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HomeMy WebLinkAbout05-4264 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff v. 2005 - / Civil Action - Law Jury Trial Demanded STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE; and NANETTE MYERS, Defendants ACTION FOR DECLARATORY JUDGMENT COMPLAINT AND NOW, this 17' Day of August, 2005, comes the Plaintiff, Myra Barnhart, through her counsel, ROMINGER, BAYLEY & WHARE, and respectfully files the following Complaint seeking a Declaratory Judgment and, in support thereof, avers the following: Plaintiff is an adult individual who resides at 304 Shippensburg Road, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant State Farm Mutual Automobile Insurance Company (hereinafter "State Farm") is a duly licensed insurance carrier with a place of business at 555 Southpointe Boulevard, Suite 400, Canonsburg, Pennsylvania 15317. 3. Defendant State Farm has engaged in, and continues to engage in, a continuous and substantial course of business within the Commonwealth of Pennsylvania. 4. Defendant Gregory Barnhart is an adult individual who resides at 304 Shippensburg Road, Shippensburg, Cumberland County, Pennsylvania 17257. 5. Defendant AIG Specialty Auto Insurance (hereinafter "AIG") is a duly licensed insurance carrier with a place of busyness at 1550 Coraopolis Heights Road, Coraopolis, Pennsylvania 15108. 6. Defendant AIG has engaged in, and continues to engage in, a continuous and substantial course of business within the Commonwealth of Pennsylvania. 7. Defendant Nanette Myers is an adult individual who resides at 420 Newville Road, Newburg, Cumberland County, Pennsylvania 17240. 8. At all times relevant to this action, Defendant Gregory Barnhart was insured under an automobile insurance policy with Defendant State Farm. Part and parcel of said policy was Underinsured/Uninsured Motorist (UM/UIM) coverage. A copy of said insurance policy is attached hereto as Exhibit A and incorporated by reference as if fully set forth herein. 9. On or about November 3, 2001, Plaintiff was involved in an automobile related accident, when she was struck by a vehicle being operated by Defendant Nanette Myers. 10. As a result of the accident referenced in Paragraph 9, above, the Plaintiff suffered damages exceeding $75,000.00. 11. Upon being notified of said accident, Defendant AIG declined to indemnify or defend Defendant Nanette Myers on the basis that Ms. Myers had failed to pay her insurance premiums. A copy of AIG's communication to this effect, addressed to Ms. Myers, is attached as Exhibit B and incorporated by reference as if fully set forth herein. 12. In light of AIG's position, Plaintiff placed Defendant State Farm on notice of a UM/UIM claim. 13. Defendant State Farm denied said UM/UIM claim on the basis that Defendant Gregory Barnhart signed UM/UIM coverage rejection forms on May 30, 2000. 14. While Defendant Bernard did, indeed, sign UM/UIM coverage rejection forms on May 30, 2000, said forms applied to a previous policy which had been superseded by a new policy, in effect at the time of the accident at issue. 15. Defendant State Farm, in an Auto Policy report, itself identified the old policy as the "replaced policy," numbered "0058347-38D 001," and provided a new policy number, "005 8347-D10-38E-001," to the new policy. A copy of that Auto Policy report is attached as Exhibit C and incorporated as if fully set forth herein. 16. Defendant Barnhard initiated the new policy which had a greater scope of coverage, to include full tort, on June 29, 2001, and, at that time, would have had to have signed new waivers; he was not called upon to sign such forms. Consequently, State Farm's failure to provide him with the same nullified any previous waivers of UM/UIM coverage. 17. It is axiomatic that when an individual purchases a new insurance policy with a greater scope of coverage than the previous policy, he or she expects that policy to, in fact, constitute a new policy that is not encumbered by the limitations of the old policy. 18. The interests of public policy and consumer protection dictate that when an individual replaces an old policy with a new, more expansive policy, the old waivers must be considered null and void. 19. The interests of public policy and consumer protection dictate that a new insurance policy requires the purchaser to sign new waivers specifically applicable to that policy. 20. All interested parties have been named as Defendants in this Declaratory Judgment action. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment declaring that Defendant State Farm has a duty to indemnify, defend, or otherwise perform pursuant to existing and applicable UM/UIM terms of Gregory Barnhart's policy and, further, granting such additional relief as the Court may deem appropriate, to include reasonable attorney's fees. Respectfully submitted, ROMINGER, BAYLEY & WHARE Karl E. Rominger, Esquire Attorney I.D. No. 155 South Hanover Street Carlisle, Pennsylvania 17013 Tel: (717) 241-6070 Fax: (717) 241-6878 Attorneys for Plaintiff IN THE COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff 2005- V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANT;GREGORY BARNHART; AIG SPECIALTY AUTOMOBILE INSURANCE; and NANETTER MYERS, Defendant CIVIL ACTION - Law Jury Trial Demanded ACTION FOR DECLARATORY JUDGEMENT VERIFICATION Karl E. Rominger, Esquire, states that he is the attorney for, Plaintiff in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: - / Karl E. Rominger, Esquire Attorney for Plaintiffs IN THE COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff 2005- V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CIVIL ACTION - Law Jury Trial Demanded COMPANT; GREGORY ACTION FOR DECLARATORY BARNHART,- AIG SPECIALTY JUDGEMENT AUTOMOBILE INSURANCE; and NANETTER MYERS, Defendant CERTIFICATE OF SERVICE I, James 1. Nelson, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Complaint upon the following by private process service: State Farm Mutual Automobile Insurance Company Gregory Barnhart 555 Southpointe Boulevard, Suite 400 304 Shippensburg Road Canonsburg, Pa 15317 Shippensburg, PA 17257 AIG Specialty Auto Insurance Nanette Myers 1550 Coraopolis Heights Road 420 Newville Road Coraopolis, PA 15108 Newburg, PA 17240 Dated: Respectfully submitted, ROMINGER, BAYLEY & WHARE Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff U4 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Applicant/Insured Name I Vl__ Date C-22 ?? Agent's Code . Z 1 Z 009 t,(Y/ STATE FARM FIRE AND CASUALTY COMPA Policy Number 2)ro-3XP AUG 13 2004 I understand that this acknowledgment of coverage selection shall be applicable, as of the date specified above, to the policy of insurance identified above, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage. THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AS ENACTED BY THE GENERAL ASSEMBLY, ONLY REQUIRE THAT YOU PURCHASE LIABILITY AND FIRST-PARTY MEDICAL BENEFIT COVERAGES. ANY ADDITIONAL COVERAGES OR COVERAGES IN EXCESS OF THE LIMITS REQUIRED BY LAW ARE PROVIDED ONLY AT YOUR REQUEST AS ENHANCEMENTS TO BASIC COVERAGES. IMPORTANT NOTICE Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you, your spouse or other relatives or minors in your custody or in the custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle: (1) Medical benefits, up to at least $100,000. (1.1) Extraordinary medical benefits, from $100,000 to $1,100,000 which may be offered in increments of $100,000. (2) Income loss benefits, up to at least $2,500 per month up to a maximum benefit of at least $50,000. (3) Accidental death benefits, up to at least $25,000. (4) Funeral benefits, $2,500. (5) As an alternative to paragraphs (1), (2), (3) and (4), a combination benefit, up to at least $177,500 of benefits In the aggregate or benefits payable up to three years from the date of the accident, whichever occurs first, subject to a limit on accidental death benefit of up to $25,000 and a limit on funeral benefit of $2,500, provided that nothing contained in this subsection shall be construed to limit, reduce, modify or change the provisions of section 1715(d) (relating to availability of adequate limits). (6) Uninsured, underinsured and bodily Injury liability coverage up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons In any one accident or, at the option of the insurer, up to at least $300,000 in a single limit for these coverages, except for policies issued under the Assigned Risk Plan. Also, at least $5,000 for damage to property of others in any one accident. Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above. Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected. If you have any questions or you do not understand all of the various options available to you, contact your agent or company. If you do not understand any of the provisions contained in this notice, contact your agent or company before you sign. Signature of an Applicant or an Insured '6&6 fJ ?- (? Date DOCUMENT CODE 91 ,,? STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY LApplicanUinsured Name ; m`-"3,t4e,- ` ?j?`G°r? `yam Date G~ y Agent's Code G 2 t i STATE FARM FIRE AND CASUALTY 009 Policy Number ,lUi- 7- D i4.3b Yf?'9^n r germ W( u,i V AUG 13 2004 I understand that this acknowledgment of coverage selection shall be applicable, as of the date specified above, to the policy of insurance identified above, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage. TORT OPTIONS NOTICE TO NAMED INSUREDS A. "Limited Tort" Option - The laws of the Commonwealth of Pennsylvania give you the right to choose a forth of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within. the definition of "serious injury" as set forth in the policy, or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this "limited tort" option is $LZf . yz Additional coverages under this option are available at additional cost B. If you wish to choose the "limited tort" option described in paragraph A, you must sign this notice where indicated below and return it. If you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full tort" premium. I wish to choose the "limited tort" option described in paragraph A: Signature of a Named Insured Date C.' "Full Tort" Option - The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverages as required by law under this "full tort" option is $ 2 r. ?o Additional coverages under this option are available at additional cost D. If you wish to choose the "full tort" option described in paragraph C, you must sign this notice where indicated below and return it. However, if you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full tort" premium. I wish to choose the "full tort" option described in paragraph C: Signature of a Named Insured Date E. You may contact your insurance agent, broker or company to discuss the cost of other coverages. M RENTON Specialty auto P.D. Box 8220 Coraopolis, Pa. 15108 Wats: (888) 315-8943 Fax: (888) 315-3320 Disclaimer Certified & First Class Mail November 21, 2001 Nanette Myers 420 Newville Road Newburg, Pa. 17240 RE: Our Insured: Nanette Myers Policy Number: AIG 7315922 Claim Number: 61000026804 Date of Loss: 11-3-01 Insurer: New Hampshire Indemnity Insurance Compare - Claimant(s): It Dear Nanette Myers: r. ae, This letter will acknowledge receipt of a claitin our office as a result of a loss which occurred on 11-3-01, wherein Nannette Myers was involved inrn accident. Our records indicate that you attempted to purchase a policy of insurance with New Hampshire Indemnity Insurance Company, but that you paid the premium with an insufficient funds check. As no consideration for the policy contract was exchanged, no policy of insurance exists. Therefore, the New Hampshir emnity Insurance Company wishes to advise you that they will not participate in any further invest' tions, settlement, or negotiations of this claim. You may fmd it necessary, at your own expense, to retain counsel for the pro' -ction of your in rest in this matter. 0" Insurance Provided by Member Companies of American Inrornarana) Group, Inc. Certified Mail Page Two As it now stands, the New Hampshire Indemnity Insurance Company hereby disclaims coverage for any and all claims that may arise out of this automobile accident. Should you have any additional information or documentation or if any of the statements contained herein are incorrect, please notify us immediately and we will re-evaluate our position. Sincerely, Linda L. Szoszorek Claims Representative Ext. 3353 CC: Law Offices of Joseph D. Buckley 1237 Holly Pike Carlisle, Pa. 17013 P. S. This letter is to correct the letter sent to you on 11-19-01 F Insurance provided by Member Companies &American International Group, Inc. DOGUMEN I GUUt `J4 Q 009 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY Applicantlinsured Name Req-<) ki,? Policy Num er %"• ?'!a Date=? Agent's Code i2! 200 1 understand that this acknowledgment of coverage selection shall be applicable, as of the date specified above, to the policy of insurance identified above, on all replacement policies and on all renewals of either this policy or any replacement policy, unless 1 request in writing a different selection for such coverage. THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AS ENACTED BY THE GENERAL ASSEMBLY, ONLY REQUIRE THAT YOU PURCHASE LIABILITY AND FIRST-PARTY MEDICAL BENEFIT COVERAGES. ANY ADDITIONAL COVERAGES OR COVERAGES IN EXCESS OF THE LIMITS REQUIRED BY LAW ARE PROVIDED ONLY AT YOUR REQUEST AS ENHANCEMENTS TO BASIC COVERAGES. IMPORTANT NOTICE Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you, your spouse or other relatives or minors in your custody or in the custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle: (1) Medical benefits, up to at least $100,000. (1.1) Extraordinary medical benefits, from $100,000 to $1,100,000 which may be offered in increments of $100,000. (2) income loss benefits, up to at least $2,500 per month up to a maximum benefit of at least $50,000. (3) Accidental death benefits, up to at least $25,000. (4) Funeral benefits, $2,500. (5) As an alternative to paragraphs (1), (2), (3) and (4), a combination benefit, up to at least $177,500 of benefits in the aggregate or benefits payable up to three years from the date of the accident, whichever occurs first, subject to a limit on accidental death benefit of up to $25,000 and a limit on funeral benefit of $2,500, provided that nothing contained in this subsection shall be construed to limit, reduce, modify or change the provisions of section 1715(d) (relating to availability of adequate limits). (6) Uninsured, underinsured and bodily injury liability coverage up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident or, at the option of the insurer, up to at least $300,000 in a single limit for these coverages, except for policies issued under the Assigned Risk Plan. Also, at least $5,000 for damage to property of others in any one accident. Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above. Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected. If you have any questions or you do not understand all of the various options available to you, contact your agent or company. It you do not understand any of the provisions contained in this notice, contact your agent or company before you sign. Signature of an Applicant or an Insured DA??T u.?{I Date 40 15641M Paz Rev. 12-1996 Printed In U.SA. DOCUMENT CODE 91 009 4 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY Applicant/IIns_urred?Name ? J3?!