
September 28, 2005.
10. Has Mr. Shaffer's right hip condition reached maximum medical
improvement?
I believe he is at maximum medical improvement at this time, and
because of that he has been released from my care. I expect no
further improvement in his right hip condition.
11. Is Mr. Shaffer still under vour care?
No, he is not.
As mentioned all of these opinions are given within a reasonable degree of
medical certainty.
RE: SHAFFER, DARYL A.
PAGE 3
April 6, 2009
If I can be of any further help please do not hesitate to call.
Sincerely, nn I ?j
Raymond E. Dahl, D.O.
RED/nls
Dictated but not read.
Leslie Vocational Consulting
Terry P. Leslie, M.Ed., CRC, DIABVE, LPC
President
3545 Marietta Avenue, Suite J
Lancaster, PA 17601
June 1, 2009
Smigel, Anderson & Sacks
Attn: Joseph B. D'Amico
4431 North Front Street
Harrisburg, PA 17110
Re: Daryl Shaffer
Date of Birth: February 7, 1948
Date of Injury: September 27, 2005
Claim Number: 95247272
Vocational Assessment
Introduction:
(717) 285-2703
Fax (717) 285-3273
MD WCC # 0524
www.leslievc.com
We have been requested to provide a vocational assessment regarding the appeal for disability benefits for Mr.
Daryl Shaffer. In addition to my interviews of Mr. Shaffer on May 13, 2009,1 have also reviewed the following
documents:
1. April 6, 2009 medical report from Raymond E. Dahl, D.O.
2. Blanket Accident Insurance Description of Coverage, National Union Fire Insurance Company of
Pittsburgh, PA.
I am board certified by the American Board of Vocational Experts, a Certified Rehabilitation Counselor by the
Commission on Rehabilitation Counselor Certification, a Licensed Professional Counselor in the
Commonwealth of Pennsylvania, a Certified Rehabilitation Provider in the State of Maryland and also a
Vocational Expert with the Social Security Administration. In my role as a vocational expert with the Social
Security Administration, I have participated in over 3,000 hearings in the past 10 years. I have also been
qualified as a vocational expert in Federal Courts and Civil Courts in multiple states.
Insurance Policy Description:
The disability policy from the National Union Fire Insurance Companies provides the following definitions:
Permanent Total Disability Benefit.: If, as a result of an Injury, You are rendered Permanently Totally Disabled
as defined herein within 90 days of the accident that caused the Injury, the Company will pay 100% of the
Permanent Total Disability Maximum Amount shown in the Benefit Schedule at the end of 12 consecutive
months of such Permanent Total Disability.
Permanently Totally Disabled is then further defined as occurring when:
You are permanently unable to perform the material and substantial duties of any occupation for with You are
qualified by reason of education, experience or training; and You are under the supervision of a Physician
unless You have reached the maximum point of recovery.
2
Medical Status:
Mr. Daryl Shaffer is 61 years of age. He was injured on September 27, 2005, when he tripped over a tree root
in his yard causing him to fall on another tree root resulting in a four part intertrochanterie hip fracture with
subtrochanteric extension. He received medical treatment from Raymond E. Dahl, D.O., orthopedic surgeon. It
is Dr. Dahl's medical opinion that Mr. Shaffer is disabled from performing any occupation. Dr. Dahl cites Mr.
Shaffer's pain with sitting and standing. He also notes that Mr. Shaffer is unable to do repetitive bending,
kneeling or squatting. He is also unable to walk more than 300 feet. It is Dr. Dahl's opinion that these
limitations will be permanent.
Mr. Shaffer continues to have difficulty with prolonged walking and favors his right leg as he has a leg length
discrepancy. Due to this condition he has difficulty with his balance and with squatting. Prior to his disability,
Mr. Shaffer was an avid fly fisherman and hunter. Due to his balance issues, he is no longer able to participate
in either sport. He spends his time walking his dogs, watching television, reading and collecting stamps. Mr.
Shaffer takes Flexeril 3-4 times per week and believes that he has developed arthritis in his hip. The inactivity
and change in lifestyle has caused Mr. Shaffer to become depressed. He finds that if he sits, it is usually in a
recliner for a maximum of 30 minutes. He describes his standing tolerance as being 15 minutes and his driving
tolerance being 60 minutes. Mr. Shaffer is able to walk for 15 minutes. If he tries to bend or stoop he needs to
hold onto something for support. Physical therapy had previously been provided through Drayer Physical
Therapy in Mechanicsburg, PA for 3-4 months. He finds that cold, rainy days increases his symptoms. This
gentleman is right handed.
Mr. Shaffer had no medical conditions prior to this event which would have limited his ability to perform
substantial gainful employment.
Educational History:
Mr. Shaffer graduated from Cedar Cliff High School in 1966 having completed a general academic program.
He was not held back for any grades. He then completed an Associate's degree at Harrisburg Area Community
College in 1969. His course of study included math and science classes. Mr. Shaffer then graduated in 1975
from Lebanon Valley College with a degree in biology. Following this he then attended the University of
Chicago where he graduated with an undergraduate degree in Respiratory Therapy in 1980. Mr. Schaffer
became a Registered Respiratory Therapist through the National Board of Respiratory Care and a Licensed
Respiratory Therapist through the Commonwealth of Pennsylvania. Neither of these are current as he is no
longer able to be employed.
Vocational History:
Since 1982, Mr. Shaffer has been employed as a Respiratory Therapist/Surgical Intensive Care Specialist,
DOT# 076.361-014. The description of this occupation is as follows: Administers respiratory therapy care and
life support to patients with deficiencies and abnormalities of cardiopulmonary system, under supervision of
physician and by prescription: reads prescription, measures arterial blood gases, and reviews patient information
to assess patient condition and determine requirements for treatment, such as type and duration of therapy, and
medication and dosages; determines most suitable method of administering inhalants, precautions to be
observed, and modifications which may be needed that will be compatible with physician's orders; sets up and
operates devices, such as mechanical ventilators, therapeutic gas administration apparatus, environmental
control systems, and aerosol generators; operates equipment to ensure specified parameters of treatment, such as
volume, gas concentration, humidity, and temperature, and to administer medicinal gases and aerosol drugs to
patients. In addition, monitors patient's physiological responses to therapy, such as vital signs, arterial blood
gases, and blood chemistry changes; performs bronchopulmo nary drainage and assists patient in performing
breathing exercises; performs pulmonary function tests to be used by physician in diagnosis of case; observes
equipment function and adjusts equipment to obtain optimum results to therapy; consults with physician in
event of adverse reactions; maintains patient's chart that contains pertinent identification and therapy
information; inspects and tests respiratory therapy equipment to ensure equipment is functioning safely and
efficiently; orders repairs when needed; and demonstrates respiratory care procedures to trainees and other
health care personnel. He also took patients on walks, transported patients who were on ventilators, assisted in
moving patients within their bed, responded and assisted with codes (emergency situations) to assist with
ventilator needs. The requirement that he assist with acute traumas required that he get to the area in need by
the fastest means possible which typically meant that he needed to take the stairs.
Mr. Shaffer worked full-time on 12 hour shifts. His hours per week would vary between 32-48 and he was paid
an hourly rate of $23.50.
From 1992 to 2004, Mr. Shaffer was also employed by the Harrisburg Area Community College as a Clinical
Instructor at the Hershey Medical Center. He taught students in a hospital setting on ventilator care, assisted in
the duties of the students, completed evaluations, transported patients, set up equipment, broke equipment
down, and logged the clinical hours of the students. Mr. Shaffer would earn $32.50 per hour working 36 hours
per week when school was in session. This was concurrent employment while working at Hershey Medical
Center through a joint venture with the Harrisburg Area Community College.
The Dictionar?of Occupational Titles classifies this occupation as being medium work requiring lifting and
carrying of up to 50 lbs. In Mr. Schaffer's work activity he used a portable ventilator which had a battery pack
weighting 65 lbs. which needed to be changed every week. He also used 100 lb. oxygen tanks which were
moved on a cart once per day. Smaller oxygen tanks weighting 301bs. were moved six times per day. The
DOT also provides that his occupation requires frequent reaching, handling, fingering, talking and hearing. It
requires occasional stooping and feeling.
Because of the equipment used in this profession there are no sedentary occupations in which the skills obtained
by Mr. Shaffer would be directly transferable. Even when he was working as the clinical instructor, he was still
performing his typical job duties.
Vocational Impressions:
Mr. Shaffer has a valid drivers' license and insured vehicle. This gentleman has no criminal history. He
describes his ability to type as being limited and he used proprietary software while working at Hershey
Medical Center. Mr. Shaffer is also familiar with MS Word and PowerPoint. He has used copiers and fax
machines, but not cash registers or switchboards. Mr. Shaffer has not done bookkeeping, inventory or filing.
He has done recordkeeping and the supervision of students and was occasionally a shift supervisor. Mr. Shaffer
has not operated any heavy equipment. He is familiar with ventilators including pressure ventilators, metal free
ventilators, and smaller units in patient rooms manufactured by Servo, Monaghan and Bird. Hand tools were
used in the maintenance and connections of the ventilators.
Mr. Shaffer was approved for Social Security Disability Income on the initial application. He has also been
found to be disabled through the long-term disability provider for Hershey Medical Center.
4
Conclusions:
Mr. Daryl Shaffer was injured on September 27, 2005 when he fell on a tree root causing multiple fractures to
his right hip. As a result of his injury and on-going medical condition, his treating orthopedic surgeon,
Raymond E. Dahl, D.O. has rendered the opinion that Mr. Shaffer is totally disabled from all employment. This
prevents him from working in his own occupation or any occupation. Mr. Shaffer's past employment as a
Respiratory Therapist is medium work. Due to the equipment involved, he does not have skills which would
transfer to sedentary employment. He therefore has no occupation that he would be qualified to perform via
education, training or experience even if he would be released to sedentary work, which he has not.
Based on the vocational interview, medical report and review of the policy requirements, it would appear that
Mr. Shaffer would fall within the parameters for coverage.
The opinions contained in this report are within a reasonable degree of vocational certainty based on the data
that has been provided.
Sincerely,
Terry P. eslie, M.Ed, CRC, D/ABVE, LCP
Vocational Expert
DARYL SHAFFER, IN THE COURT OF COMMON PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
V. : No.
NATIONAL UNION FIRE INSURANCE CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA.,
Defendant. JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify
that I this day served a copy of the foregoing Complaint upon the person(s) indicated below by
depositing a copy of the same in the United States Mail, first class, postage prepaid, at
Harrisburg, Pennsylvania, and addressed as follows:
National Union Fire Insurance Company of Pittsburgh, Pa.
70 Pine Street
New York, NY 10270
Date: December 10, 2009
SMIGEL, ANDERSON & SACKS, LLP
By:
Peter M. Good, Esquire ID #64316
Jessica E. Mercy, Esquire ID 4206405
River Chase Office Center, 3'd Floor
4431 North Front Street
Harrisburg, PA 17110
(717) 234-2401
Attorneys for Plaintiff
S
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SHERIFF'S OFFICE OF CUMBERLAND COUNTY
R Thomas Kline
Sheriff
Ronny R Anderson
Chief Deputy
Jody S Smith
Civil Process Sergeant
Edward L Schorpp
Solicitor
C ?"O ' of 611NJ)"fi1.1110
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1910 JAN -5 pH 2_ 2 9
Daryl Shaffer I Case Number
vs. 2009-8604
National Union Fire Insurance Company of Pittsburgh, PA
SHERIFF'S RETURN OF SERVICE
12/16/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and
inquiry for the within named defendant, to wit: National Union Fire Insurance Company of Pittsburgh, PA,
but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA
to serve the within Complaint and Notice according to law.
12122/2009 10:20 AM - Dauphin County Return: And now December 22, 2009 at 1020 hours I, Jack Lotwick, Sheriff
of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within
Complaint and Notice, upon the within named defendant, to wit: National Union Fire Insurance Company
of Pittsburgh, PA by making known unto Jennifer Smith, Customer Service Associate at 2704 Commerce
Drive, Harrisburg, PA 17110 its contents and at the same time handing to her personally the said true and
correct copy of the same. _
SHERIFF COST: $37.44
December 28, 2009
t?
SO AN,S,WERS,
R TI)OMAS KLINE, SHERIFF
CAPt itt O t4e cr
Mary Jane Sder
Real Estate Deputy
William T. Tully
Solicitor
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
County of Dauphin
DARYL SHAFFER
Charles E. Sheaffer
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
VS
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH PA
Sheriff s Return
No. 2009-T-3180
OTHER COUNTY NO. 20098604
And now: DECEMBER 22, 2009 at 10:20:00 AM served the within COMPLAINT upon NATIONAL
UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA by personally handing to JENNIFER
SMITH 1 true attested copy'of the original COMPLAINT and making known to him/her the contents
thereof at 2704 COMMERCE DRIVE HBG PA 17110
CUSTOMER SERVICE ASSOC.
Sworn and subscribed to So Answers,
before me this 22ND day of December, 2009 leAlc-
A??A-l
NOTARIAL SEAL
ARY JANE SNYDER, Notary Public
Highspire, Dauphin County
M Commission Expires Set 1, 2010
Sheriff of
By
Depu Sheriff
Deputy: W CONWAY
Sheriffs Costs: $47.25 12/18/2009
In The Court of Common Pleas of Cumberland County, Pennsylvania
Daryl Shaffer
vs.
National Union Fire Insurance Company of Pittsburgh, PA
2704 Commerce Drive, Suite B
Harrisburg, PA 17110
Civil No. 2009-8604
Now, December 16, 2009, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff
of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now, , 20 , at o'clock M, served the
within
upon
at
by handing to
a
and made known to
copy of the original
the contents thereof.
So answers,
Sworn and subscribed before
me this day of 120
Sheriff of
COSTS
SERVICE_
MILEAGE_
AFFIDAVIT
County, PA
N
DARYL SHAFFER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
V.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Defendant
TO THE PLAINTIFF:
No.: 09.8604
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE TO PLEAD
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY OBJECTIONS
WITHIN TWENTY (20) DAYS OF SERVICE HEREOF, OR A DEFAULT JUDGMENT MAY BE ENTERED
AGAINST YOU.
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
Attorneys for Def ts, National Union Fire
Insurance pa of P' sburgh, PA
BY:
Eric A. Fitzgerald
Pennsylvania I.D. No.: 72590
'- ° P.O. Box 3118
Scranton, PA 18505-3118
E=' . Phone: 570-4964604
Fax: 570-496-0567
E-Mail: eafitzgeraid(c-mdwca.com
6LI -
Ll-
BY: 1
Thomas A. Specht
Pennsylvania I.D. No.: 78686
P.O. Box 3118
Scranton, PA 18505-3118
Phone: 570-496-4612
Fax: 570-496-0567
E-Mail: taspechKDmdwca.com
Date: January21, 2010.
DARYL SHAFFER, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA
V. No.: 09-8604
NATIONAL UNION FIRE INSURANCE CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA,
Defendant JURY TRIAL DEMANDED
ORDER
AND NOW, this day of , 2010, upon consideration of the preliminary
objections of Defendant, National Union Fire Insurance Company of Pittsburgh, PA, its brief in support, as
well as any responses and/or replies, it is hereby ORDERED and DECREED that the Plaintiffs Complaint
is DISMISSED with prejudice.
By the Court:
J.
i
DARYL SHAFFER,
V.
Plaintiff
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
No.: 09-8604
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANT, NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA, TO COMPLAINT
Pursuant to Pa.R.C.P. 1028, and Cumberland County Local Rule 1028(c), Defendant, National
Union Fire Insurance Company of Pittsburgh, PA ("National Union"), by and through its attorneys, Marshall,
Dennehey, Warner, Coleman & Goggin, submits the following Preliminary Objections to the Complaint of
Plaintiff, Daryl Shaffer, ("Plaintiff'), respectfully requesting that the Complaint be dismissed. In support
thereof, National Union states as follows:
Introduction
Through his Complaint, Plaintiff seeks to recover Permanent Total Disability Benefits
("PTD benefits") in the amount of $1,000,000.00, under a "Blanket Accident Insurance" policy allegedly
issued by National Union.
2. The averments of the Complaint, taken as true, demonstrate that Plaintiff is not entitled to
said benefits under the insurance policy's clear and unambiguous terms and conditions of coverage, as his
alleged injuries do not meet the definition of "Permanent Total Disability", and fail to establish that he is
"Permanently Totally Disabled".
3. As such, the Plaintiffs breach of contract action, as well as his other causes of action,
which "hinge" on the success of the contract cause of action, must be dismissed.
