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HomeMy WebLinkAbout06-3980F.\F US\DATA L6\DonepLW50\Curt t\240\ 40.com Created: 2/6104 1:13PM R vwd. 7/12/06 10 6" George B. Faller, Jr, Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DONEGAL MUTUAL INS. CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06- 29PO Oicj? °sa? CIVIL ACTION - LAW WILLIAM D. SWANK, Defendant DECLARATORY JUDGMENT ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally 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 proceedwithout you and a judgment maybe entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or reliefrequested by the Plaintiff's. 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 F MLFS\DATAFIIE\DOne W3050\Cu t\240\ Q,mm Crwwd: 211100 11:01" R.vw.d: 7/12/06 10:56AM DONEGAL MUTUAL INS. CO., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO-06- .39P6 Ov i LEN! EitY?1 CIVIL ACTION - LAW l WILLIAM D. SWANK, Defendant DECLARATORY JUDGMENT ACTION COMPLAINT AND NOW, comes Plaintiff, Donegal Mutual his. Co., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and brings this action pursuant to the Pennsylvania Declaratory Judgment Act, and in support thereof, avers as follows: 1. Plaintiff, Donegal Mutual his. Co., is licensed to do business as a property and casualty insurer in the Commonwealth of Pennsylvania. 2. Defendant, William D. Swank, is an adult individual residing at 4 East Willow Terrace Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 3. On or about February 23, 2002, Donegal issued to Swank a policy of automobile insurance, Policy Number PAE 057 23 45, effective February 23, 2002, through February 23, 2003 (herein, the "Policy). Attached hereto and marked as Exhibit "A" is acertified copy ofthe entire policy. 4. This action is brought pursuant to the Pennsylvania Declaratory Judgment Act, 42 Pa. C.S. §7531 etseq. to determine whether there is coverage ofPlaintiff s Underinsured Motorist Claim under the Policy as described above and attached hereto as Exhibit "A." 5. The only vehicle covered by the Policy is a 1987 Chevrolet 5-10 Blazer, Vehicle Identification Number 1GNCT18RXH0183875, owned by Swank. 6. The Policyprovided forUnderinsured Motorists Coverage -Pennsylvania (non-stacked) in policy form PPD 04 17 02 96 (part of Exhibit "A") which contained the following: `B. `Insured' as used in this endorsement means: You or any "family member"; 2. Any other person "occupying" "your covered auto." 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1. or 2. above. EXCLUSIONS A. We do not provide Underinsured Motorists Coverage for"bodilyinjury"sustained: Byyou while "occupying," or when struck by, any motor vehicle you own which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. 2. By any "family member" : a. Who owns an auto, while "occupying," or when struck by, any motor vehicle owned by you or any"family member" which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. b. Who does not own an auto, while "occupying," or when struck by, anymotor vehicle you own which is insured for this coverage on a primary basis under any other policy. B. We do not provide Underinsured Motorists Coverage for "bodilyinjury" sustained by any "insured": If that "insured" or the legal representative settles the bodily injury claim without our written consent. 2. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.2) does not applyto a share-the- expense car pool. Using a vehicle without the permission of the owner. On March 17, 2002, Swank was occupying a 1987 Plymouth Sundance (herein, the "Plymouth") when it collided with an alleged underinsured vehicle. 8. Swank made a claim to Donegal for "Underinsured Motorists Coverage" under the Policy. 9. On October 24, 2003, Swank testified at his deposition that at the time of said collision, he owned the Plymouth, which was registered in the name ofKristina M. Miller, the mother of his child. See page 24 of the Swank Deposition dated October 24, 2003. A true and correct copy is attached hereto as Exhibit "B." 10. At the time of said collision, the Plymouth was not a "Your covered auto" as defined under the Definitions section of the Policy, PAE 0572345 Form PP 00 01 06 94 as amended by Form PPD 01510197, which reads as follows: "Your covered auto" means: Any vehicle shown in the Declarations. 2. Any ofthe following types ofvehicles on the date you become the owner: a. A private passenger auto; or b. A pickup or van that: (i) Has a Gross Vehicle Weight not exceeding 9,000 lbs.; and (ii) Is not principally used in any "business" other than farming or ranching. This provision (2.) Applies only if a. You acquire the vehicle during thepolicyperiod; b. You ask us to insure it within 30 days after you become the owner; and c. With respect to a pickup or van, no other insurance policy provides coverage for that vehicle. If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insure a replacement vehicle within 30 days only ifyou wish to add or continue Coverage For Damage To Your Auto. Ifthe vehicle you acquire is in addition to any shown in the Declarations, it will have the broadest coverage we now provide for anyvehicle shown in the Declarations. 3. Any "trailer" you own. 4. Any auto or "trailer" you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its: a. Breakdown; b. Repair: C. Servicing; d. Loss; or e. Destruction. This provision (4.) does not apply to Coverage For Damage To Your Auto. 11. Under the Policy, Swank is not entitled to "Underinsured Motorists Coverage" because Swank owned the Plymouth, which was not insured under the Policy. 12. On November 10, 2004, Miller testified that at the time of said collision, she was the owner ofthe Plymouth. See pages 9-15 ofthe Miller Deposition dated November 10, 2004. A true and correct copy is attached hereto as Exhibit "C." 13. At the time of said collision, the Plymouth was registered in the name of Miller. 14. At the time of said collision, Swank's Pennsylvania driver's license was suspended because of a DUI conviction. 15. At the time of said collision, Miller was aware that Swank's Pennsylvania driver's license was suspended because of a DUI conviction. See pages 10,13-14 ofthe Miller Deposition. A true and correct copy is attached hereto as Exhibit "C." 16. At the time of said collision, Miller testified at her deposition that she did not give permission to Swank to operate the Plymouth. See page 10 and 13 ofthe Miller Deposition. A true and correct copy is attached hereto as Exhibit "C." 17. At the time of said collision, Swank was driving the Plymouth without Miller's permission. 18. hi the alternative and under the Policy, Swank is not entitled to the "Underinsured Motorists Coverage" under the Policy because he was driving the Plymouth without permission. 19. Donegal believes and avers that Swank is not entitled to "Underinsured Motorists Coverage." 20. All parties necessary forthe resolution ofthis matter and whose rights and obligations may be affected thereby, have been joined as parties to this action. 21. An actual controversy exists between the parties named herein and the Declaration sought will substantially aid in determining an appropriate resolution. WHEREFORE, Donegal, the Plaintiff, requests this Court to enter a Declaratory Judgment regarding the parties respective rights, duties and legal relationship with respect to the insurance policy at issue, specifically: a. declaring that Swank was the owner ofthe Plymouth he was operating at the time ofthe collision, or in the alternative, was not given permission byMillerto operate the Plymouth at the time of the collision; b. declaring there was no underinsured motorists coverage on the Plymouth; C. declaring that Swank's underinsured motorists claim is excluded from coverage under the Policy as a result ofhis occupying an uninsured vehicle that he owned; d. declaring that Donegal, under the terms of the Policy, is not obligated to compensate Swank for any underinsured motorists claims or losses suffered by him as a result of the collision; e. awarding costs of this Action to Donegal; and awarding such other relief as this Court may deem just and proper. Respectfully submitted, OTTO George B. Falfir`, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: July 12, 2006 Attorneys for Plaintiff ??DPAPER - I, Brian K Ritz, Claim Representative, hereby certify that, to the best of my knowledge, the attached is a complete copy of the policy of insuraz ted to Willia 3 ank and in effect on March 17, 2002. STATE OF PA SS, COUNTY OF LANCASTER On the ?3 day of mrty , 2006 before me personally appeared I39 k n`'\ K . R=T z to me known to be the person(s) named herein and who executed the foregoing Certification and he acknowledged to me that he voluntarily executed the same. My term expires M ?y a7 aOO(o Notary Public NOTARIAL SEAL Petrtala M. Meyers, Notary Publto y Oommtesfort Marietta, Lancaster County Expires . May 27, 2006 LMY Exhibit "A" DONEGAL ooar4mied IMAGE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL OF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE 'OLICY NUMBER •1 1 COVERAGE PROVIDED IN THE EFFECTIVE 2: 1 A.M PAE 0572345 102/23/021 02/23/031 DONEGAL MUTUAL INS. CO. 000425 1111/ /01'1717 SWANK WILLIAM D ACORDIA NORTHEAST INC 4 EAST WILLOW TERRACE DR 4900 RITTER RD 2ND FLOOR MECHANICSBURG PA 17055 P 0 BOX 1220 MECHANICSBURG PA 17055 BELOW YOU WILL FIND IMPORTANT INFORMATION REGARDING THESE POLICY DECLARATIONS. COVERAGE FOR RENTED AUTOS IF YOU PURCHASED COLLISION COVERAGE ON YOUR OWNED AUTO(S) UNDER THIS POLICY, COVERAGE EXTENDS TO COLLISION DAMAGE TO A PRIVATE PASSENGER AUTO THAT YOU OR A RESIDENT RELATIVE MAY RENT. THIS COVERAGE IS EXCESS OVER OTHER AVAILABLE INSURANCE AND APPLIES WHEN SUCH AUTO IS RENTED FOR 30 CONSECUTIVE DAYS OR LESS. IF YOU HAVE A COLLISION LOSS WITH THE RENTED AUTO, YOU MAY HAVE TO PAY THE LOWEST COLLISION DEDUCTIBLE AMOUNT SHOWN ON THE DECLARATIONS. BECAUSE THERE ARE MANY DIFFERENT AUTO RENTAL CONTRACTS, YOU SHOULD READ SUCH CONTRACTS CAREFULLY BEFORE REJECTING "COLLISION DAMAGE WAIVER COVERAGE" OFFERED BYAN AUTO RENTALAGENCY. (SEE YOUR POLICY FOR COVERAGE DETAILS.) PL-2 (9/88) -? Q President CONTINUED ON REVERSE SIDE 05 REFER TO FINAL PAGE FOR BILLING NOTICE DONEGAL e?U? GE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL OF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE 'OLICY NUMBER •1 1 COVERAGE •1 1 / I EFFECTIVE 2: A.M PAE 0572345 02/23/021 02/23/031 DONEGAL MUTUAL INS. CO. 000425500 t/1// /01-1717 SWANK WILLIAM D ACORDIA NORTHEAST INC 05 4 EAST WILLOW TERRACE DR 4900 RITTER RD 2ND FLOOR MECHANICSBURG PA 17055 P 0 BOX 1220 MECHANICSBURG PA 17055 VEHICLES COVERED UNIT ST TER YR MAKE MODEL SERIAL NUMBER SYM CLASS MAX LT CHG DATE 001 PA 027 87 CHEVROLET S10 BLAZE 1GNCTIBRXH0183875 11 885110 02/23/02 INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE COVERAGE LIMITS OF LIABILITY PREMIUMS UNIT 1 FULL TORT OPTION APPLIES TO THIS POLICY YES SPLIT LIABILITY LIMITS PP0309 0486 BODILY INJURY LIABILITY $100,000 EACH PERSON $300,000 EACH ACCIDENT 104.00 PROPERTY DAMAGE LIABILITY $100,000 EACH ACCIDENT 60.00 UNINSURED MOTORIST BODILY INJURY PER PERSON $100,000 PER ACCIDENT $300,000 (NO STACKING OF COVERAGE) 52.00 UNDERINSURED MOTORIST BODILY INJURY PER PERSON $100,000 PER ACCIDENT $300,000 (NO STACKING OF COVERAGE) 12.00 MEDICAL EXPENSE COVERAGE $10,000 44.00 WORK LOSS COVERAGE $1,000 MONTH/$5,000 TOTAL 20.00 FUNERAL EXPENSE COVERAGE $2,500 8.00 PL-2 (9/88) ? ? 171 / a •wK lY N.?.? President 01116102 CONTINUED ON REVERSE SIDE REFER TO FINAL PAGE FOR BILLING NOTICE DONEGAL eatiy,Gnypd GE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL OF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE 'OLICY NUMBER •1 1 COVERAGE •1 1 1 IN THE EFFECTIVE PAE 0572345 02/23/021 02/23/031 DONEGAL MUTUAL INS. CO. 000425 00 t/1/i /01-1717 SWANK WILLIAM D ACORDIA NORTHEAST INC 05 4 EAST WILLOW TERRACE DR 4900 RITTER RD 2ND FLOOR MECHANICSBURG PA 17055 P 0 BOX 1220 MECHANICSBURG PA 17055 INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE COVERAGE LIMITS OF LIABILITY PREMIUMS UNIT 1 TOTAL BY UNIT 300.00 TOTAL TERM PREMIUM $300.00 A $24,00 ACCOUNT CREDIT HAS BEEN DEDUCTED IN DETERMINING YOUR TOTAL PREMIUM PL-2 (9/88) 04f`?T"&4-) President 01/16/02 CONTINUED ON NEXT PAGE REFER TO FINAL PAGE FOR BILLING NOTICE DONEGAL eaa GE COPY MARIETTA, PENNSYLVANIA 17547-0302 RENEWAL OF POLICY PAE 0572345 PERSONAL AUTO POLICY - PREFERRED RATING PROGRAM RENEWAL CERTIFICATE '1 • '1 1 COVERAGE '1 1 1 IN THE EFFECTIVE 2: A.M PAE 0572345 1.02/23/021 02/23/031 DONEGAL MUTUAL INS. CO. 00042550 t/1/) /b1-1717 SWANK WILLIAM D ACORDIA NORTHEAST INC 05 4 EAST WILLOW TERRACE DR 4900 RITTER RD 2ND FLOOR MECHANICSBURG PA 17055 P 0 BOX 1220 MECHANICSBURG PA 17055 DRIVER ID 01 APPLICABLE FO FORM # DATE PP0001 06/94 PAE001 12/89 PP0416 07/90 DRIVER NAN WILLIAM D RMS UNIT FORM # ALL PPDO151 ALL PP0309 001 PPD0417 E DATE 01/97 04/86 02/96 LICENSE 1571157 UNIT FORM # ALL PP0305 001 PP0420 001 PP0551 NUMBER BIRTH DATE 2 10/24/52 DATE UNIT FORM # DATE UNIT 08/86 ALL IL0910 01/81 ALL 07/90 001 PPD0421 02/96 001 06/94 001 DAACP 02/92 001 01/16/02 PL-2 (9188) '? '? ?? ?p ' , 0 ?w?0` lY 14JJA J President ----- STATEMENT OF ACCOUNT ----- ------- PAYMENT PLAN ------- PAE0572345 01 05 TOTAL PREMIUM $300.00 TOTAL AMOUNT RECEIVED $0.00 ACCOUNT BALANCE $300.00 TOTAL AMOUNT DUE 02/20/02...... $300.00 THANK YOU FOR LETTING US SERVE YOU PERSONAL AUTO POLICY AGREEMENT In return for payment of the premium and subject to all the terms of this policy, we agree with you as follows: DEFINITIONS A. Throughout this policy, "you" and "your" refer to: 1. The "named insured" shown in the Declarations; and 2. The spouse if a resident of the same household. B. "We," "us" and "bur" refer to the Company providing this insurance. C. For purposes of this policy, a private passenger type auto shall be deemed to be owned by a person if leased: 1. Under a written agreement to that person; and 2. For a continuous period of at least 6 months. Other words and phrases are defined. They are in quotation marks when used. D. "Bodily injury" means bodily harm, sickness or disease, including death that results. E. " Business" includes trade, profession or occupation. F. "Family member" means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child. G. "Occupying" means in, upon, getting in, on, out or off. H. "Property damage" means physical injury to, destruction of or loss of use of tangible property. 1. "Trailer" means a vehicle designed to be pulled by a: 1. Private passenger auto; or 2. Pickup or van. It also means a farm wagon or farm implement while towed by a vehicle listed in 1. or 2. above. J. "Your covered auto" means: 1. Any vehicle shown in the Declarations. b. A pickup or van that: (1) Has a Gross Vehicle Weight of less than 10,000 lbs.; and (2) Is not used for the delivery or transportation of goods and materials unless such use is: (a) Incidental to your "business" of installing, maintaining or re- pairing furnishings or equip- ment; or (b) For farming or ranching. This provision (J.2.) applies only if: a. You acquire the vehicle during the policy period; b. You ask us to insure it within 30 days after you become the owner; and c. With respect to a pickup or van, no other insurance policy provides coverage for that vehicle. If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insure a replacement vehicle within 30 days only if you wish to add or continue Coverage for Damage to Your Auto. If the vehicle you acquire is in addition to any shown in the Declarations, it will have the broadest coverage we now provide for any vehicle shown in the Declarations. 3. Any "trailer" you own. 4. Any auto or "trailer" you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its: a 2. Any of the following types of vehicles on the . Breakdown; d. Loss; date you become the owner: b. Repair; e. Destruction. y c. Servicing; a. A private passenger auto; or This provision (14.) does not apply to Coverage for Damage to Your Auto. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 1 of 13 PART A- LIABILITY COVERAGE INSURING AGREEMENT 5. Other reasonable expenses incurred at our request. A. We will pay damages for "bodily injury" or "property damage" for which any "insured" becomes legally EXCLUSIONS responsible because of an auto accident. Damages include prejudgment interest awarded against the A. We do not provide Liability Coverage for any "insured." We will settle or defend, as we consider "insured": appropriate, any claim or suit asking for these 1. Who intentionally causes "bodily injury" or damages. In addition to our limit of liability, we will pay " " all defense costs we incur. Our duty to settle or property damage. defend ends when our limit of liability for this 2. For "property damage" to property owned or coverage has been exhausted. We have no duty to being transported by that "insured." defend any suitor settle any claim for "bodily injury" or "property damage" not covered under this policy. 3. For "property damage" to property: B. "Insured" as used in this Part means: a. Rented to; 1. You or any "family member" for the ownership, b. Used by; or maintenance or use of any auto or "trailer." c. In the care of; 2. Any person using "your covered auto." that "insured." 3. For "your covered auto," any person or organization but only with respect to legal This exclusion (A.3.) does not apply to responsibility for acts or omissions of a person "property damage" to a residence or private for whom coverage is afforded under this Part. garage. 4. For any auto or "trailer," other than "your 4. For "bodily injury" to an employee of that covered auto," any other person or "insured" during the course of employment. organization but only with respect to legal This exclusion (A.4.) does not apply to "bodily responsibility for acts or omissions of you or any injury" to a domestic employee unless workers' "family member" for whom coverage is compensation benefits are required or available afforded under this Part. This provision (B.4.) for that domestic employee. applies only if the person or organization does " " 5. For that "insured's" liability arising out of the not own or hire the auto or trailer. ownership or operation of a vehicle while it is SUPPLEMENTARY PAYMENTS being used as a public or livery conveyance. This exclusion (A.5.) does not apply to a In addition to our limit of liability, we will pay on behalf of an share-the-expense car pool. "insured": 6. While employed or otherwise engaged in the 1. Up to $250 for the cost of bail bonds required "business" of: because of an accident, including related traffic law violations. The accident must result in a. Selling; d. Storing; or "bodily injury" or "property damage" covered b. Repairing; e. Parking; under this policy. c. Servicing; 2. Premiums on appeal bonds and bonds to release attachments in any suit we defend. 3. Interest accruing after a judgment is entered in any suit we defend. Our duty to pay interest ends when we offer to pay that part of the judgment which does not exceed our limit of liability for this coverage. vehicles designed for use mainly on public highways. This includes road testing and delivery. This exclusion (A.6.) does not apply to the ownership, maintenance or use of "your covered auto" by: a. You; b. Any "family member"; or 4. Up to $50 a day for loss of earnings, but not other income, because of attendance at c. Any partner, agent or employee of you or any' family member." hearings or trials at our request. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 2 of 13 7. Maintaining or using any vehicle while that "insured" is employed or otherwise engaged in any "business" (other than farming or ranching) not described in exclusion A.6. This exclusion (A.7.) does not apply to the maintenance or use of a: a. Private passenger auto; b. Pickup or van that: (1) You own; or (2) You do not own while used as a temporary substitute for "your covered auto" which is out of normal use because of its: (a) Breakdown; (b) Repair; (c) Servicing; (d) Loss; or (e) Destruction; or c. "Trailer" used with a vehicle described in a. or b. above. 8. Using a vehicle without a reasonable belief that that "insured" is entitled to do so. 9. For "bodily injury" or "property damage" for which that "insured": a. Is an insured under a nuclear energy liability policy; or b. Would be an insured under a nuclear energy liability policy but for its termination upon exhaustion of its limit of liability. A nuclear energy liability policy is a policy issued by any of the following or their successors: a. American Nuclear Insurers; b. Mutual Atomic Energy Liability Underwrit- ers; or c. Nuclear Insurance Association of Ca- nada. B. We do not provide Liability Coverage for the ownership, maintenance or use of: This exclusion (B.1.) does not apply: a. While such vehicle is being used by an "insured" in a med- ical emergency; or b. To any "trailer." 2. Any vehicle, other than "your covered auto," which is: a. Owned by you; or b. Furnished or available for your regular use. 3. Any vehicle, other than "your covered auto," which is: a. Owned by any "family member"; or b. Furnished or available for the regular use of any "family member." However, this exclusion (B.3.) does not apply to you while you are maintaining or "occupying" any vehicle which is: a. Owned by a "family member"; or b. Furnished or available for the regular use of a "family member." 