<n 1 v "?? f Policy Number Date L??, w Agent's Code a? f I understand that this acknowledgment of coverage selection shall be applicable, as of the date specified above, to the policy of insurance identified above, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coveragPVn,- r NOTICE TO NAMED INSUREDS TORT OPTIONS AVG 13 2004 A. "Limited Tort" Option - The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of, members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of "serious injury" as set forth in the policy, or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this "limited tort" option is Additional coverages under this option are available at additional cost. B. If you wish to choose the "limited tort" option described in paragraph A, you must sign this notice where indicated below and return it. If you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full tort" premium. I wish to choose the "limited tort" option described in paragraph A: ??a? l?Sl3o/ao Sig ature of a Named Insured Date C. "Full Tort" Option - The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by-other ?drivers. The annual premium for basic coverages as required bylaw under this "full tort" option is $ of 14 iP Additional coverages under this option are available at additional cost. D. If you wish to choose the "full tort" option described in paragraph C, you must sign this notice where indicated below and return it. However, if you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full tort" premium. I wish to choose the "full tort" option described in paragraph C: Signature of a Named Insured Date E: You may contact your insurance agent, broker or company to discuss the Cost of other coverages. i 009 , r W STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY 00s -9,4K7 REJECTION OF UNINSURED MOTORIST PROTECTION By signing this waiver, I am rejecting uninsured motorist coverage under this policy, for myself and all relatives residing in my household. Uninsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance to pay for losses and damages. I knowingly and voluntarily reject this coverage. 0p/z0'/'9C) Date yo n' K AUG 13 2m In First Named Insured Policy Number d? S 3 I Date Agents Code V(I 1 understand that this acknowledgment of coverage rejection shall be applicable, as of the date specified above, to the policy of insurance identified above or for which application is being made, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage. 150.4185 PA.10 RoV.09-97 NOVEMBER 15, 2001 AUTO POLICY STATUS H PHONE: (71 7) 597-4076 BARNHART,GREGORY A FIRE 005 8347-D10-38E-001 IRG: 13 304 SHIPPENSBURG RD TERR: 001 SHIPPENSBURG PA 17257-8616 1989 FORD T BIRD CLASS: 1F0011 2DR ACC FREE: NOT ELIG VIN: IFAPP6049KH122124 BIRTH: SEP-28-70 STATUS:PAID DUE DATE: TERM DATE: TOT PREM: 252.31 AMT DUE: 0.00 OXD:OCT-10-99 COV DATE:JUN-29-01 PREV PREM: 252.31 A 50 /100 /50 171.57 C2-5 FULL TORT 27.17 D100 49.97 H 3.60 AMT PAID: 252.31 DATE PAID: NOV-12-01 PASS REST 15% 4.75, SRD 65.45, ODM 169000 06-01. NAME: BARNHART,GREGORY A REPLACED POLICY: 0058347-38D 001 EXCEP. & END: REC CHG: H PHONE: (717) 597-4076 POLICY FORM: 99387 'l rJ . l -TI 77 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff 2005-04264 V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE ; and NANETTE MYERS, Defendants Civil Action - Law Jury Trial Demanded ACTION FOR DECLARATORY JUDGMENT PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of George H. Eager, Reinaker & Spinello as attorney of record on behalf of Defendant State Farm Fire and Casualty Company alkfa State Farm Mutual Automobile Insurance Company in the above-captioned action. EAGER, REINAKER & SPINELLO Dater BY: George H-Eage(, Esc r Attorney for Defend tate Farm I.D. No. 27740 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served a true and correct copy of the foregoing Praecipe for Entry of Appearance upon the person set forth below and in the manner indicated: First class mail, postage pre-paid: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 AIG Specialty Auto Insurance 1550 Coraopolis Heights Road Coraopolis, PA 15108 Nanette Myers 420 Newville Road Newburg, PA 17240 Gregory Barnhart 304 Shippensburg Road Shippensburg, PA 17257 EAGER, REINAKER & SPINELLO Date: ?, DS BY: George H. Ea der, Esqu Attorney for Defen?tate Farm I.D. No. 27740 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 17 - t.i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff 2005-04264 V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE; and NANETTE MYERS, Defendants 1. Admitted. Civil Action - Law Jury Trial Demanded ACTION FOR DECLARATORY JUDGMENT 2. Denied as stated. State Farm Mutual Automobile Insurance Company is not a party to the transactions underlying this action, but rather the named Defendant should be State Farm Fire and Casualty Company. 3. Admitted. 4. Admitted. 5.-7. After reasonable investigation, Answering Defendant is without information sufficient to form a belief as to the truth of the averments of these paragraphs; and, therefore, they are denied. 8. Admitted that Defendant Gregory Barnhart was insured under an automobile insurance policy with Defendant State Farm. It is denied that the policy included underinsured/uninsured motorist coverage. To the contrary, Defendant Gregory Barnhart rejected underinsured/uninsured motorist coverage. Copies of the rejection forms are attached as Exhibits "A" and "B" and are incorporated by reference as if fully set forth herein. 9. After reasonable investigation, Answering Defendant is without information sufficient to form a belief as to the truth of the averments of these paragraphs; and, therefore, they are denied. 10. After reasonable investigation, Answering Defendant is without information sufficient to form a belief as to the truth of the averments of these paragraphs; and, therefore, they are denied. 11. After reasonable investigation, Answering Defendant is without information sufficient to form a belief as to the truth of the averments of these paragraphs; and, therefore, they are denied. 12. Admitted that Plaintiff placed the Defendant State Farm on notice of a UM/UIM claim. With respect to the reason for such notice, after reasonable investigation, Answering Defendant is without information sufficient to form a belief as to the truth of this averment and, therefore, it is denied. 13. Admitted. 14. Admitted that Defendant Gregory Barnhart signed UM/UIM rejection forms on May 30, 2000. It is denied that such forms applied to a previous policy and it is further denied that any such policy was superceded by any new policy, whether in effect at the time of the accident at issue or otherwise. On the contrary, the policy in effect at the time of the accident was the same policy in connection with which Mr. Barnhart signed UM/UIM coverage rejection forms on May 30, 2000. 15. Denied in that the allegations of paragraph 15 of the Complaint refer to a document which speaks for itself. By way of further answer, the one and only policy in effect for 2 Mr. Barnhart at all relevant times was and continued to be policy number 0058347. The appended reference following the hyphen is an administrative annotation reflecting some change to the policy so that the earlier terms were referred to as "38D", and after the change to the tort election, it became "38F and if another change were made, such as a change to rental car coverage, it would become "38F, and does not comprise a new policy. 16. Admitted that Defendant Barnhart changed his tort election from limited tort to full tort. It is denied that by this action or otherwise, any new waivers were required at that time. It is further denied that the absence of any new waiver forms nullified any previous waivers of UM/UIM coverage. Paragraph 16 is further denied in that it contains conclusions of law to which no response is required. By way of further response, a change to a tort election does not create a new policy, does not require any new waiver forms with respect to UM/UIM coverage and has no effect on the previous UM/UIM coverage waivers signed by Defendant Barnhart. 17. Denied as a conclusion of law to which no response is required. By way of further response, it is denied that Defendant Barnhart purchased a new insurance policy and denied that Defendant Barnhart had any reasonable expectation that he had purchased a new policy. 