4. In the alternative, if the entire Complaint is not dismissed, and this Court determines that
Plaintiff has sufficiently pleaded his causes of action for breach of contract and bad faith, it must still grant
National Union's demurrer to Plaintiffs independently insufficient and deficient UTPCPL cause of action.
5. Plaintiffs UTPCPL cause of action, as pleaded in the Complaint, is barred by the economic
loss doctrine, and/or the Complaint otherwise fails to state a claim, in that it alleges mere nonfeasance, and
also fails to satisfy the pleading requirements for fraud.
6. Finally, even if Plaintiffs Count II for insurance bad faith is not dismissed, Plaintiffs
impertinent and irrelevant reference to "common law" bad faith, under his bad faith cause of action, must be
stricken, as no such claim exists under Pennsylvania law outside of a third party claim for failure to settle.
Procedural and Factual History
7. National Union incorporates by reference paragraphs 1 through 6 of the Preliminary
Objections above, as if the same were more fully set forth herein at length.
8. On December 14, 2009, Plaintiff filed a Complaint against National Union, which sets forth
three counts.
9. The counts of the Complaint are based in breach of contract, insurance bad faith and for
alleged violation of the UTPCPL.
10. In his Complaint, Plaintiff claims that he is entitled to PTD benefits under a blanket
accident insurance policy issued by National Union, Master Policy No.: 9540476, a portion of which he
allegedly attaches as Exhibit "A" to the Complaint ("the Policy" or "Policy").
11. The Policy, a complete copy of which is also attached to these preliminary objections, and
made a part hereof, as Exhibit "A", provides, in pertinent part, as follows:
PARTICIPATING ORGANIZATION APPLICATION FOR
BLANKET ACCIDENT INSURANCE POLICY ...
Permanent Total Disability Benefit (Single Payment)
Maximum Amount: $1,000,000 ...
DEFINITIONS
Covered Activity (ies) - means those activities set out in the Covered Activities section of the Participating Organization
Application, with respect to which Insureds are provided accident insurance under this Policy.
Injury - means bodily injury: (1) which is sustained as a direct result of an unintended, unanticipated accident that is external to
the body and that occurs while the injured person's coverage under this Policy is in force; (2) which occurs while such person is
2
participating in a Covered Activity; and (3) which directly (independent of sickness, disease, mental incapacity, bodily infirmity or
any other cause) causes a covered loss....
PERMANENT TOTAL DISABILITY BENEFIT RIDER ...
Permanent Total Disability Benefit (Lump Sum) (Not Applicable to Insureds Age 85 or Older on the Date of the
Accident). If, as a result of an Injury, an Insured is rendered Permanently Totally Disabled within 90 days of the accident that
caused the Injury, the Company will pay 100% of the Permanent Total Disability (Single Payment) Maximum Amount shown in
the Benefit Schedule at the end of 6 consecutive months of such Permanent Total Disability....
Permanently Totally Disabled/Permanent Total Disability as used in this rider means:
That the Insured has suffered any of the following:
a. loss of both hands or feet; or
b. loss of one hand and one foot; or
c. Hemiplegia; or
d. Paraplegia; or
e. Quadriplegia; or
'Loss of a hand or foot' means complete severance through or above the wrist or ankle joint... .
'Hemiplegia' means the complete and irreversible paralysis of the upper and lower Limbs of the same side of
the body. 'Limb(s)' means entire arm or entire leg. 'Paraplegia' means the complete and irreversible
paralysis of both lower Limbs. 'Quadriplegia' means the complete and irreversible paralysis of both upper
and both lower Limbs. 'Uniplegia' means the complete and irreversible paralysis of one Limb.
and
2. the Insured is permanently unable to perform the material and substantial duties of any occupation for which he or she
is qualified by reason of education, experience or training. However, with respect to an Insured for whom an
occupational definition of Permanently Totally Disabled/Permanent Total Disability is not appropriate, Permanently
Totally Disabled/Permanent Total Disability means, as used in this Rider, that the Insured is permanently unable to
engage in any of the usual activities of a person of like age and sex whose health is comparable to that of the Insured
immediately prior to the accident; and
3. the Insured is under the supervision of a Physician unless the Insured has reached his or her maximum point of
recovery.
12. The portion of the insurance policy attached to the Complaint, as Exhibit "A", which Plaintiff
states is a copy of his policy with National Union, similarly provides, in pertinent part;
Description of Coveraae
This Description of Coverage describes blanket accident insurance coverage provided to You against Injuries that occur while
participating in Covered Activities. (except as limited by the Exclusions.) ...
Benefits
PERMANENT TOTAL DISABILITY BENEFIT. If, as a result of an Injury, You are rendered Permanently Totally Disabled as
defined herein within 90 days of the accident that caused the Injury, the Company will pay 100% of the Permanent Total
Disability Maximum Amount shown in the Benefit Schedule at the end of 12 consecutive months of such Permanent Total
Disability....
3
Definitions
INJURY - means bodily injury: (1) which is sustained as a direct result of an unintended, unanticipated accident that [for
residents of. . . Pennsylvania ...:occurs while the injured person's coverage under the Policy is in force] ... ; (2)which occurs
while such person is participating in a Covered Activity; and (3) which directly (independent of sickness, disease, mental
incapacity, bodily infirmity, [for residents of ... Pennsylvania ...: or any other cause]) causes a covered loss....
PERMANENTLY TOTALLY DISABLED [FOR RESIDENTS OF MISSOURTI: DISMEMBERED]/PERMANENT TOTAL
DISABILITY [FOR RESIDENTS OF MISSOURI: DISMEMBERMENT] - means:
a. loss of both hands or feet; or
b. loss of one hand and one foot; or
c. loss of sight in both eyes; or
d. loss of speech and hearing in both ears; or
e. loss of speech or hearing in both ears; and
2. You are permanently unable to perform the material and substantial duties of any occupation for which you are
qualified by reason of education, experience or training; and ...
3. You are under the supervision of a Physician unless You have reached the maximum point of recovery.
"Loss of a hand or foot" means complete severance through or above the wrist or ankle joint.... .
13. Under both of the policies referred to above, in order to establish that one is Permanently
Totally Disabled or has suffered a Permanent Total Disability, one must suffer: a.) "loss of both hands or
feet"; or, b.) "loss of one hand and one foot"; and, the loss must be by "complete severance through or
above the wrist or ankle joint."
14. Plaintiff contends that he became Permanently Totally Disabled and/or suffered
Permanent Total Disability on September 27, 2005, when he sustained a right hip four-part intertrochanteric
hip fracture as the result of an accidental fall in his yard, Complaint, at 112, and has attached a medical
report and a Vocational Assessment report in support of said contention. Exhibits "C" and "D" to Complaint.
15. He appears to state that he made a claim to National Union for PTD benefits between
September 25, 2008, and November 2008. Complaint, at 120.
16. According to Plaintiff, his claim was denied by National Union on three separate occasions,
and for three different reasons, including, but not limited to, that: "the disability must be due to
dismemberment." Complaint, at ¶¶ 24-28.
4
17. Plaintiff avers that the aforesaid denials were in breach of the insurance contract and in
bad faith, allegedly having been made without any investigation of the claim. Complaint, at ¶¶ 24-30.
A. Preliminary objection in the nature of a demurrer to the entire Complaint, pursuant to
Pa.R.C.P.1028(a)(4), for failure of the Complaint to state a cause of action upon which relief
may be granted.
18. National Union incorporates by reference paragraphs 1 through 17 of the Preliminary
Objections above, as if the same were more fully set forth herein at length.
19. Plaintiff contends that National Union breached its contract, in that "National Union
breached its duty under the Policy by failing to promptly investigate Shaffer's loss and pay for any claim that
is covered under the Policy." Complaint, at 136.
20. Plaintiff asserts that National Union acted in bad faith by:
"a. Failing to provide Shaffer with a copy of the policy upon request;
b. Failing to provide Shaffer with accurate contact information to submit his claim;
C. Failing to promptly or accurately investigate Shaffer's claim; and
d. Failing to promptly pay Shaffer's claim despite no reasonable basis to dispute such claim."
Complaint, at 140.
21. Finally, Plaintiff maintains that National Union has acted in violation of the UTPCPL, in that
it refused to "promptly pay Shaffer for covered losses under the Policy," Complaint, at 149, and made false
oral and written misrepresentations that it would pay for covered losses, which Shaffer relied upon to his
detriment and damage, when he purchased the Policy. Complaint, at ¶¶ 49-53.
22. All of the foregoing causes of action are premised on, and could not exist but/for, the
mistaken conclusion that National Union has breached the Policy by refusing to pay PTD benefits to
Plaintiff for his alleged Permanent Total Disability.
23. However, taking Plaintiffs allegations as true, Sweatt v. Dept. of Corrections, 769 A.2d
574, 576 (Pa.Cmwlth. 2001)(When ruling upon preliminary objections in the nature of a demurrer, the Court
must accept as true all well-pleaded facts of Complaint and all reasonable inferences therefrom), and
disregarding Plaintiffs conclusory contentions, Lerman v. Rudolph, 198 A.2d 532, 533 (Pa. 1964)(upon
consideration of Complaint on demurrer, conclusions of law or unjustified inferences are not deemed
admitted); Clouser v. Shamokin Packing Company, 361 A.2d 836, 840 (Pa.Super.1976)(same), as a
matter of law, there are no PTD benefits available under the Policy, and there is no coverage under the
Policy, for the injuries Plaintiff allegedly sustained on September 27, 2005, which do not satisfy the
definition of Permanent Total Disability, and/or do not show that Plaintiff was Permanently Totally Disabled.
24. To wit, Plaintiff merely contends that, on September 27, 2005, he sustained a right hip
four-part intertrochanteric hip fracture as the result of an accidental fall in his yard, Complaint, at 112, and
has attached a medical report and Vocational Assessment report in support of said contention. Exhibits "C"
and "D" to Complaint.
25. The reports simply allege, like Plaintiffs Complaint, that, on September 27, 2005, Plaintiff
suffered a right hip four part intertrochanteric hip fracture with some trochanteric extension, and also state
that the fracture was treated with a right hip trochanteric fixation nail, as a result of which, Plaintiff is "totally
disabled from any occupation secondary to pain caused from prolonged sitting and standing." Exhibit "C" to
Complaint, at pp. 1-2. See also, Exhibit "D" to Complaint, at p. 2 (Daryl Shaffer was injured when he fell on
a "tree root resulting in a four part intertrochanteric hip fracture with subtrochanteric extension.").
26. As a matter of law, therefore, Plaintiff is not entitled to coverage under the Policy, as,
nowhere in Plaintiffs Complaint, is it averred that he has suffered an injury consisting of a "loss of one hand
and one foot", or a "loss of both hands or feet", rendering him "permanently unable to perform the material
and substantial duties of any occupation for which he or she is qualified by reason of education, experience
or training", or, rendering him "permanently unable to engage in any of the usual activities of a person of
like age and sex whose health is comparable to that of the Insured immediately prior to the accident."
6
27. Breaking the terms of coverage down even further, nowhere in Plaintiffs Complaint is it
averred that he has suffered either a loss of one hand and one foot, or both hands or feet. In fact, the
Complaint lacks any averment relating to any injury to any one of Plaintiffs hands, or any one of Plaintiffs
feet, but only avers an injury to Plaintiffs leg/hip. Complaint, at 112. See also, Sayre v. The Western &
Southern Life Ins. Co., 32 Pa.D&C.2d 599, 600-601 (C.P.Erie May 28, 1963)(no severance of hand or foot,
and no "loss of foot" was pleaded, where minor plaintiff merely pleaded that hip had been fused).
28. Further, even if an injury to a leg or hip could somehow be construed as an injury to a
"foot", (and overlooking that there is no allegation of any injury to a hand), nowhere in Plaintiffs Complaint
is it averred that he has suffered an injury consisting of "complete severance through or above the ...
ankle joint." Plaintiff merely alleges that, on September 27, 2005, he suffered a "hip fracture". Complaint, at
112. This averment, under prevailing law, is insufficient to establish a "complete severance", and fails to
demonstrate an entitlement to coverage under the foregoing Policy language. See e.g.:
Martin v. Allianz Life Ins. Co. of N. Amer., 573 N.W.2d 823, 825-827 (N.D. 1998)(policy's definition
of severance "at or above" was unambiguous, and meant "where a member is separated or taken
apart from the rest of the body"; "functional severance" or immobility of Plaintiffs leg following
collision was not within plain meaning of severance and did not invoke coverage); Desruisseaux V.
Anthem Life Ins. Co., 782 F.Supp. 97, 99 (D.Nev. 1991)(policy provision relative to loss of feet
requires complete and permanent severance of the foot at or above the wrist or ankle joint in order
to be construed as a covered loss); Suarez v. Life Ins. Co. of N. Amer., et al., 254 Cal.Rptr. 377,
380 (Cal. Ct. App.1988)(where policy defined loss with regard to hand or foot as "actual severance
through or above the wrist or ankle joints", court held that policy did not cover loss of use of
Plaintiffs legs resulting from paralysis caused by spinal injury); Horvatin v. Allstate Life Ins. Co.,
848 F.2d 1012, 1013-1014 (9th Cir. 1988)(court affirmed denial of disability coverage, stating: "Mr.
Horvatin's paraplegia is not covered by his Accidental Death and Dismemberment policy because
damage to the spinal cord, even if it was severed, does not constitute 'severing' the foot at or
above the ankle resulting in the loss of the foot."); Travelers Ins. Co. v. Burchett, 841 F.2d 155, 157
(6th Cir. 1988)(holding the term "severance" is unambiguous and means actual physical
severance); Harris v. Prud. Life Ins. Co. of Amer., 501 N.E.2d 77, 78 (Ohio Ct. App. 1986)(court
affirmed denial of appellant's claim for coverage under whole life policy with accidental death and
dismemberment benefit, where although accident had rendered him quadriplegic, his hands and
feet had not been separated from body, as required by policy language: "complete severance at or
above the wrist or ankle"); Francis v. INA Life Ins. Co. of N. Y., 809 F.2d 183, 184 (2d Cir.
1987)("actual severance through" was unambiguous, and required literal separation of the member
from the body; where wrist suffered multiple glass lacerations, involving laceration of multiple
tendons, nerves and arteries, but bone structure and certain other nerves, arteries and tendons
7
remained intact, no physical dismemberment had occurred); Becktell v. Allstate Life Ins. Co., 648
F.Supp. 977, 979 (E.D.Mich. 1986)(where claimant lost the use of arm in a motorcycle accident,
but had not been amputated, he was not entitled to coverage under dismemberment policy, which
required severance); Reid v. Life Ins. Co. of N. Am., Inc., 718 F.2d 677, 680-682 (4m Cir.
1983)(denying coverage where leg not severed from body and no permanent severance of
muscles, nerves, blood vessels, lymph vessels, skin, or other connective tissue); Alvarado V. Pilot
Life Ins. Co., 663 S.W.2d 108,110 (Tex. Ct. App.1983)(term "severance" in accidental death and
dismemberment policy was not ambiguous, and coverage thereunder was limited to cases where
the foot was actually amputated; the policy did not encompass functional loss of use); Perry v.
Conn. Gen. Life Ins. Co., 531 F.Supp. 625, 626-627 (E.D.Va. 1982)(loss of legs from spinal injury
and paralysis did not satisfy clear and unambiguous language in Accidental Death and
Dismemberment policy requiring "loss of one foot by severance at or above ankle", which required
physical cutting, separation or severance); Juhlin v. Life Ins. Co. of N. Amer., 301 N.W.2d 59, 61
(Minn. 1980)(denying coverage where loss of use resulted from spinal injury and subsequent
paralysis); Traverse v. World Service Life Ins. Co., 436 F.Supp. 810, 812 (W.D.Okla.
1977)(denying coverage for loss of use of hands, as "loss of hands" under policy unambiguously
meant severance, and not loss of use); Sitzman v. John Hancock Mut. Life Ins. Co., 522 P.2d 872,
873-875 (Ore. 1974)(denying coverage where loss of use of feet and legs resulted from severance
of spinal cord); Matthews v. Standard Life Ins. Co., 213 So.2d 128, 130 (La.App. 1968)(court held
that tibia and fibula fracture, with ligaments of surrounding ankle tom loose, with "everything"
stripped from the end of the tibia was not dismemberment by severance of the foot, and noted:
"[t]he general rule is that where an accident policy provides indemnity for the'loss' of a member, . .