4. Any vehicle, located inside a facility designed for racing, forthe purpose of: a. Competing in; or b. Practicing or preparing for; any prearranged or organized racing or speed contest. LIMIT OF LIABILITY A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one auto accident. This is the most we will pay regardless of the number of: 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the auto accident. 1. Any vehicle which: B. We will apply the limit of liability to provide any a. Has fewer than four wheels; or separate limits required by law for bodily injury and property damage liability. However, this provision b. Is designed mainly for use off public (B,) will not change our total limit of liability. roads. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 3 of 13 C. No one will be entitled to receive duplicate payments 2. A compulsory insurance or similar law for the same elements of loss under this coverage requiring a nonresident to maintain and: insurance whenever the nonresident uses a vehicle in that state or prov- 1. Part B or Part C of this policy; or ince, your policy will provide at least 2. Any Underinsured Motorists Coverage the required minimum amounts and provided by this policy. types of coverage. OUT OF STATE COVERAGE If an auto accidentto which this policy applies occurs in any state or province otherthan the one in which "your covered auto" is principally garaged, we will interpret your policy for that accident as follows: A. If the state or province has: 1. A financial responsibility or similar law specifying limits of liability for "bodily injury" or "property damage" higher than the limit shown in the Declarations, your policy will provide the higher specified limit. B. No one will be entitled to duplicate payments for the same elements of loss. FINANCIAL RESPONSIBILITY When this policy is certified as future proof of financial responsibility, this policy shall comply with the law to the extent required. OTHERINSURANCE If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance. PART B - MEDICAL PAYMENTS COVERAGE INSURING AGREEMENT A. We will pay reasonable expenses incurred for necessary medical and funeral services because of "bodily injury": 1. Caused by accident; and 2. Sustained by an "insured." We will pay only those expenses incurred for services rendered within 3 years from the date of the accident. B. "Insured" as used in this Part means: 1. You or any "family member": a. While "occupying"; or b. As a pedestrian when struck by; a motor vehicle designed for use mainly on public roads or a trailer of any type. 2. Any other person while "occupying" "your covered auto." 2. Sustained while "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (2.) does not apply to a share-the-expense car pool. 3. Sustained while "occupying" any vehicle located for use as a residence or premises. 4. Occurring during the course of employment if workers' compensation benefits are required or available for the "bodily injury." 5. Sustained while "occupying," or when struck by, any vehicle (other than "your covered auto") which is: a. Owned by you; or b. Furnished or available for your regular use. 6. Sustained while "occupying," or when struck by, any vehicle (other than "your covered auto") which is: a. Owned by any "family member"; or EXCLUSIONS b. Furnished or available for the regular use We do not provide Medical Payments Coverage for any of any "family member." "insured" for "bodily injury": However, this exclusion (6.) does not apply to I. Sustained while "occupying" any motorized you. vehicle having fewer than four wheels. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 4 of 13 7. Sustained while "occupying" a vehicle without a reasonable belief that that "insured" is entitled to do so. 8. Sustained while "occupying" a vehicle when it is being used in the "business" of an "insured." This exclusion (8.) does not apply to "bodily injury" sustained while "occupying" a: a. Private passenger auto; b. Pickup or van that you own; or c. "Trailer" used with a vehicle described in a. or b. above. 9. Caused by or as a consequence of: a. Discharge of a nuclear weapon (even if accidental); b. War (declared or undeclared); c. Civil war; d. Insurrection; or e. Rebellion or revolution. 10. From or as a consequence of the following, whether controlled or uncontrolled or however caused: a. Nuclear reaction; b. Radiation; or c. Radioactive contamination. 11. Sustained while "occupying" any vehicle located inside a facility designed for racing, for the purpose of: a. Competing in; or b. Practicing or preparing for; any prearranged or organized racing or speed contest. LIMIT OF LIABILITY A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for each person injured in any one accident. This is the most we will pay regardless of the number of: 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the accident. B. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and: 1. Part A or Part C of this policy;.or 2. Any Underinsured Motorists Coverage provided by this policy. OTHER INSURANCE If there is other applicable auto medical payments insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible auto insurance providing payments for medical or funeral expenses. PART C - UNINSURED MOTORISTS COVERAGE INSURING AGREEMENT A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury": 1. Sustained by an "insured"; and 2. Caused by an accident. B. "Insured" as used in this Part means: 1. You or any "family member." 2. Any other person "occupying" "your covered auto." 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1. or 2. above. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle." C. "Uninsured motor vehicle" means a land motor vehicle or trailer of any type: Any judgment for damages arising out of a suit 1. To which no bodily injury liability bond or policy brought without our written consent is not binding on applies at the time of the accident. US. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 5 of 13 2. To which a bodily injury liability bond or policy applies at the time of the accident. In this case its limit for bodily injury liability must be less than the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which "your covered auto" is principally garaged. 3. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits: a. You or any "family member"; b. A vehicle which you or any "family member" are "occupying"; or c. "Your covered auto." 4. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company: a. Denies coverage; or b. Is or becomes insolvent. However, "uninsured motor vehicle" does not include any vehicle or equipment: 1. Owned by or furnished or available for the regular use of you or any "family member." 2. Owned or operated by a self-insurer under any applicable motor vehicle law, except a self-insurer which is or becomes insolvent. 3. Owned by any governmental unit or agency. 4. Operated on rails or crawler treads. 5. Designed mainly for use off public roads while not on public roads. 6. While located for use as a residence or premises. EXCLUSIONS A. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained: By an "insured" while "occupying," or when struck by, any motor vehicle owned by that "insured" which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. 2. By any "family member" while "occupying," or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy. 1. If that "insured" or the legal repre- sentative settles the "bodily injury" claim without our consent. 2. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.2.) does not apply to a share-the- expense car pool. 3. Using a vehicle without a reasonable belief that that" insured" is entitled to do so. C. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. D. We do not provide Uninsured Motorists Coverage for punitive or exemplary damages. LIMIT OF LIABILITY A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the accident. B. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and: Part A or Part B of this policy; or 2. Any Underinsured Motorists Coverage provided by this policy. C. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible. D. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. B. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained by any "insured": PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 6 of 13 OTHERINSURANCE If there is other applicable insurance available under one or more policies or provisions of coverage: Any recovery for damages under all such policies or provisions of coverage may equal but not exceed the highest applicable limit for any one vehicle under any insurance providing coverage on either a primary or excess basis. 2. Any insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing coverage on a primary basis. 2. As to the amount of damages which are recoverable bythat"insured"; from the owner or operator of an "unin- sured motor vehicle," then the matter may be arbitrated. However, disputes concern- ing coverage under this Part may not be ar- bitrated. Both parties must agree to arbitration. If so agreed, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. B. Each party will: 3. If the coverage under this policy is provided: 1. Pay the expenses it incurs; and a. On a primary basis, we will pay only our share of the loss that must be paid under 2. Bear the expenses of the third arbitrator insurance providing coverage on a equally. primary basis. Our share is the proportion that our limit of liability bears to the total of C. Unless both parties agree otherwise, arbitration will " all applicable limits of liability for coverage lives. take place in the county in which the "insured provided on a primary basis. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators b. On an excess basis, we will pay only our will be binding as to: share of the loss that must be paid under insurance providing coverage on an 1. Whether the "insured" is legally entitled to excess basis. Our share is the proportion recover damages; and that our limit of liability bears to the total of 2. The amount of damages. This applies only if the all applicable limits of liability for coverage amount does not exceed the minimum limit for provided on an excess basis. bodily injury liability specified by the financial ARBITRATION responsibility law of the state in which "your covered auto" is principally garaged. If the A. If we and an "insured" do not agree: amount exceeds that limit, either party may de- mand the right to a trial. This demand must be 1. Whether that "insured" is legally entitled to made within 60 days of the arbitrators' decision. recover damages; or If this demand is not made, the amount of dam- ages agreed to by the arbitrators will be binding. PART D - COVERAGE FOR DAMAGE TO YOUR AUTO INSURING AGREEMENT If there is a loss to a "non-owned auto," we will provide the broadest coverage applicable to any A. We will pay for direct and accidental loss to "your "your covered auto" shown in the Declarations, covered auto" or any "non-owned auto," including their equipment, minus any applicable deductible B. "Collision" means the upset of "your covered auto" shown in the Declarations. If loss to more than one or a "non-owned auto" or their impact with another "your covered auto" or "non-owned auto" results vehicle or object. from the same "collision," only the highest applicable deductible will apply. We will pay for loss to "your Loss caused bythe following is considered otherthan covered auto" caused by: "collision": 1. Other than "collision" only if the Declarations 1. Missiles or 6. Hail, water or indicate that Other Than Collision Coverage is falling objects; flood; provided for that auto. 2. Fire; 7. Malicious mischief 3. Theft or larceny; or vandalism; 2. "Collision" only if the Declarations indicate that 4. Explosion or 8. Riot or civil Collision Coverage is provided for that auto. earthquake; commotion; 5. Windstorm; PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 7 of 13 9. Contact with bird 10. Breakage of glass or animal; or If breakage of glass is caused by a "collision," you may elect to have it considered a loss caused by "collision." C. "Non-owned auto" means: 1. Any private passenger auto, pickup, van or "trailer" not owned by or furnished or available for the regular use of you or any "family member" while in the custody of or being operated by you or any "family member"; or 2. Any auto or "trailer" you do not own while used as a temporary substitute for "your covered auto" which is out of normal use because of its: a. Breakdown; b. Repair; c. Servicing; TRANSPORTATION EXPENSES 2. Ending when "your covered auto" or the "non-owned auto" is returned to use or we pay for its loss. If the loss is caused by other than theft of a "your covered auto" or a "non-owned auto," we will pay only expenses beginning when the auto is withdrawn from use for more than 24 hours. Our payment will be limited to that period of time reasonably required to repair or replace the "your covered auto" or the "non-owned auto." EXCLUSIONS We will not pay for: 1. Loss to "your covered auto" or any d. Loss; or "non-owned auto" which occurs while it is e. Destruction. being used as a public or livery conveyance. This exclusion (1.) does not apply to a share-the-expense car pool. In addition, we will pay, without application of a deductible, up to $15 per day, to a maximum of $450, for: Temporary transportation expenses incurred by you in the event of a loss to "your covered auto." We will pay for such expenses if the loss is caused by: a. Other than "collision" only if the Declarations indicate that Other Than Collision Coverage is provided for that auto. b. "Collision" only if the Declarations indicate that Collision Coverage is provided for that auto. 2. Loss of use expenses for which you become legally responsible in the event of loss to a "non-owned auto." We will pay for loss of use expenses if the loss is caused by: a. Other than "collision" only if the Declarations indicate that Other Than Collision Coverage is provided for any ..your covered auto." b. "Collision" only if the Declarations indicate that Collision Coverage is provided for any "your covered auto." If the loss is caused by a total theft of "your covered auto" or a "non-owned auto," we will pay only expenses incurred during the period: 2. Damage due and confined to: a. Wear and tear; b. Freezing; c. Mechanical or electrical breakdown or failure; or d. Road damage to tires. This exclusion (2.) does not apply if the damage results from the total theft of "your covered auto" or any "non-owned auto." 3. Loss due to or as a consequence of: a. Radioactive contamination; b. Discharge of any nuclear weapon (even if accidental); c. War (declared or undeclared); d. Civil war; e. Insurrection; or f. Rebellion or revolution. 4. Lossto: a. Any electronic equipment designed for the reproduction of sound, including, but not limited to: (1) Radios and stereos; 1. Beginning 48 hours after the theft; and (2) Tape decks; or (3) Compact disc players; PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 8 of 13 b. Any other electronic equipment that receives or transmits audio, visual or data signals, including, but not limited to: (1) Citizens band radios; (2) Telephones; (3) Two-way mobile radios; (4) Scanning monitor receivers; (5) Television monitor receivers; (6) Video cassette recorders; (7) Audio cassette recorders; or (8) Personal computers; c. Tapes, records, discs, or other media used with equipment described in a. or b.; or d. Any other accessories used with equipment described in a. or b. This exclusion (4.) does not apply to: a. Equipment designed solely for the reproduction of sound and accessories used with such equipment, provided: (1) The equipment is permanently installed in "your covered auto" or any "non-owned auto"; or (2) The equipment is: (a) Removable from a housing unit which is permanently installed in the auto; (b) Designed to be solely operated by use of the power from the auto's electrical system; and (c) In or upon "your covered auto" or any "non-owned auto"; at the time of the loss. b. Any other electronic equipment that is: (1) Necessary for the normal operation of the auto or the monitoring of the auto's operating systems; or normally used by the man- ufacturer for installation of a radio. 5. A total loss to "your covered auto" or any "non-owned auto" due to de- struction or confiscation by govern- mental or civil authorities. This exclusion (5.) does not apply to the inter- ests of Loss Payees in "your covered auto." 6. Loss to a camper body or "trailer" you own which is not shown in the Declarations. This exclusion (6.) does not apply to a camper body or "trailer" you: a. Acquire during the policy period; and b. Ask us to insure within 30 days after you become the owner. 7. Loss to any "non-owned auto" when used by you or any "family member" without a reasonable belief that you or that "family member" are entitled to do so. 8. Loss to: a. Awnings or cabanas; or b. Equipment designed to create additional living facilities. 8. Loss to equipment designed or used for the detection or location of radar or laser. 10. Loss to any custom furnishings or equipment in or upon any pickup or van. Custom furnishings or equipment include but are not limited to: a. Special carpeting and insulation, furniture or bars; b. Facilities for cooking and sleeping; c. Height-extending roofs; or d. Custom murals, paintings or other decals or graphics. 11. Loss to any "non-owned auto" being main- tained or used by any person while employed or otherwise engaged in the "business" of: a. Selling; d. Storing; or b. Repairing; e. Parking; c. Servicing; (2) An integral part of the same unit housing any sound reproducing vehicles designed for use on public highways. equipment described in a. and per- This includes road testing and delivery. manently installed in the opening of 12. Loss to any "non-owned auto" being main- the dash or console of "your cov- tained or used by any person while employed Bred auto or any non-owned auto PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 9 of 13 or otherwise engaged in any "business" not described in exclusion 11. This exclusion (12.) does not apply to the maintenance or use by you or any "family member" of a "non-owned auto" which is a private passenger auto or "trailer." 13. Loss to "your covered auto" or any "non-owned auto," located inside a facility designed for racing, for the purpose of: a. Competing in; or b. Practicing or preparing for; any prearranged or organized racing or speed contest. 14. Loss to, or loss of use of, a "non-owned auto" rented by: a. You; or b. Any "family member"; if a rental vehicle company is precluded from recovering such loss or loss of use, from you or that "family member," pursuant to the provisions of any applicable rental agreement or state law. LIMIT OF LIABILITY A. Our limit of liability for loss will be the lesser of the: 1. Actual cash value of the stolen or damaged property; 2. Amount necessary to repair or replace the property with other property of like kind and quality. However, the most we will pay for loss to any "non-owned auto" which is a trailer is $500. B. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total loss. C. If a repair or replacement results in better than like kind or quality, we will not pay for the amount of the betterment. PAYMENT OF LOSS We may pay for loss in money or repair or replace the damaged or stolen property. We may, at our ex- pense, return any stolen property to: 1. You; or 2. The address shown in this policy. If we return stolen property we will pay for any damage resulting from the theft. We may keep all or part of the property at an agreed or appraised value. If we pay for loss in money, our payment will include the applicable sales tax for the damaged or stolen property. NO BENEFIT TO BAILEE This insurance shall not directly or indirectly benefit any carrier or other bailee for hire. OTHER SOURCES OF RECOVERY If other sources of recovery also cover the loss, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a "non-owned auto" shall be excess over any other collectible source of recovery including, but not limited to: 1. Any coverage provided by the owner of the "non-owned auto"; 2. Any other applicable physical damage insurance; 3. Any other source of recovery applicable to the loss. APPRAISAL A. If we and you do not agree on the amount of loss, either may demand an appraisal of the loss. In this event, each parry will select a competent appraiser. The two appraisers will select an umpire. The appraisers will state separately the actual cash value and the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will: 1. Pay its chosen appraiser; and 2. Bear the expenses of the appraisal and umpire equally. B. We do not waive any of our rights under this policy by agreeing to an appraisal. PART E - DUTIES AFTER AN ACCIDENT OR LOSS We have no duty to provide coverage under this policy A. We must be notified promptly of how, when and unless there has been full compliance with the following where the accident or loss happened. Notice should duties: also include the names and addresses of any injured persons and of any witnesses. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 10 of 13 B. A person seeking any coverage must: C. A person seeking Uninsured Motorists Coverage must also: 1. Cooperate with us in the investigation, settlement or defense of any claim or suit. 2. Promptly send us copies of any notices or legal papers received in connection with the accident or loss. 3. Submit, as often as we reasonably require: 1. Promptly notify the police if a hit-and- run driver is involved. 