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06-6404
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: OCe -- 1046v Cl,,;,L sa-j-1 V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, COMPLAINT IN DECLARATORY JUDGMENT (Jury Trial Demanded) Filed on Behalf of Plaintiff Defendants. Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 1k IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 e IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, CIVIL DIVISION C(2 , V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. COMPLAINT IN DECLARATORY JUDGMENT Plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Jeffrey C. Catanzarite, Esquire, files the following Complaint in Declaratory Judgment seeking a declaration of its rights, of which the following is a statement: 1. Plaintiff, Safe Auto Insurance Company (hereinafter referred to as "Safe Auto"), is an Ohio corporation doing business in Pennsylvania, with a principal place of business located at 4328 East Fifth Avenue, Columbus, Ohio 43219. 2. Defendant, James Cavanaugh, is an adult individual who resides at 3808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 3. Defendant, Barbara Cavanaugh, is an adult individual who resides at 3808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 4. Defendant, Gordon Panilaitis, is an adult individual who resides at 563 F Street, Carlisle, Cumberland County, Pennsylvania. 5. Defendant, Maryann Bricker, is an adult individual who resides at 563 F. Street, Carlisle, Cumberland County, Pennsylvania. 6. Plaintiff, Safe Auto, issued Maryann Bricker an auto insurance policy, Policy No. PA00118108A-5, for a 1985 Ford Bronco (hereinafter referred to as "the vehicle"), with effective coverage dates of September 5, 2005 to September 4, 2006. 7. Attached hereto and incorporated herein as Exhibit "A" to Plaintiff's Complaint is a copy of Maryann Bricker's Safe Auto Policy No. PA001 18108A-5. 8. The policy provides for liability coverage in the amount of $15,000.00 per person and $30,000.00 per accident. 9. Safe Auto believes and avers that on or about November 18, 2005, Defendant, Gordon Panilaitis, was operating the vehicle, which was owned by Maryann Bricker. 10. At that time, it is alleged that while Gordon Panilaitis was operating the vehicle, he entered an intersection against a red traffic signal when it was not safe to do so and the front of the vehicle that he was operating struck the vehicle operated by Defendant, James Cavanaugh, in the left rear causing personal injuries to Defendant, James Cavanaugh. 11. As a result of said collision, James and Barbara Cavanaugh have instituted suit in the Court of Common Pleas of Cumberland County. Attached hereto and marked as Exhibit "B" is a true and correct copy of the Complaint filed against Gordon Panilaitis and Maryann Bricker. ! I 12. Various demands have been made upon Safe Auto Insurance Company to indemnify and assume a defense on behalf of Gordon Panilaitis and Maryann Bricker. 13. At the time of the collision that occurred on November 18, 2005, Defendant, Gordon Panilaitis, resided in the same household as Defendant, Maryann Bricker. 14. When Policy No. PA00118108A-5 was issued, Defendant, Gordon Panilaitis, was not listed as an additional driver on the Declarations Page. Attached hereto and marked Exhibit "C" is a true and correct copy of the Declarations Page for Policy No. PA001 18108A-5. 15. The coverage afforded to Maryann Bricker under the terms and conditions of the policy does not include coverage for users of the covered automobile by residents of the insured household, unless that person is listed as an additional driver on the Declarations Page. Furthermore, the coverage afforded to Maryann Bricker under the terms and conditions of the policy does not include coverage for users of the covered automobile, unless that user was operating the covered automobile with the permission of the covered automobile's owner. 16. The Safe Auto policy provides that there is no duty to defend nor coverage provided for the following loss: EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: 1. That occurs while your covered auto is being operated by a resident of your household or by a regular user of your covered auto, unless that person is listed as an additional driver on the Declarations Page. 8. If your covered auto is used without the covered auto owner's permission, or outside the scope of that permission. 17. At the time of the motor vehicle accident which occurred on November 18, 2005, Defendant, Gordon Panilaitis, was a resident of Defendant, Maryann Bricker, was not listed as an additional driver on Maryann Bricker's Declarations Page with Safe Auto and was operating the covered automobile without the permission of Maryann Bricker. WHEREFORE, Plaintiff, Safe Auto Insurance Company, seeks a declaration under the Declaratory Judgment Act, 42 Pa. C.S.A. § 7531, et seq., establishing that no liability coverage is provided by Policy No. PA00118108A-5 to Gordon Panilaitis or Maryann Bricker in connection with the personal injury claim allegedly sustained by James and Barbara Cavanaugh. Respectfully submitted, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: ?V/' d/ r1reyCatanzarite, Esquire uns l for Plaintiff VERIFICATION I, Joshua Adkins, verify that I am the of Safe Auto Insurance Company, and I am authorized to execute this verification on behalf the Plaintiff, Safe Auto Insurance Company, and the statements made in the foregoing Complaint in Declaratory Judgment are true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint in Declaratory Judgment is permitted by Pennsylvania Ri_O-!es of Civil, Procedure, I have relied upon counsel in verifying the same. /0//-,)- /a 6 . (Date) J shua Adki s #14925 PENNSYLVANIA PERSONAL AUTOMOBILE POLICY PENNSYLVANIA FRAUD LAW: ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE COMPANY OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM CONTAINING ANY MATERIALLY FALSE INFORMATION OR CONCEALS FOR THE PURPOSE OF MISLEAD- ING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO COMMITS A FRAUDULENT INSURANCE ACT, WHICH IS A CRIME AND SUBJECTS SUCH PERSON TO CRIMINAL AND CIVIL PENALTIES. 44 Table of Contents AGREEMENT Definitions Used Throughout This Policy ........................................... .. I What You Should Do In The Event Of A Loss Or An Accident .......... ..3 Notice Of Auto Accident Or Loss ....................................................... ..3 Other Duties ...................................................................................... ..4 PART I - LIABILITY COVERAGE z Insuring Agreement, Additional Benefits ............................................ ..5 Protection For Others, Who Is Not Covered, Exclusions ................... ..6 Limits Of liability ............................................................................... ..8 Other Insurance ................................................................................ ..9 PART II - FIRST PARTY BENEFITS COVERAGE Insuring Agreement, Definitions Used Only In This Part 11 ................. 10 i Accidental Death, Covered Auto, Funeral Expenses ......................... 10 Income Loss, Insured Person, Medical Expenses ............................. 11 Combination Package, Extraordinary Medical Benefits ..................... 13 Non-Economic Loss, Serious Injury, Exclusions ................................ 13 Limits of Protection ........................................................................... 14 Priority Of Policies, Conditions .......................................................... 15 PART III - PHYSICAL DAMAGE COVERAGE Insuring Agreement ........................................................................... 16 Losses Not Covered .......................................................................... 17 Limit of Liability ................................................................................. 19 Transportation Expenses, Rental Reimbursement ............................ 19 Towing and Labor ............................................................................. 19 Payment Of Loss, Premium Earned On Total Loss ........................... 20 No Benefit To Bailee, Appraisal, Other Insurance ............................. 20 PART IV - UNINSUREDNNDERINSURED MOTORISTS COVERAGE Insuring Agreement ........................................................................... 20 Additional Definitions Used Only In This Part IV ................................ 21 Uninsured Motor Vehicle ................................................................... 21 Underinsured Motor Vehicle .............................................................. 22 Protection For Others, Those Not Covered ....................................... 22 Limits Of Protection, Payment of Damages ....................................... 24 Stacked Coverage, Unstacked Coverage, Reductions ...................... 25 Trust Agreement, Other Insurance, Arbitration .................................. 26 GENERAL PROVISIONS Valid Driver License, Business Use Coverage .................................. 27 Named Driver Exclusion, Our Right To Recover Payment ................. 27 Financed Vehicles, Lienholder Deductible ......................................... 28 Policy Period And Territory ............................................................... 28 Transfer Of This Policy, Number Of Covered Autos Allowed ............ .29 Changes In Your Policy, Cancellation During The Policy Period ...... .29 Renewal Provisions .......................................................................... .30 Bankruptcy, Fraud Or Misrepresentation, Premium Payment ........... . 31 Late Payment ................................................................................... .31 Financial Responsibility Laws, Suit Against Us ................................ .32 Punitive Or Exemplary Damages ..................................................... .33 Two Or More Auto Policies, Automatic Termination ......................... .33 NAMED OPERATOR ENDORSEMENT (NON-OWNED 1 AUTOMOBILES) ............................................................................ .33 AGREEMENT We agree with you, in return for your timely payment of premium, to insure you subject to the terms and conditions of this policy. We will insure you for the coverages and up to the lim- its of liability for which a premium is shown on the Dec- larations Page of this policy. We agree to insure you based upon the information you represented to us in your application for auto in- surance. The Declarations Page and your application are part of this policy contract. DEFINITIONS USED THROUGHOUT THIS POLICY In order to make this policy easier to understand, we have explained some key words that are used throughout this policy. These key words are in bold face print. Auto means a four wheel passenger, station wagon, or jeep type vehicle licensed for use on public roads in- cluding pickups, delivery or panel trucks and vans with a classification of % ton or less that is not used in any business or occupation other than farming or ranching, unless the auto qualifies under the business use defi- nition. Auto accident is an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance, or use of an auto. Bodily Injury means physical harm, sickness or disease, including death, caused by an auto accident and suffered by a person. Business use means the use of any auto to convey any operator between his/her place of employment and an- other location during the course of the operator's employ- ment and at the direction of the operator's employer. Business Use shall not include any Commercial Use; however, mileage reimbursement shall not constitute pe- cuniary gain or commercial advantage. Collision means the upset of your covered auto or its impact with another vehicle or object. Commercial use means any auto used for pecuniary gain or commercial advantage, including but not limited to: use of an auto for the purposes of buying, selling, ex- changing, distributing, transportation, and/or delivery of commercial tools, materials, supplies, and/or finished prod- ucts. Commercial use also means any compensated use of an auto for snow or debris removal on roads or real es- tate, except at your residence. Commercial use also means carrying of any person or property for a charge, but does not apply to shared expense car pools or any Busi- ness Use. Comprehensive means loss caused other than by colli- sion. Accidental glass breakage and loss or damage from missiles or falling objects, fire, theft, larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mis- chief, vandalism, riot, civil commotion, or contact with a bird or animal is considered a comprehensive loss. Covered auto or your covered auto means any auto described on the Declarations Page and any owned or leased auto you replace it with. Your covered auto also means any additional auto, ownership of which you ac- quire during the policy period if we insure, under this policy, all autos you own. However, the replacement auto or ad- ditional auto is insured ONLY if the Named Insured notifies us within thirty (30) days of acquisition of ownership. Prior to notification, a replacement auto is subject to the same coverage as the auto it replaces. Collision and compre- hensive coverage does not apply to any additional auto unless specifically requested by the Named Insured prior to a loss involving the additional auto. A temporary replacement auto qualifies as a covered auto. Your covered auto also means a trailer you own or are using. Physical damage coverage does not transfer to trailers. Your covered auto also means other autos you operate with the permission of the owner, but not for collision or compre- hensive coverage. Any liability coverage we provide with re- spect to an auto you do not own or lease shall be excess over and above any other collectible insurance oovering the auto you are driving. Your covered auto does not include other autos owned or leased by you, fumWied to or available for your regular use or any autos owned or leased by any resi- dent of your household. A temporary replacement auto qualifies as a covered auto. Damages mean the cost of compensating those who suffer bodily injury or property damage from an auto accident. Declarations Page is the form from us stating the pol- icy period, the types of coverage you have elected, the limit for each coverage, the cost for each coverage, the specific vehicles covered by this policy, the types of coverage for each vehicle, and other information appli- cable to this policy. Loss, losses means sudden, direct, and accidental loss or damage. Motor vehicle is a self-propelled land vehicle on wheels designed for use on public roads and not run- ning on rails or tracks and not running by overhead electric power. Motor vehicle shall not include any ve- hicle which is used as a residence or premises and does not include farm type tractors or equipment de- signed for use off of public roads. Non-owned auto means any private passenger auto not owned or leased by you or a relative, furnished to or available for the regular use of you, a resident, or any relative, while in the custody of or being operated by you or a relative. A rented auto is not considered a non-owned auto. Property Damage means physical damage to, destruc- tion of, or loss of use of tangible property. Occupying means in, on, getting in, or getting out of a covered auto. Relative means a resident living in your household who is under 21 years old, your dependant and related r to you by blood, marriage, or adoption, including a ward or Coster child. Resident means any person who physically lives in your household for longer than fourteen (14) consecu- tive days. Your unmarried, unemancipated children un- der the age of 24 attending school full-time, living away from home will be considered a resident of your house- hold Temporary replacement auto means any auto not owned or leased by you, a relative, or a resident, while your covered auto is being serviced or repaired, or if it has been stolen or destroyed. Trailer means a vehicle designed to be pulled by an auto. It also means a farm wagon or farm implement while being towed by an auto. A trailer is not a mobile home or a trailer used as an office, store, display, or passenger trailer. Use, using, used means any utilization of the motor vehicle as a vehicle including occupying, entering into and alighting from it. Vehicle - See Motor Vehicle. We, us, and our refer to Safe Auto Insurance Company. You, your, yourself means the person named on the Declarations Page of this policy as the Named Insured and the spouse of that person if a resident of the same household. WHAT YOU SHOULD DO IN THE EVENT OF A LOSS OR AN ACCIDENT NOTICE OF AUTO ACCIDENT OR LOSS In the event of an auto accident or loss, you must report it to us as soon as reasonably possible. You can report your auto accident or loss 24 hours a day by calling toll-free: 1-800-SAFE-AUTO (1-800-723-3288) or 614-231-0200 3 The report must give the time, place, and circumstances of the auto accident or loss, including the names and ad- dresses of any injured persons and of any witnesses. For any accident involving bodily injury or in which the insured vehicle must be towed from the scene, you must also file a written report with the appropriate law enforcement agency within 24 hours of the auto acci- dent or loss. OTHER DUTIES You or any person claiming coverage under this policy must: 1. Cooperate with us in any matter concerning a claim or lawsuit and promptly send us any legal papers received relating to the claim or lawsuit. 