. then the word 'loss' will be construed to mean the loss of the use of the member. But, where the
policy provides indemnity for the 'loss' of a member, and it also contains a definition or statement
as to what shall constitute a loss of such member, then effect must be given to this qualifying
definition or explanation ...."); Pilling v. Metropolitan Life Ins. Co., 148 S.W.2d 41, 43-44
(Tenn.App. 1941)(where policy provided for indemnity "for the loss of one hand by severance at or
above the wrist joint," and substantial portion of plaintiffs hand and wrist were completely severed
by shotgun blast, with remaining portion withered and atrophied, court rejected plaintiffs demands
for benefits under the policy because there had not been complete severance of the hand); Brittain
v. Prud. Ins. Co. of Amer., 191 So. 794, 799-800 (Ala.App.1939)(affirming demurrer to complaint,
court held: "it was necessary for plaintiff to allege ... the loss of his foot by severance at or above
the ankle ... [t]he allegation of the loss of the use of the foot, as the result of the surgical removal
of a cartilage and a ligament of the knee, made necessary by an injury to said knee ... is not an
allegation of the casualty against which the Insurance Company agreed to indemnify the plaintiff.");
Great Northern Life Ins. Co. v. Tulsa Cotton Oil Co., 76 P.2d 913 (Okla. 1938)(court rejected
petitioner's demands because there had not been a complete severance of the hand, saying:
[w]here the insurance contract specifically provides that the loss of the hand must be by
dismemberment between the wrist and elbow joints, the plain provisions of the contract will be
upheld and enforced by the court, and the showing of any injury less than that will not suffice to
bring the injury within such provision."); Fowler v. Brotherhood of Railroad Trainmen, 70 S.W.2d
669, 670-671 (Ky.App. 1934)(where beneficiary certificate conditioned payment of benefits on
amputation or severance of an entire hand at or above the wrist, court sustained demurrer to
petition alleging amputation of second through fourth fingers above point where they joined palm,
severance or amputation of some metacarpal bones of said fingers and hand, and severance or
amputation of first finger at or near point where it joins palm of hand); Metropolitan Cas. Ins. Co. V.
Shelby, 76 So. 839, 839-840 (Miss. 1917)(court held that, under an accident policy providing a
8
specific indemnity if insured should sustain the loss of a hand by severance at or above the wrist,
an injury to one of his hands whereby he lost the use of the hand to a great extent was not within
such provision of the policy, as "severance" meant "the removal of anything, the act of severing or
dividing or separating, the state of being severed or separated, or the state of being disjoined or
separated."); Wiest v. United States Health & Accident Ins. Co., 171 S.W. 570, 571 (Mo.App.
1914)(Where policy provided, in unmistakable terms, that, for plaintiff to receive indemnity, "loss of
one hand" had to be by severance at or above the wrist joint, plaintiff was not entitled to benefits
even where greater part of left hand had been amputated); The Brotherhood of Railroad Trainmen
v. Walsh, 103 N.E. 759, 759-760 (Ohio 1913)(insurance policy that provided that insured was to
obtain benefits for permanent and total disability if he suffered severance of a hand at or above the
wrist joint, was unambiguous, and insured could not recover thereunder for hand that had been
crushed and rendered useless, but not amputated). See also cf., Downs v. Prudential Ins. Co.,
1988 U.S.Dist.LEXIS 11141, at *6-7 (E.D.Pa. Oct. 4, 1988)(where policy unambiguously defined
loss of a hand as "severance at or above the wrist", although Plaintiffs right hand was severely
injured, Plaintiff failed to meet the requirements set out in the policy, namely, that it be severed at
or above the wrist).
29. Additionally, although somewhat redundant of the above, but true nonetheless, nowhere in
Plaintiffs Complaint is it averred that he was rendered Permanently Totally Disabled, as defined in the
Policy, within 90 days of the accident that caused the Injury.
30. Consequently, even taking the allegations of the Complaint as true, Plaintiff: a.) does not
meet the definition of "Permanently Totally Disabled/Permanent Total Disability"; b.) does not sufficiently
allege that he is entitled to coverage under the Policy; c.) does not sufficiently prove that there was a duty
to pay under the Policy; and, d.) does not sufficiently establish a breach of contract by National Union. See,
Omicron Sys. v. Weiner, 860 A.2d 554, 564 (Pa.Super. 2004)(three elements are necessary to plead
properly a cause of action for breach of contract: (1) the existence of a contract, including its essential
terms, (2) a breach of a duty imposed by the contract and (3) resultant damages).
31. Moreover, as it is not sufficiently alleged that there is coverage under the Policy, and/or
that there has been a breach of contract by National Union, it also follows that Plaintiff has not sufficiently
pleaded a cause of action for bad faith. See:
Greene v. U.S.A.A., 936 A.2d 1178, 1189 (Pa.Super. 2007)("[t]o prove bad faith, a plaintiff must
show by clear and convincing evidence that the insurer (1) did not have a reasonable basis for
denying benefits under the policy and (2) knew or recklessly disregarded its lack of a reasonable
basis in denying the claim."); Cresswell v. Nat. Mut. Cas. Ins. Co., 820 A.2d 172, 179 (Pa.Super.
9
2003)("As we have found that Appellee USF&G did not have a duty to provide coverage to
Appellants, we also conclude that it is impossible for Appellants to demonstrate that Appellee
USF&G lacked a reasonable basis for denying Appellants coverage ...."); Morrison v. Mountain
Laurel Assurance Co., 748 A.2d 689, 692 (Pa.Super. 2000)(if there is no duty to provide coverage,
failure to provide coverage cannot constitute bad faith); Frog, Switch & Mfg. Co. v. Travelers Ins.
Co., 193 F.3d 742, 751 (3d Cir. 1999)(where there was no duty to defend, there was good cause to
refuse to defend against a suit, and no valid claim for bad faith against insurer); Gardner v. State
Farm Fire & Cas. Co., 2007 U.S.Dist. LEXIS 42471, at *22 (W.D. Pa. June 11, 2007)(under
Pennsylvania law, plaintiffs claims for bad faith sounding either in contract or brought pursuant to
42 Pa.C.S.A. § 8371, are contingent upon the success of the underlying breach of contract claim);
Klinger v. State Farm Mut. Auto. Ins. Co., 895 F.Supp. 709, 715 (M.D.Pa.1995)("the [bad faith]
statute provides a cause of action against an insurer who acts in bad faith with respect to an
"insured", and the language means precisely what it says: the duty runs to one covered under the
insurer's policy of insurance.").
32. Finally, as it is not sufficiently alleged that there is coverage under the Policy, and/or that
there has been a breach of a contractual duty by National Union, it also follows that Plaintiff has not
sufficiently pleaded a cause of action for violation of the UTPCPL, since he has not pleaded any damages,
or an ascertainable loss of money or property, occurring as a result of any conduct by National Union. See:
73 P.S. § 201-9.2(a)(the UTPCPL protects "any person who purchases or leases goods or services
primarily for personal, family or household purposes and thereby suffers any ascertainable loss of
money or property, as a result of the use or employment by any person of a method, act or practice
declared unlawful by Section 3 of this Act ....")(emphasis added); Weinberg v. Sun Co., 777 A.2d
442, 446 (Pa. 2001)(Section 9.2 "clearly requires, in a private action, that a plaintiff suffer an
ascertainable loss as a result of the defendant's prohibited action"); DlLucido v. Terminix
International Inc., 676 A.2d 1237, 1241 (Pa.Super. 1996)(Section 9.2's "use of the phrase'as a
result of indicates the intent of the legislature to require a causal connection between the unlawful
practice and a plaintiffs loss"); Weiler v. Smithkline Beecham Corp., 53 Pa.D.&C.4th 449, 456-457
(C.P.Phila. Oct. 8, 2001)(A private plaintiff, whose right to act arises under § 9.2 of the
Pennsylvania UTPCPL, must show that he or she was damaged as a result of a defendant's
unlawful act.).
WHEREFORE, National Union respectfully requests that this Court grant its demurrer and dismiss
Plaintiffs entire Complaint, with prejudice.
B. Preliminary objection in the nature of a demurrer to Count III of Complaint, pursuant to
Pa.R.C.P.1028(a)(4), for failure to state a cause of action for violation of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, ("UTPCPL"), upon which relief may
be granted.
10
33. National Union incorporates by reference paragraphs 1 through 32 of the Preliminary
Objections above, as if the same were more fully set forth herein at length.
34. In the alternative, Count III (UTPCPL (73 P.S. § 201-1, et seq.)) against National Union is
independently insufficient, and should be dismissed, as:
a.) Plaintiff attempts, in the Complaint, Complaint, at ¶¶ 49-50, to recast what are clearly
breach of alleged contractual duties into a UTPCPL claim, and recover in tort for damages which are solely
economic, which is barred by Pennsylvania's economic loss doctrine, See, Werwinski v. Ford Motor Co.,
286 F.3d 661, 679-680 (3d Cir. 2002)(quoting Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d
604, 618 (3d Cir. 1995)(Third Circuit applied economic loss doctrine to bar fraudulent concealment claims,
and stated that "when loss of the benefit of a bargain is the plaintiffs sole loss.... the undesirable
consequences of affording a tort remedy in addition to a contract-based recovery [are] sufficient to
outweigh the limited interest of the plaintiff in having relief beyond that provided by warranty claims."));
DeFebo v. Andersen Windows, Inc., 2009 U.S. Dist. LEXIS 79029, at *16-24 (E.D. Pa. Sept. 3,
2009)(where intentional fraud/UTPCPL claim was interwoven with allegations of breach of contract,
economic loss doctrine barred UTPCPL claim); Sanchez v. Feretti, 2008 U.S.Dist. LEXIS 47725, at *9-12
(E.D.Pa. June 20, 2008)(economic loss doctrine precluded fraudulent misrepresentation, negligent
misrepresentation and UTPCPL claims where alleged misrepresentations about quality and character of
vehicle sold to plaintiff were linchpin of both breach of contract and fraudulent misrepresentation claims);
b.) the Complaint's allegations encompass mere nonfeasance, or failure to pay benefits under
a policy of insurance, not malfeasance, Complaint, at ¶¶ 49-50, and allegations of nonfeasance are not
actionable under the UTPCPL, See, Gordon v. Pa. Blue Shield, 548 A.2d 600, 604 (Pa.Super. 1988)(failure
to pay medical bills); Raab v. Keystone Ins. Co., 412 A.2d 638, 639 (Pa.Super. 1979)(the failure to do
something which ought to be done is characterized as nonfeasance); Horowitz v. Fed. Kemper Life
11
Assurance Co., 57 F.3d 300, 307 (3d Cir.1995)(refusal to pay under life insurance policy is not
malfeasance required to state UTPCPL claim);
c.) Plaintiff has failed to specifically allege the elements of common law fraud in the
Complaint, See, Pa.R.C.P. 1019(b)("Averments of fraud or mistake shall be averred with particularity.. .
."); New York State Elec. & Gas Corp. v. Westinghouse Elec. Corp., 564 A.2d 919, 927 (Pa.Super.
1989)(To comply with the particularity requirement, "the pleadings must adequately explain the nature of
the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to
convince the court that the averments are not mere subterfuge."), and, in particular, has failed to plead: 1.)
that the insurance policy did not contain the terms bargained for by the Plaintiff, 2.) that Plaintiff relied upon
any alleged misrepresentation of National Union, 3.) that National Union induced Plaintiff to do anything by
allegedly lying to her; and/or, 4.) that any specific alleged misrepresentation, which was allegedly relied
upon by Plaintiff, caused a specific harm to the Plaintiff as a result of said alleged reliance, See, Toy v.
Metropolitan Life Ins. Co., 928 A.2d 186, 203 (Pa. 2007)(justifiable reliance is an element of UTPCPL
claim); Christy v. Fricke, 2008 Pa. Dist. & Cnty. Dec. LEXIS 165, at *13-14 (C.P.Lanc. Nov. 20, 2008)(to
bring a private cause of action under the UTPCPL, a plaintiff must show that she justifiably relied on the
defendant's wrongful conduct or representation and that she suffered harm as a result of that reliance);
Santana Prods., Inc. v. Bobrick Washroom Equipment, Inc., 401 F.3d 123,136 (3d Cir. 2005)(the
justifiable-reliance standing requirement applies to all substantive subsections of the Consumer Protection
Law); and,
d.) Plaintiffs UTPCPL claim consists merely of conclusions of law, which are insufficient to
sustain the claim. See, Complaint, at ¶¶ 49-50. See also, Wiernik v. PHH Mortg. Corp., 736 A.2d 616, 619
(Pa.Super. 1999)(The court must accept as true the Complaint's well-pled factual allegations, but need not
consider conclusions of law, opinions, or argumentative allegations); Sexton v. PNC Bank, 792 A.2d 602,
608 (Pa.Super. 2002) ("Sexton's allegations under count five, in support of her UTPCPL claim, state only
12
conclusions of law resting on her UCC claim.... Accordingly, Sexton's complaint fails to state a claim
under the UTPCPL ...."); Lombardi v. Allstate Ins. Co., 2009 U.S.Dist.LEXIS 52951, at *21-22 (W.D.Pa.
June 23, 2009)(dismissing UTPCPL cause of action where Complaint failed to identify misrepresentations
which may have induced justifiable reliance, or to whom the alleged misrepresentations were made, and
merely recited statutory language and/or contained conclusions of law).
WHEREFORE, National Union respectfully requests that this Court grant its demurrer and dismiss
Plaintiffs Count III with prejudice.
C. Preliminary objection, pursuant to Pa.R.C.P.1028(a)(2), in the nature of a motion to strike
immaterial and impertinent allegation, relating to common law bad faith, from Plaintiffs
Count II for bad faith.
35. National Union incorporates by reference paragraphs 1 through 34 of the Preliminary
Objections above, as if the same were more fully set forth herein at length.
36. To the extent that paragraph 39 of the Complaint ("National Union owed and owes Shaffer
a duty under both the common law and 42 Pa.C.S.A. § 8371 to act in good faith ... "), attempts to assert a
claim for common law bad faith, in tort, it must be stricken. See, Pa.R.C.P. 1028(a)(2)(Prel i min ary
objections may be filed based upon the "failure of a pleading to conform to law or rule of court or inclusion
of ... impertinent matter); Com. Dept. of Env. Res. v. Peggs Run Coal Co., 423 A.2d 765, 769
(Pa.Cmwlth. 1980)(Scandalous and impertinent has been defined as "immaterial and inappropriate to the
proof of the cause of action.").
37. Such an averment is impertinent and irrelevant, as the claim does not exist under
Pennsylvania law. See, D'Ambrosio v. Pa. Nat. Mut. Cas. Co., 431 A.2d 966, 970 (Pa. 1981)(Pennsylvania
does not recognize common law actions for bad faith that sound in tort). See also, The Brickman Group,
Ltd. v. CGU Ins. Co., 865 A.2d 918, 926 (Pa.Super. 2004)("all bad faith claims derive from statute.").
38. The averment is mere surplusage, which could lead to confusion of issues, and is
inappropriate.
13
WHEREFORE, National Union respectfully requests that this Court grant its preliminary objection,
and strike Plaintiffs reference to common law bad faith from paragraph 39 of the Complaint.
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
Attorneys f en t, National Union Fire
lnsuran Col o ' burgh, PA
BY:
Eric A. Fitzgerald
Pennsylvania I.D. No.: 72590
P.O. Box 3118
Scranton, PA 18505-3118
Phone: 570-496-4604
Fax: 570-496-0567
E-Mail: eafitzgerald(a)mdwcg.com
BY: 1140J.4m & -
Thomas A. Specht
Pennsylvania I.D. No.: 78686
P.O. Box 3118
Scranton, PA 18505-3118
Phone: 570-496-4612
Fax: 570-496-0567
E-Mail: taspecht(a)-mdwcg.com
Date: January21, 2010.
14
EXHIBIT "A"
i [
M11M AMERICAN INTERNATIONAL COMPANIES*
Insurance Provided by Members of American International Group, Inc.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
(2121 770-7000
(a capital stock company, herein referred to as the Company)
PARTICIPATING ORGANIZATION APPLICATION FOR
BLANKET ACCIDENT INSURANCE POLICY
Application is hereby made for a plan of accident insurance based on the following statements and
representations:
1. Identification of Policyholder:
Name of Policyholder: AiG Trust
Address of Policyholder: clo J.P. Morgan Chase
Attn: Institutional Trust Services
500 Stanton Christiana Road, Floor 4/Ops 4
Newark, DE 19793
Policy Number. 9540476
2. Identification of Participating Organization:
Name of Participating Organization: Ocwen Federal Bank FSB
Address of Participating Organization: 12650 Ingenuity Drive, Orlando, FL 32823
3. Classification of Eligible Persons:
Class Description of Class Number of Eligible Persons
1 All customers of Aurora Loan Servicing 200,000
2 Eligible Spouses of Class I Insureds
Eligible Spouse - as used above, means the Insured's legal spouse.