2. Promptly send us copies of the legal papers if a suit is brought. D. A person seeking Coverage for Damage to Your Auto must also: a. To physical exams by physicians we select. We will pay for these exams. b. To examination under oath and subscribe the same. 4. Authorize us to obtain: a. Medical reports; and b. Other pertinent records. 5. Submit a proof of loss when required by us. 1. Take reasonable steps after loss to protect "your covered auto" or any "non-owned auto" and their equipment from further loss. We will pay reasonable expenses incurred to do this. 2. Promptly notify the police if "your covered auto" or any "non-owned auto" is stolen. 3. Permit us to inspect and appraise the damaged property before its repair or disposal. PART F - GENERAL PROVISIONS BANKRUPTCY Bankruptcy or insolvency of the "insured" shall not relieve us of any obligations under this policy. CHANGES A. This policy contains all the agreements between you and us. Its terms may not be changed or waived except by endorsement issued by us. B. If there is a change to the information used to develop the policy premium, we may adjust your premium. Changes during the policy term that may result in a premium increase or decrease include, but are not limited to, changes in: 1. The number, type or use classification of insured vehicles; 2. Operators using insured vehicles; 3. The place of principal garaging of insured vehicles; 4. Coverage, deductible or limits. If a change resulting from A. or B. requires a premium adjustment, we will make the premium adjustment in accordance with our manual rules. C. If we make a change which broadens coverage under this edition of your policy without additional premium charge, that change will automatically apply to your policy as of the date we implement the change in your state. This paragraph (C.) does not apply to changes implemented with a general program revision that includes both broadenings and restrictions in coverage, whether that general program revision is implemented through introduction of: 1. A subsequent edition of your policy; or 2. An Amendatory Endorsement. FRAUD We do not provide coverage for any "insured" who has made fraudulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under this policy. LEGAL ACTION AGAINST US A. No legal action may be brought against us until there has been full compliance with all the terms of this policy. In addition, under Part A, no legal action may be brought against us until: 1. We agree in writing that the "insured" has an obligation to pay; or 2. The amount of that obligation has been finally determined by judgment after trial. B. No person or organization has any right under this policy to bring us into any action to determine the liability of an "insured." OUR RIGHT TO RECOVER PAYMENT A. If we make a payment under this policy and the person to or for whom payment was made has a right PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 11 of 13 to recover damages from another we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them. However, our rights in this paragraph (A.) do not apply under Part D, against any person using "your covered auto" with a reasonable belief that that person is entitled to do so. B. If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. Reimburse us to the extent of our payment. POLICY PERIOD AND TERRITORY A. This policy applies only to accidents and losses which occur: 1. During the policy period as shown in the Declarations; and 2. Within the policy territory. B. The policy territory is: 1. The United States of America, its territories or possessions; 2. Puerto Rico; or 3. Canada. This policy also applies to loss to, or accidents involving, "your covered auto" while being transported between their ports. TERMINATION A. Cancellation. This policy may be cancelled during the policy period as follows: 1. The named insured shown in the Declarations may cancel by: a. Returning this policy to us; or b. Giving us advance written notice of the date cancellation is to take effect. 2. We may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy; a. At least 10 days notice: (1) If cancellation is for non- payment of premium; or (2) If notice is mailed during the first 60 days this policy is in effect and this is not a renewal or continuation policy; or b. At least 20 days notice in all other cases. 3. After this policy is in effect for 60 days, or if this is a renewal or continuation policy, we will cancel only: a. For nonpayment of premium; or b. If your driver's license or that of: (1) Any driver who lives with you; or (2) Any driver who customarily uses "your covered auto"; has been suspended or revoked. This must have occurred: (1) During the policy period; or (2) Since the last anniversary of the original effective date if the policy period is other than 1 year; or c. If the policy was obtained through material misrepresentation. B. Nonrenewal. If we decide not to renew or continue this policy, we will mail notice to the named insured shown in the Declarations at the address shown in this policy. Notice will be mailed at least 20 days before the end of the policy period. If the policy period is: 1. Less than 6 months, we will have the right not to renew or continue this policy every 6 months, . beginning 6 months after its original effective date. 2. 1 year or longer, we will have the right not to renew or continue this policy at each anniversary of its original effective date. C. Automatic Termination. If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer. If you obtain other insurance on "your covered auto," any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance. PP 0001 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 12 of 13 D. Other Termination Provisions. 1. We may deliver any notice instead of mailing it. Proof of mailing of any notice shall be sufficient proof of notice. 2. If this policy is cancelled, you may be entitled to a premium refund. If so, we will send you the refund. The premium refund, if any, will be computed according to our manuals. However, making or offering to make the refund is not a condition of cancellation. 3. The effective date of cancellation stated in the notice shall become the end of the policy period. TRANSFER OFYOUR INTEREST IN THIS POLICY A. Your rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for: The surviving spouse if resident in the same household at the time of death. Coverage applies to the spouse as if a named insured shown in the Decla- rations; and 2. The legal representative of the de- ceased person as if a named insured shown in the Declarations. This applies only with respect to the representative's legal responsibility to maintain or use "your covered auto." B. Coverage will only be provided until the end of the policy period. TWO OR MORE AUTO POLICIES If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under any one policy. PP 00 01 06 94 Copyright, Insurance Services Office, Inc., 1994 Page 13 of 13 PPD 01 51 01 97 AMENDMENT OF POLICY PROVISIONS - PENNSYLVANIA DEFINITIONS This provision (4.) does not ap- ply to Coverage For Damage To The Definitions section is amended as follows: Your Auto. A. Definition J. is replaced by the following: "Your covered auto" means: 1. Any vehicle shown in the Declarations. 2. Any of the following types of vehicles on the date you become the owner: a. A private passenger auto; or b. A pickup or van that: (1) Has a Gross Vehicle Weight not exceeding 9,000 lbs.; and (II) Is not principally used in any "business" other than farming or ranching. This provision (2.) applies only if: a. You acquire the vehicle during the policy period; b. You ask us to insure it within 30 days after you become the owner; and c. With respect to a pickup or van, no other insurance policy provides coverage for that vehicle. If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insure a replacement vehicle within 30 days only if you wish to add or continue Coverage For Damage To Your Auto. B. The following is added to the Definitions section: K. "Non-economic loss" means pain and suffering and other non-monetary detri- ment. L. "Serious injury" means an injury resulting in death, serious impairment of body function or permanent serious disfigure- ment. 11. PART A -LIABILITY COVERAGE Part A is amended as follows: A. Paragraph A. of the Insuring Agreement is replaced by the following: INSURING AGREEMENT We will pay damages for "bodily injury" or "property damage" for which any "in- sured" becomes legally responsible be- cause of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these dam- ages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for "bodily in- jury" or "property damage" not covered under this policy. B. Paragraph B.2. of the Insuring Agreement is replaced by the following: If the vehicle you acquire is in addition to any shown in the Declarations, it will have the broadest coverage we now provide for any vehicle shown in the Declarations. 3. Any "trailer" you own. B.2. Any person using "your covered auto" with your permission. C. The following is added to the Supplementary Payments Provision: SUPPLEMENTARY PAYMENTS 4. Any auto or "trailer" you do not own while used as a temporary substitute for any In addition to our limit of liability we will pay other vehicle described in this definition on behalf of an "insured": which is out of normal use because of its: Prejudgment interest awarded against the a. Breakdown; d. Loss; or "insured" on the part of the judgment we b. Repair; e. Destruction. pay. Any prejudgment interest awarded c. Servicing; against the insured is subject to the appli- cable Pennsylvania Rules of Civil Proce- dure. PPD 01 51 01 97 contains copyrighted material of insurance services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 1 of 4 Ill. PART E -DUTIES AFTER AN ACCIDENT OR LOSS Part E is replaced by the following: DUTIES AFTER AN ACCIDENT OR LOSS If an accident or loss occurs, the following must be done for the terms of the policy to apply: A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. 3. Permit us to inspect and ap- praise the damaged property before its repair or disposal. IV. PART F -GENERAL PROVISIONS Part F is amended as follows: A. The Termination provision is replaced by the following: TERMINATION Cancellation. This policy may be cancelled during the policy period as follows: B. A person seeking any coverage must: 1. The named insured shown on the Decla- 1. Cooperate with us in the investigation, rations may cancel by: settlement or defense of any claim or suit. a. Returning this policy to us; or 2. Promptly send us copies of any notices or legal papers received in connection with b. Giving us advance written notice of the accident or loss. the date cancellation is to take af- fect. 3. Submit, as often as we reasonably re- quire: 2. We may cancel by mailing to the named insured shown in the Declarations at the a. To physical exams by physicians we address shown in this policy: select. We will pay for these exams. a. At least 15 days notice of b. To examination under oath and sub- cancellation: scribe the same. (1) If notice is effective within the 4. Authorize us to obtain: first 60 days this policy is in ef- fect and this is not a renewal or a. Medical reports; and continuation policy; b. Other pertinent records. (2) For nonpayment of premium; 5. Submit a proof of loss when required by (3) If the driver's license of the us. named insured shown in the C. A person seeking Uninsured Motorists Cover- Declarations has been sus- pended or revoked after the agemust also: effective date if this policy has 1. Promptly notify the police if a hit-and-run been in effect less than one driver is involved. year; or if the policy has been in effect longer than one year, 2. Promptly send us copies of the legal pa- since the last anniversary of pers if a suit is brought. the original effective date; or D. A person seeking Coverage For Damage To Your Auto must also: 1. Take reasonable steps after loss to pro- tect "your covered auto" or any "non- owned auto" and their equipment from further loss. We will pay reasonable ex- penses incurred to do this. 2. Promptly notify the police if "your covered auto" or any "non-owned auto" is stolen. b. At least 60 days notice if the policy was obtained through material mis- representation. Our right to cancel this policy is subject to the limitations contained in the applicable Pennsylvania Statutes. Nonrenewal. If we decide not to renew or continue this policy, we will mail to the named insured shown in the Declarations at the address shown in this policy: PPD 01 51 01 97 Contains copyrighted material of Insurance Services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 2 of 4 1. At least 15 days notice before the end of event a court, from which there is no the policy period: appeal, declares or enters ajudgment the effect of which is to render the a. For nonpayment of premium; or provisions of such statute invalid or unenforceable b. If the driver's license of the named in whole or in pan, we insured shown in the Declarations will have the right to recompute the has been suspended a revoked premium payable for the policy and void or after the effective date if this policy amend the provisions of the policy, subject to the approval of the Insurance Commissioner. has been in effect less than one year; or if the policy has been in V. JOINT OWNERSHIP COVERAGE ENDORSE- effect longer than one year, since MENT the last anniversary of the orginial effective date. If the Joint Ownership Coverage Endorsement is attached to this policy, the provisions of the Joint 2. At least 60 days notice before the end of Ownership Coverage Endorsement apply except as the policy period in all other cases. follows: However, our right to nonrenew this policy is subject to the limitations contained in the applicable Pennsylvania Statutes. Automatic Termination. If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer. If you obtain other insurance on "your covered auto," any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance. Paragraphs A. and B.2.b. of the Definitions section are replaced by the following: A. For the purpose of the coverage provided by this endorsement, "you" and "your" refer to two or more: Individuals, other than husband and wife, residing in the same household; or 2. "Non-resident relatives"; whojointly own: A private passenger auto; or 2. A pickup or van that: Other Termination Provisions. 1. We may deliver any notice instead of mailing it. Proof of mailing of any notice shall be sufficient proof of notice. 2. If this policy is cancelled, you may be entitled to a premium refund. If so, we will send you the refund. The premium refund, if any, will be computed according to our manuals. However, making or offering to make the refund is not a condition of cancellation. 3. The effective date of cancellation stated in the notice shall become the end of the policy period. B. The following provision is added: a. Has a Gross Vehicle Weight not exceeding 9,000 lbs.; and b. Is not principally used in any "business" other than farming or ranching. B. "Your covered auto" means: 2. Any of the following types of vehicles on the date you become the owner: b. A pickup or van that: (1) Has a Gross Vehicle Weight not exceeding 9,000 lbs.; and (2) Is not principally used in any "business" other than farming or ranching. CONSTITUTIONALITY CLAUSE VI. MISCELLANEOUS TYPE VEHICLE ENDORSE- The premium for, and the coverages of, this MENT policy have been established in reliance upon the provisions of the Pennsylvania Motor If the Miscellaneous Type Vehicle Endorsement is Vehicle Financial Responsiblity Law. In the attached to this policy, the provisions of the PPD 01 51 01 97 Contains copyrighted material of Insurance Services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 3 of 4 Miscellaneous Type Vehicle Endorsement apply b. A pickup or van that: except as follows: (1) Has a Gross Vehicle Paragraph B.2.b. of the Definitions section is Weight not replaced by the following: exceeding 9,000 lbs.; and B. "Your covered auto" means: (2) Is not principally 2. Any of the following types of vehicles on used in any "business" other the date you become the owner: than farming or ranching. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PPD 01 51 01 97 Contains copyrighted material of Insurance Services Office, Inc. with their permission. Copyright, Insurance Services Office, Inc., 1993 Page 4 of 4 PP 03 05 08 86 LOSS PAYABLE CLAUSE Loss payee: Loss or damage under this policy shall be paid, as interest may appear, to you and the loss payee shown in the Declarations or in this endorsement. This insurance with respect to the interest of the loss payee, shall not become invalid because of your fraudulent acts or omissions unless the loss results from your conversion, secretion or embezzlement of "your covered auto". However, we reserve the right to cancel the policy as permitted by policy terms and the cancellation shall terminate this agreement as to the loss payee's interest. We will give the same advance notice of cancellation to the loss payee as we give to the named insured shown in the Declarations. When we pay the loss payee we shall, to the extent of payment, be subrogated to the loss payee's rights of recovery. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PP 03 05 08 86 Copyright, Insurance Services Office, Inc., 1986 PENNSYLVANIA NOTICE IL0910/HO291 (Ed.01 81) An Insurance Company, its agents, employees, or service contractors acting on its behalf, may provide services to reduce the likelihood of injury, death or loss. These services may include any of the following or related services incident to the application for, issuance, renewal or continuation of, a policy of insurance: surveys; 2. consultation or advice; or 3. inspections. The 'Insurance Consultation Services Exemption Act' of Pennsylvania provides that the Insurance Company, its agents, employees or service contractors acting on its behalf, is not liable for damages from injury, death or loss occurring as a result of any act or omission by any person in the furnishing of or the failure to furnish these services. The Act does not apply: if the injury, death or loss occurred during the actual performance of the services and was caused by the negligence of the Insurance Company, its agents, employees or service contractors; 2. to consultation services required to be performed under a written service contract not related to a policy of insurance; or 3. if any acts or omissions of the Insurance Company, its agents, employees or service contractors are judicially deter- mined to constitute a crime, actual malice, or gross negligence. Instruction to Policy Writers, Attach the Pennsylvania Notice to all new and renewal policies and renewal certificates insuring risks located in Pennsylvania. IL 09 10/HO 291 (Ed. 01 81) AMENDMENT OF POLICY PROVISIONS - PERSONAL AUTO POLICY Supplementary Payments The provisions that applyto Supplementary Payments also apply to this endorsement except as amended by this endorsement. Item 1 shall be amended to read: COST OF BAIL BONDS Up to $350 for the cost of bail bonds required because of an accident, including related traffic law violations. The accident must result in bodily injury or property damage covered under this policy. Item 4 shall be amended to read: LOSS OF Up to $100 a day for loss of earnings, but EARNINGS not other income, because of attendance at hearings or trials at our request. PAE-001 ED 12/88 SPLIT LIABILITY LIMITS Bodily Injury Liability each accident Refer to declaration page for limit of Liability and Premium. SCHEDULE Property Damage Liability The first paragraph of the Limit of Liability provision in Part A is replaced by the following: LIMIT OF LIABILITY The limit of liability shown in the Schedule or in the Declarations for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of "bodily injury" sustained by any one person in any one auto accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Bodily Injury Liability is our maximum limit of liability for all damages for "bodily injury" resulting from anyone auto accident. The limit of liability shown in $ each accident the Schedule or in the Declarations for each accident for Property Damage Liability is our maximum limit of liability for all "property damage" resulting from any one auto accident. This is the most we will pay regardless of the number of: 1. "insureds;" 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the auto accident. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PP03090486 each person PP0309 0486 Copyright, Insurance Services Office, Inc.,1985 SPLIT UNINSURED MOTORISTS LIMITS - PENNSYLVANIA (NON-STACKED) PP 04 20 07 90 Coverage Is provided where a premium and limit of liability is shown for the coverage on the declaration page. SCHEDULE UNINSURED MOTORISTS COVERAGE $ each person Paragraph A. of the Limit of Liability provision in the Uninsured Motorists Coverage - Pennsylvania (Non- Stacked) endorsement is replaced by the following: LIMIT OF LIABILITY A. The limit of liability shown in the Schedule or in the Declarations for each person for Uninsured Motorists Coverage is our maximum limit of liability for all dam- ages, including damages for care, loss of services or death, arising out of "bodily injury" sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Uninsured Motorists Coverage is our maximum limit of liability for all damages for "bodily injury" resulting from any one accident. This is the most we will pay regardless of the number of: 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Declara- tions; or 4. Vehicles involved in the accident. This endorsement must be attached to the Change Endorsement when issued after the policy is written. each accident Copyright, Insurance Services Office, Inc., 1990 PP 04 20 07 90 UNINSURED MOTORISTS COVERAGE - PENNSYLVANIA (NON-STACKED) PPD 04 21 02 96 Coverage Is provided where a premium and limit of liability Is shown for the coverage on the declaration page. With respect to the coverage provided by this endorsement, the provisions of the policy apply unless modified by this endorsement. 1. Part C- Uninsured Motorists Coverage is replaced by the following: SCHEDULE UNINSURED MOTORISTS COVERAGE Description of Vehicle Limit of Liability Premium INSURING AGREEMENT C. "Uninsured motor vehicle" means a land motor vehicle or trailer of any type: A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner 1. To which no bodily injury liability bond or policy or operator of an "uninsured motor vehicle" because applies at the time of the accident. of "bodily injury": 2. Which is shit-and-run vehicle whose operator 1. Sustained by an "insured"; or owner cannot be identified and which hits or which causes an accident resulting in "bodily 2. Caused by an accident. injury" without hitting: The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle." No judgment for damages arising out of a suit brought against the owner or operator of an "uninsured motor vehicle" is binding on us unless we: 1. Received reasonable notice of the pendency of the suit resulting in the judgment; and 2. Had a reasonable opportunity to protect our interests in the suit. B. "Insured" as used in this endorsement means: 1. You or any "family member"; 2. Any other person "occupying" "your covered auto." 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1. or 2. above. a. you or any "family member"; b. a vehicle which you or any "family member" are "occupying"; or c. ..your covered auto." If there is no contact with the hit-and-run vehicle, the facts of the accident must be proved. If the accident was allegedly caused by an unidentified hit-and-run vehicle and the operator nor the owner can be identified, the accident must be reported to the police or proper governmental authority within 30 days from the date of the accident. Notice of the accident must be given to us within 30 days, or as soon as practicable thereafter. 3. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company: a. denies coverage; or PPD 04 21 02 96 Page 1 of 4 b. is or becomes: (1) insolvent; or (2) involved in insolvency proceedings. However, "uninsured motor vehicle" does not include any vehicle or equipment: 1. Owned by orfurnished for the regular use of you or any "family member." 2. Owned or operated by a self-insurer under any applicable motor vehicle law, except a self-insurer which is or becomes insolvent. 3. Owned by any governmental unit or agency. 4. Operated on rails or crawler treads. 5. Designed mainly for use off public roads while not on public roads. 6. While located for use as a residence or premises. EXCLUSIONS A. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained: 1. By you while "occupying," or when struck by, any motor vehicle you own which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. 2. By a "family member": a. Who owns an auto, while "occupying," or when struck by, any motor vehicle owned by you or any "family member" which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle. b. Who does not own an auto, while "occupying," or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy. B. We do not provide Uninsured Motorists Coverage for "bodily injury" sustained by any "insured": 1. If that "insured" or the legal representative settles the bodily injury claim without our written consent. However, this exclusion (B.1.) does not apply if such settlement does not adversely affect our rights. 2. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.2.) does not apply to a share-the- expense car pool. 3. Using a vehicle without the permis- sion of the owner. C. We do not provide Uninsured Motorists Coverage for "non-economic loss" sustained by any "insured" to whom the limited tort alternative applies, resulting from "bodily injury" caused by an accident involving an "uninsured motor vehicle," unless the "bodily injury" sustained is a "serious injury." This exclusion (C.) does not apply: 1. If the owner or operator of the "uninsured motor vehicle": a. Is convicted, or accepts Accelerated Rehabilitative Disposition, for driving under the influence of alcohol or a controlled substance in that accident; b. Is operating a motor vehicle registered in another state; or c. Intends to injure himself or another person, provided that the individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury if the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person. 2. If that "insured" is injured while "occupying" a motor vehicle insured under a commerical motor vehicle insurance policy. D. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. E. We do not provide Uninsured Motorists Coverage for punitive or exemplary damages. LIMIT OF LIABILITY A. The limit of liability shown in the Schedule or in the Declarations for Uninsured Motorists Coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: PPD 04 21 02 96 Page 2 of 4 1. "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Schedule or in the Declarations; or 4. Vehicles involved in the accident. B. Any amounts payable for damages under this coverage shall be reduced by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid for an "insured's" attorney either directly or as part of the amount paid to the "insured." It also includes all sums paid under Part A of this policy. C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and any other coverage provided by this policy. D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible. E. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or a similar law: 1. Any group or individual contract or program that provides benefits for any element of loss; 2. Workers' compensation law; or 3. Disability benefits law. OTHER INSURANCE If there is other applicable similar insurance available under more than one policy or provision of coverage: The following priorities of recovery apply: First The Uninsured Motorists Coverage applicable to the vehicle the "insured" was .'occupying" at the time of the accident. Second The policy affording Uninsured Motorists Coverage to the "insured" as a named insured or family member. 1. When there is applicable insurance available under the First priority: a. The limit of liability applicable to the vehicle the "insured" was "occupying," under the policy in the First priority, shall first be exhausted; and b. The maximum recovery under all policies in the Second priority shall not exceed the amount by which the highest limit for any one vehicle under any one pol- icy in the Second priority ex- ceeds the limit applicable under the policy in the First priority. 2. When there is no applicable insurance available under the First priority, the maximum recovery under all policies in the Second priority shall not exceed the highest applicable limit for any one vehicle under any one policy. If two or more policies have equal priority, the insurer against whom the claim is first made shall process and pay the claim as if wholly responsible for all insurers with equal priority. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim. If we are the insurer against whom the claim is first made, we will pay, subject to the limit of liability shown in the Schedule or in the Declarations for Uninsured Motorists Coverage, after we and all other contributing insurers agree: 1. Whether the "insured" is legally entitled to recover damages from the owner or operator of an "uninsured motor vehicle"; and 2. As to the amount of damages. ARBITRATION A. SELECTION OF ARBITRATORS If we and an "insured" disagree whether the "insured" is legally entitled to recover damages from the owner or operator of an "uninsured motor vehicle" or do not agree as to the amount of damages, either parry may make a written demand for arbitration. Except for the authorities and rights stated in paragraphs B., C. and D. of these arbitration provisions, arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. Each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs and bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county in which the "insured" resides. PPD 04 21 02 96 Page 3 of 4 B. LIMITATIONOFARBITRATORS'AUTHORITY The authority of the arbitrators shall be limited to deciding the liability of the owner or operator of an '.uninsured motor vehicle" and amount of damages recoverable from the owner or operator of an "uninsured motor vehicle." The amount of any award may be up to but not in excess of the Limit of Liability shown in the Schedule or Declarations for Uninsured Motorists Coverage. The arbitrators may not render decisions on disagreements between any party making a claim and us regarding whether the party is entitled to coverage under this policy or the applicable Limits of Liability for this coverage. All disagreements regarding coverage questions or the applicable Limits of Liability for this coverage must be decided by the court having jurisdiction. C. DISCOVERYRIGHTS Each party shall have the right of full dis- covery including, but not limited to, deposi- tions of any involved party, requests for production of documents such as employ- ment and medical records, and the right to perform periodic medical examinations on any person making a claim under this cov- erage. D. APPEAL RIGHTS Each party shall have the right to appeal to the court having jurisdiction an award of the arbitrators provided the appeal is based upon an error of law, an arbitration decision that exceeds the stated authority of the arbitrators and any right of appeal provided under common law arbitration. There shall be no right of appeal on questions of fact regarding the liability of the owner or operator of the "uninsured motor vehicle" or the amount of damages determined to be recoverable from the owner or operator of an .'uninsured motor vehicle." This endorsement must be attached to the Change Endorsement when issued after the policy is written. Contains Copyrighted Material of Insurance Services Office, Inc., with their permission. Copyright, Insurance Services Office, Inc., 1994 PPD 04 21 02 96 Page 4 of 4 SPLIT UNDERINSURED MOTORISTS LIMITS - PENNSYLVANIA (NON-STACKED) PP 0416 07 90 Coverage Is provided where a premium and limit of liability is shown for the coverage on the declaration page. SCHEDULE UNDERINSURED MOTORISTS COVERAGE $ each person each accident Paragraph A. of the Limit of Liability provision in the for Underinsured Motorists Coverage is our maxi- Underinsured Motorists Coverage - Pennsylvania (Non- mum limit of liability for all damages for "bodily injury" Stacked) endorsement is replaced by the following: resulting from any one accident. This is the most we will pay regardless of the number of: LIMIT OF LIABILITY A. The limit of liability shown in the Schedule or in the 1. "Insureds"; Declarations for each person for Underinsured Mo- 2. Claims made; torists Coverage is our maximum limit of liability for all damages, including damages for care, loss of ser- 3. Vehicles or premiums shown in the Declara- vices or death, arising out of "bodily injury" sustained tions; or by any one person in any one accident. Subject to 4. Vehicles involved in the accident. this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident This endorsement must be attached to the Change Endorsement when issued after the policy is written. Copyright, Insurance Services Office, Inc., 1990 PP 04 16 07 90 UNDERINSURED MOTORISTS COVERAGE - PENNSYLVANIA (NON-STACKED) PPD 0417 02 96 Coverage Is provided where a premium and limit of liability Is shown for the coverage on the declaration page. With respect to the coverage provided by this endorsement, the provisions of the policy apply unless modified by this endorsement. SCHEDULE UNDERINSURED MOTORISTS COVERAGE Description of Vehicle Limit of Liability Premium INSURING AGREEMENT A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "underinsured motor vehicle" because of "bodily injury": 1. Sustained by an "insured"; and 2. Caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "underinsured motor vehicle." We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements. However, we must be provided with prompt written notification of any tentative settlement between the "insured" and the insurer of the "underinsured motor vehicle" or any other party. No settlement of the "insured's" bodily injury liability claim may be made without our written consent. No judgment for damages arising out of a suit brought against the owner or operator of an "underinsured motor vehicle" is binding on us unless we: Received reasonable notice of the pendency of the suit resulting in the judgment; and 2. Had a reasonable opportunity to protect our interests in the suit. B. "Insured" as used in this endorsement means: 1. You or any "family member"; 2. Any other person "occupying" "your covered auto." 3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1. or 2. above. C. "Underinsured motor vehicle" means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but the amount paid for "bodily injury" under that bond or policy to an "insured" is not enough to pay the full amount the "insured" is legally entitled to recover as damages. However, "underinsured motor vehicle" does not include any vehicle or equipment: 1. Owned by or furnished forthe regular use of you or any "family member." 2. For which liability coverage is provided under Part A of this policy. 3. Owned by any governmental unit or agency. 4. Operated on rails or crawler treads. 5. Designed mainly for use off public roads while not on public roads. 6. While located for use as a residence or premises. PPD 04 17 02 96 Page 1 of 4 EXCLUSIONS c. Intends to injure himself or an- other person, provided that the A. We do not provide Underinsured Motorists Coverage individual does not intentionally for "bodily injury" sustained: injure himself or another person 1. By you while "occupying," or when struck by, merely because his act or failure any motor vehicle you own which is not insured to act is intentional or done with for this coverage under this policy. This his realization that it creates e includes a trailer of any type used with that grave risk s causing injury if the vehicle. act or omission causing the in- jury is for the purpose of avert- 2. By a "family member": ing bodily harm to himself or anotherperson. a. Who owns an auto, while "occupying," or when struck by, any motor vehicle owned by you or any "family member" which is not insured for this coverage under this policy. This includes a trailer of any type D used with that vehicle. b. Who does not own any auto, while "occupying," or when struck by, any motor vehicle you own which is insured for this coverage on primary basis under any other policy. B. We do not provide Underinsured Motorists Coverage for"bodily injury" sustained by any "insured": 1. If that "insured" or the legal representative settles the bodily injury claim without our written consent. 2. While "occupying" "your covered auto" when it is being used as a public or livery conveyance. This exclusion (B.2.) does not apply to a share-the-expense car pool. 3. Using a vehicle without the permission of the owner. E. 2. If that "insured" is injured while "occupying" a motor vehicle insured under a commerical motor vehicle insurance policy. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law: 1. Workers' compensation law; or 2. Disability benefits law. We do not provide Underinsured Motorists Coverage for punitive or exemplary damages. LIMIT OF LIABILITY A. The limit of liability shown in the Schedule or in the Declarations for Underinsured Motorists Coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: "Insureds"; 2. Claims made; 3. Vehicles or premiums shown in the Schedule or in the Declarations; or C. We do not provide Underinsured Motorists Coverage for "non-economic loss" sustained by any "insured" to whom the limited tort alternative applies, resulting from "bodily injury" caused by an accident involving B an "underinsured motor vehicle," unless the "bodily injury" sustained is a "serious injury." This exclusion (C.) does not apply: If the owner or operator of the "underinsured motor vehicle": a. Is convicted, or accepts Accelerated Rehabilitative Disposition, for driving under the influence of alcohol or a controlled substance in that accident; b. Is operating a motor vehicle registered in another state; or 4. Vehicles involved in the accident. The limit of liability shall be reduced by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid for an "insured's" attorney either directly or as part of the amount paid to the "insured." It also includes all sums paid under Part A of this policy. C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and any other coverage provided by this policy. D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible. PPD 04 17 02 96 Page 2 of 4 E. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or a similar law: 1. Any group or individual contract or program that provides benefits for any element of loss; 2. Workers' compensation law; or 3. Disability benefits law. OTHERINSURANCE If there is other applicable similar insurance available under more than one policy or provision of coverage: The following priorities of recovery apply: First The Underinsured Motorists Coverage applicable to the vehicle the "insured" was ..occupying" at the time of the accident. Second The policy affording Underinsured Motorists Coverage to the "insured" as a named insured or family member. 1. When there is applicable insurance available under the First priority: Whether the "insured" is legally enti- tled to recover damages from the owner or operator of an "underin- sured motor vehicle"; and 2. As to the amount of damages. ARBITRATION A. SELECTION OF ARBITRATORS a. The limit of liability applicable to the vehicle the "insured" was "occupying," under the policy in the First priority, shall B. first be exhausted; and b. The maximum recovery under all policies in the Second priority shall not exceed the amount by which the highest limit for any one vehicle under any one policy in the Second priority exceeds the limit applicable under the policy in the First priority. 2. When there is no applicable insurance available under the First priority, the maximum recovery under all policies in the Second priority shall not exceed the highest applicable limit for any one vehicle under any one policy. If two or more policies have equal priority, the insurer against whom the claim is first made shall process and pay the claim as if wholly responsible for all insurers with equal priority. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits and the costs of processing the claim. If we are the insurer against whom the claim is first made, we will pay, subject to the limit of liability shown in the Schedule or in the Declarations for Underinsured Motorists Coverage, after we and all other contributing insurers agree: C. If we and an "insured" disagree whether the "insured" is legally entitled to recover damages from the owner or operator of an "underinsured motor vehicle" or do not agree as to the amount of damages, either party may make a written demand for arbitration. Except for the authorities and rights stated in paragraphs B., C. and D. of these arbitration provisions, arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. Each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs and bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county in which the "insured" resides. LIMITATION OF ARBITRATORS' AUTHORITY The authority of the arbitrators shall be limited to deciding the liability of the owner or operator of an "underinsured motor vehicle" and amount of damages recoverable from the owner or operator of an "underinsured motor vehicle." The amount of any award may be up to but not in excess of the Limit of Liability shown in the Schedule or Declarations for Underinsured Motorists Coverage. The arbitrators may not render decisions on disagreements between any party making a claim and us regarding whether the party is entitled to coverage under this policy or the applicable Limits of Liability for this coverage. All disagreements regarding coverage questions or the applicable Limits of Liability for this coverage must be decided by the court having jurisdiction. DISCOVERY RIGHTS Each party shall have the right of full discovery including, but not limited to, depositions of any involved party, requests for production of documents such as employment and medical records, and the right to perform periodic medical examinations on any person making a claim under this coverage. PPD 04 17 02 96 Page 3 of 4 D. APPEAL RIGHTS Each party shall have the right to appeal to the court having jurisdiction an award of the arbitrators provided the appeal is based upon an error of law, an arbitration decision that exceeds the stated authority of the arbitrators and any right of appeal provided under common law arbitration. There shall be no right of appeal on questions of fact regarding the liability of the owner or operator of the "underinsured motor vehicle" or the amount of damages determined to be recoverable from the owner or operator of an "underinsured motor vehicle." ADDITIONAL DUTY A person seeking Underinsured Motorists Coverage must also promptly notify us in writing of a tentative settlement between the "insured" and the insurer of the "underinsured motor vehicle" or any other party. Prior to any settlement with the insurer of the "underinsured motor vehicle" or any other parry, the "insured" must receive our written consent to finalize any such settlement. GENERAL PROVISIONS Part F is amended as follows: A. The following is added to the Our Right To Recover Payment provision: OUR RIGHT TO RECOVER PAYMENT Our rights do not apply under Paragraph A. with respect to Underinsured Motorists Coverage if we: Have been given prompt written notice of a tentative settlement between an "insured" and the insurer of an "underinsured motor vehicle" or any other party; and 2. Have given the "insured" our written consent to settle the bodily injury claim. This endorsement must be attached to the Change Endorsement when issued after the policy is written. Contains Copyrighted Material of Insurance Services Office, Inc., with their permission. Copyright, Insurance Services Office, Inc., 1994 PPD 04 17 02 96 Page 4 of 4 PP 05 51 06 94 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. FIRST PARTY BENEFITS COVERAGE - PENNSYLVANIA With respect to coverage provided by this endorsement, the provisions of the policy apply unless modified by the endorsement. SCHEDULE BASIC FIRST PARTY BENEFIT Benefit Limit Of Liability Medical Expenses $5,000 If indicated below or in the Declarations, the following options apply instead of the Basic First Party Benefit: p Added First Party Benefits Benefits Medical Expenses Work Loss Funeral Expenses Accidental Death Limit Of Liability $ subject to a maximum of $ per month ? Combination First Party Benefits Benefits Medical Expenses Work Loss Funeral Expenses Accidental Death Maximum Limit of Liability For The Total of All Combination First Party Benefits Limit of Liability No specific dollar amount No specific dollar amount $2,500 NOTE: If Added First Party Benefits or Combination First Party Benefits are not shown as applicable in the Schedule or Declarations, only the Basic First Party Benefit applies. DEFINITIONS The Definitions section is amended as follows: A. "The Act" refers to the Pennsylvania Motor Ve- hicle Financial Responsibility Law. B. The following definitions are replaced: 1. "Bodily injury" means accidental bodily harm to a person and that person's result- ing illness, disease or death. 2. "Your covered auto" means a "motor ve- hicle"; a. To which Part A of this policy applies and for which a specific premium is charged; and b. For which First Party Benefits Cov- erage required by the Act is main- tained. C. The following definition is added: "Motor vehicle" means a self-propelled vehicle operated or designed for use upon public roads. However, "motor vehicle" does not include a vehicle operated: By muscular power; or PP 05 51 06 94 Copyright, insurance Services Office, Inc., 1993 Page 1 of 4 2. On rails or tracks. D. "Insured" as used in this endorsement means: 1. You or any "family member". 2. Any other person while: a. "Occupying" "your covered auto"; or b. Not "occupying" a "motor vehicle" if injured as a result of an accident in Pennsylvania involving "your cov- ered auto". If "your covered auto" is parked and un- occupied it is not a "motor vehicle" in- volved in an accident unless it is parked in a manner which creates an unreasonable risk of injury. II. FIRST PARTY BENEFITS COVERAGE INSURING AGREEMENT A. BASIC FIRST PARTY BENEFIT We will pay, in accordance with the Act, the Basic First Party Benefit to or for an "insured" who sustains "bodily injury". The "bodily in- jury" must be caused by an accident arising out of the maintenance or use of a "motor vehicle". Subject to the limit shown in the Schedule or Declarations, the Basic First Party Benefit con- sists of: Medical expenses. Reasonable and necessary medical expenses incurred for an "insured's": 1. Care; 2. Recovery; or 3. Rehabilitation. This includes remedial care and treatment ren- dered in accordance with a recognized religious method of healing. Medical expenses will be paid if incurred within 18 months from the date of the accident caus- ing "bodily injury". However, if within 18 months from the date of the accident, it can be determined with reasonable medical probability that additional expenses may be incurred after this period, the 18 month time limit will not apply to the payment of the additional medical ex- penses. B. ADDED FIRST PARTY BENEFITS If the Schedule or Declarations indi- cates that Added First Party Benefits apply, we will pay Added First Party Benefits instead of the Basic First Party Benefit to or for an "insured" who sustains "bodily injury". The "bodily injury" must be caused by an accident arising out of the maintenance or use of a "motor vehicle". These benefits are sub- ject to the provisions of the Act. Subject to the limits shown in the Schedule or Declarations, Added First Party Benefits con- sist of the following: 1. Medical expenses as described in the Basic First Party Benefit. 2. Work loss. a. Loss of income. Up to BOO/6 of gross income actually lost by an "insured" as a result of the accident. b. Reasonable expenses actually in- curred to reduce loss of income by hiring: (1) Special help, thereby enabling an "insured" to work; or (2) A substitute to perform the work a self-employed "in- sured" would have performed. However, work loss does not include: a. Loss of expected income or ex- penses incurred for services per- formed after the death of an "insured"; or b. Any loss of income, or expenses in- curred for services performed, dur- ing the first 5 working days the "insured" did not work due to "bod- ily injury". 3. Funeral expenses. Funeral or burial ex- penses actually incurred if "bodily injury" causes an "insured's" death within 24 months from the date of the accident. 4. Accidental death. A death benefit paid if "bodily injury" causes the death of you or any "family member" within 24 months from the date of the accident. We will pay accidental death to the execu- tor or administrator of the deceased "in- sured's" estate. If there is no executor or administrator, the benefit shall be paid to: PP 05 51 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 2 of 4 a. The deceased "insured's" surviving spouse;or b. If there is no surviving spouse, the deceased "insured's" surviving children; or c. If there is no surviving spouse or children, to the deceased "in- sured's" estate. C. COMBINATION FIRST PARTY BENEFITS If the Schedule or Declarations indicates that Combination First Party Benefits apply, we will pay Combination First Party Benefits instead of the Basic First Parry Benefit to or for an "in- sured" who sustains "bodily injury". The "bodily injury" must be caused by an accident arising out of the maintenance or use of a "mo- tor vehicle". These benefits are subject to the provisions of the Act. Subject to the limits shown in the Schedule or Declarations, Combination First Party Benefits consist of the following, as described in the Basic First Party Benefits and Added First Party Benefits. 1. Medical expenses. 2. Work loss. 3. Funeral expenses. 4. Accidental death. EXCLUSIONS A. We do not provide First Party Benefits Cover- age for "bodily injury" sustained by any "in- sured": 1. While intentionally causing or attempting to cause "bodily injury" to himself or any other person. We will not pay accidental death on behalf of that "insured". 2. While committing a felony. 3. While seeking to elude lawful apprehen- sion or arrest by a law enforcement offi- cial. a. The owner of one or more registered "motor vehi- cles", none of which have in effect the financial re- sponsibility required by the Act; or b. "Occupying" a "motor vehicle" owned by that "insured" for which the financial responsibility required by the Act is not in effect. 6. Maintaining or using a "motor vehicle" while located for use as a residence or premises. 7. While "occupying" a: a. Recreational vehicle designed for use off public roads; or b. Motorcycle, moped or similar-type vehicle. B. We do not provide First Party Benefits Cover- age for "bodily injury": 1. Sustained by a pedestrian if the accident occurs outside of Pennsylvania. This ex- clusion (B.1.) does not apply to: a. You; or b. Any "family member". 2. Caused by or as a consequence of: a. Discharge of a nuclear weapon (even if accidental); b. War (declared or undeclared); c. Civil war; d. Insurrection; or e. Rebellion or revolution. 3. From or as a consequence of the follow- ing, whether controlled or uncontrolled or however caused: a. Nuclear reaction; b. Radiation; or 4. While maintaining or using a "motor vehi- cle" knowingly converted by that "in- c. Radioactive contamination. sured". This exclusion (A.4.) does not apply to: LIMIT OF LIABILITY a. You; or A. The limits of liability shown in the Schedule or Declarations for the first party benefits that ap- b. Any "family member". ply are the most we will pay to or for each "in- 5. Who, at the time of the accident, is: PP 05 51 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 3 of 4 sured" as the result of any one accident, regardless of the number of: 1. Claims made; 2. Vehicles or premiums shown in the Dec- larations; 3. Vehicles involved in the accident; or 4. Insurers providing first party benefits. B. If Combination First Parry Benefits are afforded, we will make available at least the minimum limit required by the Act for the Basic First Party Benefit. This provision (B.) will not change our maximum limit of liability. C. Any amounts payable under this coverage shall be excess over any amounts: t. Paid; 2. Payable; or 3. Required to be provided; to an "insured" under any workers' compen- sation law or similar law. PRIORITIES OF POLICIES A. We will pay first party benefits in accordance with the order of priorities set forth by the Act. We will not pay if there is another insurer at a higher level of priority. The First category listed below is the highest level of priority and the Fourth category is the lowest level of priority. The priority order is: First The insurer providing benefits to the "insured" as a named in- sured. Second The insurer providing benefits to the "insured" as a family member who is not a named insured under another policy providing cover- age under the Act. Third The insurer of the "motor vehi- cle" which the "insured" is "oc- cupying" at the time of the accident. Fourth The insurer of any "motor vehi- cle" involved in the accident if the "insured" is not: a. "Occupying" a "motor ve- hicle"; and b. Provided first party bene- fits under any other auto- mobile policy. An unoccupied parked "motor vehicle" is not a "motor vehicle" involved in an acci- dent unless it is parked in a manner which creates an unreasonable risk of injury. B. If 2 or more policies have equal priority within the highest applicable priority level: The insurer against whom the claim is first made shall process and pay the claim as if wholly responsible. The insurer is then entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim. If such contribution is sought among insurers under the Fourth priority, proration shall be based on the number of involved motor vehicles. 2. If we are the insurer against whom the claim is first made, our payment to or for an "insured" will not exceed the applica- ble limit of liability for First Parry Benefits Coverage shown in the Schedule or Dec- larations. 3. The maximum recovery under all policies will not exceed the amount payable under the policy with the highest limit of liability. NON-DUPLICATION OF BENEFITS No one will be entitled to recover duplicate payments for the same elements of loss under this or any other similar insurance including self-insurance. III. PART F -GENERAL PROVISIONS Part F is amended as follows: The Our Right To Recover Payment provision does not apply. This endorsement must be attached to the Change Endorsement when issued after the policy is written. PP 05 61 06 94 Copyright, Insurance Services Office, Inc., 1993 Page 4 of 4 DONEGAL AUTOMOBILE ACCOUNT CREDIT PLAN DAACP (Ed. 2-92) We agree to credit this risk, as it has met all of the eligibility requirements for the Donegal Automobile Account Credit Plan (DAACP). All other provisions of this policy apply. Donegal Mutual Insurance Company DAACP (Ed. 2-92) %41-,- I IN RE: Statement Under Oath COPY TRANSCRIPT OF PROCEEDINGS Deposition of: WILLIAM D. SWANK Before: Linda C. Larson Court Reporter - Notary Public Date: October 24, 2003, 1:30 p.m. Place: Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, Pennsylvania APPEARANCES: MANCKE, WAGNER & SPREHA BY: RICHARD WAGNER, ESQUIRE FOR - PLAINTIFF MARTSON, DEARDORFF, WILLIAMS & OTTO BY: THOMAS J. WILLIAMS, ESQUIRE FOR - DONEGAL INSURANCE "q 44 ?.y Crentral sylvania g ourt Reporting Services eb0-863-3657 • 717-258-3657 • ,1!7 :258-0383 fix cow rreportrri4u (Xaof. tom Exhibit "B" 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WITNESS William D. Swank NO. DESCRIPTION (None.) INDEX TO TESTIMONY EXAMINATION PAGE Thomas J. Williams 3 INDEX TO EXHIBITS PAGE 3 1 P R O C E E D I N G S 2 3 WILLIAM D. SWANK, called as a witness, being 4 duly sworn, was examined and testified as follows: 5 6 EXAMINATION 7 BY MR. WILL IAMS: 8 Q. My name is Tom Williams. We've just been 9 introduced. I'm representing Progressive Insurance with 10 regard to t he underinsured motorist claim that you made 11 against it. I'm going to ask you some questions concerning 12 that claim. And in response to my questions I'd like you 13 to give all the information that you have. Okay? 14 A. Okay. 15 Q. If you, however, base your answer on 16 something t hat you heard someone say or that you read 17 somewhere, please state that as part of your answer, 18 otherwise we'll assume that your testimony is based upon 19 your own personal knowledge. Okay? 20 A. Okay. 21 Q. Have you ever given testimony before? 22 A. No. 23 Q. Never raised your hand and swore to tell the 24 truth? 25 A. No. 4 1 Q. Been questioned by a lawyer? 2 A. No. 3 Q. You've probably seen it on TV though? 4 A. Yes, I have. 5 Q. All right. Well, this is a little different 6 than what you've seen on TV because we're looking to get 7 all the information that you have. 8 As you can see, it's not a court proceeding 9 but a stenographer is here to record the words that are 10 spoken here today and we want to make sure that it's done 11 accurately. 12 Some rules for that are, first of all, we 13 need to take turns talking. Okay? 14 A. Okay. 15 Q. I promise to wait until you finish your 16 answer before I ask the next question and I ask you to 17 promise to wait until I finish my question before you give 18 the answer. Okay? 19 A. I understand. 20 Q. Also, we need to speak words. While I can 21 see you nodding your head yes and I know exactly what that 22 means, we need to be sure that that gets down by the 23 stenographer in answers, yes or no, or whatever words you 24 want to use. Okay? 25 A. I understand. 5 1 Q. I would ask you not to answer my question 2 unless you know what the answer is. We don't want you to 3 guess. It 's okay to give an estimate as long as you tell 4 us that, i f that's appropriate. But if you don't know the 5 answer to the question, please don't try to answer it. 6 Just say you don't know and I'll ask you another question. 7 Okay? g A. Okay. 9 Q. Also, if you don't understand my question, 10 again don' t try to answer it. Just say you didn't 11 understand it and I'll rephrase the question until you're 12 satisfied you do understand that. Okay? 13 A. Okay. 14 Q. Same thing if you don't hear my entire 15 question, don't try to answer it. Just say you didn't hear 16 it all and I'll have the question repeated for you in its 17 entirety. Okay? 18 A. I understand. 19 Q. We want you to be comfortable here today. So 20 if at any point you want to take a break, just tell us that 21 and we'll adjourn until you're ready to continue. Okay? 22 A. Okay. 23 Q. If you for any reason find yourself unable to 24 concentrate, you feel tired or ill in any way, again tell 25 us that an d we'll adjourn until you're ready to continue. 6 1 A. Okay. 2 Q. Have you taken any medications today that 3 might cause you to be drowsy? 4 A. No. 5 Q. All right. Healthwise okay? 6 A. I'm taking medication for gout, but, you 7 know, I'm used to it. You know, it doesn't throw me off in 8 any way. 9 Q. What kind of medication do you take for gout? 10 A. I take point six milligrams of colchicine and 11 I take Naprosyn. I'm not sure I think it's 500 grams, 12 milligrams. I'm not sure exactly how much. 13 Q. When were you first diagnosed with gout? 14 A. Oh, about 20 years ago when I was about 30 15 years old. 16 Q. Is there a physician now that's following you 17 for that go ut? 18 A. Yes. Dr. Snake, Stephen Snake, Snake Family 19 Practice in Camp Hill. 20 MR. WAGNER: Off the record. 21 (Off the record.) 22 THE WITNESS: I have been on daily medication 23 for about n ine or ten years now and that seems to control 24 it. 25 BY MR. WILL IAMS: 7 1 Q. That's what I was wondering if the medication 2 controlled it pretty well. 3 A. Yes. 4 Q. But you still have the bumps? 5 A. Yes. That's something that will never go 6 away. You know, like I said, my orthopedic surgeon said he 7 can remove those, but there is no guarantee that they, you 8 know, wouldn't come back. And it doesn't really hurt. I 9 mean, if I bang it on something, it would. But it's very 10 unsightly, but I can live with that. 11 Q. Who is your orthopedic surgeon? 12 A. That was Dr. Mark Holencik at the time. 13 Q. How do you spell Holencik? 14 A. H-o-l-e-n-c-i-k. He's no longer practicing 15 at this po int in time. 16 MR. WAGNER: That you're aware of. 17 THE WITNESS: That I'm aware of. 18 MR. WAGNER: He's actually back in practice. 19 THE WITNESS: Well, he has a place here in 20 Carlisle. 21 MR. WAGNER: Yes. 22 THE WITNESS: He's not operating anymore. He 23 still has a practice, but he's not doing surgery. 24 BY MR. WIL LIAMS: 25 Q. Do you have a different orthopedic surgeon 8 1 today? 2 A. Well, this accident that I was in I went 3 through a Hanks, Greg Hanks. He is part of OIP, Orthopedic 9 Institute of Pennsylvania. He's the last person -- he was 5 the one who operated on my leg from this accident that 6 we're dealing with. 7 Q. Yes. He's the knee specialist; isn't he? 8 A. Yes, I believe he is. 9 Q. How did that turn out, that last operation? 10 A. It's good. I mean, you know, I was happy 11 with everything, you know, the way it went wit h what was 12 wrong with me. 13 I still have metal plates in my leg which I 19 don't know if I should get removed or not. He said that's 15 my call. And, you know, I have pain with it, you know, 16 just about daily, but it's nothing I can't dea l with. 17 I don't know whether -- I don't know. I 18 don't look forward to going under a knife. So for me to 19 make that decision to have it -- he said if it doesn't 20 bother me that much, I can let it in there for ever. 21 Q. Where are the metal plates? 22 A. They are on the right side of my leg. My 23 femur brok e right here where it connects. And there is a 29 plate in h ere with some screws, and there are about 10 or 25 12 screws. 9 1 MR. WAGNER: Let's stop for a second. She 2 can't get that. If we read that back right here, it 3 doesn't mean anything, You're pointing to the? q THE WITNESS: On the outside of my right leg 5 right where the I guess it's the femur connects to the knee 6 joint, I believe. 7 I don't know that much about medicine. I 8 looked at enough pictures, you know, x-rays when they took 9 them. 10 But the metal plate was put in there I guess 11 to hold the bone together so it would heal, so it would 12 heal quicker. That's what they do I guess these days. 13 BY MR. WILLIAMS: 19 Q. Have you ever had that done before? 15 A. No. 16 Q. The internal fixation? 17 A. No. I mean, I had -- like I said, I was in a 18 motorcycle accident in '98, and I had a ruptured quadricep 19 on my left leg. But they just went in -- that's when Dr. 20 Holencik, he just wrapped that back together and tied it 21 up, but there is no metal in there or anything. 22 Q. That didn't involve the bone, though, that 23 '98 accident? 24 A. No, no. It was just the muscle. It was 25 actually the muscle on top of the kneecap there. He told to 1 me it was - - he used to do a lot of sports, you know, 2 operations on athletes and stuff, and he had said he'd seen 3 that a lot of times in, like, football players or something 4 that they t ore, tore that muscle loose, but he never saw it 5 from an acc ident. 6 Q. Did he have to reattach -- I'm sorry. 7 A. Go ahead. 8 Q. I'm sorry. Did he have to reattach it to the 9 bone? 10 A. No. He said he drilled holes. He had 11 drilled hol es in the muscle end, I guess the top of the 12 kneecap. 13 Q. Yes. 14 A. And tied it together in a knot, you know, 15 knotted it up. And he said while I was still under 16 anesthetic, he took and went like this. He threatened to 17 do that when I went back to have it tested and I said no. 18 That was a lot of rehab with that. 19 Q. Yes. 20 A. Quite a bit. 21 Q. That's the same as an ACO or a PCO injury? 