2. Submit to physical or mental examination(s) at our expense by doctors we select as often as we may reasonably require and authorize us to obtain medical and other records. 3. Provide any written proofs of loss that we require. 4. Refuse to, except at your own expense, assume any obligation or incur any expense other than medical and surgical care imperative at the time of the auto accident. 5. Attend hearings and trials as required. 6. Submit to examination(s) under oath upon our re- quest If you are claiming uninsured motorists coverage, you must file a written report with the appropriate law enforce- ment agency within 24 hours of the auto accident, if a hit- and-run motor vehicle is involved. If you were occupying a motor vehicle at the time of the auto accident, you must make it available for our inspection. If you are claiming physical damage, you must take reasonable steps after the loss to protect the covered auto and its equipment from further loss. We will pay reasonable expenses incurred in providing that protec- tion. YOU MUST FILE A WRITTEN REPORT OF THE THEFT OR VANDALISM OF YOUR COVERED AUTO TOTHE POLICE WITHIN 24 HOURS OF THE OCCUR- RENCE. You must also allow us to inspect and appraise the damaged covered auto before its repair or dis- posal. FAILURE TO COMPLY WITH ANY OR ALL OF THE CONDITIONS ABOVE MAY RESULT IN OUR REFUSAL TO EXTEND YOU OR ANYONE ELSE REQUESTING COVERAGE ANY PROTECTION UNDER THIS POLICY FOR THE AUTO ACCIDENT OR LOSS. 4 PART I - LIABILITY COVERAGE INSURING AGREEMENT We will pay damages, other than punitive or exemplary, for bodily injury or property damage for which you, a relative or any additional driver listed on the Declara- tions page becomes legally responsible for because of an auto accident. Liability coverage applies to you while driving your covered auto and to you while driv- ing a non-owned auto, if you have permission from the owner to drive the auto. Liability coverage will not apply to you while driving an auto that is not listed on the Declarations Page and that is: 1. Owned or leased by you; or a 2. Available for your regular use; or 'r 3. Owned or leased by a resident of your household. 4= f' Liability coverage will apply to any other person driving your covered auto with your permission, provided they are not a resident of your household and do not use your I covered auto on a regular basis. i We will provide liability coverage for an auto you rent from a car rental agency or garage, ONLY while your covered auto is being serviced or repaired, or if it has been stolen or destroyed. Any liability coverage we provide with respect to an auto you do not own or lease shall be excess over and above any other collectible insurance covering the auto you are driving. ADDITIONAL BENEFITS These benefits are in addition to our limit of liability for damages. We will pay for the cost of investigating the auto accident and arranging for the settlement of any claim against you. We will also defend you, hire and pay a lawyer and pay all defense costs for the lawyer hired by us if someone sues you for damages because of an auto accident even if the accusations are not true. However, we have no duty to defend suits for bodily injury and property damage not covered by this policy. We may in- vestigate and settle any claim or lawsuit, as we deem ap- propriate. We will not be obligated to pay for the cost of any further investigation or arrangement for settlement or defend you further after we have offered to pay our entire limit of liability. We will pay up to $100 for the cost of bail bonds required because of an auto accident, including related traffic law violations. The auto accident must result in bodily injury or property damage covered under this policy. We have no obligation to apply for or furnish a bond. If the person who sues you tries to tie up your property by an attachment, we will pay for a bond to release the attachment. However, we will not pay the premium for attachment bond amounts that are more than our limit of liability. If you lose a lawsuit that we are defending, we will pay the court costs, including appeal costs if we decide to appeal. We will also pay pre-judgment and post- judgment interest on the amount of the judgment up to the policy limits. We will pay this interest from the day the judgment is entered until we have offered the other Party the amount of the judgment up to the full limits of lability available under this coverage. We will pay your expense for first aid to others at the scene of an auto accident involving an auto we insure. We will pay other reasonable expense incurred at our request including up to $25 a day for loss of earnings because of attendance at hearings or trials at our request. PROTECTION FOR OTHERS Anyone using your covered auto with the covered auto owner's permission, and within the scope of such permission, has the same rights and obligations that you have under this coverage. However, this protection is not afforded to any regular or occasional user of your covered auto or to any resident of your household, unless that person is listed as an additional driver on the Declarations Page. Any change in regular opera- tors, newly licensed drivers or residents in your house- hold must be reported to us immediately. WHO IS NOT COVERED Neither the United States of America nor any of its agencies are protected under this coverage. Anyone for whom the United States government may be held responsible under the Federal Tort Claim Act is not protected under this coverage. In the event of reinstatement, no coverage exists for any person during the period between the cancellation date and the reinstatement date. EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: 1. That occurs while your covered auto is being oper- ated by a resident of your household or by 'a regu- lar user of your covered auto, unless that person is listed as an additional driver on the Declarations Page. 2. Resulting from a relative's operation or use of a motor vehicle, other than your covered auto, which is owned or leased by a person who is a resi- dent of your household. 3. Arising while your covered auto is being operated by a person who is listed as an excluded driver on the Declarations Page. 4. Arising out of the ownership, maintenance, or use of any motor vehicle, other than your cov- ered auto, which is owned or leased by you, fur- nished to or available for your regular use. 5. Arising out of the ownership, maintenance or use of any motor vehicle with less or more than four wheels. 6. Arising out of the loading or unloading of any vehi- cle unless it occurs while occupying, entering into, or alighting from it. 7. To you or to property owned by, rented to, in charge of, or transported by you. However, this exclusion does not apply to your rented residence or rented private garage damaged by your covered auto. 8. If your covered auto is used without the cov- ered auto owner's permission, or outside the scope of that permission. 9. Sustained while your covered auto is being used to flee or elude law enforcement official(s). 10. Caused intentionally by you or at your direction. 11. If your covered auto is used in the commission of any felony, including theft of your covered auto. 12. If your covered auto is used in any illicit trade or transportation. 13. Arising from any prearranged or organized race, speed contest or performance contest. 14. Arising out of the ownership, maintenance, or use of any motor vehicle during the course of any business or employment, unless you have paid a specific premium for business use cover- age. 15. Arising out of or in the course of employment. However, coverage does apply to a domestic em- ployees unless benefits are payable or required to be provided, for the domestic employee under worker's compensation law or similar law. 16. To your fellow employee(s) in the course of his/ her employment, if such injury arises out of the use of an auto in the business of his/her em- ployer. This exclusion does not apply to injuries for which you are legally liable. 17. If you are operating any motor vehicle in a com- mercial capacity. 18. If your covered auto is used during the course of your employment to transport people, including, but not limited to nursery or school children, medical pa- tients, clients, migrant workers or hotel/motel guests. 19. If your covered auto is used for snow removal, or any kind of wholesale or retail delivery, including but not limited to pizza, magazine, flowers, newspaper, mail or other business types of delivery. 20. Arising out of the ownership, maintenance or use of any auto when it is used to carry persons or property for a charge. This exclusion does not apply to shared expense car pools. 21. Arising out of an auto business operation, including but not limited to, the selling, repairing, servicing, testing, storing, or parking of motor vehicles. 22. Occurring while your covered auto is pulling a mobile home or a trailer used as an office, store, display, or passenger trailer. 23. Arising out of the operation of farm machinery. 24. Arisingg cut of or due to the use of the covered auto for transportation of any explosive substance, flammable liquid, or similarly hazardous material. 25. Assumed by you under any contract or agreement. 26. For any liability imposed upon you by statutes aris- ing from your sponsorship of a minor for an opera- tor's license. 27. Caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reaction, radiation, radioactive contamination, or any conse- quence of any of these. 28. To anyone protected at the time of the auto acci- dent by an atomic or nuclear energy liability in- surance contract. The reason for this is that, by law, such policies protect all persons involved in the auto accident, regardless of who was at fault. 29. Arising during the period between the cancella- tion date and time and the reinstatement date and time. LIMITS OF LIABILITY The limit of liability shown on the Declarations Page is the most we will pay regardless of the number of claims made, covered autos, insured persons, lawsuits brought, vehi- cles involved in an auto accident, or premiums paid. Your Declarations Page shows a split limit: 1. The amount shown for "each person" is the most we will pay for all damages due to a bodily injury to one person; and 2. Subject to the "each person" limit, the amount shown for "each accident" is the most we will pay for all damages due to bodily injury sustained by two or more persons in any one auto acci- dent; and 3. The amount shown for property damage is the most we will pay for all property damage for which you become legally liable as a result of any one auto accident. The liability limits apply to each covered auto as stated on the Declarations Page. The insuring of more than one person or auto under this policy will not increase our liabil- ity limits beyond the amount shown for any one auto, even though a separate premium is charged for each auto. The limits also won't be increased if you have other auto insur- ance policies that apply. The bodily injury limit for "each person" includes the total of all claims made for such bodily injury and all claims de- rived from such bodily injury, including, but not limited to, loss of society, loss of companionship, loss of services, loss of consortium, and wrongful death. No one shall be entitled to duplicate payments for the same elements of damages. Any payment to a person under this Part I shall be reduced by any payment to that person under Part II - First Party Benefits Coverage, for the same element of damages. A motor vehicle and attached trailer are considered one motor vehicle. Therefore, the limits of liability will not be increased for an auto accident involving a motor vehicle which has an attached trailer. OTHERINSURANCE This insurance is primary for any auto owned or leased by you and that is described on the Declarations Page, or any additional or replacement auto we insure. If you are using a temporary replacement auto or non-owned auto, our liability insurance will be excess over other collectible insurance. If more than one policy applies to an accident involving your covered auto, we will bear our proportionate share with other collecti- ble liability jointly responsible. If there is other liability insurance applicable on the same primary or excess basis as this coverage, we will pay only our share of the loss. Our share is the propor- tion that our limit of liability bears to the total of all appli- cable limits. PART A - FMT PARTY BENEFITS COVERAGE First Party Benefits consist of the following benefits which may be purchased individually or as a combina- tion package. Medical Expenses, Funeral Expenses, Income Loss, Accidental Death, Extraordinary Medical Benefits and a Combination Package make up the benefits that are available under First Party Benefits. Coverage will apply only with respect to the coverages appearing on the Declarations Page for which a pre- mium has been charged. INSURING AGREEMENT In accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law, we will pay First Party Benefits for: (a) medical expenses, (b) income loss, (c) funeral expenses, and (d) accidental death arising from bodily injury to you resulting from the maintenance or use of a motor vehicle as a vehicle. Only the First Party Benefits shown as applicable in the Declarations Page will apply. DEFINITIONS USED ONLY IN THIS PART II ACCIDENTAL DEATH If a premium appears on the Declarations Page for this coverage, we will pay for accidental death arising from bodily injury to the insured person due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. This death benefit will be paid if death occurs within 24 months from the date of the accident. The death benefit shall be paid to the executor or administrator of the deceased's estate. COVERED AUTO A motor vehicle to which the bodily injury liability insur- ance of the policy applies and for which a specific premium is charged and for which the named insured maintains First Party Benefits as required under the Pennsylvania Motor Vehicle Financial Responsibility Law. FUNERALEXPENSES If a premium appears on the Declarations Page for this coverage, we will pay reasonable expenses directly related 10 to the funeral, burial, cremation or other form of disposition of the remains of the deceased, insured person. Ex- penses incurred must be a result of the death of the in- sured person as a result of the auto accident and within 24 months from the date of the auto accident. INCOME LOSS If a premium appears on the Declarations Page for this coverage, we will pay eighty (80%) percent of gross income actually lost by an insured person. Income loss includes reasonable expenses actually incurred