4. Participating Organization Coverage:
A. Covered Activities:
The insured person will be covered 24 hours in the U.S. and in Canada.
B. Benefit Schedule:
CLASS(ES) 1 and 2
Permanent Total Disability Benefit (Single Payment)
Maximum Amount: $1,000,000
C11696DBG I Ocwen Federal BSR
C. Participating Organization Riders andlor Endorsements:
The following Riders and/or Endorsements are attached to and made part of the Participating
Organization's coverage under the Policy as of the Participating Organization Effective Date.
Each Rider and/or Endorsement is subject to all provisions, limitations and exclusions of the
Policy that are not specifically modified by the Rider and/or Endorsement.
CLASS(ES) 1 and 2
FORM NO. DESCRIPTION
C 11710 DBG Participating Organization Endorsement
C 11717 DBG Voluntary Amendatory Endorsement
S 30381 DBG Accident Protector Amendatory Endorsement
S 30383 DBG Family Coverage Rider
S 30399 DBG Injury Definition and Exclusions Amendatory Endorsement
S 30424 DBG Permanent Total Disability Benefit (Lump Sum Payment)
5. Premiums:
It is hereby agreed and understood that the premium amounts, and the manner in which premiums are
due and payable, are as follows:
Initial 60 days: $1.00 per Insured per month, thereafter. $2.85 per insured per month.
6. Participating Organization Effective Date: September 1, 2003
7. Coverage Effective Date:
The later oF. (1) 12:01 a.m. on the date following the date the Insured enrolls for this coverage; or (2) the date
the Description of Coverage is issued.
Signed for the Participating Organization
Title
Date
Signed by Licensed Resident Agent
(Where Required by Law)
3116960BG 2 Ocwen Federal BSR
AMERICAN INTERNATIONAL COMPANIES`
Insurance Provided by Members of American international Group, Inc.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
(212) 770-7000
(a capital stock company, herein referred to as the Company)
Policyholder: AIG Group Insurance Trust
Policy Number: 9540476
BLANKET ACCIDENT INSURANCE POLICY
This Policy is a legal contract between the Policyholder and the Company. The Company agrees to
insure eligible persons of the Policyholder against loss covered by this Policy subject to its provisions,
limitations and exclusions. The persons eligible to be insureds are all persons described in the
Classification of Eligible Persons section of the Participating Organization Application. This Policy
provides accident insurance to Insureds while they are participating in Covered Activities.
This Policy is issued in consideration of the payment of the required premium when due and the
statements set forth in the signed Participating Organization Application, which is attached to and made
part of this Policy.
This Policy begins on the Policy Effective Date shown in the Participating Organization Application and
continues in effect as long as premiums are paid when due, unless otherwise terminated as further
provided in this Policy. If this Policy is terminated, insurance ends on the date to which premiums have
been paid.
This Policy is governed by the laws of the state in which it is delivered.
The President and Secretary of National Union Fire Insurance Company of Pittsburgh, Pa. witness this
Policy:
114( -.
President
Secretary
PLEASE READ THIS POLICY CAREFULLY.
Non-Participating Policy
C11695DBG Ocwen Federal BSR
TABLE OF CONTENTS
Definitions .............. ............
Policy Effective and Termination Dates ...................
Insured's Effective and Termination Dates ..................
Premium ...................... .
Benefits ........................ . .. .
Maximum Amount ..............
.4.
Exclusions ................................
Claims Provisions ....................
General Provisions ........................
C11695DBG 2
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DEFINITIONS
Any capitalized terms in the Policy, Master Application, and any riders, amendments, or other attached
papers are to be given the meanings as ascribed in this section or as later defined.
Benefit Schedule - means the Benefit Schedule section of the Participating Organization Application.
Covered Activity (lee) - means those activities set out in the Covered Activities section of the
Participating Organization Application, with respect to which Insureds are provided accident insurance
under this Policy.
Injury - means bodily injury caused by an accident that: (1) occurs while this Policy is in force as to the
person whose injury is the basis of claim; (2) occurs while such person is participating in a Covered
Activity; and (3) results directly and independently of all other causes in a covered loss.
Insured - means a person: (1) who is a member of an eligible class of persons as described in the
Classification of Eligible Persons section of the Participating Organization Application; (2) for whom
premium has been paid; and (3) while covered under this Policy.
Immediate Family Member - means a person who is related to the Insured in any of the following
ways: spouse, brother-in-law, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law,
parent (includes stepparent), brother or sister (includes stepbrother or stepsister), or child (includes
legally adopted or stepchild).
Physician - means a licensed practitioner of the healing arts acting within the scope of his or her
license who is not: 1) the Insured; 2) an Immediate Family Member; or 3) retained by the Policyholder.
POLICY EFFECTIVE AND TERMINATION DATES
Effective Date. This Policy begins on the Policy Effective Date shown in the Participating Organization
Application at 12:01 AM Standard Time at the address of the Policyholder where this Policy is
deliveridd.
Termination Date. The Company may terminate this Policy by giving 30 days advance notice in
writing to the Policyholder; or on the premium due date if premiums are not paid when due.
Termination takes effect at 12:01 AM Standard Time at the Policyholders address on the date of
termination.
INSURED'S EFFECTIVE AND TERMINATION DATES
Effective Date. An Insured's coverage under this Policy begins on the latest of: (1) the Policy Effective
Date; (2) the date for which the first premium for the Insured's coverage is paid; or (3) the date the
person becomes a member of an eligible class of persons as described in the Classification of Eligible
Persons section of the Participating Organization Application.
A change in an Insured's coverage under this Policy due to a change in his or her eligible class or
Covered Activity becomes effective on the later of: (1) when the change in his or her eligible class or
Covered Activity occurs; or (2) if the change requires a change in premium, the date the first changed
premium is paid. However, a change in coverage applies only with respect to accidents that occur once
the change becomes effective.
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Termination Date. An Insured's coverage under this Policy ends on the earliest of (1) the date this
Policy is terminated (unless the Company and the Policyholder agree, in writing, to permit coverage to
continue to the end of the period for which premiums have been paid in lieu of a return of unearned
premiums); (2) the premium due date if premiums are not paid when due, or (3) the date the Insured
and independently of all other causes in a covered loss.
Termination of coverage will not affect a claim for a covered loss that occurred while the Insured's
coverage was in force under this Policy.
PREMIUM
Premiums. Premiums are payable to the Company at the rates and in the manner described in the
Premiums section of the Participating Organization Application. The Company may change the
required premiums due on any premium due date on or after the first Policy anniversary date, as
measured annually from the Policy Effective Date, by giving the Policyholder at least3l days advance
written notice. The Company may change the required premiums as a condition of any renewal of this
Policy. The Company may also change the required premiums at any time when any change affecting
rates is made in this Policy.( Any such change in this Policy will not take effect until any required
additional premium is received by the Company, except as otherwise agreed to in writing by the
Company and the Policyholder.)
Grace Period. A Grace Period of 31 days will be provided for the payment of any premium due after
the first. This Policy will not be terminated for nonpayment of premium during the Grace Period if the
Policyholder pays all premiums due by the last day of the Grace Period. This Policy will terminate on
the last day of the period for which all premiums have been paid if the Policyholder fails to pay all
premiums due by the last day of the Grace Period.
If the Company expressly agrees to accept late payment of a premium without terminating this Policy,
the Company does so in accordance with the Noncompliance with Policy Requirements provision of the
General Provisions section. In such case, the Policyholder will be liable to the Company for any unpaid
premiums for the time this Policy is in force.
No grace period will be provided if the company receives notice to terminate this Policy prior to a
premium due date.
BENEFITS
Maximum Amount. As applicable the Benefit provided by this Policy for each Insured, Maximum
Amount means the amount shown as the maximum amount for that Benefit for the Insured's eligible
class in the Benefit Schedule.
EXCLUSIONS
This Policy does not cover any loss caused in whole or in part by, or resulting in whole or in part from,
the following:
suicide or any attempt at suicide or intentionally self-inflicted injury or any attempt at intentionally
self-inflicted injury.
2. sickness, disease or infections of any kind; except bacterial infections due to an accidental cut
or wound, botulism or ptomaine poisoning.
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3. the Insured's commission of or attempt to commit a felony.
4. declared or undeclared war, or any act of declared or undeclared war.
5. participation in any team sport or any other athletic activity, except participation in a Covered
Activity.
6. full-time active duty in the armed forces, National Guard or organized reserve corps of any
country or international authority. (Unearned premium for any period for which the Insured is
not covered due to his or her active duty status will be refunded.) (Loss caused white on short-
term National Guard or reserve duty for regularly scheduled training purposes is not excluded.)
7. travel or flight in or on (including getting in or out of, or on or off of) any vehicle used for aerial
navigation, if the Insured is:
a. riding as a passenger in any aircraft not licensed for the transportation of passengers for
hire,
b. performing, learning to perform or instructing others to perform as a pilot or crew
member of any aircraft-
8. any condition for which the Insured is entitled to benefits under any Workers' Compensation Act
or similar law.
9. the Insured being under the influence of drugs or intoxicants, unless taken under the advice of a
Physician.
CLAIMS PROVISIONS
Notice of Claim. Written notice of claim must be given to the Company within 20 days after an
Insureds loss, or as soon thereafter as reasonably possible. Notice given by or on behalf of the
claimant to the Company at American International Companieso, Accident and Health Claims Division,
P. O. Box 15701, Wilmington, DE 19850-5701, with information sufficient to identify the insured, is
deemed notice to the Company. •
Claim Forms. The Company will send claim forms to the claimant upon receipt of a written notice of
claim. If such forms are not sent within 15 days after the giving of notice, the claimant will be deemed to
have met the proof of loss requirements upon submitting, within the time fixed in this Policy for filing
proofs of loss, written proof covering the occurrence, the character and the extent of the loss for which
claim is made. The notice should include the Insured's name, the Policyholder's name and the Policy
number.
Proof of Loss. Written proof of loss must be furnished to the Company within90 days after the date of
the toss. If the loss is one for which this Policy requires continuing eligibility for periodic benefit
payments, subsequent written proofs of eligibility must be furnished at such intervals as the Company
may reasonably require. Failure to furnish proof within the time required neither invalidates nor reduces
any claim if it was not reasonably possible to give proof within such time, provided such proof is
furnished as soon as reasonably possible and in no event, except in the absence of legal capacity of
the claimant, later than one year from the time proof is otherwise required.
Payment of Claims. Upon receipt of due written proof of death, payment for loss of life of an insured
will be made, in equal shares, to the survivors in the first surviving class of those that follow: the
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Insured's (1) spouse; (2) children; (3) parents; or (4) brothers and sisters. If no class has a survivor, the
beneficiary is the Insured's estate.
Upon receipt of due written proof of loss, payments for all losses, except loss of life, will be made to (or
on behalf of, if applicable) the Insured suffering the loss. If an Insured dies before all payments due
have been made, the amount still payable will be paid, in equal shares, to the survivors in the first
surviving class of those that follow: the Insured's (1) spouse; (2) children; (3) parents; or (4) brothers
and sisters. If no class has a survivor, the beneficiary is the Insured's estate.
If any payee is a minor or is not competent to give a valid release for the payment, the payment will be
made to the legal guardian of the payee's property. If the payee has no legal guardian for his or her
property, a payment not exceeding $1,000 may be made, at the Company's option, to any relative by
blood or connection by marriage of the payee, who, in the Company's opinion, has assumed the
custody and support of the minor or responsibility for the incompetent person's affairs.
Any payment the Company makes in good faith fully discharges the Company's liability to the extent of
the payment made.
Time of Payment of Claims. Benefits payable under this Policy for any loss other than loss for which
this Policy provides any periodic payment will be paid immediately upon the Company's receipt of due
written proof of the loss. Subject to the Company's receipt of due written proof of loss, all accrued
benefits for loss for which this Policy provides periodic payment will be paid at the expiration of each
month during the continuance of the period for which the Company is liable and any balance remaining
unpaid upon termination of liability will be paid immediately upon receipt of such proof.
GENERAL PROVISIONS
Entire Contract; Changes. This Policy, the Master Application, and any attached papers make up the
entire contract between the Policyholder and the Company. In the absence of fraud, all statements
made by the Policyholder or any Insured will be considered representations and not warranties. No
written statement made by an Insured will be used in any contest unless a copy of the statement is
furnished to the Insured or his or her beneficiary or personal representative.
No change in this Policy will be valid until approved by an officer of the Company. The approval must
be noted on or attached to this Policy. No agent may change this Policy or waive any of its provisions.
Incontestability. The validity of this Policy will not be contested after it has been in force fortwo
year(s) from the Policy Effective Date, except as to nonpayment of premiums.
Physical Examination and Autopsy. The Company at its own expense has the right and opportunity
to examine the person of any individual whose loss is the basis of claim under this Policy when and as
often as it may reasonably require during the pendency of the claim and to make an autopsy in case of
death where it is not forbidden by law.
Legal Actions. No action at law or in equity may be brought to recover on this Policy prior to the
expiration of 60 days after written proof of loss has been furnished in accordance with the requirements
of this Policy. No such action may be brought after the expiration of3 years after the time written proof
of loss is required to be furnished.
Noncompliance with Policy Requirements. Any express waiver by the Company of any
requirements of this Policy will not constitute a continuing waiver of such requirements. Any failure by
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the Company to insist upon compliance with any Policy provision will not operate as a waiver or
amendment of that provision.
Conformity With State Statutes. Any provision of this Policy which, on its effective date, is in conflict
with the statutes of the state in which this Policy is delivered is hereby amended to conform to the
minimum requirements of those statutes.
Workers' Compensation. This Policy is not in lieu of and does not affect any requirements for
coverage by any Workers' Compensation Act or similar law.
Clerical Error. Clerical error, whether by the Policyholder or the Company, will not void the insurance
of any Insured if that insurance would otherwise have been in effect nor extend the insurance of any
Insured if that insurance would otherwise have ended or been reduced as provided in this Policy.
Records. The Company has the right to inspect at any reasonable time, any records of the
Policyholder that may have a bearing on this insurance.
Assignment. This Policy is non-assignable. An Insured may not assign any of his or her rights,
privileges or benefits under this Policy. An Insured may assign all of his or her rights, privileges and
benefits under this Policy. The Company is not bound by an assignment until the Company receives
and files a signed copy. The Company is not responsible for the validity of assignments. The assignee
only takes such rights as the assignor possessed and such rights are subject to state and federal laws
and the terms of this Policy.
New Entrants. This Policy will allow from time to time, that new eligible Insureds of the Policyholder be
added to the class(es) of Insureds originally insured under this Policy.
Misstatement of Age. If premiums for the Insured are based on age and the Insured has misstated his
or her age, there will be a fair adjustment of premiums based on his or her true age. If the benefits for
which the Insured is insured are based on age and the Insured has misstated his or her age, there will
be an adjustment of said benefit based on his or her true age. The Company may require satisfactory
proof of age before paying any claim.
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AMERICAN INTERNATIONAL COMPANIES`
Insurance Provided by Members of American International G(oup, Inc.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
1212) 770-7000
(a capital stock company, herein referred to as the Company)
Policyholder. AIG Trust
Policy Number. 9540476
PERMANENT TOTAL DISABILITY BENEFIT RIDER
This Rider is attached to and made part of the Policy as of the Policy Effective Date shown in the Policy's
Master Application. It applies only with respect to accidents that occur on or after that date. It is subject to all
of the provisions, limitations and exclusions of the Policy except as they are specifically modified by this Rider.
Permanent Total Disability Benefit (Lump Sum) (Not Applicable to Insureds Age 85 or Older on the
Date of the Accident). If, as a result of an Injury, an Insured is rendered Permanently Totally Disabled within
90 days of the accident that caused the Injury, the Company will pay 100% of the Permanent Total Disability
(Single Payment) Maximum Amount shown in the Benefit Schedule at the end of 6consecutive months of such
Permanent Total Disability.
The Company reserves the right, at the end of the 6 consecutive months of Permanent Total Disability to
determine, on the basis of all the facts and circumstances, that the Insured is Permanently Totally Disabled,
including, but not limited to, requiring an independent medical examination provided at the expense of the
Company.
Permanently Totally Disabled/Pemnanent Total Disability as used in this rider means:
1. That the Insured has suffered any of the following:
a. loss of both hands or feet; or
b_ loss of one hand and one foot; or
c. Hemiplegia;or; or
d. Paraplegia; or
e. Quadriplegia, or
"Loss of a hand or foot" means complete severance through or above the wrist or ankle joint. "Loss of
sight in both eyes" means total and irrecoverable loss of the entire sight in both eyes. "Loss of hearing
in both ears" means total and irrecoverable loss of the entire ability to hear in both ears. "Loss of
speech" means total and irrecoverable loss of the entire ability to speak.