22 A. It knocked me out for about nine months 23 before I could get moving around regular. 24 Q. That was in your left leg; wasn't it? 25 A. That was the left leg, yes. 11 1 Q. Left leg. Okay. Had you ever seen Dr. Hanks 2 before this particular injury? 3 A. No. 4 Q. How did you get referred to him? 5 A. I was in an automobile accident and, you 6 know, they called somebody in. They did x-rays and they 7 just called somebody in. They said, you know, who I would 8 have requested was not available and so they brought 9 somebody in. 10 They said, would this be okay with you? And 11 I said, fine. You know, the people on call at Holy Spirit 12 Hospital, you know. 13 Q. Dr. Hanks happened to be on call that night 14 or day I guess it was. 15 A. Yes, yes. It was in the evening. It was 16 Sunday night by that time. 17 Q. You were taken to the Holy Spirit ER; weren't 18 you? 19 A. Yes. 20 Q. How long ago did -- well, let me rephrase 21 that. When Dr. Hanks -- did Dr. Hanks come into the Holy 22 Spirit ER and see you then? 23 A. He came to see me the Sunday night after the 24 accident and looked at the x-rays. And he said there was 25 definitely a break there and they operated on me the next 12 1 day. They operated on me on Monday, late Monday afternoon 2 I think it was. 3 Q. Yes. 4 A. But I was not familiar with him at all before 5 that. 6 Q. All right. Did he operate on you any time 7 after that or was that the only one? 8 A. No, he operated on my leg that was it. 9 Q. Okay. And then you came back to have him 10 check that a couple of times? 11 A. Yes. I did regular checkups. You know, I 12 did, I don't know, 3D, 60 days, and then six months. I 13 missed the last. You know, he said he wanted to see me at 14 a year, that was March of 2002. 15 And he said he'd let me know, but they never 16 -- they never let me know. And I never called back to have 17 another, you know, have it checked again. But the last 18 time he saw me he said everything looked fine, and I should 19 go about my merry way. 20 Q. How does it feel today? 21 A. It's just -- I know there is something there, 22 but it's nothing. Like I said, you know, I don't think I 23 walk with a noticeable limp or anything. I, you know, walk 24 fairly good. It's not -- like I said, once in a while I 25 get a lot of pain from it, you know. I take a pain pill 13 1 every once in a while, but I don't like taking them. I 2 only do it if it's really bothering me. 3 Q. What kind of pain pills do you have? 4 A. It's a generic Vicodin. Hydrocodone is what 5 it is. 6 Q. Who prescribed that? 7 A. He prescribed it originally and then when I 8 went back to Dr. Snake, my family physician, he gave me an 9 additional prescription for it. 10 Q. And how often do you take the Vicodin? 11 A. Maybe on the average once every ten days, two 12 weeks. I don' t know. Like I said, I don't like how they 13 make feel, so I don't take them unless it's really 14 bothering me. That's the only time I take it. 15 Q. You also had a fracture of the -- of an 16 interarticular lateral condyle? 17 A. I'm not sure if I understand that term or 18 not, but I had a crushed larynx, voice box; is that what 19 they're calling that? 20 Q. No, lateral condyle is in your knee. 21 A. Oh, I was not aware of that. 22 MR. WAGNER: Tom, clarify for me, please, 23 when you said you had, as a result of this accident or some 24 previous time? 25 MR. WILLIAMS: I have this off the Holy 14 1 Spirit ER record. 2 MR. WAGNER: Suggesting it was as a result of 3 this accident? 4 MR. WILLIAMS: Uh-huh. 5 MR. WAGNER: Okay. Thank you. 6 THE WITNESS: All I was told is I had a 7 broken femur. It was snapped clean and they had to roll it s back together. 9 BY MR. WILLIAMS: 16 Q. Fracture of the larynx? 11 A. Yes. I had a crushed voice box because I hit 12 the steering wheel with my neck. 13 Q. Did that heal okay? 14 A. Yes. That's another thing I'm aware -- I'm 15 aware that I went through that, but I really don't have any 16 repercussions from it. I have a tight throat because I had 17 a trache for a while, but... is Q. I understand they put the trache in as a 19 precautionary measure? 20 A. Yes. They were afraid it would cut off my 21 windpipe and I wouldn't be able to breath. 22 Q. They didn't want to put it in quickly. They 23 wanted one there just in case. 24 A. Yes. 25 Q. Yes. 15 1 A. That was actually more scary than the leg 2 operation. That was very frightening. 3 Q. okay. There is also noted in the -- well, 4 you had eight stitches to close your forehead and ten 5 stitches to close your chin? 6 A. Yes. I had lacerations in my forehead and in 7 my chin. 8 Q. Are they still -- I don't see them. 9 A. No, that's all healed up and everything, you 10 know. 11 Q. Is that because of hitting the steering wheel 12 too? 13 A. Yes, well, actually I hit the steering wheel 14 and the windshield. So I think I hit -- I think my 15 forehead hit the windshield, then I braced myself against 16 the steering wheel and bent it back. 17 But I still -- I didn't have my seatbelt on. 18 So when I was thrust forward, the top of the steering wheel 19 caught my neck and probably, you know, that would have 20 touched my chin too. But my forehead split the windshield, 21 so... 22 Q. The medical records also note some 23 hypertrophic spondylosis. Do you know what that is, in 24 your neck? 25 A. No. 16 1 Q. Did they talk to you about that? 2 A. I never heard of that. 3 Q. I think it's just a rote, something about 4 your bone stru cture. It's a deformity, but I don't think 5 it's accident related. It didn't appear to be an accident 6 related thing. It just seemed to be something they noted. 7 A. I'm not familiar with that term. I know they 8 did extensive tests and x-rays and had all kinds of, you 9 know, machines , you know, things going down taking pictures 10 and they even showed me stuff where they made a VCR tape, 11 you know, and had me stuck these things and taking all 12 kinds of pictu re in there. And they showed me everything, 13 swallowing and everything, and showing how things are 14 opening and cl osing. 15 Q. Do you have any problems with your neck? 16 A. No. 17 Q. Okay. So basically the leg, the right leg 18 and knee, and then your throat, and the injuries to your 19 head? 20 A. That was it. 21 Q. All right. Were you admitted to the 22 hospital? 23 A. Yes. 24 Q. For how many days? 25 A. I spent 1 believe 21 days in the hospital. I 17 1 was in ICU for seven days, then I think I was in a regular, 2 you know, r egular room for four or five days, then I went 3 to, well, I went to rehab for like, I don't know, 12 or 13 4 days. 5 Q. The 21 days includes rehab? 6 A. Yes. 7 Q. And did you do any rehab outpatient? I 8 imagine you did. 9 A. Yes, I did. I don't even remember anymore. 10 Q. Where did you go, Healthsouth? 11 A. There on Wesley Drive. I can't think of the 12 name of it, Healthsouth. 13 Q. That's the one I think. 14 A. Yes, it's Healthsouth. 15 Q. I believe it was Healthsouth. They're the 16 ones we wer e having trouble getting records from. 17 A. Yes, it was Healthsouth. 18 Q. You saw Dr. Inners there? 19 A. Yes, I did see a Dr. Inners. 20 Q. What -- Inners is a -- he's kind of an 21 infectious disease guy. What did he see you for? 22 A. He was like a nose, ear, and throat 23 specialist. So I think, you know, he was for my throat 24 basically. He wasn't anything to do with my leg. 25 Q. Okay. He was lust taking care of you in 18 1 rehab, checking your throat? 2 A. Yes. He followed me daily for the first four 3 or five days I was there and, you know, he made, you know, 4 prescribed a lot of things. I had to do a lot of breathing 5 exercises, you know, different things. They brought 6 machines in and, you know, tested my breathing. 7 Q. So your rehab was both for your neck injury 8 -- I mean, your throat injury plus your knee injury? 9 A. Correct. 10 Q. Dr. Shapiro, do you remember him? 11 A. Yes. I saw a Dr. Shapiro. I believe he was 12 -- he saw me for -- wait a minute. Shapiro, I might be 13 confused here. He may have been the doctor that operated 14 on my throat. In fact, now that I think of it, I'm sure 15 that's who it was. It was Dr. Shapiro that did my 16 tracheotomy. 17 Q. At Holy Spirit? 18 A. Yes. 19 Q. All right. And there is a Shabih, Kahn 20 Shabih, Dr. Shabih, S-h-a-b-i-h. 21 A. I'm not sure. I'm not sure where -- of that 22 name. I had another doctor that came to see me because I 23 couldn't take medication because I couldn't swallow 24 obviously. 25 So after like two days of being there, I 19 1 wasn't on my gout medicine or my gout medication, I kept 2 telling them I had to have it because I could feel, you 3 know, everything getting tight on me. 4 And they were already putting me through 5 rehab for my knee. And I said I can't, you know, I 6 couldn't even begin to do that without my -- I needed 7 colchicine and I had to have it, you know. They would give 8 it to me in the IV because I couldn't -- I obviously 9 couldn't swallow anything. And a guy came to see me quite 10 regularly about that, but I don't remember what his name 11 was. 12 Q. Oh, I see. Shapiro did do the tracheostomy. 13 A guy named Fornadley did the intubation. 14 A. Fornadley was -- he was like a specialist I 15 saw after the fact. He came in to check on me a few times. 16 He never actually operated on me, but he did a lot of tests 17 on me. I went to see him both at his Camp Hill and his 18 Annville offices. 19 Q. For the throat? 20 A. Paul Myer, yes. 21 Q. And so he wasn't at Holy Spirit? 22 A. He came -- yes, he came in to see me at Holy 23 Spirit. But he didn't actually -- he didn't do any of the 24 operation. 25 Q. Did you see anybody from Susquehanna 20 1 surgeons, a surgeon for anything? 2 A. Susquehanna, I vaguely remember seeing some 3 correspondence from them. I think that might have been the 4 doctor that called on me or, you know, was on my gout 5 medication. 6 Q. Dr. Cummings, does that sound familiar? 7 A. Cummings. 8 Q. Gary Cummings the third, MD, internal 9 medicine, you may have seen him in ICU? 10 A. I don't recall. They had me very highly 11 medicated for seven days. I mean, I was watching rats 12 crawl around the wall for a while. They had me on morphine 13 or something. I said, you know, that they had to get me 14 off this. You know, it was driving me crazy. I know I 15 needed something for the pain I was in, but so it was, you 16 know, a lot of sketchy parts there. 17 Q. How long were you in Healthsouth? 18 A. Healthsouth, I think about ten days. That's 19 a guess. 20 Q. When you got out of there, were you on 21 crutches? 22 A. Yes. 23 Q. How long were you on crutches? 24 A. Well, I was on crutches for, oh, let's see 25 that was March, ten weeks anyway, about ten weeks after I 21 1 got out. 2 Q. And when you got off crutches, were you able 3 to resume normal activities? 4 A. You know, I don't think I could. You know, I 5 mean, I couldn't go run or jump or anything like that. I 6 mean, you know, I walk around. It took me a long time to 7 get my strength back in my leg and everything even though I 8 had done rehab three days a week. I forget for exactly how 9 long, two or three months, but... 10 Q. Okay. You were at Holy Spirit for 21 days, 11 Healthsouth for 10 days? 12 A. No. I was -- 21 days was the total. 13 Q. Total? 14 A. Total between Holy Spirit and Healthsouth. 15 Q. Oh, okay. 16 A. I want to say roughly 11 days at Holy Spirit 17 and 10 at Healthsouth. I'm not exactly, you know, that 18 might be a day or two off one way or the other. 19 Q. All right. So when you talk about the rehab 20 three days a week, that was after the 21 days you were 21 discharged? 22 A. Yes, yes. 23 Q. How did you get to rehab? 24 A. My father. I stayed with my parents for 25 three months after the accident because I live alone and 22 1 thew was no way -- I had no way of getting around, so I 2 stayed with my parents for that period of time. 3 Q. Did you have a driver's license at that time? 4 A. No. 5 Q. I had a note that you were charged as a 6 result of this accident. You had a suspended license? 7 A. Yes, I did not have a current driver's 8 license. It was under suspension when the accident 9 happened. 10 Q. When you say you were on crutches ten weeks, 11 you mean ten weeks after you got out of the hospital? 12 A. Yes. 13 Q. And during that time you were going to rehab? 14 A. Yes. 15 Q. Three times a week? 16 A. Yes. 17 Q. How long did you go to rehab? 18 A. For how long a period of time? 19 Q. Yes. 20 A. I'd say about ten weeks. I was just -- it 21 was about the time that I got off -- you know, by the time 22 I quit re hab, they actually, you know, the insurance 23 wouldn't cover it anymore. 24 So they went about -- you know, I was down to 25 one crutch and then I was at the point where I didn't need 23 1 crutches when I got to rehab. That was a ten week period 2 after my discharge. 3 Q. You mentioned about your father taking you 4 and your license being suspended. How long was your 5 license suspended for? 6 A. Initially my license was suspended for one 7 year. 8 Q. And when you say initially, you're talking 9 about from when to when? 10 A. Well, it was from July of 2001 until August 11 of 2002. 12 Q. And did you mean to imply that it was added 13 on to that because of this charge? 14 A. Well, yes, since I was charged with driving 15 under suspension, I got an additional one year suspension 16 on my driver's license. 17 Q. Which brings it up to August of 2003? 16 A. Yes, I just -- yes, I just got my license 19 back two months ago. 20 Q. All right. 5o to get around you had somebody 21 drive you or what? How do you get around? You probably 22 don't take the bus. 23 A. No. My parents mostly and then, you know, 24 friends would give me rides here and there. If I was just 25 going -- I actually stayed in town close to everything in 24 1 Mechanicsburg and walked a lot of places and that was good 2 therapy for me also. 3 Q. Did you own a car at that time? 4 A. Technically, yes. I mean, the car that I was 5 driving -- the car belonged to the mother of my child. 6 Okay? The car was in a bad state of repair. 7 I bought her a new car, a newer car, and she 8 left the car with me. I was going to do some work on it 9 because it needed some mechanical repair work. I was going 10 to fix it and sell it and if I could get her some money for 11 it. It was a $500 car. 12 Q. Was that Kristina Miller? 13 A. Yes. 14 Q. Did you say you bought her another car? 15 A. Yes. I helped her get a car. I went and 16 found it and I actually bought it for her and she paid me 17 back. 18 Q. When you say bought it for her, you mean you 19 put it in her name? 20 A. Yes, yes. 21 Q. And why were you doing these things for 22 Kristina? 23 A. She's the mother of my daughter. 24 Q. I know a lot of people in that situation that 25 hardly talk t o each let alone buy each other cars. 25 1 A. We had a very close relationship and, you 2 know, we do work together to raise the child correctly and 3 there is no animosity between us. 4 Q. Obviously I must have misunderstood. You're 5 living toge ther? 6 A. No, no, we don't live together. 7 Q. Okay. When you say you're raising the child B together, you mean together but in separate homes? 9 A. Well, we have joint custody. I mean, she 10 spends as m uch time with me as she does with her mother. 11 Well, not - - close to it. We have a very amicable 12 relationshi p, and... 13 Q. Okay. So this car was titled to Kristina 14 Miller at t he time of the accident? 15 A. That is correct. 16 Q. How long had you been driving it? 17 A. That was March. I forgot when I bought that 18 car. I had the car for three or four months anyway. I 19 can't tell you exactly how long. I think I got that car 20 for her in October so it might have been five or six 21 months. 22 Q. October 2001, about two years ago; is that 23 right? 24 A. Correct. I didn't understand that question. 25 Q. You bought it in October of 2001? 26 1 A. The car she's driving now? 2 Q. The car she had at the time of the accident. 3 I don't kn ow whether she's still driving it now. 9 A. Yes, she still has that same vehicle. You 5 have that information there. I was guessing October of 6 2001 that she got -- that I got the car for her. I wasn't 7 sure exactly. 8 Q. Okay. Did she have insurance on that car? 9 A. On the car that I was driving? 10 Q. Yes. 11 A. No. 12 Q. But it was titled in her name; right? 13 A. It was titled in her name. 19 Q. Okay. So when you say technically you didn't 15 have a car, was there -- 16 A. I had possession of the vehicle. It was 17 still titled -- nothing was ever done with the title. It 18 was still titled in her name. I had possession of the 19 vehicle. 20 Q. It was kind of your car but titled in her 21 name? 22 A. Correct. 23 Q. Because you bought her another car? 24 A. Because I helped her get a new car, she said 25 here take- this. If you can get anything out of it, you 27 1 know, sell it and apply it towards, you know, the money 2 that I loaned her to get the new car, the newer car. 3 Q. You were trying to sell it for her? 4 A. I was. That's what I was going to do 5 eventually, y es. 6 Q. But in the meantime it was the car that you 7 used to get a round? B A. I drove it once in a while when I wasn't 9 supposed to, yes. 10 Q. When was the last time you and Kristina lived 11 together, if you ever did? 12 A. We never lived together. We were never 13 married. 14 Q. Your child together is a daughter? 15 A. Yes. 16 Q. Does she have a room in your house too? 17 A. Yes. 18 Q. Does Kristina still owe you that money? 19 A. No. In fact, she made her last payment last 20 month. It's paid off. 21 Q. Wow, that's pretty good. 22 A. I deducted it from the child support I paid 23 her. That worked that way. That was her agreement, you 24 know, so... 25 Q. You paid through the courts? 28 1 A. No. 2 Q. You pay directly? 3 A. No, I pay directly. 4 Q. Okay. 5 A. We never went through the court system for 6 that. 7 Q. Who was Gail Young? 8 A. Gail Young is an acquaintance of mine I've 9 known for 15, 20 years. She was also a customer of mine at 10 a business I owned at one time. 11 Q. Did she give you the registration plates to 12 put on tha t car? 13 A. She didn't give them to me. She left them at 14 the garage to be thrown out and I kept them. 15 Q. Were they expired registration plates? 16 A. No, they were actually still current. 17 Q. What kind of business were you in? 18 A. Automotive repair. I wasn't at that time. I 19 sold the b usiness in January of 2000, but I still own the 20 property, you know. And so I lease the property to the 21 current ow ner of the business who is a personal friend of 22 mine and I spend a lot of time there. Not a lot but I'm 23 there a fa ir amount. 24 Q. Do you help them out? 25 A. I give them a hand now and then, sure. 29 1 Q. I guess when you bought Kristina the new car, 2 you transferred the license plates? 3 A. Yes. The registration was transferred to the 4 newer vehicle. 5 Q. Meaning that the car, the other car, the 6 Sundance did not have registration? 7 A. Did not have current registration, no. 8 Q. Why didn't she transfer the title of that car 9 to you? 10 A. I never really wanted the car put in my name. 11 I thought if I did anything with it, you know, if I fixed 12 it and could sell it, then I would handle it as a 13 transaction from her to the buying party. 14 Q. You were to sell the car, correct, and 15 whatever you got for it went against the loan to you? 16 A. Correct. 17 Q. And in the meantime it was available for 18 whatever? 19 A. I had it at my disposal, yes. It was on my 20 property, so ... 21 Q. She didn't want it anymore? 22 A. No. 23 Q. And who is Jennifer Miller? 24 A. Jennifer Miller is Kristine's sister. 25 Q. You used to own this car. You used to own 30 1. this car. Do you remember? 2 A. This Suadance? 3 Q. Yes. 9 A. No, I never owned the car. I think her 5 sister did maybe. Are you reading that wrong? 6 Q. Maybe I'm reading it wrong. 7 A. I think -- I don't know why her sister's name 8 would even be brought into that. I think that was her 9 sister Jennifer's car at one time and she sold it or gave 10 it to Kristina. 11 Q. Jennifer was a prior owner of the car. 12 A. Okay. 13 Q. Before Kristina. 14 A. Okay. That's her sister. She got a new 15 vehicle and gave her her vehicle. 16 Q. Jennifer bought it off you? 17 A. No. 18 Q. That's what they tell me. 19 A. No. I never owned that car. That car was 20 never titled in my name. 21 Q. Did you ever buy and sell cars as part of 22 your business? 23 A. I did buy and sell cars over the years a lot, 24 yes, but I never owned that car. You have me thinking now, 25 but I'm sure I didn't. 31 1 Q. They traced the title for me and your name 2 was on it befo re Jennifer Miller's was on it. They tell 3 me. Maybe the y're wrong. 4 A. I have to disagree with that. To the best of 5 my knowledge I never owned that car. That car was never 6 titled in my n ame. And I didn't even help, you know. I 7 mean, I didn't even help arrange a sale or something for 8 her to get the car. I was never involved in it in any way 9 before it was Kristina's. 10 Q. Let's cover some background stuff. Where do 11 you live now? 12 A. 4 East Willow Terrace Drive. 13 Q. Could you say that again? 14 A. 4 East Willow Terrace Drive. Excuse me. 15 Q. Is that a house or apartment? 16 A. It's a house. 17 Q. Do you own or rent? 18 A. I own it. 19 Q. How long have you owned it? 20 A. 23 years. 21 Q. You lived there 23 years? 