for hiring: (a) a substitute to perform the work of an insured person who is self employed and for which they would have performed if not for bodily injury; or (b) special help, thereby enabling a person to work, thereby reducing loss of gross income. It Income loss does not include: (a) loss of expected income for any period following the death of an insured person; or (b) expenses incurred for services performed following the death of an insured person; or (c) any loss of income during the first five (5) working days the insured person did not work after the acci- dent because of the bodily injury. These five (5) working days do not have tote consecutive. INSURED PERSON An insured person is a person named on the Declara- tions Page as the named insured, an additional driver listed on the Declarations Page and any other person who sustains bodily injury while occupying the insured motor vehicle as a passenger. An insured person is also a person who is a non-occupant who is inured as a result of an accident in Pennsylvania involving the cov- ered auto. An unoccupied parked covered auto is not a motor vehicle involved in an accident unless it was parked in a manner as to create an unreasonable risk of injury. MEDICAL EXPENSES We will pay reasonable and necessary charges for: (a) medical treatment, including but not limited to: (1) medical, hospital, surgical, nursing and dental services (2) medications, medical supplies and prosthetic de- vises; (3) ambulance. (b) medical and rehabilitative services, including but not II limited to: (1) medical care; (2) licensed physical therapy, vocational rehabilitation and occupational therapy; (3) osteopathic, chiropractic, psychiatric and psycho- logical services; (4) optometric services, speech pathology and audio logy- (c) nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing. Payment of medical expenses will be made pursuant to Section 1797 (a) of the Pennsylvania Motor Vehicle Finan- cial Responsibility Law, and as it may be amended. All medical treatment and medical and rehabilitative serv- ices must be provided by or prescribed by a person or facility approved by the Department of Health, the equiva- lent governmental agency responsibility for health pro- grams or the accrediting designee of a department or agency of the state in which those services are provided. We use Peer Review Organizations (PRO) which have been approved by the Insurance Commissioner to evalu- ate whether or not: 1. treatment; 2. health care services; 3. products; or 4. accommodations; which were provided conform to professional standards of performance and were reasonable and medically neces- sary. We, the injured person or the provider may request a reconsideration by the PRO within 30 days of th e PRO's initial determination. This request for reconsideration as to the reasonableness and necess of tr eatment must be made pursuant to Section 1797 b) of th e Pennsylv ania Motor Vehicle Financial Responsibi i Law, and as it may 9 be amended. I If we refuse payment of a provider's bill and do not chal- lenge it before a PRO within 90 days of receipt, the injured person may ask the court to review our refusal to pay. This 90 day.provision does not apply to continuing treat- ment or services. Payment of medical expenses incurred after 18 months from the date of the accident causing bodily injury shall be made only if within 18 months from the date of the acci- dent, it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the j injury. 12 COMBINATION PACKAGE If a premium appears on the Declarations Page for the Combination Package, we will pay for medical expenses, funeral expenses, income loss, and accidental death as limited to described and limded above. Our payment $177,500 in the aggregate or to the expenses or losses incurred within three (3) years from the date of the acci- dent, whichever occurs first. However, within this an acc?- acci- dental death we will benefit or $2,500 for funeral expenses. EXTRAORDINARY MEDICAL BENEFITS If a premium appears on the Declarations Page for this coverage, we will pay benefits for reasonable and neces- sary medical expenses in excess of $100,000 arising from bodily injury to an insured person. The injury must be due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. We will pay these bene- fits regardless of fault. medical benefits expensles exceed $100,0005 coverage until such Subject to a lifetime aggregate limit of $1,000,000, the most we will pay on behalf of an insured person as a result of one accident is $50,000 per year. However, dur- ing the first 18 months of eligibility, we will make payments in excess of the ir$ 50,0$1 ger year limit' subject to the life- time aggregate NON-ECONOMIC LOSS Non-economic loss is pain and suffering and other non- monetary detriments. SERIOUS INJURY A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement. EXCLUSIONS FIRST PARTY BENEFITS COVERAGE DOES NOT APPLY TO BODILY INJURY: 1. Sustained by any person, who is the owner of a cur- rently registered motor vehicle for which Financial Responsibility is not provided, while occupying or when struck by that motor vehicle. 2. Sustained by any person while occupyingg a motor- cycle, motor-driven cycle, motorized pedalcycle or like type vehicle required to be registered under Title 75 or a recreational vehicle not intended for highway use or any other type of motor vehicle not required to be registered under Title 75. 3. Sustained by anyone we protect other than you, a relative or an individual specifically named on the 13 Declarations Page for this coverage and that per- son's relative, who knowingly steals a motor vehi- cle if the bodily injury arises out of the mainte- nance or use of the stolen vehicle. 4. To any person when the conduct of that person contributed to the bodily injury sustained by that person while intentionally injuring or attempting to intentionally injure himse f or another. 5. To any person when the conduct of that person contributed to the bodily injury sustained by that person while committing a felony. 6. To any person when the 'conduct of that person contributed to the bodily injury sustained by that person while seeking to elude lawful apprehension or arrest by a law enforcement official 7. To any person engaged in the business. of.repair- ing, servicing, or otherwise maintaining motor ve- hicles if the bodily injury arises out of that busi- ness unless the conduct occurs off the business premises. 8. Sustained by any person as a direct result of load- ing or unloading any motor vehicle. 9. Sustained by any person while occupying any mo- tor vehicle used as a residence or premises. 10. Caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution; nuclear reaction, radiation, radioactive contamination, or any conse- quence of any of these. 11. Sustained by any person not occupying a motor vehicle, other than the named insured, if the acci- dent occurs outside the Commonwealth of Penn- sylvania, g LIMITS OF PROTECTION We will pay First Party Benefits to you for any one acci- dent up to the limit of First Party Benefits limits you have selected as shown on the Declarations Page for one i covered auto. Benefits will not be increased for you by r adding together the limits of protection under this policy because there are multiple motor vehicles covered under this policy or under multiple motor vehicle policies covering you for the same loss. Any amount payable by us for medical expenses greater than $100,000 shall be excess over any amount paid or payable under Extraordinary Medical Benefits, and First Party Benefits shall be excess over all benefits that any person we protect receives or is entitled to receive under any worker's compensation law or similar law. 14 PRIORITY OF POLICIES We will pay First Party Benefits in accordance with the t following order of priority. We will not pay if there is an- other insurer at a higher level of priority even if that other insurer has paid its limits. The priority levels shown below. are in descending order from highest to lowest: First - The insurer providing benefits to you as an named insured under its policy. Second - The insurer providing benefits to you pro- vided you are not a named insured under another pol- icy providing coverage under the Pennsylvania Motor Vehicle Financial Responsibility Law. Third - The insurer of the motor vehicle which you are occupying at the time of the accident. Fourth - The insurer providing benefits on any motor vehicle involved in the accident if you were not occu- pying a motor vehicle and provided covered coverage under any other policy. For the purposes of determining priorities, an unoccu- pied parked motor vehicle is not a motor vehicle in- volved in an accident unless it was parked in a manner as to create an unreasonable risk of injury. If two or more policies have equal priority the insurer against which the claim is first made shall process and pay the claim as if wholly responsible. The insurer is then entitled to recover contributions pro-rata from any other insurer for the benefits paid and the cost of proc- essing the claim. Under the Fourth priority, proration shall be based on the number of involved motor vehi- cles. In addition, if two or more policies have equal priority, the maximum recovery under all policies will not exceed the amount payable under the policy with the highest dollar limits of benefits. No one shall be entitled to receive duplicate benefits for the same elements of loss under this or any other similar automobile insur- ance including self-insurance. CONDITIONS 1. Medical report and/or proof of claim. As soon as practicable you or anyone we insure, or by someone on such person's behalf, shall give us written proof of claim under oath if required, fully describing the nature and extent of bodily injury, treatment and rehabilitation received and contemplated and other. information to assist us in determining the amount due and payable. You or anyone we insure shall submit to mental and physical examinations by physicians selected by us when and as often as we may reasonably require. We will pay the costs of such examinations. 15 You or anyone we insure (or, in the event of such person's incapacity, such person's legal representa- tive) shall, if we request, sign papers to enable us to obtain medical reports and copies of records. A copy of such medical report will be forwarded to such per- son we protect upon such person's written request. If benefits for income loss are claimed, you or any- one we insure presenting such claim shall authorize us to obtain details of earnings paid to such person by an employer or earned since the time of the injury or during the year immediately preceding the date of the accident. 2. Customary charges for treatment. The amount we pay a person or institution providing treatment, accommodations, products or services to an in- sured person for an injury covered by medical expense benefits shall not exceed the amount the person or institution customarily charges for like treatment, accommodations, products and services in cases involving no insurance. 3. Non-Duplication of Benefits. No one we insure shall recover duplicate benefits for the same ele- ments of loss under this or any other similar auto- mobile insurance including self-insurance. 4. Other Insurance. If an insured person is the named insured, a relative, or the occupant of a covered auto, we shall not be liable for a greater proportion of any loss than this policy's limit of liabil- ity bears to the sum of all limits of liability of all appli- cable insurance and self-insurance. The maximum recovery shall not exceed the amount payable under the insurance or self-insurance providing the highest dollar limit. If the insured person is not the named insured, a relative or the occupant of the covered auto, our share shall be based on the number of motor vehi- cles involved in the accident. PART III- PHYSICAL DAMAGE COVERAGE INSURING AGREEMENT If you pay a specific premium for collision and compre- hensive coverage, we will pay for direct and accidental loss to your covered auto, less any applicable deductible shown on the Declarations Page for your covered auto. We do not cover physical damage on a temporary re- placement auto; however, physical damage coverage will transfer to an auto you rent from a car rental agency or garage while your covered auto is being repaired as a result of a covered loss. A covered loss is defined as a loss that occurs during our policy period in which our Physical Damage Coverage applies. 16 LOSSES NOT COVERED PHYSICAL DAMAGE COVERAGE DOES NOT APPLY TO: 1. A loss that occurs while your covered auto is be- ing operated by a resident of your household or by a regular user of your covered auto, unless that person is listed as an additional driver on the Dec- larations Page. 2. A loss resulting from a relative's operation or use of a motor vehicle, other than your covered auto, which is owned or leased by a person who is a resi- dent of your household. 3. A loss that occurs while your covered auto is be- ing operated by a person that is listed as an ex- cluded driver on the Declarations Page. 4. A loss arising out of the ownership, maintenance, or use of any motor vehicle, other than your cov- ered auto, which is owned or leased by you, fur- nished to or available for your regular use. 5. A loss caused to a camper body or trailer. 6. A loss while your covered auto is subject to any bail- ment, lease, conditional sale, mortgage, or other en- cumbrance not specifically declared and described on this policy. 7. A loss to any of the following optional equipment whether or not factory installed by the original auto manufacturer: car telephone equipment; televisions or their accessories or antennas; radar or laser detection devices; home high fidelity equipment; two-way radios; scanning monitor receivers; awnings, cabanas or equipment designed to provide additional living facili- ties. 8. A loss to wearing apparel or personal effects. A loss while your covered auto is used without the covered auto owner's permission, or outside the scope of that permission. 10. A loss while your covered auto is used to flee or elude law enforcement official(s). 11. A loss caused intentionally by you or at your direc- tion. 12. A loss while your covered auto is used in the commission of any felony, including theft of your covered auto. 13. A loss while your covered auto is used in any il- licit trade or transportation. 14. A loss while your covered auto is driven in or pre- paring for any prearranged or organized race, 17 speed contest, or performance contest. 15. A loss due to conversion or embezzlement by any person in possession of your covered auto. 16. A loss while your covered auto is used during the course of any business or employment, unless you have paid a specific premium for business use coverage. 17. A loss while your covered auto is being used in a commercial capacity. 18. A loss while your covered auto is used during the course of your employment to transport people, including but not limited to nursery or school chil- dren, medical patients, clients, migrant workers, or hotel/motel guests. 19. A loss while your covered auto is used for snow removal or any kind of wholesale or retail de- livery, including but not limited to pizza, magazine, newspaper, flowers, mail or other business types of delivery. 20. A loss while your covered auto is used to carry persons or property for a charge. This exclusion does not apply to shared-expense car pools. 21. A loss to your covered auto when used in an auto business operation, including but not limited to the selling, repairing, servicing, testing, storing or park- ing of motor vehicles or trailers. 22. A loss while your covered auto is pulling a mobile home or a trailer used as an office, store, display, or passenger trailer. 23. A loss arising out of or due to the use of your cov- ered auto for transportation of any explosive sub- stance, flammable liquid, or similarly hazardous material. j 24. A loss resulting from manufacturer's defects, wear and tear, freezing, mechanical or electrical breakdown or failure, or road damage to tires. However, coverage does apply if the.damage is the j- result of other loss covered by this policy. 