"Hemiplegia" means the complete and irreversible paralysis of the upper and lower limbs of the same
side of the body. "Limb(s)" means entire arm or entire leg. "Paraplegia" means the complete and
irreversible paralysis of both lower Limbs. "Quadriplegia" means the complete and irreversible
paralysis of both upper and both lower Limbs. "Uniplegia" means the complete and irreversible
paralysis of one Limb.
and
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2. the Insured is permanently unable to perform the material and substantial duties of any occupation for
which he or she is qualified by reason of education, experience or training. However, with respect to an
Insured for whom an occupational definition of Permanently Totally Disabled/Permanent Total Disability is
not appropriate, Permanently Totally Disabled/Permanent Total Disability means, as used in this Rider, that
the Insured is permanently unable to engage in any of the usual activities of a person of like age and sex
whose health is comparable to that of the Insured immediately prior to the accident; and
3. the Insured is under the supervision of a Physician unless the Insured has reached his or her maximum
point of recovery.
The President and Secretary of National Union Fire Insurance Company of Pittsburgh, Pa. witness this Rider:
President Secretary
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AMERICAN INTERNATIONAL COMPANIES V
Insurance Provided by Members of American International Group. Inc.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
(212) 770-7000
(a capital stock company, herein referred to as the Company)
Policyholder: AIG Group Insurance Trust
Policy Number: 9540476
INJURY DEFINITION AND EXCLUSIONS AMENDATORY ENDORSEMENT
This Endorsement is attached to and made part of this Policy as of the Policy Effective Date shown in
the Participating Organization Application. It applies only with respect to accidents and losses of life
that occur on or after that date. It is subject to all of the provisions, limitations and exclusions of this
Policy except as they are specifically modified by this Endorsement.
1.The definition of Injury in the Definitions section of the Policy is deleted and replaced by the following:
Injury - means bodily injury: (1) which is sustained as a direct result of an unintended, unanticipated
accident that is external to the body and that occurs while the injured person's coverage under this
Policy is in force; (2) which occurs while such person is participating in a Covered Activity; and (3)
which directly (independent of sickness, disease, mental incapacity, bodily infirmity or any other
cause) causes a covered loss.
2.The Exclusions section of the Policy is deleted and replaced by the following:
Exclusions
No coverage shall be provided under this Policy and no payment shall be made for any loss
resulting in whole or in part from, or contributed to by, or as a natural and probable
consequence of any of the following excluded risks even if the proximate or precipitating
cause of the loss is an accidental bodily Injury.
suicide or any attempt at suicide or intentionally self-inflicted Injury or any attempt at
intentionally self-inflicted Injury or autoeroticism.
2. sickness, or disease, mental incapacity or bodily infirmity whether the loss results
directly or indirectly from any either of these.
3. the Insured's commission of or attempt to commit a felony crime.
4. infections of any kind regardless of how contracted, except bacterial infections that
are directly caused by botulism, ptomaine poisoning or an accidental cut or wound
independent and in the absence of any underlying sickness, disease or condition
including but not limited to diabetes.
5. declared or undeclared war, or any act of declared or undeclared war, except if
specifically provided by this Policy.
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5. participation in any team sport or any other athletic activity, except participation in a
Covered Activity.
6. full-time active duty in the armed forces, National Guard or organized reserve corps
of any country or international authority. (Unearned premium for any period for which
the Insured is not covered due to his or her active duty status wiN be refunded) (Loss
caused while on short-tem National Guard or reserve duty for regularly scheduled
training purposes is not excluded).
7. travel or flight in or on (including getting in or out of, or on or off of) any vehicle used
for aerial navigation, if the insured is:
a. riding as a passenger in any aircraft not intended or licensed for the
transportation of passengers; or
b. performing, seaming to perform or instructing others to perform as a pilot or
crew member of any aircraft; or
c. riding as a passenger in an aircraft owned, leased or operated by the
Policyholder or the Insured's employer
B. the Insured being under the influence of intoxicants while operating any vehicle or
means of transportation or conveyance
9. the Insured being under the influence of drugs unless taken under the advice of
and as specified by a Physician.
10. the medical or surgical treatment of sickness, disease, mental incapacity or bodily
infirmity whether the loss results directly or indirectly from the treatment
11. stroke or cerebrovascular accident or event; cardiovascular accident or event;
myocardial infarction or heart attack; coronary thrombosis; aneurysm-
12. any condition for which the Insured is entitled to benefits under any Workers'
compensation Act or similar law.
13. the Insured riding in or driving any type of motor vehicle as part of a speed
contest or scheduled race, including testing such vehicle on a track, speedway or
proving ground.
14. any loss incurred while outside the United States, its Territories or Canada.
The President and Secretary of National Union Fire Insurance Company of Pittsburgh, Pa. National
Union Fire Insurance Company of Pittsburgh, Pa. witness this Endorsement:
L
President
t")k. O;OA-
Secretary
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• J.
AMERICAN INTERNATIONAL COMPANIESa
Insurance Provided by Members of American International Group, Inc.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
1212) 770-7000
(a capital stock company, herein referred to as the Company)
Policyholder: AIG Group Insurance Trust
Policy Number: 9540476
ACCIDENT PROTECTOR AMENDATORY ENDORSEMENT
This Rider is attached to and made part of the Policy as of the Policy Effective Date shown in the
Participating Organization Application. It applies only with respect to accidents that occur on or after that
date. It is subject to all of the provisions, limitations and exclusions of the Policy except as they are
specifically modified by this Rider.
1. The Insured's Effective and Termination Dates section of the Policy is deleted and replaced by the
following:
INSURED'S EFFECTIVE AND TERMINATION DATES
Effective Date. An Insured's coverage under this Policy begins on the latest of: (1) the
Policy Effective Date; (2) the date for which the first premium for the Insured's coverage is
paid when due; (3) the date the person becomes a member of an eligible class of persons
as described in the Classification of Eligible Persons section of the Participating
Organization Application; or (4) the coverage effective date as described in the Participating
Organization Application.
A change in an Insured's coverage under this Policy due to a change in his or her eligible
class, Covered Activity or election of enrollment option become(s) effective on the latest of.
(1) when the change in his or her eligible class, Covered Activity or election of enrollment
option occur(s); (2) if the change requires a change in premium, the date the first changed
premium is paid when due; or (3) if individual enrollment for the change is required, the date
the written enrollment form requesting the change is received by the Company. However, a
change in coverage applies only with respect to accidents that occur once the change
becomes effective.
Termination Date. An Insured's coverage under this Policy ends on the earliest of: (1) the
date this Policy is terminated (unless the Company and the Policyholder agree, in writing, to
permit coverage to continue to the end of the period for which premiums have been paid in
lieu of a return of unearned premiums).(2) the premium due date if premiums are not paid
when due; (3) the date the Insured ceases to be a member of any eligible class(es) of
persons as described in the Classification of Eligible Persons section of the Participating
Organization Application; or (4) the date the Insured requests, in writing, that his or her
coverage be terminated-
Termination of coverage will not affect a claim for a covered loss that occurred while the
Insured's coverage was in force under this Policy.
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3. The following is added to the General Provisions section of the Policy_
Right to Examine. An Insured may cancel his or her coverage under this Policy within60 days
after receiving evidence of coverage. The evidence of coverage should be returned by mail or in
person to the Company. Any premium paid will be refunded and coverage will be treated as if it
were never effective.
The President and Secretary of National Union Fire Insurance Company of Pittsburgh, Pa. witness this
Rider:
President
& " k. 0;4?A-
Secretary
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* + A.
AMERICAN INTERNATIONAL COMPANIES0
Insurance Provided by Members of American International Group, Inc.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
(212) 770-7000
(a capital stock company, herein referred to as the Company)
Policyholder: AIG Group Insurance Trust
Policy Number. 9540476
FAMILY COVERAGE RIDER
This Rider is attached to and made part of the Policy as of the Policy Effective Date shown in the
Participating Organization Application. It is subject to all of the provisions, limitations and exclusions of
the Policy except as they are specifically modified by this Rider.
1. The definition of Insured in the Definitions section of the Policy is deleted and replaced by the
following:
Insured - means a person: (1) who is a member of an eligible class of persons as described in the
Classification of Eligible Persons section of the Participating Organization Application; (2) for whom
premium has been paid when due; and (3) while covered under the Policy ; and (4) who has
enrolled for coverage under the Policy, if required. All references to Insured in the Policy and any
Riders and Endorsements attached to the Policy, not including the Participating Organization
Application or this Rider, will be deemed to include an Insured Dependent as defined in this Rider
except in the following areas:
Insured's Effective Date and Termination Dates section
• Assignment provision
2. The following definitions are added to the Definitions section of the Policy:
Insured Dependent - means the Insured's Insured Spouse.
Insured Spouse - means the Insured's Eligible Spouse as described in the Classification of Eligible
Persons section of the Master Application; (1) whom the Insured has elected to cover under the
Policy; (2) for whom premium has been paid when due; and (3) while covered under the Policy.
3. The following section is added to the Policy after the Insured's Effective and Termination Dates
section:
INSURED DEPENDENT'S EFFECTIVE AND TERMINATION DATES
Effective Date. An Insured Dependent's coverage under the Policy begins on the latest of: (1) the
date the Insured's coverage under the Policy begins, or the date this Rider become effective if later;
(2) the date the first premium for the Insured Dependent's coverage is paid when due; or (3) the
date the person becomes a member of any eligible class of persons as described in the
Classification of Eligible Persons section of the Participating Organization Application; or (4) if
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individual enrollment is required, the date the written enrollment is received by the Companyfrom
the insured except if the insured does not enroll a person within 31 days of the date such person
becomes an eligible dependent, the insured must wait until the next open enrollment period of the
Policyholder to enroll the dependent or (5) the Coverage Effective Date as described in the
Participating Organization Application.
if a husband and wife are both eligible to enroll for coverage under the Policy, one, but not both,
may purchase Family Coverage. The other spouse may elect individual coverage only.
A change in an Insured Dependent's coverage under this Policy due to a change in his or
her eligible class, Covered Activity or election of enrollment option become(s) effective on
the latest of: (1) when the change in his or her eligible class, Covered Activity or election of
enrollment option occur(s); (2) if the change requires a change in premium, the date the first
changed premium is paid; or (3) if individual enrollment for the change is required, the date
the written enrollment form requesting the change is received by the Company. However, a
change in coverage applies only with respect to accidents that occur once the change
becomes effective.
Termination Date. An Insured Dependent's coverage under the Policy ends on the earliest of: (1)
the date the insured's coverage under the Policy ends unless continued under the Right To
Continue Insured Dependent Coverage section described below (2) the premium due date if
premiums for the insured Dependent are not paid when due; (3) the date the Insured requests, in
writing, that coverage for the Insured Dependent be terminated; or (4) the date the insured
Dependent ceases to be a member of any eligible class of persons as described in the
Classification of Eligible Persons section of the Participating Organization Application.
Termination of coverage will not affect a claim for a covered loss that occurred while the Insured
Dependent's coverage was in force under the Policy.
4. The following provision is added to the General Provisions section of the Policy:
Insured Dependent's Beneficiary Designation and Change. The Insured Dependent's
beneficiary is the insured unless the Insured has named (a) different beneficiary(ies) for the insured
Dependent's coverage as shown on the Company's records kept on the Policy.
An Insured over the age of majority and legally competent may change the beneficiary designation
for an insured Dependent's coverage at any time, unless an irrevocable beneficiary designation has
been made, without the consent of the Insured Dependent or the designated beneficiary(ies), by
providing the Company with a written request for change. When the request is received by the
Company, whether the Insured or the Insured Dependent is then living or not, the change of
beneficiary will relate back to and take effect as of the date of execution of the written request, but
without prejudice to the Company on account of any payment made by it prior to receipt of the
request.
If no beneficiary is living on the date of an Insured Dependent's death, the beneficiary is the
Insured's estate.
The President and Secretary of National Union Fire Insurance Company of Pittsburgh, Pa. witness
this Rider:
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Y 1 I?
114( -
President
Secretary
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AMERICAN INTERNATIONAL COMPANIESa
Insurance Provided by Members of American International Group, Inc.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
(2121 770-7000
(a capital stock company, herein referred to as the Company)
Policyholder: AIG Group Insurance Trust
Policy Number: 9540476
VOLUNTARY AMENDATORY ENDORSEMENT
This Endorsement is attached to and made part of the Policy as of the Policy Effective Date shown in the
Participating Organization Application. It applies only with respect to accidents that occur on or after that date.
It is subject to all of the provisions, limitations and exclusions of the Policy except as they are specifically
modified by this Endorsement.
The second paragraph on the face page of the Policy is deleted and replaced by the following:
This Policy is issued in consideration of the payment of the required premium when due and the
statements set forth in the signed Participating Organization Application, which is attached to
and made part of this Policy, and in the individual enrollment forms, if any.
2. Maximum Amount provision in the Benefits section of the Policy is deleted and replaced by the
following:
Maximum Amount. As applicable to the Benefit provided by this Policy for each Insured,
Maximum Amount means the amount shown as the maximum amount for that Benefit for the
Insured's eligible class in the Benefit Schedule.
3. The Payment of Claims provision in the Claims Provisions section of the Policy is deleted and replaced
by the following:
Payment of Claims. Upon receipt of due written proof of death, payment for loss of life of an
Insured will be made to the Insured's beneficiary as described in the applicable Beneficiary
Designation and Change provision.
Upon receipt of due written proof of loss, payments for all losses, except loss of life, will be
made to (or on behalf of, if applicable) the Insured suffering the loss. If an Insured dies before
all payments due have been made, the amount still payable will be paid to his or her beneficiary
as described in the Beneficiary Designation and Change provision below.
If any payee is a minor or is not competent to give a valid release for the payment, the payment
will be made to the legal guardian of the payee's property. If the payee has no legal guardian for
his or her property, a payment not exceeding $1,000 may be made, at the Company's option, to
any relative by blood or connection by marriage of the payee who, in the Company's opinion,
has assumed the custody and support of the minor or responsibility for the incompetent person's
affairs.
Any payment the Company makes in good faith fully discharges the Company's liability to the
extent of the payment made.
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4. The Incontestability provision in the General Provisions section of the Policy is deleted and replaced
with the following:
Incontestability. The validity of this Policy will not be contested after it has been in force for
two year(s) from the Policy Effective Date, except as to nonpayment of premiums.
After an Insured has been insured under this Policy for two year(s) during his lifetime, no
statement made by the Insured, except a fraudulent one, will be used to contest a claim under
this Policy. The Company may only contest coverage if the misstatement is made in a written
instrument signed by the Insured and a copy is given to the Policyholder, the Insured or the
beneficiary.
5. The following provision is added to the General Provisions section of the Policy:
Beneficiary Designation and Change. The Insured's beneficiary(ies) is (are) the person(s)
designated by the Insured and on file with the Company.
An Insured over the age of majority and legally competent may change his or her beneficiary
designation at any time, unless an irrevocable designation has been made, without the consent
of the designated beneficiary(ies), by providing the Company with a written request for change.
When the request is received, whether the Insured is then living or not, the change of
beneficiary will relate back to and take effect as of the date of execution of the written request,
but without prejudice to the Company on account of any payment made by it prior to receipt of
the request.
If there is no designated beneficiary or no designated beneficiary is living after the Insured's
death, the benefits will be paid, in equal shares, to the survivors in the first surviving class of
those that follow: the Insured's (1) spouse; (2) children; (3) parents; or (4) brothers and sisters.
If no class has a survivor, the beneficiary is the Insured's estate.
6. The Assignment provision in the General Provisions section of the Policy is deleted and replaced by the
following:
Assignment' An insured may assign all of his or her rights, privileges and benefits under this
Policy without the consent of his or her designated beneficiary, unless an irrevocable
designation has been made. The Company is not bound by an assignment until the Company
receives and files a signed copy. The Company is not responsible for the validity of
assignments. The assignee only takes such rights as the assignor possessed and such rights
are subject to state and federal laws and the terns of this Policy.
The President and Secretary of National Union Fire Insurance Company of Pittsburgh, Pa. witness this
Endorsement:
President
• k - e_,O_
Secretary
;117171313G 2 Ocwen Federal BSR
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AMERICAN INTERNATIONAL COMPANIES`
Insurance Provided by Members of American Irdemabonal Group, Inc_
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Executive Offices: 70 Pine Street, New York, NY 10270
1212) 770-7000
(a capital stock company, herein referred to as the Company)
Policyholder: AIG Group Insurance Trust
Policy Number. 9540476
PARTICIPATING ORGANIZATION ENDORSEMENT
This Endorsement is attached to and made part of the Policy as of the Policy Effective Date shown in
the Participating Organization Application. It applies only with respect to accidents that occur on or after
that date. it is subject to all of the provisions, limitations and exclusions of the Policy except as they are
specifically modified by this Endorsement.