22 A. Yes. 23 Q. Okay. Are you personally employed? 24 A. No, not now. 25 Q. When did you last work? 32 1 A. As far as being on somebody's payroll 2 regularly? 3 Q. Well, let's start with that question. I like 4 your quest ion better. 5 A. I last worked in 2001. I worked for 6 Harrisburg Auto Auction. I left there in December of 2001, 7 2000, Dece mber of 2000. 8 Q. And why did you leave there? 9 A. I just -- I wasn't happy with it. i didn't 10 like the w ork. 11 Q. Is that a full time job? 12 A. No. It was actually like three days a week. 13 They hired me to do one job and they switched me to do 14 another on e. The same rate of pay, and I didn't -- 15 Q. And would I be correct to say that since 16 then, I me an since December of 2002, whatever work you did 17 you did as your own boss? 18 A. Yes. You know, I help people out. You know, 19 I know peo ple in the construction business, restaurant 20 business, different things. You know, I'm like emergency 21 help. If I can give somebody a hand, they give me a call. 22 Q. Apparently the auto repair business too? 23 A. Yes. Although I don't like turning wrenches 24 anymore. 25 Q. I even have -- by the way on November 23, 33 1 1998 ycu transferred title to the 1987 Plymouth Sundance to 2 Jennifer R. Miller. 3 A. Boy, I'd have to go back to my memory bank, 4 but I don't remember ever owning that car. I seriously do 5 not. That's confusing to me. Like I said, I bought and 6 sold a lot o f cars over the years, but I don't recall ever 7 having that car, owning that car, or having it titled in my 8 name. 9 Q. Wrong book. 10 A. Is that information from PennDot, that came 11 from PennDot that that car was titled in my name? 12 Q. Indirectly, yes. They have a title or a 13 transfer thi ng where you transferred it to Jennifer R. 14 Miller 11/23 /98. 15 A. You've got me thinking now. I've got to go 16 back and ask Kristina about that. But I just don't -- I 17 have a prett y good memory, but that's just not in there 18 anywhere. 19 Q. Then on 12/31/99 you closed your business. 20 A. That is correct. 21 Q. Went to work for somebody as an auto 22 mechanic? 23 A. I didn't work for anybody until I went to 24 work for the auto auction. I only worked there six months. 25 Q. Did you ever file bankruptcy? 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. Did you file tax returns in the past few years? A. Yes. Q. Declaring income from where? A. I have investment properties. I own, as I said, I own a garage, commercial property where I used to have a busine ss. And I also own another investment property, fiv e acres of ground on Hogestown Road in Mechanicsburg that I lease out. Q. That's where you make money? A. That's where my income comes from. Q. Your income to live on? A. Yes. I have no outstanding debts. All the properties ar e paid for. Q. Great. Do you have any outstanding medical bills or did insurance cover it all? A. No, all the bills are paid, as far as I know. Q. And today do you have limitations? A. Physical or mental? Q. Yes. Physical, yes. A. No, no. I have none. Q. I have a police report of course. But tell me in your own words how the accident happened? A. I was traveling I guess it would be south on 35 1 Route 3.14 at approximately 5:30 on a Sunday evening. It 2 was snowing very heavily. There was probably already about 3 three or four inches of snow on the road, very treacherous 4 conditions. I just drove in it. 5 I was driving in the tracks of the vehicle 6 that went before. That's -- if you got out of the tracks, 7 the snow would throw you. The snow came fast and hard. 8 So I was going approximately 35 miles an hour 9 on a straight stretch of road. And I noted, observed 10 another vehicle coming towards me heading north that got 11 out of the snow tracks and lost control and went into a 12 slide and just headed directly into me. 13 I pulled to the right side of the road 14 as far as I could. There was a guardrail right there. 15 They hit me head on in my lane of traffic. 16 Q. Did your car have seatbelts in it? 17 A. It did, but it was not operational. It 18 wasn't working. 19 Q. Have you had other admissions to the hospital 20 besides this one or have you been admitted to other 21 hospitals before in your life? 22 A. Yes. 23 Q. For what? 24 A. I had a motorcycle accident in -- that was in 25 September of '98. 36 1 Q. That was where you hurt your quads? 2 A. Yes, my left quad. 3 Q. Ripped it up? 9 A. Tore my left quadricep. That was the result 5 of a motorcyc le accident. 6 Q. Any other hospital admissions? 7 A. I was in an automobile accident in 1983. I 8 had a broken jaw. 9 Q. And you were admitted to the hospital then? 10 A. I was admitted to the hospital. They were 11 going to -- I had my ear lacerated severely and they 12 stitched that up and then they were going to send me home 13 and then the doctor looked at me and realized my jaw was 19 broken. 15 That was a Friday afternoon and they couldn't 16 do much to my jaw until Monday. They operated on me on 17 Monday. I didn't spend much time in the hospital. They 18 let me go a couple days after that. But my jaw was wired 19 shut for six weeks. 20 Other than that, when I was about 15 years 21 old, I was hospitalized for three or four days for 22 infectious mononucleosis. That's the only other time I was 23 in the hospital that I'm aware since when I was a baby. 24 Q. How about surgeries oth er than the ones that 25 you have already described, any other surgeries? 37 1 A. No. 2 Q. In the past few years have you ever owned a 3 Plymouth Vo yager? 4 A. Plymouth Voyager? 5 Q. Yes. 6 A. Yes. 7 Q. Tell me about that. 8 A. I still have that Plymouth Voyager. It's 9 sitting in my driveway. It hasn't been on the road for a 10 few years. 11 Q. Is it registered? 12 A. No. 13 Q. Is it titled in your name? 14 A. No, it's not. 15 Q. Who is it titled in? 16 A. There was a -- I'm not sure who it's titled 17 to. There was a mess up in the title work. A friend came 18 to me. He had it through a breakup and apparently he had 19 bought this vehicle for his girlfriend. He bought it 20 through me. They had a breakup and he wanted to unload it 21 and I gave him money and took it off his hands. 22 But it's -- the title work has never been 23 straightene d out on it. I have the title in my possession, 24 but I can't even tell you the person's name it is titled 25 to. 36 1 Q. So it's owned by you, not titled in your 2 name? 3 A. Correct. 4 Q. What was the name of that friend? 5 A. Jimmy Neidert. 6 Q. How do you spell that? 7 A. James Neidert. 8 Q. And how long ago did all this happen? 9 A. I've had that vehicle probably -- that was 10 198 or '99 pr obably when I got that from him. 11 Q. And it's been -- you say it's been in your 12 driveway ever since? 13 A. Yes, it sits in my driveway. 19 Q. You don't drive it? 15 A. No. 16 Q. There are registration plates on it that 17 don't go with the car. 18 A. There is a plate on it. It's expired or 19 something. I don't know what plate would even be on it. 20 Q. Do you own any other cars? 21 A. Yes. I own quite a few vehicles. I own a 22 1967 Pontiac GTO. 23 Q. 1967? 29 A. Yes. It site in my garage. And, no, it's 25 not registere d. It hasn't been on the road for 12 or 14 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 years. Q. The title is where? A. I have possession of the title. It's titled in my name. Q. Any other vehicles? A. Vehicles titled in my name, I have a -- I think it's an '83 Pontiac Firebird titled in my name. I possess the title to it. Q. Also on your property? A. That's sitting at the property that I lease at the garage, my old business. I also own a -- you know, I'm not sure on that '83. It might be an '81 Pontiac. I own a 1983 Chevy half ton pickup truck. It's also sitting at the garage. I own a Harley Davidson motorcycle. Do you want that part too? Q. No, just four wheels. A. None of those vehicles are registered. They haven't been on the road for years. Q. Are there plates on any of them? A. If they are, they're expired. They weren't registered. You know, they were legally registered for the road at one time but not anymore and they haven't been. Q. Yes. A. When I had the business, I had a fleet of vehicles. You know, I gave loaner cars out. The truck I 40 1 used a=tually, you know, in my business too, you know, for 2 running car s or picking up stuff or hauling things. 3 But since I sold the business, I didn't have 4 a need for those vehicles. I should have gotten rid of 5 them, but I just never did. The Pontiac, the GTO, that's 6 actually an investment, a collector car I bought years ago. 7 That's why. 8 Q. I'm not a car enthusiast, but I do recognize 9 that one. 10 A. Yes. 11 Q. Even wrote a song about it. Didn't they? 12 A. Yes, they did. Little GTO. 13 MR. WAGNER: Why don't you give us a couple 14 verses of it, Bill? 15 THE WITNESS: My singing career is over. 16 It's going through my head, though. 17 BY MR. WILL IAMS: 18 Q. Are there other cars that you have possession 19 of but are not titled in your name? 20 A. There is another vehicle sitting on my 21 property that's, I think, an '83 Buick. I think it's a 22 LeSabre. It should have went to the junkyard a long time 23 ago. 24 Q. Do you have the title to that? 25 A. No, never saw a title for it. 41 1 Q. Okay. Are any of those cars insured say 2 within the past three years? 3 A. Not in the past three, no. The Chevy truck 4 was insured up until the time I sold my business and then 1 5 dropped it. I dropped the insurance probably I think in 6 maybe June of 2000. That's a rough, you know, don't hold 7 me to that exactly. I let the registration run out on it. 8 It was an expense that I didn't need, so 1 just left it 9 sit. 10 Q. Do you know Kimberly Hoffman? 11 A. Yes, I do. 12 Q. How do you know her? 13 A. She's my girlfriend. 14 Q. Do you live together? 15 A. No. 16 Q. Do you own or have possession of a Chevy S10 17 Blazer? 18 A. Do I? 19 Q. Yes. 20 A. No. She does. 21 Q. One or more than one? 22 A. Oh, I'm sorry. Do I own a Chevy S10 Blazer. 23 Q. Yes. 24 A. Yes, I do. I'm sorry. Yes, I do own a Chevy 25 S10 Blazer . 42 1 Q. What color? 2 A. Blue and brown, it's sitting right out front. 3 Q. Dark blue? 4 A. Yes, dark blue. 5 Q. Does it have a yellow gold stripe on it? 6 A. Yellow gold stripe, I don't think so. 7 Q. Does Kimberly also drive a blazer, a S10, a 8 black one? 9 A. Kim owns a blazer. It's a 2001 so mines a 10 lot older than hers is. 11 Q. How long have you had yours? 12 A. That '87 blazer I've owned since probably 193 13 or '94. I'm guessing on that, maybe not that long. 14 Q_ So it's been about ten years you've owned it? 15 A. Yes, probably not -- I don't remember exactly 16 when I bo ught it. 17 Q. That would be your best estimate? 16 A. Yes, Now that I think of it, though, I 19 probably didn't buy it until 195 or '96, but I can't say 20 exactly. I'd have to check. I've gone through so many 21 vehicles. I can't keep track of it. 22 Q. I noticed. But you didn't mention it when 23 you went through the vehicles that I asked you about, 24 whether y ou owned those. 25 A. I'm sorry. I'm sorry. It totally slipped my 43 1 mind. That's the vehicle that I drive everyday. It's 2 registered. It's insured. I wasn't trying to withhold 3 information, it just slipped by me. 4 Q. Who is it insured with? 5 A. Progressive. 6 Q. Why weren't you driving that on the day of 7 the accident? 8 A. It wasn't at my house. When I lost my 9 license, I left the vehicle at my brother's house. I think 10 he requested I do that so that I wouldn't be tempted to 11 drive. 12 Q. But you're saying it has always been insured, 13 titled, and registered, and legal in all respects? 14 A. Yes. Well, it was without insurance from the 15 time that Donegal dropped my insurance after this accident. 16 When they found out that I was unlicensed, Donegal dropped 17 me. So there was a time from there until the time I just 16 got my license reinstated that, you know, that it didn't 19 have insurance. 20 Q. Okay. 21 A. It sat. Nobody was driving it. It was just 22 sitting, you know. 23 Q. Did Donegal used to insure it? 24 A. Yes. 25 Q. At the time of the accident? 44 1 A. Yes. 2 Q. All right. 3 A. When I questioned you about something at the 4 start of this, you said this was about Progressive 5 Insurance Company, but this is actually Donegal that you're 6 represent ing. 7 ?. Yes, I was confused by that. s MR. WILLIAMS: I think that's all the 9 questions I have. Anything else you want to put on the 10 record? 11 MR. WAGNER: We're fine. Thank you. 12 (Whereupon, the hearing was concluded at 2:43 P.M.) 13 14 15 16 17 is 19 20 21 22 23 24 25 ?, 4 5 I COMMONWEALTH OF PENNSYLVANIA ) SS. 2 COUNTY OF CUMBERLAND ) 3 4 I, LINDA C. LARSON, a Court Reporter - Notary 5 Public authorized to administer oaths and take depositions 6 in the trial of causes, and having an office in Carlisle, 7 Pennsylvania, do hereby certify that the foregoing is the 6 testimony of WILLIAM D. SWANK. 9 I further certify that before the taking of 10 said deposition, the witness was duly sworn; that the 11 questions and answers were taken down stenotype by the said 12 Reporter - Notary, approved and agreed to, and afterwards 13 reduced to computer printout under the direction of said 14 Reporter. 15 I further certify that the proceedings and 16 evidence are contained fully and accurately in the notes 17 taken by me on the within deposition, and that this copy is 18 a correct transcript of the same. 19 In testimony whereof, I have hereunto 20 inscribed my hand this 18th day of November, 2003. 21 NOfANW.SEAL tid6G {r6m, garY NiWo 22 q ?pr?6, Qn6ir16nd 0anty w y1M6N M"4,2006 23 -4. 24 Notary Public 25 CERTIFICATE OF SERVICE I, Christopher E. Rice, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: P. Richard Wagner, Esquire MANCKE, WAGNER, TULLY & SPREHA 2233 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO By 0? /? . Christopher E. ce Dated: June 3, 2004 r ', %? ? -? i ` ='?,?? Sii.? ? _?•r ;..,. lea .EOam lVEM I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DONEGAL MUTUAL INSURANUG COMPANY, Plaintiff, VS. WILLIAM D. SWANK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1242 CIVIL ACTION - LAW DECLARATORY JUDGMENT ACTION DEPOSITION OF: RRISTINA M. MILLER TAKEN BY: Plaintiff BEFORE: Amy R. Fritz, R.P.R. Notary Public DATE: November 10, 2004, 10:00 a.m. PLACE: Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, Pennsylvania APPEARANCES: MARTSON, DEARDORFF, WILLIAMS & OTTO BY: THOMAS J. WILLIAMS, ESQUIRE FOR - PLAINTIFF MANCKE, WAGNER & SPREHA BY: P. RICHARD WAGNER, ESQUIRE FOR - DEFENDANT Central Pennsylvania Court Reporting Services 800-863-3657 • 71?-158-3657 . 717- 58-0383 Fn ronrrreport,rs hi(iao(.row Exhibit "C" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEPONENT Kristina M. Miller NO. (None.) INDEX TO TESTIMONY EXAMINATION By Mr. Williams By Mr. Wagner INDEX TO EXHIBITS DESCRIPTION PAGE 3 19 PAGE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. KRISTINA M. MILLER, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. WILLIAMS: Q. Kristina, we've just been introduced. But for the record, my name, again, is Thomas Williams. I'm a lawyer. I represent Donegal Insurance Company in a claim against them filed by William D. Swank. I'm going to ask you some questions today concerning knowledge you may have of issues related to the claim. A. Certainly. Q. Why don't you start with giving us your background information; name, address. A. My name is Kristina Marie Miller. I live at 117 North Market Street, Mechanicsburg, Pennsylvania 17055. Q. Is that a house or apartment? A. It's a house, but I rent. Q. Okay. How long have you lived there? 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Oh, I'd say going on 11 years. Q. Do you live there alone or with anybody? A. With my daughter who is now -- she's 10 going on 11 in February. Q. And your daughter's name? A. Emily Elaine Miller. Q. Okay. Are you employed? A. Yes. At present, I'm just waitressing, but I have a -- I had to postpone a job interview today for Empire Blue in Harrisburg. Q. What is Empire Blue? A. That takes care of the Medicare, processing Medicare for New Jersey. Q. Okay. What is your background as far as employment? A. Well, I was pretty consistent. I mean, I have a Bachelor of Fine Arts Degree from Kutztown. Right out of college -- well, my mother had died right before I graduated, so I moved -- we had to sell the house to pay for everything. So I moved in with my sister in Mechanicsburg. And since I had no vehicle or anything, I just went across the street, and I worked for Gingerbread Man in Mechanicsburg as head waitress and bartender for a little over 11 years. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But I had had Emily and I didn't want to be a bar mom, so I got a job as the banquet manager and catering manager at Wild Wood Conference Center. I worked there for approximately, a little over two years. But the wages were inconsistent, hours were inconsistent, so I got a job working for Giant Corporate -- not Giant Corporate; Giant Foods Cumberland Parkway Plaza as head salad bar attendant. I worked there for about three years; but because my daughter, I had to get my daughter to school on time and they wouldn't find a shift that I could support, I went to work for D Forest Signs and Lighting in Harrisburg who manufactured all the signage for Giant. That's how I found out about the job. I worked there for about two and a half years; but because of the economic pressures and I was the newest hire, I got laid off. My last day was January 31st of this year. And then I was on unemployment. And I subsequently took whatever jobs I could find, which is basically waitressing at Country Oven and Snappers until I got follow-up second interviews. Q. When did you graduate from Kutztown? A. Oh, that was -- let's see. It was December 1983 or '82, '83. Q. And Emily was born when? A. She was born February 10th, 1994. 6 c E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And she is in which grade? A. She's in fifth grade right now. Q. Which school district? A. North Side. Q. Is that -- A. Northside; Mechanicsburg. Northside Elementary, yes. She's in the gifted program. Q. You say you lived with your sister for a while after college? A. Yes. I lived with her up until, up until I moved to Mechanicsburg, so up until 11 years ago. Q. So you graduated college in 1983, and you lived with her until last year, did you say? A. I can't think very well. Let me see. My head is not doing math very well. So we'll say -- well, let me see, okay, 1995. I lived with her until 1995. Q. Okay. What happened in 1995? Did you move out and get your own place? A. Yeah. Yeah. That was -- we were living way out in Duncannon, and that was a horrible drive, especially trying to find -- I wanted Emily to have contact with her paternal grandparents, and it just wasn't working out living way out there. Q. Where were they, the paternal grandparents? Mechanicsburg? 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Right in Mechanicsburg, yes. Q. I thought you -- didn't you say that your sister lived in Mechanicsburg? A. Well, she lived in Mechanicsburg, and then she moved -- we lived in Mechanicsburg for probably six years. And then she wanted to buy a house in the country, and she bought one way out in Duncannon. And that was a heck of a drive. And that was okay before I had Emily, but that was too long a drive afterwards. Q. And Emily was born in '94, and about '95 you moved out of your sister's house in Duncannon and moved where to Mechanicsburg? A. Right. On Market Street; 117 North Market Street. It was walking distance to everything. Q. What is your sister's name? A. Jennifer R. Miller. Q. Do you know where she lives? A. Yeah. I got to get my brain working. She lives in Upper Allen. I'm trying to remember the name of the street. I keep thinking of the Duncannon one. That's probably bronchitis; I'm not thinking. Q. Lawrence Avenue in Mechanicsburg? A. No. Q. Manrock Drive in Mechanicsburg? A. No. It will come to me. I'll get back to you 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as soon as my brain -- I wish I had brought my address book because my brain is not working very well. Q. Even if you don't know the street that she lives on, about where does she live? A. Oh, Upper Allen; basically right across from -- it's the Country Market flower place. It's a subdivision right up from the police station and the fire station there in Upper Allen. She lives back the first left at the end on the cul-de-sac on the right. Q. House or apartment? A. It's a town house, and she owns it. Q. Does she live there with someone or by herself? A. By herself. Q. Have you seen her recently? A. Oh, I see her regularly, at least once a week. I just saw her Sunday. Q. Do you know William Swank? A. Oh, yes. Q. How do you know him? A. Well, I first knew Bill as a regular at the G-Man, although he helped me out with different vehicles. I had a lot of clunkers; and since he was so local, he could usually help me out. But then I also know him, he is the father of my child. Q. Okay. Have you ever filed support against him? 