25. Loss to any optional equipment not factory installed by the original auto manufacturer. 26. A loss caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reac- ton, radiation, radioactive contamination, or any con- sequence of any of these. 27. A loss caused by anyone protected at the time of the auto accident by an atomic or nuclear energy liability insurance contract. The reason for this is that by law such policies protect all persons in- 18 volved in the auto accident, regardless of who was at fault. 28. A loss for which the United States Government is liable under the Federal Tort Claims Act. 29. A loss or auto accident which occurred during the period between the cancellation date and time and the reinstatement date and time. LIMIT OF LIABILITY Our maximum limit of liability for losses is the actual cost to repair or replace the damaged property. Payment will not exceed the actual cash value of the property at the time of the loss. If the loss is a part thereof, the payment will not exceed the actual cash value of such part at the time of loss nor what it would then cost to repair or replace the property or such part thereof with other of like, kind, and quality. All payments are reduced by the applica- ble deductible shown on the Declarations Page. TRANSPORTATION EXPENSES We will pay up to $10 per day, to a maximum of $300, for transportation expenses incurred by you. This applies only in the event of the theft of your covered auto. We will pay only transportation expenses incurred during the period beginning 48 hours after the theft has been reported to us and the police, and ending when your covered auto is returned to use or we pay for its loss. RENTAL REIMBURSEMENT When there is a loss to one of your covered autos described on the Declarations Page for which a specific premium charge indicates that rental reimbursement cov- erage is afforded, we will reimburse you for expenses you incur to rent a temporary replacement auto. This cover- age applies only if the auto is withdrawn from use for more than 24 hours and the loss is caused by collision or cov- ered under the comprehensive part of this policy. Our payment will be limited to the period of time reasonably required to repair or replace the auto. If your covered auto is stolen and not recovered or declared a total loss by us, we will pay up to five (5) days after we make an offer to pay for the loss. The most we will pay under rental re- imbursement coverage is $20 per day to a maximum of $600. The most we will pay for rental reimbursement and transportation expense coverage in any one (1) occur- rence is $600. TOWING AND LABOR If you pay a specific premium for towing and labor costs, we will pay towing and labor costs incurred each time your covered auto is disabled, up to the amount shown on the Declarations Page as applicable to that vehicle. The most we will pay per occurrence is $40, not to exceed six (6) occurrences per 6 month policy period. We will only pay 19 for labor performed at the place of disablement, provided disablement does not occur at your place of residence. PAYMENT OF LOSS We may pay for the loss in cash or we may repair or replace the damaged or stolen property. We may take all or part of the damaged property at the agreed or appraised value. Before a loss is paid or the property is replaced, we may return any stolen property to you at our expense with payment for any damage. We may settle any loss either with you or the owner of the property. PREMIUM EARNED ON TOTAL LOSS In the event a claim under any of the physical damage coverages for which a separate premium is shown on the Declarations Page results in the payment of a total loss, that portion of the premium that has not been fully earned as of the time of cancellation will be refunded to you. NO BENEFIT TO BAILEE This coverage shall not directly or indirectly benefit any carrier or other bailee liable for loss to your covered auto. APPRAISAL If we and you do not agree on the amount of loss, either may demand an appraisal of the loss. In that event, each party will select a competent and disinterested appraiser. The two appraisers will select a third appraiser to decide any differences. Each appraiser will state separately the actual cash value and the amount of the loss. An award in writing by any two appraisers will determine the amount payable. Each party will pay its chosen appraiser and bear the expense of the Third appraiser equally. We do not waive any of our rights under this policy by agreeing to an appraisal. OTHERINSURANCE If other insurance also covers the loss, we will pay only our share of the loss. Our share is the.proportion that our limit bears to the total of all applicable limits. PART IV - UNINSURED/UNDERINSURED MOTORISTS COVERAGE INSURING AGREEMENT If you pay a specific premium for uninsured or underin- sured motorists coverage, we will pay damages, other than punitive or exemplary or attorney fees, ONLY for bod- ily injury physically sustained by you which you are legally entitled to receive from the owner or operator of an uninsured or underinsured motor vehicle. We will pay 20 the damages you suffer in an auto accident while occu- pying your covered auto as a result of having been struck by an uninsured or underinsured motor vehicle. The owner's or operator's liability for these damages must arise out of the ownership, maintenance, or use of the uninsured or underinsured motor vehicle. If you sue a person believed to be responsible for the accident, we aren't bound by any resulting judgment unless we receive reasonable notice of the dependency of the lawsuit resulting in the judgment and had a reasonable opportunity to protect our interest in the lawsuit. Any judgment for damages arising out of a lawsuit brought without our written consent is not binding on us. We will pay under this coverage damages caused by an auto accident with an underinsured motor vehi- cle only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements. ADDITIONAL DEFINITIONS USED ONLY IN THIS PART IV UNINSURED MOTOR VEHICLE An uninsured motor vehicle is a motor vehicle for which there is no liability insurance or self-insurance applicable at the time of the accident. An uninsured motor vehicle also includes a motor vehicle which has insurance available at the time of the auto accident, but the company writing the insurance is or becomes insolvent or denies coverage. An uninsured motor vehicle is a hit-and-run motor vehi- cle that strikes you while you are occupying your covered auto, if neither the driver nor the owner of the hit-and-run motor vehicle can be identified. If the acci- dent involved bodily injury or the insured vehicle had to be towed from the accident scene, the accident must be reported to the proper authorities within 24 hours or as soon as possible. We must be notified within 30 days. If you were occupying the vehicle at the time of the acci- dent, we have a right to inspect it. If there is no physical contact with the hit-and-run vehicle, the facts of the acci- dent must be proved by competent evidence other than the testimony of that person making claim under this cov- erage. An uninsured motor vehicle is not a vehicle that is owned or leased by you, a relative or an additional driver that appears on the Declarations Page. An uninsured motor vehicle does not include, under any circumstances, your covered auto. 21 UNDERINSURED MOTOR VEHICLE An underinsured motor vehicle is a motor vehicle for which there is a bodily injury policy or liability bond available at the time of the auto accident with less than the limits of liability shown on the Declarations Page of this policy for underinsured motorists coverage. An underinsured motor vehicle is a motor vehicle for which there is a bodily injury policy or liability bond available at the time of the auto accident but the limits of that policy or bond are reduced by payments to per- sons, other than persons insured, injured in the auto accident to less than the limit of liability for underin- sured motorists coverage. An underinsured motor vehicle does not include, under any circumstances, your covered auto. An underinsured motor vehicle is not an uninsured motor vehicle. PROTECTION FOR OTHERS Anyone occupying your covered auto, with your per- mission, has the same rights and obligations that you have under this coverage. THOSE NOT COVERED THIS COVERAGE DOES NOT APPLY TO: 1. A loss that occurs while your covered auto is being operated by a non-relative resident of your house- hold, or by a regular user of your covered auto, un- less that person is listed as an additional driver on the Declarations Page. 2. A loss resulting from a relative's operation or use of a motor vehicle, other than your covered auto which is owned or leased by a person who is a resi- dent of your household. 3. Anyone occupying your covered auto when it is being driven by a person that is listed as an ex- cluded driver on the Declarations Page. 4. Bodily injury to you which is caused by your spouse or a member of the family who is a resi- dent of your household. 5. You, if you or your legal representative, settles a claim without our consent. 6. Anyone occupying or through being struck by any motor vehicle, other than your covered auto, which is owned or leased by you, furnished to or available for your regular use. This includes a trailer of any type used with that motor vehicle. 7. Anyone occupying a motor vehicle driven without 22 the owner's permission, or outside the scope of that permission. 8. A loss while our covered auto is used to flee or elude law enforcement official(s). 9. A loss caused intentionally by you or at your direc- bon. 10. A loss while your covered auto is used in the commission of any felony, including theft of your covered auto. 11. A loss while your covered auto is used in any illicit trade or transportation. 12. A loss while your covered auto is driven in or pre- paringg for any prearranged or organized race, speed contest, or performance contest. 13. Anyone while occupying your covered auto when it is used during the course of any business or em- ployment, unless you have paid a specific premium for business use coverage. 14. A loss occurring during the course of employment if benefits are payable or must be provided under a worker's compensation law or similar law. 15. Anyone occupying your covered auto when it is used in an auto business operation, including but not limited to the selling, repairing, servicing, test- ing, storing, or parking of motor vehicles or trail- ers. 16. Anyone while you are operating any motor vehicle in a commercial capacity. 17. Anyone while occupying your covered auto when it is used during the course of your employment to transport people, including but not limited to nursery or school children, medical patients, clients, migrant workers or hotel/motel guests. 18. Anyone occupying your covered auto if it is used for snow removal, or any kind of wholesale or retail delivery, including but not limited to pizza, magazine, newspaper, flowers, mail or other business types of delivery. 19. Anyone occupying your covered auto if it is used to carry persons or properly for a charge. This exclusion does not apply to shared-expense car pools. 20. A loss caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reaction, radiation, radioactive contamination, or any consequence of any of these. - 21. Anyone occupying your covered auto during the period between the cancellation date and time and the reinstatement date and time. 23 THIS COVERAGE DOES NOT APPLY TO AN UNIN- SURED OR UNDERINSURED MOTOR VEHICLE: 1. Owned or leased by you, furnished to or available for your regular use, unless said motor vehicle is listed on the Declarations Page. 2. Owned or operated by a self-insurer within the meaning of any motor vehicle financial responsi- bility law, motor carrier law or similar law. 3. Owned by any governmental authority or agency. 4. Any vehicle that is not a motor vehicle or is not required to be registered as a motor vehicle. LIMITS OF PROTECTION The limit of uninsured motorists or underinsured motorists bodily injury liability shown on the Declarations Page for "each person" is the maximum we will pay for bodily injury sustained by one person in any one auto accident, including all injuries and damages to others resulting from this bodily injury. Subject to this limit of "each person", the limit of uninsured motorists or underinsured motorists bodily injury liability shown on the Declarations Page for "each accident" is the maximum we will pay for bodily in- jury sustained by two or more persons in the same auto accident. This is the most we will pay regardless of the number of autos described on the Declarations Page, persons insured, motor vehicles insured, claims, claimants, poli- cies, or motor vehicles involved in the auto accident. In determining the amount payable under this Part IV, the amount of damages which an insured person is entitled to recover shall be reduced by all sums paid because of bodily injury by or on behalf of any person or organization who may be legally responsible for your bodily injury, including, but not limited to, all sums paid under Part I - Liabili , paid or payable under Part II - First Party Benefits, Wart IV - Uninsured/Underinsured Motorists and paid or payable because of bodily injury under workers' compensation law or disability benefits law. However, this reduction shall not reduce the amount payable under this Part IV - Uninsured/ Underinsured Motorists Coverage below the minimum amount of uninsured motorist coverage required by Pennsylvania law. PAYMENT OF DAMAGES We may pay you, your legal representative, the surviv- ing spouse or anyone authorized by law to receive pay- ment. When multiple policies apply, payment shall be made in the following order of priority: 24 t 1. A policy covering the motor vehicle the injured r person is occupying at the time of the accident. 