The following definition is added to the Definitions section of the Policy:
Participating Organization - means an organization: 1) which elects to offer coverage under the
Policy by completing a Participation Organization Application that has been accepted by the
Company: 2) which completes a participation agreement with the Policyholder; 3) which remits
the required premium when due; if applicable, and 4) while coverage through the Participating
Organization is available under the Policy.
The following section is added to the Policy:
PARTICIPATING ORGANIZATION EFFECTIVE AND TERMINATION DATES
Effective Date. A Participating Organization's coverage under the Policy begins on the later qf:
1) Participating Organization Effective Date shown in the Participating Organization Application at
12:01 AM Standard Time at the address of the Participating Organization shown in the
Participating Organization Application; or 2) the Policy Effective Date shown in the Participating
organization Application.
Termination Date. The Company may terminate the Participating Organization's coverage under
the Policy by giving 30 days advance notice in writing to the Participating Organization.The
Participating Organization's coverage under the Policy may also, at any time, be terminated by
the mutual written consent of the Company and the Participating Organization. A Participating
Organization's coverage terminates automatically on the earliest of: 1) the Participating
Organization Termination Date shown on the Participating Organization Application; 2) the
premium due date if premiums are not paid when due; if applicable, or 3) the date the Policy
terminates_ Termination of the Participating Organization's coverage takes effect at 12:01 AM
Standard Time at the Participating Organization's address on the date of termination.
The references in the Policy to "this Policy/coverage under this Policy" and "Policyholder" may also,
where applicable, mean "a Participating Organization's coverage under this Policy" and "Participating
Organization% respectively.
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The following language applies to each Rider attached to the Policy:
Any Riders attached to the Policy apply only with respect to accidents that occur on or after the
later of. 1) the effective date of each Rider, or 2) the effective date of the Participating
Organization's coverage under each Rider. Each Rider applies with respect to a Participating
Organization's coverage under the Policy only if the Participating Organization has elected the
coverage described in each Rider as indicated in the Participating Organization Application.
The President and Secretary of National Union Fire Insurance Company of Pittsburgh, Pa. witness this
Endorsement:
114( --
President
&tkd )k - ei-0-40A-
Secretary
C 117100BG
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DARYL SHAFFER,
V.
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
No.: 09.8604
NATIONAL UNION FIRE INSURANCE CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA,
Defendant JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I hereby certify that I am this 21St day of January, 2010, serving a copy of Defendant National
Union's Preliminary Objections, and a Praecipe for Listing Case for Argument, upon the persons and in the
manner indicated below, which service satisfies the requirements of Pa.R.C.P. 440(a)(1):
Service by first class mail addressed as follows:
Attorney for Plaintiff
Peter M. Good, Esquire/Jessica E. Mercy, Esquire
Smigel, Anderson & Sacks, LLP
River Chase Office Center, 3rd Floor
4431 North Front Street
Harrisburg, PA 17110-1778
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
Attorneys for Defendant, National Union Fire
Insurance Coyr pa;W,of Pittsburgh, PA
By:
ERIC A. FITZGERPILD
BAR I.D. NO.: PA 72590
THOMAS A. SPECHT
BAR I.D. NO.: PA 78686
PRAECIPE FOR LISTING CASE FOR ARGUMENT C14 4 A
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
Daryl Shaffer, Plaintiff
vs.
National Union Fire Insurance
Company of Pittsburgh, PA,
Defendant
(List the within matter for the-pexx p
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No. 8604 09 Term
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1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Defendant's preliminary objections to Complaint, including demurrer
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Peter M. Good, Esquire / Jessica E. Mercy, Esg River Chase Office
(Name and Address)
Center, 4431 North Front St., 3rd Floor, Harrisburg, PA 17110-1778
(b) for defendants:
Eric A. Fitzgerald, Esq. / Thomas A. Specht, Esq, P.O. Box 3118,
(Name and Address)
Scrantnn _ PA 1 Rc;Qq-11 1 R
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
Eric A. Fitzgerald, Esq. / Thomas A. Specht, Esq. will do so
4. Argument Court Date:
February 17, 2010
Date: v
Eric A. Fitzgerald
Print your name
Defendant
Attorney for
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.
DARYL SHAFFER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. :
CIVIL ACTION
NATIONAL UNION FIRE
INSURANCE COMPANY OF
PITTSBURGH, PA.,
Defendant NO. 09-8604 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, NATIONAL UNION
FIRE INSURANCE COMPANY OF PITTSBURGH, PA, TO COMPLAINT
BEFORE OLER and EBERT, JJ.
ORDER OF COURT
AND NOW, this 26`" day of March, 2010, upon consideration of the Preliminary
Objections of Defendant, National Union Fire Insurance Company of Pittsburgh, PA, to
Complaint, and following a hearing held on February 17, 2010, and for the reasons stated
in the accompanying opinion, Defendant's preliminary objections in the nature of
demurrers to Plaintiffs claims are sustained and Plaintiff's complaint is dismissed.
BY THE CO T ,
Peter M. Good, Esquire
Jessica E. Mercy, Esquire
Smigel, Anderson & Sacks, L.L.P.
River Chase Office Center
4431 North Front Street
Harrisburg, PA 17110
Attorneys for Plaintiff
'Wesley Qzr>, Jr. J:
ric A. Fitzgerald, Esquire
Thomas A. Specht, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Attorneys for Defendant
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DARYL SHAFFER,
Plaintiff
V.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
NO. 09-8604 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, NATIONAL UNION FIRE
INSURANCE COMPANY OF PITTSBURGH, PA, TO COMPLAINT
BEFORE OLER and EBERT, JJ.
OPINION and ORDER OF COURT
OLER, J., March 26, 2010.
In this civil case involving an accident insurance policy associated with a mortgage, an
insured mortgager has sued the insurance company for breach of contract, bad faith, and
violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law,' in connection
with its failure to provide the policy benefit for a permanent total disability which he allegedly
incurred in an accident.2 For disposition at this time are Defendant's preliminary objections to
Plaintiff's complaint in the form of demurrers to Plaintiff's claims.3
Defendant's preliminary objections were argued on February 17, 2010. At oral argument,
both counsel agreed that the legal viability of Plaintiff's claims for bad faith and unfair trade
practices was dependent upon the viability of the claim for breach of contract. For the reasons
' Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P. S. §201-1 et seq.
2 Plaintiff's Complaint, filed December 14, 2009.
3 Preliminary Objections of Defendant, National Union Fire Insurance Company of Pittsburgh,
Pa, to Complaint, filed January 22, 2010 (hereinafter Def.'s Prelim. Obj. to Compl.).
stated in this opinion, Defendant's preliminary objections will be sustained and Plaintiff's
complaint will be dismissed.
STATEMENT OF FACTS
The facts alleged in Plaintiff's complaint pertaining to his claim for breach of contract
may be summarized as follows:
Plaintiff Daryl Shaffer is an adult individual who resides in Bowmansdale, Cumberland
County, Pennsylvania.4 Defendant National Union Fire Insurance Company of Pittsburgh, Pa., is
a Pennsylvania corporation with its principal place of business in New York, New York.' At all
times relevant to this action, Defendant was in the business of providing insurance coverage.
Plaintiff and his spouse, Maria Shaffer, obtained an accident insurance policy (hereinafter
"the policy") from Defendant as required by Plaintiff's mortgage company in 2005.6 The policy
had a coverage effective date of August 1, 2005, and listed Plaintiff and Plaintiff's spouse as
named insureds.8 The policy included coverage for claims made by a named insured and reported
to the insurance company within 20 days after an insured's loss, or as soon thereafter as
reasonably possible, during the effective period of the policy, that resulted from injuries
sustained as a direct consequence of an "unintended, unanticipated accident, which directly
caused a covered loss."9
4 Plaintiff's Complaint, Ti.
' Plaintiff's Complaint, ¶2.
6 Plaintiff's Complaint, ¶¶6-7, 11.
7 Plaintiff's Complaint, Ex. B.
8 Plaintiff's Complaint, Ex. B.
9 See Plaintiff's Complaint, ¶8; Def.'s Prelm. Obj. to Compl., Ex. A.
2
Plaintiff suffered an injury on September 27, 2005, as a result of a fall in his yard.10
According to a medical report of Raymond E. Dahl, his treating physician, Plaintiff sustained a
"four-part intertrochanteric hip fracture with subtrochanteric extension," which was a "highly
unstable fracture," as a result of landing on his right side in the fall." According to Plaintiff's
treating physician, this accident rendered Plaintiff "totally disabled from any occupation
secondary to pain caused from prolonged sitting and standing. ,12
Plaintiff realized that he might have been insured with respect to the injury in the summer
of 2008, when his spouse noticed an additional payment to Premier Safety Net on their mortgage
statement. 13 She then contacted the mortgage company and confirmed that she and Plaintiff were
insureds under the policy sub judice.14 On or about July 9, 2008, she contacted Defendant and
requested a copy of the insurance policy to determine whether Plaintiff's type of loss was
covered under the terms of the policy. 15 Neither Plaintiff nor his wife had received a copy of the
policy by the time that Plaintiff finally submitted his claim. 16
10 Plaintiff's Complaint, ¶12.
11 Plaintiff's Complaint, Ex. C.
12 Plaintiff's Complaint, Ex. C.
13 Plaintiff's Complaint, ¶13.
14 Plaintiff s Complaint, ¶14.
15 Plaintiffs Complaint, ¶¶15-18.
16 Plaintiff s Complaint, ¶¶18-21. Plaintiff further alleges that his wife contacted Defendant on
three separate occasions, but Defendant failed or refused to provide Plaintiffs wife with a
copy of the policy. Plaintiffs Complaint, ¶¶18-20.
3
Plaintiff ultimately received a document entitled "Blanket Accident Insurance
Description of Coverage" from Defendant (hereinafter "Description of Coverage" or
"Description" ).17 The Description of Coverage indicated coverage for three types of loss: (1)
Accidental Death; (2) Permanent Total Disability; and (3) Permanent Total Dismemberment. 18
The Description stated, in pertinent part, with respect to permanent total disability:
PERMANENT TOTAL DISABILITY BENEFIT. If, as a result of an Injury,
You are rendered Permanently Totally Disabled as defined herein within 90 days
of the accident that caused the Injury, the Company will pay 100% of the
Permanent Total Disability Maximum Amount shown in the Benefit Schedule19 at
the end of 12 consecutive months of such Permanent Total Disability.20
The Description further defined Permanently Totally Disabled in a subsequent paragraph as
follows:
PERMANENTLY TOTALLY DISABLED [FOR RESIDENTS OF
MISSOURI: DISMEMBERED] / PERMANENT TOTAL DISABILITY
FOR RESIDENTS OF MISSOURI: DISMEMBERMENT] - means:
1.
a. loss of both hands or feet; or
b. loss of one hand and one foot; or
c. loss of sight in both eyes; or
d. loss of speech and hearing in both ears; or
e. loss of speech or hearing in both ears; and
2. You are permanently unable to perform the material and substantial duties
of any occupation for which You are qualified by reason of education,
experience or training; and
[For Residents of Missouri and South Carolina: You are permanently
unable to perform the material and substantial duties of Your occupation
for a period of 12 months; and thereafter, are unable to perform the
17 Plaintiff's Complaint, Ex. A.
18 Plaintiff's Complaint, Ex. A.
19 The Benefit Schedule indicates the maximum amount payable for a covered loss is one million
dollars, payable to the Named Insured, under circumstances specified in the Description of
Coverage. Plaintiff's Complaint, Ex. B.
20 Plaintiff's Complaint, Ex. A.
4
material and substantial duties of any occupation for which You are
qualified by reason of education, experience or training; and]
3. You are under the supervision of a Physician unless You have reached the
maximum point of recovery.
"Loss of hand or foot" means complete severance through or above the wrist or
ankle joint."
As part of his claim, Plaintiff submitted the aforesaid physician's statement indicating
that Plaintiff was "totally disabled from any occupation secondary to pain caused from prolonged
sitting and standing."22 Defendant denied Plaintiffs claim on three separate occasions, 23 the most
recent denial indicating that the "disability must be due to dismemberment. ,24 On July 9, 2009,
Plaintiff sought a review of Defendant's decision to deny his claim.25 However, Defendant failed
to pay any amount for the injuries sustained by Plaintiff,26 and Plaintiff filed the instant action
against the insurer seeking a recovery, based upon a permanent total disability, for compensatory
damages, consequential damages, interest, attorneys' fees and costs, under theories of breach of
contract, insurance bad faith, and a violation of Pennsylvania's Unfair Trade Practices and
Consumer Protection Law.
21 Plaintiff's Complaint, Ex. A.
22 Plaintiff's Complaint, Ex. C.
23 Plaintiffs Complaint, ¶¶24-26, 28. Plaintiff received the first denial on or about January 20,
2009. Plaintiffs Complaint, ¶25. Plaintiff received the second denial on or about January 27,
2009. Plaintiffs Complaint, ¶26. Plaintiff received the third denial on February 24, 2009.
Plaintiffs Complaint, ¶28.
24 Plaintiffs Complaint, ¶28.
25 Plaintiff's Complaint, ¶30.
26 Plaintiffs Complaint, ¶32.
5
As permitted by St. Peter's Roman Catholic Parish v. Urban Redev. Auth. of Pittsburgh,
394 Pa. 194, 146 A.2d 724 (1958),27 Defendant attached a copy of the insurance policy at issue
to its preliminary objections. The policy included a Permanent Total Disability Benefit Rider
(hereinafter "the Rider").28 The Rider extended coverage to a named insured who, as a result of
an injury, was rendered Permanently Totally Disabled within 90 days of the accident that caused
the injury.29 Included in the Rider was the definition of Permanently Totally Disabled/Permanent
Total Disability, which stated:
Permanently Totally Disabled/Permanent Total Disability as used in this rider
means:
That the insured has suffered any of the following:
a. loss of both hands or feet; or
b. loss of one hand and one foot; or
c. Hemiplegia; or; or
d. Paraplegia; or
e. Quadriplegia;
...and
2. The insured is permanently unable to perform the material and substantial
duties of any occupation for which he or she is qualified by reason of education,
experience or training. However, with respect to an insured for whom an
occupational definition of Permanently Totally Disability means, as used in this
Rider, that the insured is permanently unable to engage in any of the usual
activities of a person of like age and sex whose health is comparable to that of the
Insured immediately prior to the accident; and
3. The Insured is under the supervision of a Physician unless the Insured has
reached his or her maximum point of recovery. 30
27 See text accompanying notes, 7-8, infra.
28 Prelim. Obj. to Compl., Ex. A: Permanent Total Disability Benefit Rider. The Rider was not
submitted as part of Plaintiff's complaint, but rather submitted as part of Defendant's
Preliminary Objections to Plaintiff's Complaint. See text accompanying notes, 7-8, infra.
29 Prelim. Obj. to Compl., Ex. A: Permanent Total Disability Benefit Rider.
6
DISCUSSION
Demurrers, in general. A preliminary objection to a complaint in the nature of a demurrer
is appropriate where the complaint is legally insufficient to sustain a cause of action recognized
by law. Pa. R.C.P. 1028(a)(4). Preliminary objections in the nature of a demurrer require the
court to resolve the issues solely on the basis of the challenged pleading; in general, no testimony
or other evidence outside of the pleading may be considered to dispose of the legal issues
presented by the demurrer. Cooper v. Church of St. Benedict, 2008 PA Super 171, ¶2, 954 A.2d
1216, 1218 (2008), citing Hess v. Fox Rothschild, LLP, 2007 PA Super 133, ¶18, 925 A.2d 798,
805 (2007), appeal denied, 596 Pa. 733, 945 A.2d 171 (2008).
When considering a demurrer to a complaint, the court must accept all material facts set
forth in the complaint, as well as all inferences reasonably deducible therefrom, as admitted and
true and decide whether, based on the facts averred, recovery is impossible as a matter of law.
Wagner v. Waitlevertch, 2001 PA Super 100, ¶6, 774 A.2d 1247, 1250 (2001), citing Wiernik v.
PHH U.S. Mortg. Corp., 1999 PA Super 193, 736 A.2d 616 (1999) (citations omitted), appeal
denied, 561 Pa. 700, 751 A.2d 193 (2000). The demurrer should be sustained only if, after the
averments of the complaint are assumed to be true, the plaintiff has failed to assert a legally
cognizable cause of action and, therefore, cannot prevail. See Lerner v. Lerner, 2008 PA Super
183, ¶11, 954 A.2d 1229, 1234 (2008), citing Kramer v. Dunn, 2000 PA Super 101, ¶18, 749
A.2d 984, 990 (2000).