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, no. We worked that out independently. I did that through Legal Services at Dickinson that we just wrote up an agreement, that he's been very regular. I've never had to ask. It's always been on time every month. Q. What does he pay you, like a cash or check? A. Check. Q. Check. In addition to the check, does he help you out in other ways too? A. Well, basically, like, if I have a problem with the car, he helps out that way. If Emily needs to be picked up or if I have to work a shift, then he's available to watch her. Q. Does he provide you with cars to use? A. No. He helped me locate this last vehicle. Q. Which one is that? A. I have a '98 Ford Escort station wagon. He located that one for me. And on the day I got that one is the day that I gave -- well, let -- we exchanged tags at Dave's Service Station which used to be Bill's Service Station. We exchanged tags, and I left the car there with the understanding basically that Bill was going to see if it could be fixed and sold and so I could have some cash, or if it was just going to be, get some cash for parts for me. Q. Did you know he was going to use that car himself? 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. He was just going to work on it. Q. Did you know his license was under suspension for DUI at that time? A. Yeah, and he wasn't -- as far as I understood -- I was in a total shock when I knew that he had driven it because I had -- it had sat, it had sat at Dave's Service. I mean, whenever I passed by, it would either be there or in the back lot. And, no, it was no understanding that he was going to drive it other than maybe turn it on to see, to work on it. Q. So you knew he was under suspension for DUI? A. Yes. Q. You did not give him authority to drive your car while he was under suspension, did you? A. No. No. I just -- it was just under the understanding he was going to work on it. Whether it was, he was going to work on it at Dave's or, you know, I didn't know, have any idea why it would have been at his property unless somebody at Dave's had brought it over there. So I had not a clue. Because I was in total shock because just that week I had picked him up and dropped him off at least twice just that week. So he knew that if he needed a ride, that I would, I would supply that ride. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Are you aware that he has previously testified in this case at a deposition similar to this? A. No. We really don't discuss it. He doesn't -- we only discuss Emily. We don't go into legal things. The Swanks are a tight-lipped bunch, so you don't discuss unpleasant things. Q. All right. And you certainly have not read the transcript of his deposition? A. I have no idea what it says. Q. When you gave him your car to -- let me back up a minute. Did he get you another car, or did you get that other car by yourself? I think you said a Ford Escort, a '98 Ford Escort? A. No. He had located it from one of his friends. I had told him the different kinds of vehicle; like I had researched Consumer Reports and everything trying to find something reliable because all of my previous vehicles had been really lousy. And I wanted a Ford Escort station wagon. And he located from a friend on -- oh, my brain. They had located -- they had just gotten one secondhand, and Bill told me that it was available. I didn't have the cash up front. Bill put the cash down, and I paid him back. But that day, the vehicle -- he drove me out to 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there, and I did all the paperwork. And then they delivered the car to the service station. And that's where I drove the Sundance over, we exchanged plates, and I drove away in the Ford station wagon. Q. So that when you left -- what was the car that you left with him? It was an 187 Plymouth Sundance? A. Yes. Q. Okay. And he took the plates off that and put them on your new '98 Ford Escort station wagon? A. Well, at least the legal plates, yes. I had all the paperwork for everything else so that the Ford Escort was legal. Q. So that when you left the Plymouth Sundance with him, it didn't have any plates on it? A. Yeah, I left it at the station, and it had no plates. Q. And your understanding was that he was going to see if it could be fixed up, see if it was saleable and if it was, he would sell it for you and give you the money for it? A. Right, right. See, there was no transfer. I mean, I left all the paperwork in the glove box with the car locked up. And he had the keys, or Dave had the keys, so that whether it needed to be moved on the lot, to the back lot or whatever. But I really hadn't -- other than 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 5 glancing at it when I drove by when it was in the front lot, I hadn't really seen it since October of 2001. Q. Now, you were aware that he was in an accident and the date is June 16th, 2003 while driving that Plymouth Sundance? A. I know. I was horrified. Q. Was that a surprise to you? A. Total surprise because I had just been -- just the day before I had picked him up and dropped him off because he needed rides. Q. You had no idea he was operating that vehicle? A. No. Q. That vehicle still belonged to you? A. Yes. 1 hadn't really thought about it. As far as I was concerned, when I didn't see it on the lot, like, when I was dropping my daughter off, to go by there to drop my daughter off at her grandparents, I thought, you know, that it had either been sold or that it was junked, and I was just waiting to hear from Bill about it. But I didn't realize that it was elsewhere. Q. So a couple things could have happened to it, you just didn't know? A. I had no idea. Q. But the one thing you're sure about is that you did not give him consent to drive that car as his own 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vehicle. Is that correct? A. It was never his vehicle. And my understanding with his DUI, that he wasn't going to be driving it; that he could sit in it and he could start it up, you know, that kind of thing, but that he wasn't going to be driving it. Q. All right. Did you get that car from Jennifer? A. Um-hum. I mean, basically since she had inherited it and gotten it for free, she sold it to me for, like, a dollar. It was like a dollar kind of exchange, and we did the paperwork. Because she had just -- when she sold her house in Duncannon and moved back to Mechanicsburg, she had enough money left over that she bought herself a nice Subaru Forrester. And then she didn't have to have the Plymouth anymore. Q. What was the time that elapsed between when you got that Ford Escort and left the Plymouth Sundance with Bill and his accident? Was that a matter of months? A. Oh, it was more than that. I'm pretty sure I got my vehicle in October. See, I don't have anything with me. Q. October of 2002? A. Well, the accident was in 2002, right? Q. No. The accident was in 2003. A. Was it? Oh, my brain's not working. Yeah, it 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was in 2002. So the October before the accident was the last time I had the vehicle in my possession. Q. Had you ever asked him whether he sold it or whether you were going to ever get any money out of it? A. I wasn't -- since he had done me such a great favor in basically finding and purchasing my present vehicle -- even though it's totally paid; I paid him back and I'm free and clear that way -- I thought, you know, whenever it happens, it happens. And, you know, I had a reliable vehicle finally under me; I wasn't going to look a gift horse in the mouth. Q. Sure. Of all the concerns in your life, this wasn't at the top of your list. A. No, a junker vehicle. Because my previous vehicles, when you have a vehicle that is basically done, what do you do with it? Now, the best thing to do is to locate some service station or something who might be able to use it for parts or whatever. So my previous vehicles had basically -- although my previous ones I had signed over to him when I was done with them and they just used them for parts or they got junked, you know, but this vehicle I did not sign over to him. It was still legally mine. You know, because I had previous vehicles. I had a 172 Volkeswagon that totally rusted out, and he took 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that and junked that for me. And then I had inherited another vehicle my mother had driven, and that got junked, so he took care of that. So I always just trusted Bill that he knew what to do with these rather than them sitting. I mean, there's town ordinances about junkers sitting around, and my landlord didn't want a second vehicle sitting there. So he was doing me a favor at least by taking it off my property, and so I wasn't going to get on him about it. Q. How did you find out about the accident? A. It was -- what was it? Well, in fact, Bill called me, that he was supposed to pick Emily up from school the next day, and he called me from the hospital. And he said, Tina, I'm not going to be able to pick Emily up tomorrow from school, please tell her I'm really sorry. And he didn't sound really good. And I said, Bill, are you all right. He said, no, I'm not. He says, I don't really have time to talk, he says, but you can get more information from my parents; I'm in hospital. He says, but don't tell Emily right now, I don't want her to see me because I look pretty bad. So I called his parents and didn't allow Emily to see him for a week because he was in very bad shape. Q. Did you go in and see him? 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I talked to him several times on the phone. And then when he said it was okay to bring Emily, I brought her. So it was a week later. Q. Did you talk to him at all about why he was driving your car? A. He just said it was -- yeah. Well, he didn't really talk to me about it. I asked him, Bill, what were you doing; I would have come in and got you. And he said it was just a big stupid mistake, Tina. He says, but I don't really want to talk to you about it right now. And that's pretty much it. He's not really good about discussing difficult things with me. He doesn't want to get into any kind of -- he doesn't want me upset. He doesn't want Emily upset. He likes to keep everything level. Q. Is that the only time really that you spoke to him about what happened and what he was doing? A. Other than, you know, I wondered -- I asked him again later why, and he said, well, the vehicle was at my house and it needed to get back into town. And I said, why, Bill; and he just said, well, you know, I had been working on it. And he says, it was stupid, it was just stupid, Tina. And that's all he went on about it. And he says, it's a moot point now, it's not 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fixable. And I said, well, I said, at least you are. Q. He didn't give you any money for it then for wrecking it? A. No, no. I didn't ask for it. I mean, I was just glad he was alive. You know, a bird in the hand, and he's my daughter's father. They love each other very much, and we're cooperative coparents. Q. Okay. When you got your subpoena for today, did you talk to him about it? A. I told him that I received that, and he said, well, he says, good luck and just, you know, tell what you know and, you know, I'll talk to you later about it. He says, but, you know, basically I shouldn't talk to you about it. Q. He said he shouldn't talk to you about it? A. Well, he didn't -- yeah. Just whatever I know. Q. Have you discussed anything about this case with his lawyer at all? A. No. I don't even know who his lawyer is. Q. The gentleman that was here. A. Oh, okay. No, I had never met him before. Out there he just said, you know, I know Billy. But I didn't know he was Bill's lawyer. MR. WILLIAMS: That's all the questions I have. Mr. Wagner may have some questions. I'll see if I can 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 2S track him down and ask if he does. If not, then that will be the end of it. EXAMINATION BY MR. WAGNER: Q. Bill did not have your permission to use this vehicle and you owned it. Is that what you're telling us in this deposition? A. Well, basically my understanding was other than the purpose of fixing it and whatever entailed in fixing it, you know whether -- Q. But not driving it? A. But not -- no. As long as he was illegal, that was just a -- I never said you can't drive it. It's just that it was understood basically if he had a DUI, that he wasn't going to be driving it. MR. WAGNER: okay. Thanks. (The deposition concluded at 10:30 a.m.) 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) I, AMY R. FRITZ, R.P.R., a Court Reporter-Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of KRISTINA M. MILLER. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 30th day of November, 2004. NOTAR:AAL SEAL [Amy R. Fritzary Public y of Carlisle, erland County commission exebruary 9, 2006 f- n ILL ,, t Notary P lic VERIFICATION I, Janet L. Weisberg, Vice President of B.I. Claims of Donegal Mutual Ins. Co., acknowledge I have the authority to execute this Verification on behalf of Donegal Mutual Ins. Co. and certify the foregoing Declaratory Judgment Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this Declaratory Judgment Complaint is that of counsel and not my own. I have read the document and to the extent the Declaratory Judgment Complaint is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent the content of the Declaratory Judgment Complaint is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Donegal Mutual his. Co. C-c.J Jan . Weisberg, Vice President o .I. Claims F:?USZATARUE nega13050ZC tW0V 0w b - Z 6` jz: Johnson, Duffle, Stewart & Weidner By: John A. Statler I.D. No. 43812 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jas@jdsw.com DONEGAL MUTUAL INS. CO., Plaintiff V. WILLIAM D. SWANK, Defendant Attorneys for William D. Swank IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-3980 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT WILLIAM D. SWANK'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, William D. Swank by his attorneys, Johnson, Duffie, Stewart & Weidner, P. C., who file the following Answer with New Matter in response to the Plaintiff's Complaint: 1. Denied, after reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 2. Admitted. 3. Admitted on information and belief. 4. Admitted. 5. Admitted in part, denied in part. It is admitted that the 1987 Chevrolet Blazer is insured under the Donegal insurance policy. However, the contents of Paragraph 5 are denied to the extent that they imply that Defendant is not entitled to underinsured motorist coverage. 6. Admitted. 7. It is admitted that a collision occurred between the Defendant's and an underinsured motorist. By way of further answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the remaining averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 8. Admitted. 9. Denied. It is specifically denied that 10. Denied, after reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 11. Denied 12. Admitted in part. Denied in part. It is acknowledged that Kristina M. Miller testified in her deposition that she was the owner of the 1987 Plymouth vehicle involved in the above referenced collision. However, this testimony was inaccurate and Ms. Miller has asked that it be disregarded. In fact, Defendant was given the vehicle which was previously owned by Ms. Miller. 13. Denied, after reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 14. Admitted. 15. Denied, after reasonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 16. Admitted in part. Denied in part. It is acknowledged that Kristina M. Miller testified in her deposition that she did not give Defendant permission to operate the Plymouth vehicle. However, this testimony was inaccurate and. In fact, Defendant had, at a minimum, implied permission to use the vehicle because he was given the vehicle by Ms. Miller and was using it to accommodate the transportation needs of he and Ms. Miller's daughter. 17. Denied. It is specifically denied that Defendant was operating the Plymouth vehicle without the permission of Ms. Miller or in the alternative, that any permission was required for Mr. Swank to operate the vehicle. 18. The averments in Paragraph 18 constitute conclusions of law to which no response is required. If a response is deemed required, it is specifically denied that Defendant is not entitled to underinsured motorist coverage. It is also denied that Defendant was operating the Plymouth vehicle without the permission of Ms. Miller or in the alternative, that any permission was required for Mr. Swank to operate the vehicle. 19. The averments in Paragraph 19 constitute conclusions of law to which no response is required. 20. The averments in Paragraph 20 constitute conclusions of law to which no response is required. 21. The averments in Paragraph 21 constitute conclusions of law to which no response is required. WHEREFORE, Defendant William D. Swank respectfully requests that the Plaintiff's Complaint be dismissed and that Plaintiff's request for Declaratory Judgment be denied. NEW MATTER 22. By way of additional answer and reply, Defendant William D. Swank raises the following new matter: 23. Defendant William D. Swank was given the vehicle in question, by Ms. Miller after he purchased her another vehicle. 24. The vehicle was titled in Ms. Miller's name, however, was in the custody and control of Mr. Swank at the time of the accident. 25. Under the circumstances, Mr. Swank had implied permission from Ms. Miller to use the vehicle. 26. Furthermore, the Donegal policy does not contain a provision stating that express permission is required, it only requires "permission". 27. With permission to use the vehicle, Mr. Swank is entitled to UIM coverage under the Donegal Insurance Policy. WHEREFORE, Defendant William D. Swank respectfully requests that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Defendant and against the Plaintiff in this case. DATE: 0120 06 Respectfully submitted, JOMIS DUFFLE, STEWART & WEIDNER By: John A. Statle , quire Attorney I.D. No. 43812 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant William D. Swank t t4 r w VERIFICATION The undersigned says that the facts set forth in the foregoing answer to complaint are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. William D. Swank Dated: v CERTIFICATE OF SERVICE AND NOW, this G day of October, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing answer to complaint upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: George B. Faller, Jr., Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: W?" YIZZ -5?1 , ichelle H. Spangler :284630 ee ' - CT' ry _ . "T N "'? F: \FILES 1DATAFILE\Donega13050\Cment\240\i eply2\mw George B. Faller, Jr., Esquire • MARTSON DEARDORFF WILLIAMS & OTTO I.D. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 daller@Omdwo.com Attorneys for Plaintiff DONEGAL MUTUAL INS. CO., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM D. SWANK, Defendant NO. 06-3980 CIVIL ACTION - LAW : DECLARATORY JUDGMENT ACTION PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff Donegal Mutual Insurance Companies, and hereby responds to Defendant's New Matter as follows: 22. No response required. 23. Denied as stated. To the contrary, if Mr. Swank had been given the vehicle in question by Ms. Miller after he purchased another vehicle, he should have insured it. 24. Denied. To the contrary, see the Response to Paragraph 23. 25. Denied. To tie contrary, Ms. Miller has given sworn testimony saying that Mr. Swank did not have permission and in fact knew he was not supposed to use the vehicle. 26. Denied as staled. To the contrary, the Donegal policy is a written document which speaks for itself. 27. The averment, of this paragraph are a conclusion of law to which no response is required. To the extent a response may be deemed required, this averment is denied. To the contrary, Mr. Swank is not entitled to UIM coverage under the Donegal Insurance policy. Date: December 6, 2006 MARTS D)`,ARDORFF,WILLIAMS & OTTO B George B aller, Jr., Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff A VERIFICATION I, Janet L. Weisberg, Vice President of B.I. Claims of Donegal Llutual Ins. Co., acknowledge I have the authority to execute this Verification on behalf of Donegal Llutual Ins. Co. and certify the foregoing Plaintiff s Reply to Defendant's New Matter is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this Reply is that ofcounsel and not my own. I have read the document and to the extent the Reply is based upon information which I have given to my counsel, it is true and correct to the best ofmy knowledge, information and belief. To the extent the content of the Reply is that of counsel, I have relied upon counsel in making this Verification. This statement and. Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, which provides that if l knowingly make false averments, I maybe subject to criminal penalties. Donegal Mutual Ins. Co. *et L. Weisberg, Vice President of B.I. Claims F.' FILESIDAT.%FILE'DonegaUO50\Current,240\repty1 CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent ofMartson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Plaintiff's Reply to Defendant's New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John A. Statler, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. 301 Market Street P.O. Box 109 Lemoyne, pA 17043-0109 MARTSON DEARDORFF WILLIAMS & OTTO By'Al Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: December 6, 2006 ? ° - v ??.. ? ? -n } : > t? n? j--- ?'? -" _ ti, ` -c3 ? ?' i ? . ..? .. ---' . ..-t r :,. S? Curtis R. Long Prothonotary Office of the Protbonotarp Cumberfanb Cuuntp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor _1, -3Q,Q(o_CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573