2. A policy covering a motor vehicle not involved in a the accident with respect to which the injured per- son is an insured. If two or more policies have equal priority, the insurer { against which the claim is first made shall process and pay the claim as if wholly responsible. Thereafter, the insurer is entitled to recover a pro rata contribution from any other insurer for the benefits paid and claims costs incurred. If we are the insurer against which the claim is first made, we will not pay more than our Limit of Protection. No one shall be entitled to duplicate payments for the same elements of damages. STACKED COVERAGE If you purchase Stacked Uninsured Motorist and/or Stacked Underinsured Motorists Coverage and you are injured, we will pay no more than the applicable sum of the Uninsured or Underinsured Motorists coverage limits shown on the Declarations Page. If the injured person is anyone other than you, we will pay no more than the. applicable Uninsured or Underinsured Motor- ists Coverage limits shown on the Declarations Page for the covered auto involved in the accident, regard- less of the number of persons we protect, autos we insure, premiums paid, claims made or autos involved in the, accident. If none of the covered autos are involved in the accident, the highest limit of Uninsured or Underinsured Motorists Coverage applicable to any one covered auto will apply. UNSTACKED COVERAGE If you purchase Unstacked Uninsured Motorist and/or Unstacked Underinsured Motorists Coverage, we will pay no more than the Uninsured or Underinsured Motorists Coverage limits shown on the Declarations Page for the covered auto involved in the accident, regardless of the number of persons we protect, autos we insured, premiums paid, claims made or autos in- volved in the accident. If none of the covered autos are involved in the accident the highest limit of Unin- sured or Underinsured Motorists Coverage applicable to any one covered auto will apply. REDUCTIONS The amount of damages paid or payable under this Uninsured or Underinsured Motorist Coverage will be reduced by: 1. the amounts paid or payable by or for those liable for bodily injury to you or anyone we protect; 25 2. the amounts paid or payable to you or anyone we protect under Part 1 - Liability Coverage of this policy. TRUST AGREEMENT When we pay your damages under this coverage, you or your legal representative must agree in writing to repay us out of any damages recovered from anyone responsible for your injuries. You or your legal repre- sentative must also agree in writing to hold in trust and preserve for us all rights of recovery. At our request, you must take any necessary action to recover the payments we have made under this coverage. You must do so in your own name and through a repre- sentative we select. Any payments made under this coverage and recovered from the at-fault party must be repaid to us. Expenses of recovery will be repaid to us out of any damages recovered. OTHERINSURANCE If you were in, on, getting into or out of a vehicle you do not own which is insured for this coverage under another policy, this coverage will be excess. This means that when you are legally entitled to recover damages in excess of the other policy limit, we will pay up to your policy limit, but only after the other insurance has been exhausted. If this policy and one or more other policies apply to a motor vehicle accident on a primary basis, we will bear our proportionate share, as it applies to the total limits available, up to the full limits of liability for this coverage under this policy. If these is other applicable insurance available under more than one policy, any recovery for damages for bodily injury sustained by a person insured may not exceed the highest of the applicable limit of any one vehicle under this insurance or any other insurance. We will not pay for any damages which would duplicate any payment made for damages under any other insur- ance. ARBITRATION Disagreement over the legal right to recover damages from the owner or operator of an uninsured motor vehi- cle or underinsured motor vehicle or the amount of damages may be settled by arbitration if both the insured person and we agree to settle it by arbitration. The deci- sion of the arbitrators will be binding on these two issues. However, the amount of damages can never exceed the Uninsured or Underinsured Motorists Coverage limits shown on the Declaration Page. All other disagreements shall be decided by a court of 26 competent jurisdiction and not by arbitration. Disagree- ments to be determined by such court include, but are not limited to: 1. Stacking; 2. Residency; 3. Statutes of limitations; 4. Whether a claimant is a person we protect under this coverage; 5. The validity of coverage selections or waivers exe- cuted pursuant to the Pennsylvania Motor Vehicle Fi- nancial Responsibility Law. GENERAL PROVISIONS VALID DRIVER LICENSE Any coverage afforded under any section of this policy when the covered auto is being operated by a person who is not a qualified, licensed driver, or is without a valid driver license, or whose driver license is expired, revoked or sus- pended, or is in violation of any condition of their driving privileges, or is without privileges to drive for any reason may be subrogated against you, the auto's operator, and/ or the auto's titleholder. BUSINESS USE COVERAGE If you pay a specific premium for business use coverage, we will pay for direct and accidental loss that occurs while you are operating your covered auto and traveling between locations during the course and within the scope of your employment, subject to the coverages shown on your Declarations Page and all the terms, provisions, conditions and exclusions described throughout this policy. NAMED DRIVER EXCLUSION If you have asked us to exclude any person from cover- age under this policy and at the time of an accident or loss, the excluded person is operating your covered auto, a non-owned auto or a temporary replacement auto, then no coverage will be provided for any claim under any part of this policy. THIS INCLUDES ANY CLAIM FOR DAMAGES MADE AGAINST YOU OR ANY OTHER PERSON OR ORGANIZATION THAT IS VICARIOUSLY LIABLE FOR AN ACCIDENT ARISING OUT OF THE OP- ERATION OF A COVERED AUTO, A NON-OWNED AUTO OR A TEMPORARY REPLACEMENT AUTO BY THE EXCLUDED DRIVER. OUR RIGHT TO RECOVER PAYMENT In the event of any payment under this policy, we have the right to recover from anyone who may be held responsible. You and anyone we protect must sign and deliver to us any legal papers we may require relating to that recovery, 27 do whatever else is necessary to help us exercise those rights and do nothing after a loss to prejudice our rights. Our right to recover does not apply if we make payment under physical damage coverage against anyone using your covered auto with reasonable belief that that person is entitled to do so. When you and anyone we protect have been paid damages by us under this policy and also recover from another, the amount recovered from the other shall be held by you in trust for us and reimbursed to us to the extent of our payment. In the event we become obligated to make a payment because of a loss for which there would be no cover- age under any terms, conditions or provisions of this policy, then you must reimburse the company for any payment or expense incurred by us. FINANCED VEHICLES If a lienholder or additional interest is shown on the Declarations Page, we may pay any comprehensive or collision loss to: 1. You and/or the additional interest and the repair facil- ity; or 2. You and/or the additional interest and such lienholder or additional interest, as their interest may appear, when we find it is not practical to repair your covered auto; or 3. The lienholder or the additional interest, as to their in- terest, if your covered auto has been repossessed. A lienholder or additional interest's benefits under this policy are limited to and may not exceed those benefits and/or rights to which the Named Insured is entitled. LIENHOLDER DEDUCTIBLE The deductible amount that applies to losses adjusted and payable to the lienholder for their interest shall be no more than $250 per loss on comprehensive and collision coverage. This deductible will apply only when your covered auto is a total loss, and when loss or damage causes it to be repossessed by or surren- dered to the lienholder. All other losses shall be subject to the deductible amounts shown on the Declarations Page. POLICY PERIOD AND TERRITORY This policy applies only to auto accidents and losses that occur during the policy period shown on the Declarations Page. In the event we accept your late payment and rein- state your policy, we will not cover any loss or auto acci- dent which occurred during the period between the cancel- lation date and time and the reinstatement date and time. Your policy expiration and/or renewal date will remain un- 28 changed by any reinstatement by us. Coverage applies to your covered auto while it is within the United State of America, its territories or possessions and Canada, or while your covered auto is being transported between their ports. TRANSFER OF THIS POLICY This policy cannot be transferred to any person or organi- zation without our written consent. However, if you die, this policy will provide protection until the end of the policy period (provided premium due has been paid), for the legal representatives and those persons who were protected on the date of death. NUMBER OF COVERED AUTOS ALLOWED Four is the maximum number of covered autos that may be listed on this policy. CHANGES IN YOUR POLICY This policy contains all the agreements between you and us. Only the Named Insured appearing on the Declara- tions Page may request changes to the policy. This policy can only be changed by an endorsement is- sued by us. If a change requires a premium adjustment, we will adjust the premium as of the effective date of the change. We will automatically give you the benefits of any extension or broadening of this policy effective the date the Pennsylvania Department of Insurance approves the change and if the change does not require additional pre- mium. The premium for each term of this policy is determined by information in our possession at the inception date of that term. Any change in this information which would affect the rating of your policy gives us the right to make an addi- tional charge or refund on a pro-rata basis. REGARD- LESS OF PREMIUM CHANGE, YOU HAVE A DUTY TO INFORM US OF ANY SUCH CHANGE (including but not limited to change in: vehicles, use of vehicles, Named Insured's and additional drivers' occupations which would affect the way in which the vehicle is used, marital status, garaging address, residents in household, children eligible to drive, medications, impairments or physician's restric- tions that may impair or restrict an operator's ability to op- erate a motor vehicle, or moving out of the Commonwealth of Pennsylvania.) CANCELLATION DURING THE POLICY PERIOD The Named Insured appearing on the Declarations Page may cancel this policy by returning it to us or by advising us in writing the future date and time the Named Insured wishes the cancellation to be effective. The earned pre- mium will be computed on a pro-rata basis. This means that we will retain premium for only those days that you were protected. However, a $25.00 cancellation charge will be applied to a policy canceling per insured request. 29 We will not refuse to issue or cancel this policy solely because of your age, sex, race, color, creed, religion, national origin, ethnic group, ancestry, marital status, or residence within the Commonwealth of Pennsylvania. We may cancel this policy by mailing notice of cancellation to you at the address shown on the Declarations Page or by delivering the notice. The earned premium will be com- puted on a pro-rata basis. This means that we will retain premium for on those days that you were protected. The effective date of the cancellation stated in a notice is the end of the policy period. However, if we cancel your policy due to nonpayment of premium, and we choose to rein- state your policy after receipt of your overdue payment, your policy expiration and/or renewal date will remain unchanged by the reinstatement. In the event we accept your late payment and reinstate your policy, we will not cover any loss or auto accident which occurred during i the period between the cancellation date and time and the reinstatement date and time. Proof of mailing a notice of cancellation shall be sufficient proof of notice. All fees are ' fully earned on any insured initiated cancel, including non- payment of premium. We have the t ht to cancel this policy for any reason within the first fi -nine (59) days from its inception, with at least a fifteen 15) day notice of cancellation. If we do not cancel this policy within its first fifty-nine (59) days or upon renewal, then we can only cancel this policy for any of the following reasons: With at least a fifteen (15) day notice of cancellation for: Non-payment of premium. If the named insured's driver license or vehicle registration has been under suspended or revoked during the policy period. With at least a sixty (60) day notice of cancellation: If a determination has been made that the insured has concealed a material fact, or has made a material allegation contrary to fact, or has made a misrepresentation of a material fact and that such concealment, allegation or misrepresentation was material to the acceptance of the risk by the insurer. RENEWAL PROVISIONS We retain/reserve the right not to renew your policy with at least a sixty (60) day notice of non-renewal. If we decide not to renew your policy, we will mail a Notice of Cancella- tion or Refusal to Renew to you at the address shown on the Declarations Page. Proof of mailing such a notice shall be sufficient proof of notice to you. 30 Once a Notice of Cancellation or Refusal to Renew has been mailed to you, you still have an obligation to make any outstanding premium installment payments when due, for the remainder of the policy period. Failure to pay any such payments when due may result in an earlier cancella- tion of your policy for nonpayment of premium following at least 15 days written notice by us. No late payments will be accepted and coverage will not be extended to the non- renewal date. BANKRUPTCY We are not relieved of any obligation under this policy because of your bankruptcy or insolvency. FRAUD OR MISREPRESENTATION We do not provide coverage for you if you have made fraudulent statements or engaged in fraudulent conduct in connection with any auto accident or loss for which coverage is sought under this policy. We may void this policy within the first fifty-nine (59) days or cancel or refuse to renew thereafter for fraud or misrepresentation even after the occurrence of an acci- dent or loss. No person who engages in fraudulent conduct in connection with an accident or loss shall be entitled to receive any payment under this policy. PREMIUM PAYMENT If your "initial" premium payment is by check, draft, or any remittance other than cash, coverage under this policy is conditioned upon the check, draft, or remit- tance being honored upon presentment to the financial institution it is drawn upon. If the check, draft, or remit- tance is not honored upon presentment, this policy will be deemed void from its inception as if the policy never took effect. This means that we will not be liable under the policy for any claims or damages that would other- wise be covered if the check, draft, or remittance had been honored upon presentment to the financial institu- tion it was drawn upon. If your "installment" or "renewal" payment is by check, draft, or any remittance other than cash, coverage under this policy will continue provided the check, draft, or remittance is honored upon presentment to the finan- cial institution it is drawn upon. If the check, draft or remittance is not honored upon presentment, this policy will be cancelled at the hour and date shown on the Notice of Cancellation or Refusal to Renew that would have applied to the payment that was not honored. However, if no notice was previously mailed, a fifteen (15) day Notice of Cancellation or Refusal to Renew will be issued. LATE PAYMENT In order to continue your coverage, your installment or renewal payment must be received in our office prior to 31 the due date shown on your Notice of Payment Due. If payment is not received by the due date, a Notice of Cancellation will be mailed to the address shown on the Declarations Page. Payment effective dates and times vary per the payment method: 1. Payments made through the Safe Auto Phone Pay system or money wiring services are effective the date and time that appears on the check that prints in our office. 