18. Denied as a conclusion of law to which no response is required. By way of further response, it is denied that Defendant Barnhart replaced an old policy, obtained a new policy, that the previously existing UM/UIM coverage rejections were null and void or that public policy or "consumer protection" require any such result. On the contrary, the UM/UIM coverage rejection signed by Defendant Barnhart on May 30, 2000 were in full force and effect on the date of the accident. 3 19. Denied as a conclusion of law to which no response is required. By way of further response, it is denied that a new insurance policy was issued in this case, and denied that any requirement for new waivers exists. 20. Admitted. WHEREFORE, Defendant State Farm Fire and Casualty Company a/k/a State Farm Mutual Automobile Insurance Company request that this Honorable Court enter judgment in its favor and against Plaintiff and declaring that Defendant State Farm has no duties under the insurance policy or otherwise with respect to uninsured motorist or underinsured motorist coverage. EAGER, REINAKER &,SPINELLO DATE: I G 3 BY Gee'rge H.,E'agesquire Attorneys for St Ate Farm 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 Atty. I.D. No. 27740 4 DOCUMENT CODE 91 009 d „ STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY I M ?(? Appiicant/Insured Nameu /? M " Policy Number S Date Agent's Code /., I W/, I understand that this acknowledgment of coverage selection shall be applicable, as of the date specified above, to the policy of insurance identified above, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such cove rag eY!'fiKrr da... TORT OPTIONS AUG 1 3 204 NOTICE TO NAMED INSUREDS A. "Limited Tort" Option - The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of "serious injury" as set forth in the policy, or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this "limited tort" option is Additional coverages under this option are available at additional cost B. If you wish to choose the "limited tort" option described in paragraph A, you must sign this notice where indicated below and return it. If you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full tort" premium. wish to choose the "limited tort" option described in paragraph A: 0, ?_IY611?n Date C. "Full Tort" Option - The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverages as required by law under this "full tort" option is $?? uno ^u ..,..,.. . Additional coverages Uidci th?.. option are available .. at . ad. . ?i.tional cost. D. If you wish to choose the "full tort" option described in paragraph C, you must sign this notice where indicated below and return it. However, if you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full tort" premium. I wish to choose the "full tort" option described in paragraph C: Signature of a Named Insured Date E. You may contact your insurance agent, broker or company to discuss the cost of other coverages. UUUt 009 ?Q STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY '00S -9-3K7 REJECTION OF UNINSURED MOTORIST PROTECTION By signing this waiver, 1 am rejecting uninsured motorist coverage under this policy, for myself and all relatives residing in my household. Uninsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance to pay for losses and damages. I knowingly and voluntarily reject this coverage. ©rI3a/oo Date YORK 4??r AUG 13 2004 Q B t1?f?J I ?' 1 Q}V ?/?? ?I o S 3- First Named Insured Policy Number Date Agent's Code 01 I understand that this acknowledgment of coverage rejection shall be applicable, as of the date specified above, to the policy of insurance identified above or for which application is being made, on all replacement policies and on all renewals of either this policy or any replacement policy, unless 1 request in writing a different selection for such coverage. 150-4198 PA.10 Rev. 09-97 DOCUMENT CODE 92 009 1 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY REJECTION OF UNDERINSURED MOTORIST PROTECTION' By signing this waiver, I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in 'my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage. Qa' c-? c7S/3a/ate Signa of First a ed Insured Date nnV nn AUG 13 2004 First Named Insured e I a" ' 1 ?1V I \ 1?{ (ri?(? 1 Date Agent's Code Policy Number N J I 1 I understand that this acknowledgment of coverage rejection shall be applicable, as of the date specified above, to the policy of insurance identified above or for which: application is being made, on ail replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage. 150-4188 PA.10 Rev. 09-97 009 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY Applicant/Insured Name 1N 1 1 I L31 Policy Num? Date Agent's Code ez? I understand that this acknowledgment of coverage selection shall be applicable, as of the date specified above, to the policy of insurance identified above, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage. THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AS ENACTED BY THE GENERAL ASSEMBLY, ONLY REQUIRE THAT YOU PURCHASE LIABILITY AND FIRST-PARTY MEDICAL BENEFfT COVERAGES. ANY ADDITIONAL COVERAGES OR COVERAGES IN EXCESS OF THE LIMITS REQUIRED BY LAW ARE PROVIDED ONLY AT YOUR REQUEST AS ENHANCEMENTS TO BASIC COVERAGES. IMPORTANT NOTICE Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you, your spouse or other relatives or minors in your custody or in the custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle: (1) Medical benefits, up to at least $100,000. (1.1) Extraordinary medical benefits, from $100,000 to $1,100,000 which may be offered in increments of $100,000. (2) Income loss benefits, up to at least $2,500 Per month up to a maximum benefit of at least $50,000. (3) Accidental death benefits, up to at least $25,000. (4) Funeral benefits, $2,500. (5) As an alternative to paragraphs (1), (2), (3) and (4), a combination benefit, up to at least $177,500 of benefits in the aggregate or benefits payable up to three years from the date of the accident, whichever occurs first, subject to a limit on accidental death benefit of up to $25,000 and a limit on funeral benefit of $2,500, provided that nothing contained in this subsection shall be construed to limit, reduce, modify or change the provisions of section 1715(d) (relating to availability of adequate limits). (5) Uninsured, underinsured and bodily injury liability coverage up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident or, at the option of the insurer, up to at least $300,000 in a single limit for these coverages, except for policies issued under the Assigned Risk Plan. Also, at least $5,000 for damage to property of others in any one accident. Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above. Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected. If you have any questions or you do not understand all of the various options available to you, contact your agent or company. If you do not understand any of the provisions contained in this notice, contact your agent or company before you sign, Signature of an Applicant or an Insured 6 T0, ca ?g Date (3? r d0 15a41M PAL2 Rev. 12-1998 Printed h U.S.A. VERIFICATION I,-v?? /'1. SAG , hereby verify that I am a representative of the Defendant, State Farm Fire and Casualty Company a/k/a State Farm Mutual Automobile Insurance Company in the foregoing action and that the averments of the foregoing Answer to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief. To the extent that any of the averments contained in the Answer are based upon an understanding or application of law, I have relied upon counsel in making this Verification. I understand that I am subject to the penalties of 18 Pa.C.S.A.