In Pennsylvania, as a general rule, a demurrer cannot aver, and the court may not
consider, the existence of facts not apparent from the face of the challenged pleading. See Wells
v. Southeastern Pa. Transp. Auth., 105 Pa. Commw. 115, 118, 523 A.2d 424, 426 (Pa. Commw.
j0 Def.'s Prelim. Obj. to Compl., Ex. A.
7
Ct. 1987). A limited exception to this general prohibition is recognized where a plaintiff has
averred the existence of a certain written agreement and premised his or her cause of action upon
that agreement. See Barndt v. Pa. Dept. of Corr., 902 A.2d 589 (Pa. Commw. Ct. 2006), citing
St. Peter's Roman Catholic Parish v. Urban Redev. Auth. of Pittsburgh, 394 Pa. 194, 146 A.2d
724 (1958); Martin v. Com. Dept. of Transp., 124 Pa. Commw. 625, 629, 556 A.2d 969, 971 (Pa.
Commw. Ct. 1989) (citations omitted). In such a case, a defendant may properly annex that
agreement in its entirety without creating an impermissible speaking demurrer, since the
agreement is a factual matter arising out of the complaint itself. See St. Peter's Roman Catholic
Parish v. Urban Redev. Auth. of Pittsburgh, 394 Pa. 194, 146 A.2d 724 (1958).
Insurance Policies. The interpretation of a contract of insurance is a matter of law for the
courts to decide. Erie Ins. Exchange v. Baker 601 Pa. 355, 972 A.2d 507, 511 (2008). In
interpreting an insurance contract, the court must ascertain the intent of the parties as manifested
by the language of the written agreement. Id. While ambiguous terms found in an insurance
agreement must be strictly construed against the insurer, the policy language cannot be tortured
to create ambiguities where none exists. See Lititz Mut. Ins. Co. v. Steely, 567 Pa. 98, 107, 785
A.2d 975, 980 (2001), citing McMillan v. State Mut. Life Assurance Co. of Am. 922 F.2d 1073,
1075 (3d Cir. 1990).
When the policy language is clear and unambiguous, the court must give effect to the
language of the contract. Paylor v. Hartford Ins. Co., 536 Pa. 583, 586, 640 A.2d 1234, 1235
(1994), Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 245, 590 A.2d 281, 283 (1991)
(citations omitted). An insured's failure to read carefully the clear and unambiguous terms of his
or her insurance policy has never furnished grounds to invalidate those terms or otherwise nullify
them. Erie Ins. Exchange v. Baker, 601 Pa. 355, 972 A.2d 507, 511, citing Standard Venetian
8
Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983) (holding failure
to read an insurance contract is an unavailing excuse and cannot justify modification of the
contract or any provision thereof).
Application of Law to Facts. Plaintiff's complaint purports to state a claim against
Defendant for breach of contract, alleging that National Union breached its duties under the
policy by failing to promptly investigate Shaffer's loss and to pay the permanent total disability
benefit provided for in the policy. 31 While a preliminary objection in the form of a demurer
requires this court to accept as true all material facts averred in the complaint, the interpretation
of an insurance policy is a matter of law for the court to decide.
Unfortunately for Plaintiff, the language of the insurance policy as it pertains to his claim
is clear, unambiguous, and unavailing. Plaintiff directs the court's attention to language in the
aforesaid Description of Coverage 32 that he received from Defendant.33 This document states
that, "[i]f, as a result of an Injury, [the policy holder is] rendered Permanently Totally Disabled
as defined herein ... [,] the [Defendant] will pay 100% of the Permanent Total Disability
Maximum Amount shown in the Benefit Schedule. ,34 The description defines Permanently
Totally Disabled as existing when: "[there has been] (1) (a) [a] loss of both hands or feet; or (b)
[a] loss of one hand and one foot35 ... [and] (2) [the insured is] [p]ermanently unable to perform
31 Plaintiff's Complaint, ¶36.
32 Plaintiff's Complaint, Ex. A.
33 The document entitled "Blanket Accident Insurance Description of Coverage" is a description
of Plaintiff's policy. Defendant has submitted the actual policy, along with all the riders
attached thereto. Def.'s Prelim. Obj. to Compl., Ex. A.
34 Plaintiff's Complaint, Ex. A (emphasis added).
9
the material and substantial duties of any occupation for which [the insured is] qualified by
reason of education, experience or training; and (3) [the insured is] under the supervision of a
Physician unless [he or she] has reached the maximum point of recovery. 5136
Plaintiffs argument that the definition of the term set forth in the Description of
Coverage is applicable only to residents of Missouri is unpersuasive, as the "Residents of
Missouri" language is bracketed and serves to rename the term for residents of Missouri, rather
than restrict the definition's applicability. The fact that the Description of Coverage provides a
"Permanent Total Disability Benefit" for injuries rendering an insured "Permanently Totally
Disabled" as defined by the document, and that the only definition in the document of
"Permanently Totally Disabled" is the aforementioned definition,37 is further indicative of the
fact that the inclusion of "[For Residents of Missouri: Dismembered]/Permanent Total Disability
for Residents of Missouri: Dismemberment]" is merely a specification of, and not a restriction
upon, the Permanently Totally Disabled definition.
The limited extent of coverage indicated in the Description of Coverage is further
clarified by an examination of the policy itself. The definition of Permanently Totally Disabled
found in the Rider is consistent with the term's definition in the Description of Coverage.
Accepting the facts averred in Plaintiffs Complaint as true, the court is constrained to
conclude that Plaintiff does not qualify as Permanently Totally Disabled as defined in either the
description of the policy or the policy itself. For the purpose of the demurrer, Plaintiff's
35 The Description defines "Loss of hand or foot" as: "complete severance through or above the
writ or ankle joint." Plaintiff s Complaint, Ex. A.
36 The description further includes: "loss of sight in both eyes; or (d) loss of speech and hearing
in both ears; or (e) loss of speech or hearing in both ears. Plaintiffs Complaint, Ex. A.
37 See text accompanying notes, 4-5, supra.
10
Complaint states sufficient allegations to satisfy the second 38 and third 39 requirements of
"Permanently Totally Disabled" as defined within the policy. 40 However, Plaintiff fails to aver
that he has suffered an injury rendering him Permanently Totally Disabled, as the complaint does
not support a conclusion that Plaintiff suffered the first conjunctive element. 41 Because
Plaintiffs injury does not meet the standard as defined by the policy for the Permanent Total
Disability Benefit, Defendant is under no obligation to pay the Permanent Total Disability
Maximum Amount shown in the Benefit Schedule, and, therefore, did not breach a coverage
obligation owed to Plaintiff. For the foregoing reasons, Defendant's preliminary objections must
be sustained.
The following order will be entered:
38 See Plaintiff s Complaint, ¶12; Ex. C.
39 See Plaintiffs Complaint, ¶12; Ex. D.
40 Taken as true, allegations submitted in Plaintiffs Complaint satisfy the second and third
requirements of qualifying as Permanently Totally Disabled as defined in the insurance
policy. Plaintiff submits statements from his treating physician stating Plaintiff is "totally
disabled from any occupation secondary to pain caused from prolonged sitting or standing,"
and that Plaintiff is no longer under the physicians care and has reached his "maximum
medical improvement." See Plaintiff s Complaint, Ex. C.
41 See text accompanying notes, 4, supra.
11
ORDER OF COURT
AND NOW, this 26 h day of March, 2010, upon consideration of the Preliminary
Objections of Defendant, National Union Fire Insurance Company of Pittsburgh, PA, to
Complaint, and following a hearing held on February 17, 2010, and for the reasons stated in the
accompanying opinion, Defendant's preliminary objections in the nature of demurrers to
Plaintiff's claims are sustained and Plaintiff's complaint is dismissed.
BY THE COURT
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr. J.
Peter M. Good, Esquire
Jessica E. Mercy, Esquire
Smigel, Anderson & Sacks, L.L.P.
River Chase Office Center
4431 North Front Street
Harrisburg, PA 17110
Attorneys for Plaintiff
Eric A. Fitzgerald, Esquire
Thomas A. Specht, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Attorneys for Defendant
12
DARYL SHAFFER,
Plaintiff,
V.
NATIONAL UNION FIRE INSURANCE,
COMPANY OF PITTSBURGH, PA.,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNS
VA?JIA
?
No. 09-8604 "Ru
?_.._
CIVIL ACTION - LAWS. r
JURY TRIAL DEMANDED
w
trr
NOTICE OF APPEAL CID
Notice is hereby given that Daryl Shaffer, plaintiff above named, hereby appeals to the
Superior Court of Pennsylvania from the Order entered in this matter on the 26th day of March,
2010. The Order has been entered in the docket as evidenced by the attached copy of the docket
entry. The official transcript has not been requested concurrently with the filing of this Notice of
Appeal because there is no verbatim record of the proceedings.
Respectfully submitted,
SMIGEL, ANDERSON, & SACKS, LLP
Date: 41ki ll o By:
Peter M. Good, E quire
Pa. ID No. 64316
Jessica E. Mercy, Esquire
Pa. ID No. 206405
4431 North Front Street, 3`d Floor
Harrisburg, PA 17110-1778
(717) 234-2401 (telephone)
(717) 234-3611 (facsimile)
?y?Od
to #- 67 5G
2.0- a yp ? ?6
,C°Py,- 4:1ca -6 ' - f
08261204132010 Cumberland County Prothonotary's Office
PYS510$ Civil Case Print
2009-08604 SHAFFER DARYL (vs) NATIONAL UNION FIRE INSURANCE
Reference No...
Case Type.....: COMPLAINT
Judgment. ... .00
Judge Assigned:
Disposed Desc.:
------------ Case Comments -------------
Page 1
Filed......... 12/14/2009
Time.......... 2:09
Execution Date 0/00/0000
Jury Trial....
Disposed Date. 0/00/0000
Higher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
SHAFFER DARYL
11 HILLCREST DRIVE
BOWMANSDALE PA 17055
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH PA
70 PINE STREET
NEW YORK NY 10270
PLAINTIFF GOOD PETER M
DEFENDANT
********************************************************************************
* Date Entries
********************************************************************************
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
12/14/2009 COMPLAINT - CIVIL ACTION FILED BY PETER M GOOD ESQ FOR PLFF
-------------------------------------------------------------------
1/05/2010 SHERIFF'S RETURN - 12/22/09 - DAUPHIN COUNTY - COMPLAINT AND
NOTICE UPON DEFT AT 2704 COMMERCE DRIVE HARRISBURG 17110
SHERIFF'S COST $37.44
-------------------------------------------------------------------
1/22/2010 PRELIMINARY OBJECTIONS OF DEFT NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH PA COMPLAINT - BY ERIC A FITZGERALD AND
THOMAS A SPECHT ATTYS FOR DEFT
-------------------------------------------------------------------
1/22/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS PRELIMINARY
OBJECTIONS TO COMPLAINT INCLUDING DEMURRER - BY ERIC A FITZGERALD
ATTY FOR DEFT
-------------------------------------------------------------------
3/26/2010 OPINION AND ORDER OF COURT - 3/26/10 IN RE: PRELIMINARY OBJECTIONS
OF DEFT NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG PA TO
COMPLAINT - BY J WESLEY OLER JR J - COPIES MAILED 3/26/10
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Bw*Bal***Pmts/Ad? End Bal
*********************************** ****** *******************************
COMPLAINT 55.00 55.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 8.00 8.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 23.50 23.50 .00
---------------
92.00 --------- ---
92.00 ---------
.00
********************************************************************************
* End of Case Information
********************************************************************************
•
IN THE COURT OF COMMON PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
V.
No. 09-8604
NATIONAL UNION FIRE INSURANCE, CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA.,
Defendant. JURY TRIAL DEMANDED
PROOF OF SERVICE
I certify that I this day served a copy of the foregoing Notice of Appeal upon the
person(s) indicated below by depositing a copy of the same in the United States Mail, first class,
postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows:
DARYL SHAFFER,
Eric A. Fitzgerald, Esquire
Thomas A. Specht, Esquire
Marshall, Dennehey, Warner, Coleman &
Goggin
P.O. Box 3118
Scranton, PA 18505-3118
Court Reporters' Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
(via hand delivery)
Judge J. Wesley Oler, Jr.
Judge's Chambers
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
(via hand delivery)
Melissa H. Calvanelli
District Court Administrator
Court Administration
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
(via hand delivery)
SMIGEL, ANDERSON, & SACKS, LLP
Date: 41/Lp0;o
By: 'A V
Peter M. Good, E uire
Pa. ID No. 64316
Jessica E. Mercy, Esquire
Pa. ID No. 206405
4431 North Front Street, 3rd Floor
Harrisburg, PA 17110-1778
(717) 234-2401 (telephone)
(717) 234-3611 (facsimile)
Karen Reid Bramblett, Esq.
Prothonotary
Milan K. Mrkobrad, Esq.
Deputy Prothonotary
Buell, David D.
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
RE: Daryl Shaffer
Middle District
April 20, 2010
Pennsylvania Judicial Center
P.O. Box 62435
601 Commonwealth Avenue, Suite 1600
Harrisburg, PA 17106-2435
(717) 772-1294
www. superior. court.state.pa.us
V.
National Union Fire Insurance Company Of Pittsburg, Pennsylvania
672 MDA 2010
Trial Court Docket No: 09-8604
tx:
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21
C.. T.
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Dear :
Enclosed please find a copy of the docket for the above appeal that was recently filed in the
Superior Court. Kindly review the information on this docket and notify this office in writing if you
believe any corrections are required.
Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517,
for completion and filing. Please note that Superior Court Dockets are available on the Internet at
the Web site address printed at the top of this page. Thank you.
Respectfully,
Milan K. Mrkobrad, Esq.
Deputy Prothonotary
/aas
Enclosure
12:03 P.M.
Appeal Docket Sheet
Docket Number: 672 MDA 2010
Page 1 of 2
April 20, 2010
CAPTION
Daryl Shaffer
V.
National Union Fire Insurance Company Of Pittsburg, Pennsylvania
CASE INFORMATION
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: April 20, 2010
Journal Number:
Case Category: Civil
CONSOLIDATED CASES
Awaiting Original Record
Case Type(s):
SCHEDULED EVENT
Superior Court of Pennsylvania
Secure
Civil Action Law
RELATED CASES
Next Event Type: Receive Docketing Statement Next Event Due Date: May 4, 2010
Next Event Type: Original Record Received Next Event Due Date: June 15, 2010
COUNSEL INFORMATION
Appellant Shaffer, Daryl
Pro Se: No
IFP Status: No
Attorney:
Bar No:
Law Firm:
Address:
Appoint Counsel Status: Represented
Good, Peter M.
064316
Smigel, Anderson & Sacks, L.L.P.
4431 N Front St 3rd FI
Harrisburg, PA 17110
Phone No: (717) 234-2401 Fax No: (717) 234-3611
Receive Mail: Yes
Receive EMail: No
Appellee National Union Fire Insurance Company Of Pittsburg, Pennsylvania, et al.
Pro Se: No Appoint Counsel Status: Represented
IFP Status: No
Attorney: Fitzgerald, Eric Ashworth
Bar No: 072590
Address: P.O. Box 3118
Scranton, PA 18505--3118
Phone No: Fax No:
Receive Mail: Yes
Receive EMail: No
12:03 P.M.
Appeal Docket Sheet Superior Court of Pennsylvania
Docket Number: 672 MDA 2010
Page 2 of 2 Secure
April 20, 2010
FEE INFORMATION
Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt
04/20/2010 Notice of Appeal 73.50 04/20/2010 2010-SPR-M-000332 73.50
AGENCY/TRIAL COURT INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Cumberland County Civil Division
Order Appealed From: March 26, 2010 Judicial District: 09
Documents Received: April 20, 2010 Notice of Appeal Filed: April 16, 2010
Order Type: Order Entered
OTN(s):
Lower Ct Docket No(s):09-8604
Lower Ct Judge(s): Oler, J. Wesley, Jr.