2. Mailed payments are effective the day after the post- mark date on the payment envelope at 12:01 A.M. 3. Mailed payments with no legible postmark date are ef- fective the day we receive the payment at 12:01 A. M. 4. Walk-in payments are effective the date and time the Safe Auto cashier receives the payment. If the payment effective date and time is Prior to the cancellation date and time shown on your Notice of Cancellation, the policy will not cancel. If your payment is effective after the cancellation date and time, your policy will cancel as of the date and time shown on your Notice of Cancellation that applies to that pay- ment. We will accept a payment effective after the cancella- tion date and time and reinstate your policy, as Iong as the payment's effective date and time is no more than seven (7) days after the cancellation's effective date and time. In the event we accept your late payment and reinstate your policy, we will not cover any loss or auto accident which occurred during the period between the cancellation date and time and the reinstatement date and time. In the event that this policy is reinstated, it will reinstate under the same policy terms, limits, conditions, elections, and exclu- sions which were in effect prior to cancellation. Your pol- icy expiration and/or renewal date will remain unchanged by any reinstatement by us. We reserve the right not to accept late payments on cannot policies aymnt that p r that is a effective m e t tan seven (7) daystafte the cancellation date and time. FINANCIAL RESPONSIBILITY LAWS i When we certify this policy as proof of financial respon- sibility, this policy will comply with the law to the extent required. You must reimburse us if we make a pay- ment that we would otherwise not have made, had this policy not been certified as proof of financial responsi- bility. SUIT AGAINST US We may not be sued unless there is full compliance 32 with all terms of this policy. We may not be sued under the liability coverage until your obligation to pay is finally determined either by judgment against the per- son after actual trial or by written agreement of the per- son, the claimant, and us. No one shall have any right to make us a party to a lawsuit to determine your liabil- ity. Any lawsuit against us seeking recovery of underinsured motorists benefits under Part IV - Uninsured/Underinsured Motorists Coverage must be filed no later than one (1) year after the limits of liability under all applicable bodily injury liability bonds or policies have been exhausted by payment of judgements or settlements. PUNITIVE OR EXEMPLARY DAMAGES IT IS AGREED THAT NO COVERAGE IN THIS INSUR- ANCE POLICY (INCLU ICI G UNDER PART I - LIABILITY, PART II - FIRST PARTY BENEFITS, PART IV - UNIN- SURED/UNDERINSURED MOTORISTS) SHALL APPLY TO PUNITIVE OR EXEMPLARY DAMAGES. TWO OR MORE AUTO POLICIES If this policy and any other auto insurance policy issued to you by us applies to the same auto accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under any one policy, even though separate premiums have been paid. You cannot stack coverages or policies. AUTOMATIC TERMINATION If you obtain other insurance on your covered auto, or if a person other than you or a relative becomes the owner of your covered auto, any coverage provided by this I policy will terminate as to that auto on the effective date i and time of legal transfer of that auto. NAMED OPERATOR ENDORSEMENT (NON-OWNED AUTOMOBILES) As used in this part, the Named Operator is defined as ONLY the Named Insured listed on the Declarations Page of this policy. We agree that this insurance as is af- forded by this policy for Bodily Injury, Property Damage, ;Excess Medical Expense, and Uninsured/Underinsured Motorists coverages (provided these coverages are listed on the Declarations Page and a premium shown for them) applies with respect to the use of any non-owned auto by the Named Operator, subject to the following pro- visions: 1. Any provisions of this policy which extends cover age to other than the Named Operator are hereby eliminated. 2. We will insure any newly acquired auto only if the Named Operator notifies us within thirty (30) days 33 of the acquisition. 3. No coverage is afforded under this policy for any auto owned in full or in part of registered in the name of the Named Operator or any resident of the Named Operator's household. This exclusion does not apply to any newly acquired auto by the Named Operator as defined in paragraph No. 2 above. 4. No coverage is afforded under this policy for any auto used during the course of any business or employment, or when used in an Auto Business Operation, including but not limited to the selling, repairing, servicing, testing, storing, or parking of motor vehicles. 5. No coverage is afforded under this policy for any auto used as a public or livery conveyance or in the busi- ness of trucking or hauling for others. 6.. The provisions of this policy in reference to other valid and collectible insurance are hereby eliminated and it is agreed that if there exists, at the time of any loss covered by this policy, any insurance issued to, taken out by or effected on behalf of anyone other than the Named Operator and under the terms of which the Named Operator is entitled to protection or coverage, then the coverage provided by this policy shall be ex- cess insurance over and above the amount of such other valid and collectible insurance. All other terms, limits, and provisions of this policy remain unchanged. In witness whereof, we have caused this policy to be executed and attested by our President and Secretary. 4AD Jon P. Diamond PRESIDENT April D. Miller SECRETARY 34 I hereby certify this to be a true and accurate copy of SAFE AUTO INSURANCE COMPANY'S ` c s vu.Sa Date vL Safe Auto Insurance Company Corporate Office: 3883 East Broad Street Columbus, Ohio 43213-1129 (614) 231-0200 1(800) SAFE-AUTO 1(800) 723-3288 FORM PA1010/1298 OS/25/2006 17 16 FAX 6148278218 SAFE AUTO Ig 006/016 SEP-fl-ZD06 It:SIPM FROWNELLS SPRING RD +7172496397 T-623 P 00t F-700 CC) JAMES CAVANAUGH AND IN THE COURT OF COMMON T'LS S BARBARA CAVANAUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. iOL V. CIVIL ACTION - LAW GORDON PANILAiTIS AND MARYANN BRICKER, Defendants NOM& YOU HAVE B1EEN 0171 SD IN COURT. If you wish to defend against the claims set forth, in the following pevte, you must take action within twenty (20) days after this Complaint and Notice are , crved, 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 x yarned that if you fail to do so the case may proceed without you and a judgment may be it ntered against you by the Court without further notice for any money claimed in the Comp] int or for any other claim or relief request.eI by the Plaintiff. You may lose money or prope rty or other rights important to you. YOU SHOULD TARY, '.'HIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE: THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AIPI O1RD TO 1ROCRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PI--.]'SONS AT A REDUCED FEE OR NO FEE. CUldi 3ERIAND COUNTY BAR ASSOCIATION 32 S. BEDFORII STREET CARLISLE PA 17013 (800) 990-9108 ay3-g1Db All Ws c,?Q, c sm-(f h ?0 ? ? Oh /L?rv a$ s.c?,ft 9d Date. 8/28/06 and E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg PA 17110 TRK IUM FROM RI_CC (717) 671-1955 In Taftla whoW. I here unto set a I.D. 030965 and. ft sal d skald Lc Y at Car Me. Attorney for Pl s OU -- Jelin. Prnmen 09/25/2006 17 16 FAX 6148278218 5EP-V -2006 12:38PM FROM-HELLS SPRING RD JAMES CAVANAUGH AND BARBARA CAVANAUGH, Plaintiffs GORDON PANG AITl8 AND MARYANN BRICKER, Defendants SAFE AUTO [t007/016 +71724963ST T-623 P 003 F-10C IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA' NO. rn, CIVIL ACTION - LAW COMPLAINT. AND NOW come Plai]3t7 Ts, James Cavanaugh and his wife, Barbarh Cffv,inaugh, by their attorneys, Preeburn 8. Hamilton, and file the following Complaint I. Plaiatiffs, Jamt.s Cavanaugh and his wife, Barbara Cavanaugh, are adult individuals who reside at ? B08 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania, 2. Defendant, Gord m Panilaitis, is an adult individual who retiic e8 at 563 F' Street, Carlisle, Cumberland (:ousity, Pennsylvania. 3. Defendant, Mwyann Bricker, is an adult individual who reaides at 563 F Street, Carlisle, Cumberland County, Pennsylvania. 4. The facts and c =curreacea hereinafter related took place on or about November 18, 2005 at appz•,u imately 8:15 p.m. at or about the intersection of South Pitt and West Willow Stree s, in the Borough of Carlisle, Cumberland County, Pennsylvania. 5. At or about thtl time and place, Plaintiff, James Cavanaugh was driving his automobile eastbound (n Weet Willow Street, in the Borough :)f Carlisle. Cumberland County, Pennsy1, az)ia. 09/25/2006 17 17 FAX 6148278218 SEP41-2006 12:30P41 FROM-{TELLS SPRING RD SAFE AUTO IQ 008/016 +TIT2496397 T423 P 004/012 F-70C 6. At or about th it tune and place, Defendant, Gordon Pa aila:itis was driving an automobile owned by Defendant, Maryann Bricker, southboiar,d on South Pitt Street in the Borough of C arlisle, Cumberland County, Pennsylvania. 7. The intersection of West Willow Street and South Pitt Street . s controlled by a flashing red signal for- t affic traveling south on South Pitt Street an d a flashing yellow signal for vehicles trav4 ling east on West Willow Street. 8. Defendant, Gc-ri ion Panilaitis, entered the intersection against the red traffic signal when it was nc,t safe to do so and the front of the automobile that he was driving stn:ck the automobile operated by Plaintiff, James Cavanaugh in the left rear, 9. As a result of th'. aforesaid collision, the automobile operated by Plaintiff, James Cavanaugh hit a hoij s on the southeast corner of the intersection. 10. It is belicved a ad therefore averred that at the time of tie rolhsior., Defendant, Gordon Panilaii:s did not have a valid driver's license, and that his license was under suspension, and c cpired at that time. 11. It is believcd a:id therefore averred that at the time of tie collision, Defendant, Gordon Panilait s, was driving the automobile owned by Defendant, Maryann Bricker, With Maspa an Bricker's permission. 12. By reason of th ; aforesaid collision, Plaintiff James Cavanaugh suffered painful and severe injuries co his nerves, bones and soft tissues which inclucle, but are not limited to, back, neck, sh )older and hip injuries. 13. By reason of t ze aforesaid collision and injuries, PlaintifF suffered a heightened possibility that h ; will suffer other or additional injury in the future, and claim is made therefore. 2 09/25/2006 17 17 FAX 6148278218 SAFE AUTO IQ 009/016 Slip-V-2006 17:39PM FROMAELLS SPRING RD +7172495397 T-523 P 005/012 E-T00 14. The aforesaid - .ollision and injuries suffered by Plaintiff in:ty have aggravated or been aggraval e 1 by an existing infirmity, condition or dise-a:;e, resulting in a prolongation or worsen:.n 3 of the injuries and an enhanced risk of flat ire harm to Plaintiff, and claim is made •tk erefore. 15. By reason of the aforesaid collision and injuries, Plaintiff hats been forced to incur hubility for reasonable and necessary medical tests, medical exiwainations, medical treatment, mediealio, is, hospitalizations and similar expenses in an effort to diagnose his injuries and to rx store himself to health, and claim is made therefore. 16. Plaintiff has not fully recovered from his irk uries and it is reasonably likely that he will incur simi & - expenses in the future, and claim is made therefore. IT By reason of Ilse aforesaid collision and injuries, Plaintiff rya; suffered a loss of earnings and earning rapacity and is entitled to recover the value of the time, earnings and employment be) Lefits he has lost and which she might reast?nably have earned in the pursuit of his or 3inary calling, and claim is made therefore. 18. By reason of the aforesaid collision and injuries, Plaintiff haii suffered a loss or impairment of future: a uning capacity, and claim is made therefore:. 19. I, BY rra=M of thi aforesaid collision and injuries, Plaintiff # is incurred incidental costs and expenses the exact amount of which cezinot be ascertained at this time, and claim is made there: are_ 20. By reason of ttrLe aforesaid collision and injuries, Plaintiff has undergone and in the future will unde rl ;o great physical and mental pain and su.ff-:rir , great inconvenience in carrying c ut his daily activities, loss of life's plea:surer and enjoyment, and claim is made therefore. 3 09/25/2006 17 18 FAX 6148276218 SEP-21-2008 12:39PM FROM-NELLS SPRING RO SAFE AUTO It 010/016 +TIT2496397 T-623 P 0061012 F-700 21. By reason of t ae aforesaid collision and injuries, Plainti T has been subjected to severe humilia.lic n, embarrassment, shame, worry and anger. 22. By reason of f.ae aforesaid collision and injuries. Plaintiff has been subjected to severe mentEL anguish, emotional distress, nervous shock, fright and horror. 23. By reason of the • aforesaid collision and injuries, Plaintiff w l continue to endure grLat mental anguie h, emotional distress, shame, worry and ? nger in the future. 24. By reason of 1 he aforesaid collision and injuries, Plaintiff has been deprived his enjoyment of t:hc pleasures of life. 25 By reason of th. ; aforesaid collision and injuriee, Plaintiff coo tti.nues to be plagued by persistent pain F nd limitation and, therefore, avers that his sijuries may be of a permanent nature, using residual problems for the remainder of his Lifetime, and claim is made therefore. 26. Plaintiffs are ei ;titled to recover non-economic damages be-A- use at the time of this accident, they v ore insureds under an automobile insuranc t policy that provided the full tam op6033 - Co' AT x JaIme'A Cavanscnl h Pla' v. Go ion Panilditis, Defendant 27. Paragraphs 1-2 i are incorporated herein by reference thereto. 4 OS/25/2006 17 18 FAX 6148278218 SEP-21-2006 12:40PM FROM--NELLS SPRING RD SAFE AUTO It 011/016 +7172416387 T-623 P,007/012 F-700 28, The foregoing accident and all of the injuries and damtig°s set forth hereinafter suffered by Plaint ills, James Cavanaugh and Barbara C.'aVaXLa 1gh, are the direct and proximate result or the negligent, careless, wanton and reckles a m.uiner in which Defendant, Gordon P,31 ilaitis, operated a motor vehicle as follows: a. In opera ing the vehicle at an excessive rate of speed under the circumst vices; b. In failicig to apply his brakes in time to avoid the collie ion; C. In neglig :ntly applying his brakes; d. In failing to observe plaintiffs vehicle on the highway; e. In failing to operate his vehicle in accordance with existing traffic conditi or s and traffic controls; Jr. In pemd ting or allowing his vehicle to strike and coIJ ide with the vehicle o )crated by the plaintiff; g_ In failing to exercise the hi&i degree of care required cf a motorist entering = intersection; h. In operas ing his motor vehicle at a time when defenc.anit did not have a ci rrent Pennsylvania operator's license; i. In failing to drive at a speed and in the manner that would alloy,, defendEx t to stop within the assured clear distance ol-. ead; j. In failir g to properly observe traffic signals controlling defendE n ['s direction of travel; k. In failing to keep a reasonable look-out for other vehii1es lawfully on the ro id; 1. In attc= piing to enter an intersection when such movement could no, be safely accomplished; m. In failing to yield the right-of-way to traffic alread•i upon the highwh'r: n. In opcrat ng his vehicle in a mariner not consistent w th the road and we.aT zer conditions prevailing at the time; 5 09/25/2006 17 18 FAX 6148278218 • SEP-21-2006 12:zopm FPOM-NELLS SPRING RD SAFE AUTO V +T1TZ496397 It 012/016 T-623 P.000/012 F-TOc o. In failia ; to prudently proceed through the intersec, ion so as to avoid n eating a dangerous situation for other vehicleis on the highway, p. In failed , to observe oncoming traffic; q. In pric. ceding through an intersection when such movement could nc t be made in safety; r. In falling ; to keep a proper look-out for approaching v ebicles; S. In faililZl, to yield the right-of-way to on-coming bmffic; t. In opat-sLing his vehicle so as to create a dangerous situation for other c e Licle on the roadway; and U. In faiLdzl to have yielded half of the highway to oncoming traffic. 29. Defendant's co aduct, as set forth above, was in violation of the Pennsylvania Motor Vehicle (:ode. which is intended to protect persons lawfully on the highway such as Plaintiff, James Cavanaugh, from personal injury, and thus constitutes negligence per ae W1-IEREFORE, Plaintif, ', James Cavanaugh, demands judgment in Ids favor and against Dl fendant, Gordca) Panilaitis, m an amount in excess of 11 JENTY-nVE THOUSAND & 00/ 100 ($2;1,1100.00) DOLLARS, exclusive of interest and .:osts and in excess of any jurisdictional a nount requiring compulsory arbitration. CODNT IIH James CavaaaaQ lz. Plaintiff y Maryxxm Bricker, Def@1L4Mt 30. Paragraphs 1--X are incorporated herein by reference thereto, 6 09/25/2006 17 19 FAX 6148278218 SAFE AUTO it O13/016 d ! • SEP-21-2006 I2:40PM FR0W-NEIIS SPRING RD +T1T2416397 T-623 P 009/012 F-700 31. The foregoing accident and all of the injuries and dam:a,gn set forth hereinafter suffered by Plainl iffs, James Cavanaugh and Barbara Cavarla igh, are the-: direct and proximate resu'i" if the negligence of Maryann Bricker in ern rusting her automobile to Defendant. Cr or Son Panilaitis. WHERErORE, P1aintLb, James Cavanaugh, demands judgment in his favor and against Df;fendant, Gordon Panilaitis, in an amount in excess of 'PV E•NTY-FIVE THOUSAND & 00/ 100 ($25,(00-00) DOLLARS, exclusive of interest and ooet;s and in excess of any jurisdictional ;u fount requiring compulsory arbitration. CO III James CavanaW b plaintiff v. Maryann 8 c r Defendant 32. Paragraphs 1-Z] are incorporated herein by reference thereto 33. Pursuant to Fla, --.5. §1574, Defendant, Maryann Bricker, is Jointly and severally liable with Defendi nt, Gordon Panilaitis, for any damage cal ised by the negligence of Gordon Panilauti s. WFiEREFORE, Plainljfl James Cavanaugh, demands judgment in his favor and against Defendant, Gordon Panilaitis, in an amount in excess of TWENTY-FIVE THOUSAND & 00/100 ($2.5,(00.00) DOLLARS, exclusive of interest and c:oKtu and in excess of any jurisdictional ,u count requiring compulsory arbitration. 