§4904, relating to unsworn falsification to authorities for any false statements made herein. STATE FARM FIRE AND CASUALTY COMPANY a/k/a STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY By: Dated: ac 4'x'5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served a true and correct copy of the foregoing Answer of Defendant State Farm Fire and Casualty Company a/k/a State Farm Mutual Automobile Insurance Company to Plaintiff's Complaint upon the person set forth below and in the manner indicated: First class mail, postage pre-paid: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle. PA 17013 AIG Specialty Auto Insurance 1550 Coraopolis Heights Road Coraopolis, PA 15108 Nanette Myers 420 Newville Road Newburg, PA 17240 Gregory Barnhart 304 Shippensburg Road Shippensburg, PA 17257 Date: 0 13 0 EAGER, REINAKER & SPINELLO BY: orge H. Eager, ire Attorney for Defe ants State Farm I.D. No. 27740 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 6 -' JAN.27.2006 4:45PM MA ONIEL OBRIEN 0 NO. 167 P. 4/4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE; and NANETTE MYERS, Defendants 2005-04264 Civil Action - Law Jury Trial Demanded STIPIjj1 ATION OF DISMISSAL IT IS HEREBY STIPULATED AND AGREED, by and between plaintiff and State Farm Mutual Automobile Insurance Company and Gregory Barnhart, that although AIG Specialty Auto Insurance and Nanette Myers were listed as an interested party pursuant to the Rules of Civil Procedure, no cause of action will be pursued against said parties. To that end, it is agreed and stipulated to dismiss AIG Specialty Auto Insurance and Nanette Myers from the caption and case with prejudice. EAGER, SPINELLO, QUINN & STENGEL ROMINGER, BAYLEY & WHARE 155 South Hanover Street Carlisle, PA 17013 Counsel for Plaintiff KARL E. ROMINGER, ESQUIRE SO ORDERED: J. 1347 Fn3iteville Pike Lancaster, PA 17601-4001 Counsel for State Farm Mutual Automobile Insurance and Nanette Myers GEORGE H. EA R, ESQUIRE Dated: May 10, 2006 PH134340.1 ^K1t}7, ? .,dtTi a. v{ ? JAN,21.2006 4:45PM MA ONIEL OBRIEN • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE; and NANETTE MYERS, Defendants 2005-04264 Civil, Action - Law Jury Trial Demanded NO. 161 P. 4/4 { J JUL 212001 /r IT IS HEREBY STIPULATED AND AGREED, by and between plaintiff and State Farm Mutual Automobile Insurance Company and Gregory Barnhart, that although AIG Specialty Auto Insurance and Nanette Myers were listed as an interested party pursuant to the Rules of Civil Procedure, no cause of action will be pursued against said parties. To that end, it is agreed and stipulated to dismiss AIG Specialty Auto Insurance and Nanette Myers from the caption and ease with prejudice. EAGER, SPINELLO, QUINN & STENGEL ROMINGER, BAYLEY & WHARF 155 South Hanover Street Carlisle, PA 17013 Counsel for Plaintiff Y ?sl 20 KARL E. ROMINGER ESQUIRE SO ORDERED: 71 X41 0(,. 0 1347 Fmiteville Pike Lancaster, PA 17601-4001 Counsel for State Farm Mutual Automobile Insurance and Nanette Myers //-7 GEORGE H. EA R, ESQUIRE Dated: May 10, 2006 PH043a0.1 f "`. s ?? ca co o 7?' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff 2005-04264 V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE ; and NANETTE MYERS, Defendants Civil Action - Law Jury Trial Demanded ACTION FOR DECLARATORY JUDGMENT AND NOW, comes Defendant, State Farm Mutual Automobile Insurance Company, by its attorneys, Eager, Spinello, Quinn & Stengel, and files this Motion for Summary Judgment: Plaintiff has filed a Complaint for Declaratory Judgment. 2. The material facts are established by Stipulation of the parties. 3. There is no genuine issue as to any material facts relevant to the claim for declaratory judgment. 4. Under Pennsylvania law, the legal issues raised by the material facts should be decided in favor of Defendant. WHEREFORE, Defendant State Farm Mutual Automobile Insurance Company respectfully requests the Court to grant the within Motion for Summary Judgment and declare that Defendant State Farm Mutual Automobile Insurance Company has no duties under the insurance policy or otherwise with respect to uninsured motorists or underinsured motorist coverage with regard to Plaintiff. EAGER, SPINELLO, QUINN & STENGEL BY: Geode H. ager, uire Attomey f r dant State Farm Mutual Automobile I rance Company I . D. No. 27740 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 -2- CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving a copy of the foregoing Motion for Summary Judgment of Defendant State Farm Mutual Insurance Company upon the persons and in the manner indicated below. Service by first class mail, addressed as follows: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 EAGER, SPINELLO, QUINN & STENGEL Date: 4 3 d 7 BY: Ageorgeff. Eager squire Attorney for dant State Farm Mutual Auto bile Insurance Company I.D. No. 27740 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 -3- ra n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE; and NANETTE MYERS, Defendants 2005 - Civil Action - Law Jury Trial Demanded ACTION FOR DECLARATORY JUDGMENT Answer In Opposition To SuMMM ludg_Snent AND NOW, , comes the Plaintiff, Myra Barnhart, through her counsel, ROMINGER & ASSOCIATES, and respectfully avers the following: 1. The facts in are agreed to as presented by the Defendant. 2. There is however, a material question of fact and / or Plaintiff is entitled to relief 3. While Defendant Bernard did, indeed, sign UM/ UIM coverage rejection forms on May 30, 2000, said forms applied to a previous policy which had been superseded by a new policy, in effect at the time of the accident at issue 4. Defendant State Farm, in an Auto Policy report, itself identified the old policy as the "replaced policy," numbered "0058347-38D 001," and provided a new policy number, "005 8347-D10-38E-001," to the new policy. 5. The "new" policy was not a change to an existing policy, or at least it is not so clear as that a jury trial is not required. Wherefore defendant's request for summary judgment should be denied Respectfully submitted, ROMINGER & WHARE Karl E. Rominger, Esquire Attorney I.D. No. 81924 155 South Hanover Street Carlisle, Pennsylvania 17013 Tel: (717) 241-6070 Attorneys for Plaintiff IN THE COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANT; GREGORY BARNHART; AIG SPECIALTY AUTOMOBILE INSURANCE; and NANETTER MYERS, Defendant 2005- CIVIL ACTION - Law Jury Trial Demanded ACTION FOR DECLARATORY JUDGEMENT CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Complaint upon the following by First Class Mail: State Farm Mutual Automobile Insurance Company Gregory Barnhart 555 Southpointe Boulevard, Suite 400 304 Shippensburg Road Canonsburg, Pa 15317 Shippensburg, PA 17257 AIG Specialty Auto Insurance Nanette Myers 1550 Coraopolis Heights Road 420 Newville Road Coraopolis, PA 15108 Newburg, PA 17240 Respectfully submitted, ROMINGER & ASSOCIATES Date: May 15, 2007 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff ? ? n ?? -c1 r? c - --3 ..? S ?^? `+ tT1 ..-? ?? 7, ?-1 ?,. 'z ?,. .. fi=t ? ?? y' :, `. sr ?} ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE ; and NANETTE MYERS, Defendants 2005-04264 Civil Action - Law Jury Trial Demanded ACTION FOR DECLARATORY : JUDGMENT REQUEST FOR ADMISSIONS TO: KARL E. ROMINGER, ESQUIRE AND MYRA BARNHART YOU ARE HEREBY REQUESTED TO ADMIT, FOR PURPOSES OF THIS ACTION ONLY, PURSUANT TO Pa. R.C.P.§4014, THE FOLLOWING ITEMS: YOU ARE DIRECTED TO FILE AN ANSWER TO THIS REQUEST, IN COMPLIANCE WITH PA. R.C.P.