Judge
ORIGINAL RECORD CONTENT
Original Record Item Filed Date Content Description
Date of Remand of Record:
BRIEFING SCHEDULE
None
None
DOCKET ENTRY
Filed Date Docket Entry / Representing Participant Type Filed By
April 20, 2010 Notice of Appeal Docketed
Appellant
Shaffer, Daryl
April 20, 2010 Docketing Statement Exited (Civil)
Middle District Filing Office
SMIGEL, ANDERSON & SACKS, LLP
River Chase Office Center
4431 North Front Street, 3rd Floor
Harrisburg, PA 17110-1778
OF THI
ZOIO APR 21 P 12:29
Peter M. Good, Esquire
I.D. No. 64316
Jessica E. Mercy, Esquire
I.D. No. 206405
(717) 234-2401 - -A I Attorn eys for Plaintiff
R! /
DARYL SHAFFER, M T T OF COMMON PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 09-8604
NATIONAL UNION FIRE INSURANCE, CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA.,
Defendant. JURY TRIAL DEMANDED
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
AND NOW COMES Plaintiff Daryl Shaffer, by and through his attorneys, Smigel,
Anderson & Sacks, LLP, to file the following Statement of Matters Complained of on Appeal
pursuant to Pa. R.A.P. 1925(b) and Cumberland County Local Rule 1925, and avers in support as
follows:
1. By Order dated March 26, 2010, the trial court sustained Defendant's preliminary
objections and dismissed Plaintiffs Complaint setting forth causes of action for breach of
contract, insurance bad faith and a violation of the Pennsylvania Unfair Trade Practices and
Consumer Protection Law.
2. The trial court committed an error of law when it found that the language of the
insurance policy as it pertains to Plaintiff s claim is clear, unambiguous, and unavailing.
3. The trial court committed an error of law when it found that the inclusion of "[For
Residents of Missouri: Dismemberment]" was merely a specification of, and not a restriction
upon, the definition of "Permanently Totally Disabled" contained in the insurance policy.
4. The trial court committed an error of law when it determined that Plaintiff did not
qualify as Permanently Totally Disabled as defined by the insurance policy.
5. The trial court committed an error of law when it determined that Defendant was
under no obligation to pay the Permanent Total Disability Maximum Amount contained in the
Benefits Schedule of the insurance policy and therefore did not breach a coverage obligation
owed to Plaintiff.
Respectfully submitted,
SMIGEL, ANDERSON, & SACKS, LLP
Date: Apri120, 2010 By: , OA Aa
Peter M. Good, Esq 're
Pa. ID No. 64316
Jessica E. Mercy, Esquire
Pa. ID No. 206405
4431 North Front Street, 3rd Floor
Harrisburg, PA 17110-1778
(717) 234-2401 (telephone)
(717) 234-3611 (facsimile)
DARYL SHAFFER, IN THE COURT OF COMMON PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 09-8604
NATIONAL UNION FIRE INSURANCE, CIVIL ACTION - LAW
COMPANY OF PITTSBURGH, PA.,
Defendant. JURY TRIAL DEMANDED
PROOF OF SERVICE
I certify that I this day served a copy of the foregoing Statement of Matters Complained
of on Appeal upon the person(s) indicated below by depositing a copy of the same in the United
States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows:
Eric A. Fitzgerald, Esquire
Thomas A. Specht, Esquire
Marshall, Dennehey, Warner, Coleman &
Goggin
P.O. Box 3118
Scranton, PA 18505-3118
SMIGEL, ANDERSON, & SACKS, LLP
Date: Apri120, 2010
The Honorable J. Wesley Oler, Jr.
Judge's Chambers
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
By: _ AW
Peter M. Good, E quire
Pa. ID No. 64316
Jessica E. Mercy, Esquire
Pa. ID No. 206405
4431 North Front Street, Std Floor
Harrisburg, PA 17110-1778
(717) 234-2401 (telephone)
(717) 234-3611 (facsimile)
DARYL SHAFFER
Appellant
V.
NATIONAL UNION FIRE
INSURANCE COMPANY OF
PITTSBURGH, PA,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 09-8604 CIVIL TERM
ORDER OF COURT
AND NOW, this 19'' day of April, 2010, upon consideration of the Notice of
Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa.
R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a
concise Statement of Errors Complained of on Appeal no later than 21 days after entry of
this Order. Any issues not properly included in the statement timely filed and served
pursuant to this order shall be deemed waived.
ter M. Good, Esq.
Jessica E. Mercy, Esq.
4431 North Front Street
Third Floor
Harrisburg, PA 17110-1778
Attorneys for Appellant
,16ic A. Fitzgerald, Esq.
Thomas A. Specht, Esq.
P.O. Box 3118
Scranton, PA 18505-3118
Attorneys for Appellee
BY THE COURT,
16/'/'
Wesley Oler, J .,
D
o
co
0
N ?am
Court Administrator
DARYL SHAFFER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION - LAW
NATIONAL UNION FIRE
INSURANCE COMPANY OF : c Q
PITTSBURGH, PA., ;z C=
Defendant NO. 09-8604 CIVIL TERM "'' .
:. ;?
r F?t 77
; t_
IN RE OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 28, 2010. x ':.
In this civil case, Plaintiff has filed an appeal to the Pennsylvania Sup6ioritouiP
from an en banc order granting Defendant's preliminary objections in the nature of a
demurrer to Plaintiffs complaint and dismissing the complaint.' The bases of the appeal
have been expressed in a statement of matters complained of on appeal as follows:
1. By Order dated March 26, 2010, the trial court sustained Defendant's
preliminary objections and dismissed Plaintiff's Complaint setting forth causes of
action for breach of contract, insurance bad faith and a violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law.
2. The trial court committed an error of law when it found that the language of
the insurance policy as it pertains to Plaintiff's claim is clear, unambiguous, and
unavailing.
3. The trial court committed an error of law when it found that the inclusion
of "[For Residents of Missouri: Dismemberment]" was merely a specification of,
and not a restriction upon, the definition of "Permanently Totally Disabled"
contained in the insurance policy.
4. The trial court committed an error of law when it determined that Plaintiff
did not qualify as Permanently Totally Disabled as defined by the insurance policy.
5. The trial court committed an error of law when it determined that
Defendant was under no obligation to pay the Permanent Total Disability
Maximum Amount contained in the Benefits Schedule of the insurance policy and
therefore did not breach a coverage obligation owed to Plaintiff.
The rationale for the court's dismissal of Plaintiffs complaint was contained in an
opinion by the court accompanying the order appealed from, dated March 26, 2010, and
will not be here reiterated. Accordingly, the Prothonotary is directed to transmit the
' Plaintiff's Notice of Appeal, filed April 16, 2010.
? y
record to the Pennsylvania Superior Court for purposes of disposition of Plaintiff's
appeal.
./ Peter M. Good, Esq.
,/Jessica E. Mercy, Esq.
Smigel, Anderson & Sacks, L.L.P.
River Chase Office Center
4431 North Front Street
Harrisburg, PA 17110
Attorneys for Plaintiff
./ E ' A. Fitzgerald Esquire
homas A. Specht, Esquire
Marshall, Dennehey, Warner,
Coleman & Goggin
P.O. Box 3118
Scranton, PA 18595
Attorneys for Defendant
All; BY THE COURT
I
k41--
Wesley Ol , Jr., J.
2
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
Daryl Shaffer
Vs.
National Union Fire Insurance
Company of Pittsburgh, PA
09-8604 Civil
672 MDA 2010
The documents comprising the record have been numbered from No.1 to 98 and attached
hereto as Exhibit A is a list of the documents correspondingly numbered and identified
with reasonable definiteness, including with respect to each document, the number of
pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 04/28/2010
V
David D. Buell, P othonotary
Regina Lebo, Deputy
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date
Signature & Title
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of Cumberland in the Commonwealth of Pennsylvania
672 MDA 201Q
to No. 2009-8604 Civil Term. 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
Daryl Shaffer
VS.
National Union Fire Insurance
Company of Pittsburgh, PA
**SEE CERTIFIED COPY OF THE DOCKET ENTRIES**
Commonwealth of Pennsylvania
County of Cumberland ss:
In TESTIMONY WHEREOF, I have hereunto
this 28th
1, David D. Buell , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
Daryl Shaffer
Plaintiff, and National Union Fire
Insurance Company of Pittsburgh, PA
Defendant , as the same remains of record
before the said Court at No. 09-8604 of
civil Term, A.D. 19 .
set my hand and affixed the seal of said Court
day o 11A ril A. D.,382Q.
C?.J
Prothonotary
I, Kevin A. Hess President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
David D. Bu .11 , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record,
certificate and attestation are in due form of law and made by the oper officer.
President Judge
Commonwealth of Pennsylvania
County of Cumberland ss:
1, naVirl n Biel l , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable --Kevin A Hess
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of said Court this
th day f April A. D. )g2010
Prothonotary
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- ----- .._...._..---Civil ?Case ? Prynv ......,.?r .. .,???.... ?..y..
2009-08604 SHAFFER DARYL (vs) NATIONAL UNION FIRE INSURANCE
Reference No... Filed......... 12/14/2009
Case Type...... COMPLAINT Time. ...
i 2.09
Judgment......: .00 Execut
on Date 0/00/0000
Judge Assigned: OLER J WESLEY JR Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments -- ----------- Higher Crt 1.: 672 MDA 2010
Higher Crt 2.:
General Index Attorney Info
SHAFFER DARYL PLAINTIFF GOOD PETER M
11 HILLCREST DRIVE
BOWMANSDALE PA 17055
NATIONAL UNION FIRE INSURANCE DEFENDANT
COMPANY OF PITTSBURGH PA
70 PINE STREET
NEW YORK NY 10270
* Date Entries
x•12/14/2009
-71 1/05/2010
32• -7/ 1/22/2010
7?2, 1/22/2010
73-3/26/2010
4/16/2010
4/20/2010
4/21/2010
3- 4/21/2010
4/28/2010
4/28/2010
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
COMPLAINT - CIVIL ACTION FILED BY PETER M GOOD ESQ FOR PLFF
-------------------------------------------------------------------
SHERIFF'S RETURN - 12/22/09 - DAUPHIN COUNTY - COMPLAINT AND
NOTICE UPON DEFT AT 2704 COMMERCE DRIVE HARRISBURG 17110
SHERIFF'S COST $37.44
-------------------------------------------------------------------
PRELIMINARY OBJECTIONS OF DEFT NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH PA COMPLAINT - BY ERIC A FITZGERALD AND
THOMAS A SPECHT ATTYS FOR DEFT
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS PRELIMINARY
OBJECTIONS TO COMPLAINT INCLUDING DEMURRER - BY ERIC A FITZGERALD
ATTY FOR DEFT
-------------------------------------------------------------------
OPINION AND ORDER OF COURT - 3/26/10 IN RE: PRELIMINARY OBJECTIONS
OF DEFT NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG PA TO
COMPLAINT - BY J WESLEY OLER JR J - COPIES MAILED 3/26/10
-------------------------------------------------------------------
NOTICE OF APPEAL TO SUPERIOR COURT - BY PETER M GOOD ATTY FOR PLFF
-------------------------------------------------------------------
ORDER OF COURT - 4/19/10 - UPON CONSIDERATION OF THE NOTICE OF
APPEAL FILED IN THE ABOVE CAPTIONED MATTER - APPELLANT IS DIRECTED
PURSUANT TO PA RAP 1925 B TO FILE OF RECORD IN THIS COURT AND TO
SERVE UPON THE UNDERSIGNED JUDGE A CONCISE STATEMENT OF ERRORS
COMPLAINED OF ON APPEAL NO LATER THAN 21 DAYS AFTER ENTRY OF THIS
ORDER - ANY ISSUES NOT PROPERLY INCLUDED IN THE STATEMENT TIMELY
FILED AND SERVE PURSUANT TO THIS ORDER SHALL BE DEEMED WAIVED - BY
J WESLEY OLER JR J - COPIES MAILED 4/20/10
-------------------------------------------------------------------
SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 672 MDA 2010
-----------------------------------------------------------------
STATEMENT OF MATTERS COMPLIANED OF ON APPEAL - BY PETER M GOOD
ATTY FOR PLFF
-------------------------------------------------------------------
WESLEYIN RE COPIES MAILED 4/28/10DATED 4/28/10 - BY J
-------------------------------------------------------------------
NOTICE OF DOCKET ENTRIES MAILED TO PETER M GOOD ESQ JESSICA E
MERCY ESQ ERIC A FITZGERALD ESQ AND THOMAS A SPECHT ESQ
- - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
* Escrow Information
* Fees & Debits Beg Bal Pmts/Ad? End Bal
COMPLAINT
TAX ON CMPLT
SETTLEMENT
55.00 55.00 .00
.50 .50 .00
8.00 8.00 .00
PYS511 Cumberland County Prothonotary 's Office Daae 2
Civil Case Print
2009-08604 SHAFFER DARYL (vs) NATIONAL UNION FIRE INSURANCE
Reference No... Filed......... 12/14/2009
Case Type...... COMPLAINT
Jud
men
00 Time..... ..:
i
D 2.09
0
g
...... . Execut
on
ate 0/00/0
00
Judge Assigned: OLER J WESLEY JR Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ----------- -- Higher Crt 1.: 672 MDA 2010
Higher Crt 2.:
AUTOMATION 5.00 5.00 .00
JCP FEE 23.50 23.50 .00
APPEAL HIGH CT 48.00
---------
- 48.00 .00
-
---
140.00 ---------- -
140.00 -----------
.00
*************************************** ************ *****************************
* End of Case Information
TRUE COPY FROM RECORD
In Testimony whereof, I here unt*: , o set MY 1101W
and the seal of said Court at
This 0 5? day of 20
S
i
superior (Court of 30euugplbauia
Karen Reid Bramblett, Esq. Pennsylvania Judicial Center
Prothonotary Middle District
P.O. Box 62435
Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600
Deputy Prothonotary Harrisburg, PA 1 71 06-243 5
(717) 772-1294
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CERTIFICATE OF REMITTAUREMAND OF RECORD
TO: David D. Buell
Prothonotary
RE: Shaffer, D. v. National Union Fire
672 MDA 2010
Trial Court: Cumberland County Court of Common Pleas
Trial Court Docket No: 09-8604
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is
the entire record for the above matter.
Original Record contents:
Item Filed Date Description
Part April 28, 2010 1
Remand/Remittal Date: 02/03/2011
ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and
returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need
not acknowledge receipt.
Respectfully,
Milan K. Mrkobrad, Esq.
/krc
Enclosure
cc: Eric Ashworth Fitzgerald, Esq.
Peter M. Good, Esq.
The Honorable J. Wesley Oler Jr., Judge
Deputy Prothonotary
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Shaffer, D. v. National Union Fire
672 MDA 2010
Letter to: Buell, David D.
Acknowledgement of Certificate of RemittaURemand of Record (to be returned):
Signature
Date
Printed Name
1. A34003/10
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DARYL SHAFFER
Appellant
V.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
Appellee
IN THE SUPERIOR COURT (:g
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No. 672 MDA 10 F>
Appeal from the Order March 26, 2010
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 09-8604
BEFORE: PANELLA, OTT, and FITZGERALD% JJ.
FILED: December 27, 2010
JUDGMENT ORDER
Appellant, Daryl Shaffer, appeals from the order entered March 26,
2010, by the Honorable J. Wesley Oler, Jr., in the Court of Common Pleas of
Cumberland County, granting Appellee, National Union Fire Insurance
Company of Pittsburgh, Pennsylvania's preliminary objections and dismissing
Shaffer's complaint. After careful review, we affirm.
For a recitation of the facts and procedural history of this case, we
direct the reader to Judge Oler's Opinion. See Trial Court Opinion,
03/26/10, at 1-6.
On appeal, Shaffer raises the following issue for our review:
A. Whether the trial court committed an error of law in
sustaining National Union's Preliminary Objections
* Former Justice specially assigned to the Superior Court.
1. A34003/10
by holding that (1) the language of the insurance
policy as it pertains to Shaffer's claim is clear,
unambiguous and unavailing, (2) the inclusion of
"(For Residents of Missouri: Dismemberment]" was
merely a specification of, and not a restriction upon
the definition of "Permanently Totally Disabled"
contained in the insurance policy, (3) Shaffer did
not qualify as Permanently Totally Disabled as
defined by the insurance policy and (4) National
Union was under no obligation to pay the
Permanent Total Disability Maximum Amount
contained in the Benefits Schedule of the insurance
policy and therefore did not breach a coverage
obligation owed to Shaffer.
Appellant's Brief, at 4.
With our standards of review in mind, and after examining the briefs of
the parties, the ruling of the trial court, as well as the applicable law, we find
that the trial court's ruling is supported by the record and free of legal error.
We further find that the trial court ably and methodically addressed Shaffer's
issue presented on appeal. Accordingly, we affirm on the basis of Judge
Oler's thorough and well-written opinion. See Trial Court Opinion, filed
03/26/10.
Order affirmed. Jurisdiction relinquished.
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3. A34003/10
Judgment Entered.
Deputy Prothonotary
Date: December 27, 2010
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