7 09/25/2006 17 19 FAX 3EP-11-1006 11:40Pk1 6148278218 SAFE AUTO 19 014/016 FROWNElls SPRING RD +7172486381 T-623 P.010/012 F-loo COC NT IV - LOSS or CONSQRTrUM Barbara PAYS !-.9 Plaintiff v. Gordon Pa itis Def dal Lt 34. Paragraphs 1-3 3 are incorporated herein by reference there-t(i. 35 As a result of the aforementioned injuries suffered by her husband, James Cavanaugh, Plaintiff, Barbara Cavanaugh, has been and may in the future be deprived df the aid, assi,sbrn-:c, comfort, care, companionship, society anid consortium of her husband, all of which vX be of great detriment, and claim is made therefore. 36. As a result of the aforementioned injuries suffered by her husband, Plaintiff, Barbara Cavaw,u gh, has incurred expenses and/or liability for the reasonable and necessary' r iedical tests, medical examinations, medial treatment, medications, hospitalization: and similar expenses in an effort to diagnos ! hits injuries and to restore him to health, and claim is made therefore. WHEREFORE, Plaiuti 1, Barbara Cavanaugh, demands judgment in lzer favor and against Defendant, Gor Ion Panilaitis, in an amount in excess of TIAIENTY=FIVE THOUSAND & 00/100 ($255,)00.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional a mount requiring compulsory arbitration- UA AT V - IQ 18 OF COnSORTIUM Rar -am CavrawLi gh. PlaintifT v- Marvaan Bricker De&nda>o t 37. Paragraphs 1-3 i are incorporated herein by reference there:tc,. 8 09/25/2006 17 20 FAX SEP-ZI-2006 I2;40PM 6148278218 SAFE AUTO IQ 0 15/0 16 FR0M-NELLS SPRING RD +7172496397 T-623 P.011/012 F-703 38, As a result of the aforementioned injuries suffered by h.r husband, James Cavanaugh, Plaintiff:, Barbara Cavanaugh, has been and may in. the futhlre be deprived of the aid, assistaizc e, comfort, care, companionship, society ane: consortium of her husband, all of which 1 •rill be of great detriment, and claim is made: >Ihe;risfore. 39. As a result of the aforementioned injuries suffered by h,!r husband, Plaintiff'. Barbara Cavanau ;h, has incurred expenses and/or liability for the: reasonable and necessary n edical tests, medical examinations, medical treatment, medications, hospitalizations and similar expenses in an effort to diagnose bis injuries and to restore him to health, ind claim is made therefore. WHEI7EFORE, Plaintif Barbara Cavanaugh, demands judgment 'n her favor and against Defendant, Marl -arm Bricker, in an amount in excess of '. WENTY-FIVE THOUSAND & 00/100 ($25,(00.001 DOLLARS, exclusive of interest and costs and in excess of any jurisdictional ,3r count requiring compulsory arbitration, Respectfully Submitted. F'REEBiT1M & HAMILTON By: (?-, Richaid E. Flreeburn, Eeaq I.D. No. 30965 4415 North Front Street Harrisburg PA 17110 (717) 671-1955 Date: 8/28/06 Counsel for Plaintiffs 9 CS/25/2006 17 20 FAX 6148278216 SEP-21-2m 12:41PM FROM-NEILS SPRING RD SAFE AUTO +7172418397 3TE TIO$ 11016/016 T-6I3 P. 0121012 F-700 We hereby ve?if, that the statements in the foregoing document are true and correct. We understand that false statements herev i are made subject to fie, l enalties of 16 Pa.C.S. Semi= 4904, relattig to unswora falsification tc authorities. Dated: Barbara Cavanaugh 4 •i b AUTO INSURANCE POLICY DECLARATIONS Policy No. PA0011810BA-5 Policy Period From 10/04/2005 00:01:00 To 04/04/2006 00:01:00 Standard time at the address of the named insured as stated herein. This Amended Declaration Page Supersedes prior Declaration Page Issued on 07/07/2004 01:20:48 NAMED INSURED: Endorsement Reasons: MARYANN BRICKER Auto Renewal Update 563 F ST Endorsement Effective 10/04/2005 00:01:00 CARLISLE PA 17013 IF YOU CARRY COLLISION COVERAGE FOR DAMAGE TO YOUR AUTO, THIS POLICY PROVIDES COLLISION COVERAGE FOR RENTAL AUTOMOBILES, BUT ONLY IF THE RENTAL VEHICLE IS RENTED AS A RESULT OF A COVERED LOSS. PLEASI-RUTE THAT THE DEDUCTIBLE AND ALL APPLICABLE POLICY TERMS AND LIMITATIONS APPLY. This Declarations Page along with the Policy Jacket (Form PA1010/1298), your signed application (Form PA1000/0999) and any endorsements/forms listed below complete the above Policy. The insurance afforded is only with respect to such and so many of the following coverages as are indicated with respect to each described vehicle where appropriate. The limit of the company's liability against such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto. VEH # YEAR MAKE MODEL BODY TYPE SERIAL NUMBER SYM TERR DRIVER PTS 1 1985 FORD BRONCO II UT 1 FMBU14S5FUA80892 10 1 F S 41 0 COVERAGE BODILY INJURY PROPERTY DAMAGE FIRST PARTY BENEFITS MEDICAL EXPENSE UNINSURED MOTORIST BODILY INJURY STACKED LIMIT OF LIABILITY $ 15,000 EACH PERSON/ $ 30,000 EACH ACCIDENT $ 10,000 EACH ACCIDENT $ 5,000 EACH PERSON $ 15,000 EACH PERSON/ $ 30,000 EACH ACCIDENT TOTAL DISCOUNTS PER VEHICLE: VIOLATION SURCHARGE PER VEHICLE OTHER SURCHARGES PER VEHICLE TOTAL PREMIUM PER VEHICLE TOTAL POLICY PREMIUM: EXCLUDED DRIVERS: JERRY HULL ALL DRIVERS HAVE CHOSEN LIMITED TORT OPTION ENDORSEMENTS/FORMS MADE PART OF THIS POLICY AT TIME OF ISSUE: PA1000/0999 PA1010/1298 PA1020/0202 PA1110/1298 PA1011/1002 PA1510/0603 PA1605/0302 PA1606/0603 PA1610/0999 PA1500/0603 PA1300/0999 I hereby certify thilAM EN - to be a true and accurate copy of SAFE AUTO INSURANCE COMPANY'S l,ys,.v wi * * * * 6 MONTHS PREMIUM VEH 1 $153 INCL. INCL. $56 $13 0.00% 0 0 $222 $222 In witness whereof, we have caused this policy to be executed and attested by our President and Secretary and countersigned by our licensed agent on 9/27/2006 KJ Jon P. Diam nd President April D. Miller Secretary 4nze?. (?44 Countersignature of Licensed Agent Date Issued: 9/27/2006 BY 11148 Form PA1020/0202 F i Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (717)232-3046 irettig-ahoslawimcom SAFE AUTO INSURANCE COMPANY, Plaintiff V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS, and MARYANN BRICKER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-6404 CIVIL CIVIL ACTION - LAW : JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Jeffrey B. Rettig, Esquire, and Osborne & Rettig, P.C., on behalf of Defendants James Cavanaugh and Barbara Cavanaugh, in regard to the above-captioned action. Respectfully submitted, OSBORNE & RETTIG, P.C. Jeffrey B. Rettig, Es I.D. No.: 19616 126-128 Walnut Street Harrisburg, PA 17101 (717) 232-3046 Attorneys for Defendant CERTIFICATE OF SERVICE I, Jeffrey B. Rettig, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Jeffrey C. Catanzarite, Esquire Summers, McDonnell, et al. 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 OSBORNE & RETTIG, P.C. ?effrey B. Rettig, Esq Date: 1/ y 0 6 t?t" i ; " t C 7 ? Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (717)232-3046 jrettiena,hoslawpa. com SAFE AUTO INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS, and MARYANN BRICKER, Defendants : NO. 06-6404 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Safe Auto Insurance Company c/o Jeffrey C. Catanzarite, Esquire Summers, McDonnell, et al. 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (Attorney for Plaintiff You are hereby notified to file a written response to the enclosed answering Defendant's Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Date: /2 // 6a 16 ? Jeffrey B. Rettig, Es6 I.D. No.: 19616 126-128 Walnut Street Harrisburg, PA 17101 (717) 232-3046 Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (717)232-3046 jrettigaboslawpaxom SAFE AUTO INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6404 CIVIL JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS, and MARYANN BRICKER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANTS JAMES CAVANAUGH AND BARBARA CAVANAUGH TO PLAINTIFF'S COMPLAINT AND NOW, come James and Barbara Cavanaugh, by their attorneys, Osborne & Rettig, P.C., and answers Plaintiff's Complaint in Declaratory Judgment as follows: 1. Denied as stated. It is admitted, based on information and belief, that the Plaintiff does business in Pennsylvania. 2-3. Admitted. 4-5. It is admitted that the Co-Defendants are who they say they are. As to the balance of the allegations of this paragraph, after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded. 6. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded. 7. Denied as stated. It is admitted that a copy of an auto insurance policy declarations page reflecting the issuance of a policy to Mary Ann Bricker with a policy period of October 4, 2005 to April 4, 2006 is attached to Plaintiff's Complaint. As to the balance of the allegations of this paragraph, after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded. 8. It is admitted only that the declaration page attached to the policy provides coverage as alleged in addition to other coverage, including property damage. 9. On information and belief, this allegation is admitted. 10. Denied as stated. It is admitted that Defendant Gordon Panilaitis was, on information and belief, driving a vehicle owned by Defendant Bricker when he caused an accident involving a vehicle operated by Defendant James Cavanaugh. 11. Admitted. 12. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded. 13. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded. 14. Denied as stated. It is unknown whether Defendant Panilaitis was listed as an additional driver on Defendant Bricker's application for coverage. It is admitted that the declaration page attached as Exhibit C does not list Mr. Panilaitis or anyone else as an additional driver. 15. Denied as stated. The terms of the insurance policy, being a written document, speak for themselves. In further answer, the policy does provide liability coverage to persons driving the covered auto with the named insured's permission so long as the driver is not both a resident of the household and regular user of the covered auto. 16. Denied. The terms of the policy speak for themselves. In further answer, liability coverage is extended to permissive users provided they are not "a resident of the named insured's household and a regular user of the covered motor vehicle." 17. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded Wherefore, Defendants James and Barbara Cavanaugh, request that Plaintiff's request for a declaratory judgment be denied and, instead, that a declaratory judgment be entered that the Plaintiff is obligated to provide liability coverage to Defendants Panilaitis and/or Bricker in connection with the personal injury claim advanced by Defendants James and Barbara Cavanaugh. NEW MATTER 18. Plaintiff's insuring agreement extends liability coverage to " . . . any other person driving your covered auto with your permission, provided they are not a resident of your household and do not use your covered auto on a regular basis." 19. Based on information and belief, it is averred that Mr. Panilaitis was driving Ms. Bricker's covered auto with her permission or that he reasonably believed that he had her permission to drive her covered auto. 20. On information and belief, it is averred that Mr. Panilaitis was not both a resident of Ms. Bricker's household and a regular user of her covered auto. 21. In order for the Plaintiff to deny liability coverage for Mr. Panilaitis in this case, it must establish he was both a resident of her household and used her vehicle on a regular basis. 22. To the extent the exclusion set forth under paragraph 1 of the exclusions portion of the policy excludes coverage to those who are a resident of the named insured's household or a regular user of the insured auto, that provision is directly contrary to the insuring agreement and thus void and unenforceable. Wherefore, Defendants James and Barbara Cavanaugh requests that Plaintiff's Declaratory Judgment Action Complaint be dismissed without costs to them. Respectfully submitted, OSBORNE & RETTIG, P.C. 'Jeffrey B. Rettig, Esqui I.D. No.: 19616 126-128 Walnut Street Harrisburg, PA 17101 (717) 232-3046 f1d / Attorneys for Defendant Date: b VERIFICATION I, Jeffrey B. Rettig, Esquire, attorney for Defendants, James Cavanaugh and Barbara Cavanaugh, hereby verify and state that the facts set forth in the foregoing ANSWER WITH NEW MATTER are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn verification to authorities. Dated: Vb ( A4 toc. e Rettig, Esquire 4n CERTIFICATE OF SERVICE I, Jeffrey B. Rettig, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Jeffrey C. Catanzarite, Esquire Summers, McDonnell, et al. 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 Gordon Panilaitis 563 F. Street Carlisle, PA 17013 Maryann Bricker 563 F. Street Carlisle, PA 17013 OSBORNE & RETTIG, P.C. / ebTeffrey B. Rettig, 61 Date: ?? r? CD -1?jj V_y -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, v. No: 06-6404 Civil PRAECIPE FOR DEFAULT JUDGMENT AGAINST DEFENDANTS, GORDON PANILAITIS AND MARYANN BRICKER JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: 1. Kindly enter default judgment against Defendants, Gordon Panilaitis and Maryann Bricker, in the above-captioned matter. 2. Attached are copies of the 10-Day Important Notices directed to Defendants, Gordon Panilaitis and Maryann Bricker. 3. Attached is are Affidavit of Service of the 10-Day Important Notices to Defendants, Gordon Panilaitis and Maryann Bricker. 4. 1 certify that the residence of Defendants, Gordon Panilaitis and Maryann Bricker, is 563 F Street, Carlisle, PA 17013. 5. Please enter judgment by default against Defendants, Gordon Panilaitis and Maryann Bricker, declaring that, "Safe Auto Insurance Company has no legal obligation to provide insurance coverage to Gordon Panilaitis or Maryann Bricker in reference to the personal injury claim filed by James and Barbara Cavanaugh as a result of a motor vehicle accident which occurred on November 18, 2005, pursuant to the terms of the insurance policy issued by Safe Auto Insurance Company to Maryann Bricker." JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: OfrV C katanzarite, Esquire ou sel for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. AFFIDAVIT OF SERVICE 1 . I, Jeffrey C. Catanzarite, Esquire, hereby certify and state that I served on Defendant, Gordon Panilaitis, the attached 10-Day Important Notice at his residence located at 563 F Street, Carlisle, PA 17013. 2. I, Jeffrey C. Catanzarite, Esquire, hereby certify and state that I served on Defendant, Maryann Bricker, the attached 10-Day Important Notice at her residence located at 563 F Street, Carlisle, PA 17013. 3. The 10-Day Important Notices were served on Mr. Panilaitis and Ms. Bricker by regular mail on December 13, 2006 as evidence by a copy of the December 13, 2006 correspondence attached to this Affidavit. Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Dated: 1,-)- O 7 By : Y Catanzarite, Esquire for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, v. No: 06-6404 Civil 10-DAY IMPORTANT NOTICE DIRECTED TO DEFENDANT, GORDON PANILAITIS JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. Date of Notice: December 13, 2006 IMPORTANT NOTICE YOU ARE IN DEFAULT because you have failed to take action required of you in this case. Unless you act within ten (10) days of the date of this Notice, Judgment of Default may be entered against you without a hearing and you may lose your property or other important rights. You should take this notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: '11?-- Je?