§4014(8), WITHIN THIRTY (30) DAYS OF THE SERVICE OF THIS REQUEST UPON YOU. 1. Plaintiff is an adult individual who resides at 304 Shippensburg Road, Shippensburg, Cumberland County, Pennsylvania, 17257. ANSWER: 2. Defendant State Farm Fire & Casualty Company, a/k/a State Farm Mutual Automobile Insurance Company (hereinafter "State Farm") is a duly licensed insurance carrier with a place of business at 555 Southpointe Boulevard, Suite 400, Canonsburg, Pennsylvania, 15317. ANSWER: 3. Defendant State Farm has engaged in, and continues to engage in, a continuous and substantial course of business within the Commonwealth of Pennsylvania. ANSWER: 2 4. Defendant Gregory Barnhart is an adult individual who resides at 304 Shippensburg Road, Shippensburg, Cumberland County, Pennsylvania, 17257. ANSWER: 5. At all times relevant to this action, Defendant Gregory Barnhart was insured under an automobile insurance policy with Defendant State Farm. ANSWER: 3 6. On or about November 3, 2001, Plaintiff was involved in an automobile related accident, when she was struck by a vehicle being operated by Defendant Nanette Myers, and insured by Defendant AIG. ANSWER: 7. As a result of the accident referenced in Paragraph 6, above, the Plaintiff suffered damages. ANSWER: 4 B. Upon being notified of said accident, Defendant AIG declined to indemnify or defend Defendant Nanette Myers on the basis that Ms. Myers had failed to pay her insurance premiums. ANSWER: 9. In light of AIG's position, Plaintiff placed Defendant State Farm on notice of a UM/UIM claim. ANSWER: 5 10. Defendant State Farm denied said UM/UIM claim on the basis that Defendant Gregory Barnhart signed UM/UIM coverage rejection forms on May 30, 2000. A copy of the documents executed that date by Defendant Barnhart, including the IMPORTANT NOTICE, Limited Tort Election, rejection of Uninsured Motorist Protection and rejection of Underinsured Motorist Protection forms are attached hereto as Exhibit "A" and incorporated by reference as if fully set forth herein. ANSWER: 11. On June 29, 2001, Defendant Barnhart changed his tort election from limited tort to full tort. A copy of the documents executed by Defendant Barnhart on that day, including an IMPORTANT NOTICE and Full Tort Election are attached hereto as Exhibit "B" and incorporated by reference as if fully set forth herein. ANSWER: 6 12. Exhibit "C" is a State Farm Auto Policy Status document reflecting the June 29, 2001 change from limited tort to full tort and includes the statement "REPLACED POLICY: 0058347-38D 001" and identifies the policy as of that date as 0058347-D10-38E-001. ANSWER: 13. Exhibit "D" is an affidavit from Eugene W. Lenard, C.P.C.U., State Farm Underwriting Team Manager, the State Farm employee responsible for such matters stating that a change from limited tort to full tort, as with any other change such as adding a family member, changing or adding a vehicle, changing coverages and the like, is reflected by a "change code" which is an administrative annotation merely reflecting the fact that a change has been made and, with successive changes, would follow the sequence of the alphabet, reflects an administrative change to the same policy and does not constitute a new insurance policy. ANSWER: 7 14. Exhibit "D" is admissible and is a true and correct statement. ANSWER: DATE: 1/11/07 EAGER, SPINELLO, QUINN & STENGEL BY: George H. Eage quire Attorneys fo efendant State Farm 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 Atty. I. D. No. 27740 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served a true and correct copy of Defendant State Farm Fire and Casualty Company a/k/a State Farm Mutual Automobile Insurance Company's Request for Admissions upon the person set forth below and in the manner indicated: First class mail, postage pre-paid: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 EAGER, SPINELLO, QUINN & STENGEL Date: -7 BY: .,,? `//- George H. Eage , squire Attorney for Def dant State Farm I.D. No. 27740 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 E?Ch?b?? I? DOCUMENT CODE 92 oa9 MTY, Y? STATE FARM MUTUAL AUTOMOSI11: INSURANCE COMPANY STATE FARM FIRE AND *CASUALTY COMPANY 7 REJECTION -OF UNINSURED MOTORIST PROTECTION By signing this waiver, I am rejecting uninsured motorist coverage under this policy, for myself and all relatives residing in my household. Uninsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance to pay for losses and damages. I knowingly and voluntarily reject this coverage. Si t.ure of First amed insured Date YO?<?Pry AUG 13 2004 r? ? gf? Q ? C?' Policy Number-L0 First Named Insured Date Agent's Code V t+ ?? I understand that this acknowledgment of coverage rejection shall be applicable, as of the date specified above, to the policy of insurance identified above or for which application is being made, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage. 150-4188 PA.10 Rov. 09-97 (` DOCUMENT CODE 92 On Rtlf IW I STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUAL COMPANY REJECTION OF UNDERINSURED MOTORIST PROTECTION- By signing this waiver, I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in 'my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of. a driver who does not have enough insurance to pay-for all losses and damages. I knowingly and voluntarily reject this coverage. of First t4ar{ed Insured Date AUG 13 2004 First Named Insured n Policy Number , Date Agent's Code ?? UZ I understand that this acknowledgment of coverage rejection shall be applicable, as of the date specified above, to the policy of insurance identified above or for which, appiicaton is being made, on aii replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage. 150-4l a8 PA.10 Rev. 09-97 DOCUMENT CODE 91 009 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM FIRE AND CASUALTY COMPANY APpficantlinsured Name Policy Number t ?.Js L???n I Date O) Agent's Code b2 1 understand that this acknowledgment of coverage selection shail be applicable, as of the date specified above, to the policy of insurance identified above, on all replacement policies and on all renewals of either this policy or any replacement policy, unless I request in writing a different selection for such coverage ,4 TORT OPTIONS AUG 13 2004 NOTICE TO NAMED INSUREDS A. " Limited-Tort" Option - The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of "serious injury" as set forth in the policy, or unless one of several other excep?kms noted in the policy applies.' The annual premium for basic coverage as required by law under this "limited tort" option is Additional coverages under this option are available at additional cost. H. If you wish to choose the "limited tort" option described in paragraph A, you must sign this notice where indicated below and return it. If you do not sign and return this nofice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full tort" premium. I wish to choose the "limited tort" option described in paragraph A: DS" 3oloa Sig ature of a Named insured Date C. Full Tort" Option - The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by: other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverages as required by law under this "full tort" option is $ Additional coverages under this option are available at additional cost. D. If you wish to choose the "full tort" option described in paragraph C, you must sign this notice where indicated below and return it. However, If you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph C and you will be charged the "full t^?t" premium. I wish to choose the "full tort" option described in paragraph C: Signature of a Named Insured Date E. you may contact your insurance agent,, broker or company to discuss the cost.of other coverages. DOCUMENT CODE 94 UUZ7 STATE FARM FIRE AND CASUALTY COMPANY I W r STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ••?? P olicy Num er C ?i Vr1? APPticant/InsuredName EEG ? 7Q?J Date Agent's Code of coverage selection shall be applicable, as of the bate specified I understand that this acknowledgment above, to the policy of insurance identified above, in al r a dicement policies and on all fferent selection for such renewals of either this THE policy or any replacement policy, unless I request writing THE LAWS -OF COMMONWEALTH sILEn AND FIRST-PARTY ENACTED ANY MEDICAL BENEFIT COVERAGES.ONLY REQUIRE THAT YOU PURCHASE LI ADDITIONAL COVERAGES OR COVERAGES IN EXCESS BASIC F THE ELIMI 5S REQUIRED BY LAW ARE PROVIDED ONLY AT YOUR REQUEST AS ENHANCEMENTS COVERA, IMPORTANT NOTICE insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available forr or in te purchase the following benefits for you, your spouse or other retatives or minors in your custody custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle: (i) Medical benefits, up to Ht least 5100,000. Extraordinary medical benefits, from $100,000 to $1,100,000 which may be offered in increments of $100,000. (2) Income loss benefits, up to at least $2,500 per month up to a maximum benefit of at least $50,000- (3) Accidental death benefits, up to at least 525,000. (4) Funeral benefits, $2,500. and (4), a combination benefits, up to at least $177,500 of benefits (5) As an afternative to paragraphs ('1), (2), (3) ears from the date of the accident, whichever occurs first, in the aggregate-or benefits payable up to three y subject t a [foil accidents[ death ubs fiction shall be construed to limit, reduce, modify or change the of up to $25,000 and a limit on funeral benefft of S2,5oo provided that nothing contained to this provisions of section 171 5(d) (relating to availability of adequate limits). (6) Uninsured, underinsured and bodily injury liability coverage up to at least $100,000 because of injury to one jury to person in any one accident and up to at least $300,000 because o'f i single itwo for these er ers in except accident or, at the option of the insurer, up to at least $300, of others in for policies issued under the Assigned Risk Pian. Also, at least $5,000 for damage to property any one accident. as well Additionally, insurers may offer higher benu?chasellowea benefit levels than those enumerated aboadditi ve .orsl benefits. However, an insured may elect to p Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected. If you have any questions or you do not understand all of the various options available to you, contact your agent or company. If you do not understand any of the provisions contained in this notice, contact your agent or company before you sign. / Date I'??17?D0 Signature of an Applicant oe an insured 15C14 15Z PA1.2 Rev. 12-1e95 Printed in U.S.A. Exh? b•+ & vooi•kr ?? n.,.. i•e. vv rra,u . r: .:.. -. - -- STATE FARM MrTUAL AUTOMOBILE INSURANCE COMPANY DOCUMENT CODE 91 009 STATE FARM FIRE AND CASUALTY r AppiiwnUlnsured Name?A'?"' l?`? ? ?GarL ?a/ Policy Numberry?`? ?"???7- a- YORK M?^U Date c_.0P9 -4 r Agent's CodeA JG 13 2004 1 understand that this acknowledgment of coverage selection shall be applicable, as of the date specified above, to the poky of insurance identified above, on all replac emem policies and on all renewals of either this polity, or any replacement policy, uniess I request in writing a different selection for such coverage. TORT OPTIONS NOTICE TO NAMED INSUREDS A. ' Undtad Tarr Option - The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-ot-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the Injuries suffered fall within. the deflnition of "serious injury' as set forth in the policy, or unless one of several other emeptions noted in the polity apples. The annual premium for basic coverage as required by law under this "gmited tort" option is Additional coverages under this option are available at additional cost. B. M you wish to choose the "limited tort" option described in paragraph A, you must sign this notice where indicated below and return it. If you do not sign and return this notim, you will be considered to have chosen the 'full tart' coverage as described in paragraph C and you will be charged the "full tort" premium. I wish to choose the 'limited tort" option described in paragraph A: Signature of a Named Insured Date C,' "Full Tort" Option - The laws of the Commonwealth of Pennsylvania also give you the right to goose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy niq seek recmiq for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverages as required bylaw under this "full tort" option is $ ?z ?d Additional coverages under this option are available at additional cost. where D. If you wish to choose the "full tort' option described in paragraph C, you must sigconsidered indicated below and return it. However, If you do not sign and retu Cthiid no +l be charged the 'full to have chosen the 'full tort" coverage as described in paragraph you notice, tort" premium. I wish to choose the "full tort" option described in paragraph C: Of a Named Insured Date E. You may contact your insurance agent, broker or company to discuss the cost of other coverages. -7 BENTON -" - DOCUMENT CODE 94 Ot]9 A Fix STATE FARM WTUAL AUTOMMLE INSURANCE COWPANV STATE FARM ARE AND CASUALTY COUPA00' 6je.Z2L!k- Policy Number Zt? -a . ApplicanVinsured Name s t AYR 47 Date Agenrs Code AVG 13 2004 1 understand that this acknowledgmeflt of coverage seftWn shall be applicable, as of the date specified above, to the policy of insurance identified above, an all repiiaeement policies Wd on all f6n"218 of either this policy or any replacement policy, unless I request in Writing a different selection for such covGmge. THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AS ENACTED BY THE GENERAL ABSP.l118LY, ONLY REQUIRE THAT YOU PURCHASE LIABILITY AND FIRST-PARTY MEDICAL BENI!PR COVERAGES. ANY ADDITIONAL COVERAGES OR COVERAGES IN EXCESS OF THE LIMBS REQUIRED BY LAW ARE PROVVED ONLY AT YOUR REQUEST AS ENHANCEMENTS TO BASIC COVERAGES. IMPORTANT NOTICE IrWjMrtoe wmparMs operating in the Commonwasith of Panneyhronis am NgUirsd by IaM? to make available for pi nphaaa tiro fotrowb benefits for you4 your spouse or other relatives or 041010M in your custody Or" the Custody of your felatlves, rowdi +g In your household, occupants of your motor vehicle or persons struck by Your motor vahiole: (1) Medical benefits, up to at least 5100,000. (1.1) gxMwrdttary rnedlcsl benefits, from $100,000 to $1,100,000 which nay be offered in hNNORNMta of 5100,000. (2) Income ions benefts. up to at last $2,500 Per month up to a maximum benefit of at least W000. (3) Accidental death bandits, up to at bast 05,000. (4) Funeral benefits. $2,500. (6) As on aaernative to paragraphs (1). (Z), (3) and (4 a Combination berwk up to at last 5177400 of benefits In the aggrogsto or benefAs payable up to three tram from Ow data of the accident, whiciwvar occurs first. subject tD a limit on accidental death benefit of up to 526,000 and a limit on turmal boneM of $2,600, provided that nothing contained in this subsection shall be construed to Amilk reduce, modify or change the provisions of section 1715(d) (reldiog to availobihy of adequals Iiimitsj. (6) thnlnsuracl, underhumud and bodily injury IiabMty cove"* up to at lad 5100,000 because of injury to one poison in any one accident and up to at least SWAM because of injury to two or m" peraonv in any one accident or, et the option of the bnsurar, up to at last $30 AW in a single limit for thew covarages, except for policies issued under the Assigned Risk Plan. Also, at least $5,000 for damage to property of others in any one sooidamt. Addltiorl Ha inruners may offer, higher benefit rchase 1 b8mM levels than thew anumsm" above ionot banafltss. However, a insured may elect to Purchase Your signature on this notice or your payment of any renewal premium evidIences your actual knowledge and underatsnding of the availability of these benefits and limits as well as the benefits and limfts you have pleated. If you have any questions or you do not understand all of the various options available to you, contact your agent or company. If you do not understand any of the provisions contained In this notice, contact your agent or company before you sign. ` pate Signature of an Applicant or on insured 150.410 pAf2 rM.12•19N PeY,ud im U.S.A- ... `? ? ?xh ?? • ?+ . s NOVEMBER 15, 2001 AUTO POLICY STATUS H PHONE: (717) 597-4076 GREGORY A SARNHART FIRE 005 8347-D10-38E- 001 IRG: 13 , ;04 SHIPPENSBURG RD ;HIPPENSBURG PA 17257-8616 1989 FORD T BIRD TERR: 001 O I I 2DR EL IG ACC FREE: NOT VIN: 1FAPP6049KH122124 BIRTH: SEP-28-70 STATUS:PAID DUE DATE: TERM DATE: AMT DUE: 0.00 OXD:OCT-10-99 COV DATE:JUN-29-01 50 /100 /50 171.57 ;2-5 FULL TORT 27.17 A00 49.97 1 3.60 AMT PAID: 252.31 DATE PAID: NOV-12-01 ?ASS REST 15% 4.75, SRD 65.45, ODM 169000 06-01. DAME: BARNHART, GREGORY A REPLACED POLICY: 0058347-38D 001 EXCEP. & END: moll- WE* REC CHG : TOT PREM: 252.31 PREV PREM: 252.31 H PHONE: (717) 597-4076 POLICY FORM: 99387 ?xh ?Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MYRA BARNHART, Plaintiff V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE ; and NANETTE MYERS, . Defendants 2005-04264 Civil Action - Law Jury Trial Demanded ACTION FOR DECLARATORY JUDGMENT AFFIDAVIT I, EUGENE W. LENARD, C.P.C.U., being first duly sworn, do depose and say that I am the Underwriting Team Manager for State Farm with duties of underwriting claims liaison, to include frequently acting as the primary custodian of records. I have reviewed the insurance policy and related documents for Policy Number 0058347. It is the administrative procedure of State Farm to use "change codes" to reflect changes which occur throughout the life of the policy. In this instance the policy number is 0058347 and it is a continuously renewable policy. Additional letters and numbers following that policy number are administrative annotations to reflect various items of administrative interest to State Farm. As of the date of the accident, the full administrative designation for this policy was 0058347-D10-38E001. The annotation of "D10" is referred to as an "X Date" and, since this is a semi-annual policy, it reflects billing dates of October and April. The annotation of "001" refers to a specific vehicle and, in the case of multiple vehicles the insurance records would include annotations such as "001", "002", etc. The annotation "38E" reflects the fact that this policy has had five changes since its inception 1 and in this particular instance, the change code of "38E" reflects the June 29, 2001 change by the insured from limited tort to full tort. These annotations do not constitute, reflect or manifest a new policy. They are merely administrative annotations reflecting the various administrative issues which pertain to the same continuously renewable policy. Sworn and subscribed to me this A? day of , 2006.: Notary Public EUG E W.LENARD COMMONWEALTH OF PENNSYLVANIA Notarial Seal Adrienne Lipp, Notary Pubic Concord Twp., Delaware County My Commission Expires May 21, 2009 Member, Pennsylvania Association of Notaries .? f CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served a true and correct copy of Defendant State Farm Fire and Casualty Company a/k/a State Farm Mutual Automobile Insurance Company's Request for Admissions upon the person set forth below and in the manner indicated: First class mail, postage pre-paid: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Date: EAGER, SPINELLO, QUINN & STENGEL /? 171 BY: quire George H. Eager, Attorney for D ndant State Farm I.D. No. 27740 1347 Fruitville Pike Lancaster, PA 17601 (717) 290-7971 f 7 ''' `_-? '? _._..? ?T r7.? _. _. ?-- _ -?_,r?t _. ? r-?, .? --,-, __y ;- .. - .j y? ?? ?s :?] ? •< MYRA BARNHART, Plaintiff VS. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE; and NANETTE MYERS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-4264 CIVIL JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY BEFORE BAYLEY, P.J. AND HESS, J. ORDER AND NOW, this /8' day of June, 2007, the motion of State Farm Automobile insurance Company for summary judgment is GRANTED. BY THE COURT, A. Hess, J. Karl Rominger, Esquire For the Plaintiff Xincent Quinn, Esquire For the Defendants :rlm ''i 61 4& MYRA BARNHART, Plaintiff vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; GREGORY BARNHART; AIG SPECIALTY AUTO INSURANCE; and NANETTE MYERS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-4264 CIVIL JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY BEFORE BAYLEY, P.J. AND HESS, J. OPINION AND ORDER The facts in this matter are not in dispute.1 On November 3, 2001, the plaintiff, Myra Barnhart, was involved in an automobile accident when she was struck by a vehicle operated by a Nanette Myers. Ms. Myers was insured by AIG Specialty Auto Insurance. Upon being notified of the accident, defendant AIG declined to indemnify or defend Ms. Myers on the basis that she had failed to pay her insurance premiums. Plaintiff then placed defendant, State Farm, on notice of an uninsured/underinsured motorist (UM/UIM) claim. State Farm has denied the uninsured motorist claim on the basis that Gregory Barnhart, the policyholder, waived UM/UIM coverage at the time he purchased his State Farm Mutual policy in May of 2000. At the same time, Mr. Barnhart elected limited tort liability coverage. 'The defendant's request for admissions have been filed of record in this case. Said requests are not denied by the plaintiff. NO. 05-4264 CIVIL On June 29, 2001, five months prior to the accident, Mr. Barnhart requested that his liability coverage be increased from limited to full tort. The number was changed slightly on his insurance policy. The "replacement" policy carries the same policy number except for the "38E" annotation which denotes a fifth change to the policy. He was not asked to, nor did he, sign a provision waiving UM/UIM coverage. Any party may move for summary judgment as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. Pa.R.P. 1035.2. Where there are no material underlying facts in dispute disposition of an insurance action on summary judgment is particularly appropriate. McMillan v. State Mut. Life Assur. Co. ofAmerica, 922 F.2d 1073, 1074 (C.A. 3 Pa. 1990) (citing Little v. MGIC Indemnity Corporation, 836 F.2d 789, 792 (3rd Cir.1987)). When determining factual materiality, the record must be viewed in the light most favorable to the non-moving party. Universal Underwriters Ins. Co. v. A. Richard Kacin Inc., 916 A.2d 686, 689 (Pa. Super. 2007) (quoting Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001). We are satisfied that, once original notice and original waiver of UM/UIM benefits is made as required by the Motor Vehicle Financial Responsibility Law (MVFRL), a change to the policy, viz. adjusting liability coverage, does not create a new requirement for the insured to again waive UM/UIM benefits in writing. The MVFRL states that once proper notice and/or rejection of a benefit is given, no other notice or rejection is necessary. See 75 Pa.C.S. 1791. Moreover, an insured may elect to purchase lower benefit levels than those enumerated in the statute. Id. 2 0 NO. 05-4264 CIVIL Our conclusion in this case is, we believe, supported by the holding in Smith v. Hartford Ins. Co., 849 A.2d 277 (Pa.Super. 2004). In that case, Mr. Smith executed a waiver of UM/UIM benefits in June of 1990. In 1994, he increased liability coverage on his insurance policy. Id. at 279. In 1999, the Smiths were involved in an accident with an uninsured motorists. The Hartford refused to pay any amount above the tort coverage claiming that Mr. Smith's UM/UIM waiver was still in effect. The trial court held that a change in liability coverage was the equivalent of the issuance of a new policy and that Mr. Smith was, therefore, entitled to a new UM/UIM rejection form. The Superior Court reversed. The court held that when an insured makes an affirmative election with respect to UM/UIM coverage, that election runs for the lifetime of the policy. Id. at 281. We believe that the same rule is applicable in this case. There is very little difference between Mr. Barnhart's adjustment to his policy and the Smiths' change. Each person increased their liability coverage in some form (Barnhart by changing from limited to full tort; Smith by increasing bodily injury coverage). Barnhart relies on the fact that State Farm refers to the adjusted policy as a "replacement." Barnhart, however, points to no authority for the proposition that this nomenclature is of importance. Simply put, the adjustment and liability coverage did not create a new policy. At the same time, we are satisfied that reaching such a conclusion does not involve the resolution of any disputed issue of material fact. Accordingly, we will grant the motion of State Farm for summary judgment. ORDER AND NOW, this tg day of June, 2007, the motion of State Farm Automobile 3 NO. 05-4264 CIVIL Insurance Company for summary judgment is GRANTED. Karl Rominger, Esquire For the Plaintiff Vincent Quinn, Esquire For the Defendants :rlm BY THE COURT, 4