` ey C, Ctnzarite, Esquire unsel ontiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Ten-Day Important Notice was served upon the following individual on the 13th day of December, 2006, certified mail, return receipt requested and regular U.S. Mail: Gordon Panilaitis 563 F Street Carlisle, PA 17013 James and Barbara Cavanaugh 3808 Chippenham Road Mechanicsburg, PA 17055 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: TureeyekCa&-wtfarite, Esquire sel r Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. No: 06-6404 Civil 10-DAY IMPORTANT NOTICE DIRECTED TO DEFENDANT, MARYANN BRICKER JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. Date of Notice: December 13, 2006 IMPORTANT NOTICE YOU ARE IN DEFAULT because you have failed to take action required of you in this case. Unless you act within ten (10) days of the date of this Notice, Judgment of Default may be entered against you without a hearing and you may lose your property or other important rights. You should take this notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: Wey F-f atanzarite, Esquire uns r Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Ten-Day Important Notice was served upon the following individual on the 13th day of December, 2006, certified mail, return receipt requested and regular U.S. Mail: Maryann Bricker 563 F Street Carlisle, PA 17013 James and Barbara Cavanaugh 3808 Chippenham Road Mechanicsburg, PA 17055 Summers, McDonnell, Hudock, Guthrie &,$keel, L.L.P. By: Frey. gaftanzarife-, Esquire un I for Plaintiff ' SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. ATTORNEYS AT LAW STEPHEN J. SUMMERS PITTSBURGH OFFICE: JASON A. HINES THOMAS A. MCDONNELL GULF TOWER, SUITE 2400 KEVIN D. RAUCH JOSEPH A. HUDOCK, JR 707 GRANT STREET ERIN M. BRAUN GREGG A. GUTHRIE GUY E. BLASS PETER B. SKEEL PITTSBURGH, PA 15219 MARK J. G PATRICK M CONNELLY PHONE 412-261-3232 BRETT L. HUST usroN JEFFREY C CATANZARITE FAX 412-261-3239 ROBERT J. FISHER, JR KIMBERLY L. GALLUCCI ALSO ADMITTED IN WV ANDREW D. ZEITER JESSICA M. JURASKO AMANDA J. LOPICCOLO JASON P W RONA ERICK V. VIOLAGO December 13, 2006 CERTIFIED MAIL RETURN RECEIPT REQUESTED AND REGULAR U.S. MAIL Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 In Re: Safe Auto Insurance Company v. James Cavanaugh, et al. Docket Number 06-6404 Civil (Cumberland County) Our File Number 14925 Dear Ms. Bricker and Mr. Panilaitis: Enclosed please find 10-Day Important Notices in the above-referenced matter. If you have any questions or concerns, please do not hesitate to contact me. cerely efffdv/C. Catanzarite JCC/pk Enclosures HARRISBURG OFFICE: 1017 MUMMA ROAD, LEMOYNE, PA 17043 PHONE : 717-901 5916 FAX, 717-920-9129 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Default Judgment was served upon the following individuals via first-class U.S. mail, postage prepaid on the 2nd day of January, 2007: Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for James and Barbara Cavanaugh) Summers, McDonnell, Hudock, /'G-'Oth rie," keel, L.L.P. By: forse?for . Catanzarite, Esquire Plaintiff a 0 Pr 4 ,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, v. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. CIVIL DIVISION No: 06-6404 Civil NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant (Gordon Panilaitis) ( )Garnishee ( )Additional Defendant You are hereby n tified that the following Order, Decree or Judgment has been entered against you on S" 07 () Decree Nisi in Equity. () Final Decree in Equity. (X) Judgment of ( ) Confession () Verdict () Court Order (X) Default () Non-Suit ( ) Non-Pros () Arbitration Award Judgment in the amoi.int of $ plus costs. () District Justice Transcript of Judgment in the amount of $ plus costs. () If not satisfied with sixty (60) days, your motor vehicle operator's license will be suspended by the Pennsylvania Department of Transportation. PROTHONO By If you have any questions concerning the above, please contact: Name of (Attorney/Filing Party) Jeffrey C. Catanzarite. Esquire Address The Gulf Tower, Suite 2400. 707 Grant St. Pittsburgh PA 15219 Telephone Number (412) 261-3232 I? SHERIFF'S RETURN - REGULAR CASE NO: 2006-06404 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SAFE AUTO INSURANCE COMPANY VS CAVANAUGH JAMES ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within DECLARATORY JUDGMENT was served upon CAVANAUGH JAMES the DEFENDANT , at 1700:00 HOURS, on the at 3808 CHIPPENHAM ROAD MECHANICSBURG, PA JAMES CAVANAUGH 8th day of November-, 2006 by handing to a true and attested copy of DECLARATORY JUDGMENT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 12.32 ` Postage .63 7 Surcharge 10.00 R. Thomas Kline .00 40.95,/ 11/22/2006 SUMMERS MCDONNELL HUDOCK GUTHR Sworn and Subscibed to By: before me this day Deputy Sheriff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-06404 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SAFE AUTO INSURANCE COMPANY VS CAVANAUGH JAMES ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within DECLARATORY JUDGMENT was served upon ('7%W'A'NT7TTTr'U D7TDTRTD2\ the DEFENDANT , at 1700:00 HOURS, on the 8th day of November , 2006 at 3808 CHIPPENHAM ROAD MECHANICSBURG, PA 17055 by handing to JAMES CAVANAUGH, ADULT IN CHARGE a true and attested copy of DECLARATORY JUDGMENT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00./ 11/22/2006 SUMMERS MCDONNELL HUDOCK GUTHR Sworn and Subscibed to By: before me this day Deputy Sheriff of , A.D. % SHERIFF'S RETURN - REGULAR CASE NO: 2006-06404 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SAFE AUTO INSURANCE COMPANY VS CAVANAUGH JAMES ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within DECLARATORY JUDGMENT was served upon PANILAITIS GORDON the DEFENDANT at 563 F STREET at 2111:00 HOURS, on the 21st day of November , 2006 CARLISLE, PA 17013 by handing to MARYANN BRICKER, ADULT IN CHARGE a true and attested copy of DECLARATORY JUDGMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 4.40 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 20.40x/ 11/22/2006 `1/0` SUMMERS MCDONNELL and Subscibed to By: zl?, before me this day of A.D. 7? So Answers: -Now, SHERIFF'S RETURN - REGULAR CASE NO: 2006-06404 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SAFE AUTO INSURANCE COMPANY VS CAVANAUGH JAMES ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within DECLARATORY JUDGMENT BRICKER MARYANN was served upon DEFENDANT at 563 F STREET the , at 2111:00 HOURS, on the 21st day of November-, 2006 CARLISLE, PA 17013 MARYANN BRICKER by handing to a true and attested copy of DECLARATORY JUDGMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit 00 Surcharge 10.00 R. Thomas Kline .00 16.00,/ 11/22/2006 ?z?q?b4 SUMMERS MCDONNELL HUDOCK GUTHR Sworn and Subscibed to By: before me this day p ty Sh f of A.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, No: 06-6404 Civil REPLY TO NEW MATTER (Jury Trial Demanded) Filed on Behalf of Plaintiff Defendants. Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. REPLY TO NEW MATTER Plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Jeffrey C. Catanzarite, Esquire, files the following pleading: 18. The allegations of paragraph 18 of Defendants' James and Barbara Cavanaugh (hereinafter referred to as "Cavanaughs") New Matter are admitted. 19. The allegations of paragraph 19 of Cavanaughs New Matter are denied. To the contrary, Mr. Panilaitis was driving Ms. Bricker's covered automobile without her permission and without reasonably believing that he had her permission to drive her covered automobile. 20. The allegations of paragraph 20 of Cavanaughs New Matter are denied. To the contrary, Mr. Panilaitis was a resident of Ms. Bricker's household and was a regular user of her covered automobile. 21. The allegations of paragraph 21 of the Cavanaughs' New Matter are admitted in part and denied in part. It is admitted that the Plaintiffs can deny liability coverage to Mr. Panilaitis in this case by establishing that he was both a resident of Ms. Bricker's household and used Ms. Bricker's vehicle on a regular basis. It is denied that this is the only manner in which the Plaintiff can deny liability coverage to Mr. Panilaitis. To the contrary, the Plaintiff can deny liability coverage by establishing that Mr. Panilaitis operated the covered automobile without the permission of Ms. Bricker. 22. The allegations of paragraph 22 of the Cavanaughs' New Matter are conclusions of law to which no response is necessary. To the extent a response is necessary, said averments are generally denied pursuant to Rule 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure. Respectfully submitted, By: Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Jeffrey C. Catanzarite, Esquire Counsel for Plaintiff VERIFICATION I, Joshua Adkins, verify that I am the o _ ec,c?l s of Safe Auto Insurance Company, and I am authorized to execute this verification on behalf the Plaintiff, Safe Auto Insurance Company, and the statements made in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. To the extent that the content of the Reply to New Matter is permitted by Pennsylvania Rules of Civil Procedure, I have relied upon counsel in verifying the same. D I lei (Dale) #14925 r CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Reply to New Matter was served upon the following individuals via first-class U.S. mail, postage prepaid on the 16th day of January, 2007: Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for James and Barbara Cavanaugh) Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: ;fYf, Catanzarite, Esquire u orr Plaintiff G C p IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, No: 06-6404 Civil MOTION TO ENTER DECLARATORY JUDGMENT AGAINST DEFENDANT, GORDON PANILAITIS, PURSUANT TO Pa. R.C.P. 1037(c) (Jury Trial Demanded) Filed on Behalf of Plaintiff Defendants. Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 I ] IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. MOTION TO ENTER DECLARATORY JUDGMENT AGAINST DEFENDANT GORDON PANILAITIS, PURSUANT TO Pa. R.C.P. 1037(c) Plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Jeffrey C. Catanzarite, Esquire, files the following Motion to Enter Declaratory Judgment Against Defendant, Gordon Panilaitis, Pursuant to Pa.R.C.P. 1037(c): 1. On or about November 2, 2006, the Plaintiff filed a Complaint in Declaratory Judgment in the Court of Common Pleas of Cumberland County at No. 06-6404. Attached hereto and marked as Exhibit "A" is a true and correct copy of the Complaint in Declaratory Judgment. 2. Said Complaint was served upon Defendant, Gordon Panilaitis, on November 21, 2006. 3. Said Complaint reflected that Defendant, Maryann Bricker, was issued a policy of insurance by Safe Auto Insurance Company for liability coverage and that an automobile accident occurred on November 18, 2005, involving all . ) Defendants to the declaratory judgment action. As a result of said accident, demands have been made upon Safe Auto Insurance Company to indemnify and assume a defense relating to the underlying lawsuit being filed against Defendants, Maryann Bricker and Gordon Panilaitis, by James and Barbara Cavanaugh. 4. The Complaint in Declaratory Judgment sought a declaration that because Gordon Panilaitis was operating Maryann Bricker's vehicle without her permission and/or was a resident of Bricker's household and/or a regular user of Bricker's vehicle, and was not listed as an additional driver on the declarations page, no coverage would apply for the underlying motor vehicle accident of November 18, 2005. Gordon Panilaitis has been duly served with the Complaint in Declaratory Judgment action and he has not filed any Answer to the Complaint in Declaratory Judgment. 5. On or about January 5, 2007, the Plaintiff filed a Praecipe for Default Judgment against Gordon Panilaitis with the Court of Common Pleas of Cumberland County. Attached hereto and marked as Exhibit "B" is a true and correct copy of said Praecipe for Default Judgment. 6. On or about January 5, 2007, the Prothonotary entered judgment of default against Gordon Panilaitis. A true and correct copy of the Notice of Order, Decree or Judgment is attached hereto as Exhibit "C". 7. Inasmuch as this is a Complaint in Declaratory Judgment, Plaintiff seeks an appropriate Order under Pennsylvania Rule of Civil Procedure 1037(c) for entry of an appropriate Order of Judgment based upon the default that has been entered. WHEREFORE, Safe Auto Insurance Company seeks an appropriate Order entering declaratory judgment pursuant to the Complaint and the default judgment that has been entered against Defendant, Gordon Panilaitis. JURY TRIAL DEMANDED Respectfully submitted, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: l.? "I / lz&? '. - Je eVf?r Stan arite, Esquire n Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: ac. - ?Cv C' ' L ? V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. #14925 COMPLAINT IN DECLARATORY JUDGMENT (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 o 0 e--', ro ti J ` ' y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. COMPLAINT IN DECLARATORY JUDGMENT Plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Jeffrey C. Catanzarite, Esquire, files the following Complaint in Declaratory Judgment seeking a declaration of its rights, of which the following is a statement: 1. Plaintiff, Safe Auto Insurance Company (hereinafter referred to as "Safe Auto"), is an Ohio corporation doing business in Pennsylvania, with a principal place of business located at 4328 East Fifth Avenue, Columbus, Ohio 43219. 2. Defendant, James Cavanaugh, is an adult individual who resides at 3808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 3. Defendant, Barbara Cavanaugh, is an adult individual who resides at 3808 Chippenham Road, 'Mechanicsburg, Cumberland County, Pennsylvania. 4. Defendant, Gordon Panilaitis, is an adult individual who resides at 563 F Street, Carlisle, Cumberland County, Pennsylvania. 5. Defendant, Maryann Bricker, is an adult individual who resides at 563 F. Street, Carlisle, Cumberland County, Pennsylvania. 6. Plaintiff, Safe Auto, issued Maryann Bricker an auto insurance policy, Policy No. PA00118108A-5, for a 1985 Ford Bronco (hereinafter referred to as "the vehicle"), with effective coverage dates of September 5, 2005 to September 4, 2006. 7. Attached hereto and incorporated herein as Exhibit "A" to Plaintiff's Complaint is a copy of Maryann Bricker's Safe Auto Policy No. PA001 18108A-5. 8. The policy provides for liability coverage in the amount of $15,000.00 per person and $30,000.00 per accident. 9. Safe Auto believes and avers that on or about November 18, 2005, Defendant, Gordon Panilaitis, was operating the vehicle, which was owned by Maryann Bricker. 10. At that time, it is alleged that while Gordon Panilaitis was operating the vehicle, he entered an intersection against a red traffic signal when it was not safe to do so and the front of the vehicle that he was operating struck the vehicle operated by Defendant, James Cavanaugh, in the left rear causing personal injuries to Defendant, James Cavanaugh. 11. As a result of said collision, James and Barbara Cavanaugh have instituted suit in the Court of Common Pleas of Cumberland County. Attached hereto and marked as Exhibit "B" is a true and correct copy of the Complaint filed against Gordon Panilaitis and Maryann Bricker. s 12. Various demands have been made upon Safe Auto Insurance Company to indemnify and assume a defense on behalf of Gordon Panilaitis and Maryann Bricker. 13. At the time of the collision that occurred on November 18, 2005, Defendant, Gordon Panilaitis, resided in the same household as Defendant, Maryann Bricker. 14. When Policy No. PA00118108A-5 was issued, Defendant, Gordon Panilaitis, was not listed as an additional driver on the Declarations Page. Attached hereto and marked Exhibit "C" is a true and correct copy of the Declarations Page for Policy No. PA001 18108A-5. 15. The coverage afforded to Maryann Bricker under the terms and conditions of the policy does not include coverage for users of the covered automobile by residents of the insured household, unless that person is listed as an additional driver on the Declarations Page. Furthermore, the coverage afforded to Maryann Bricker under the terms and conditions of the policy does not include coverage for users of the covered automobile, unless that user was operating the covered automobile with the permission of the covered automobile's owner. 16. The Safe Auto policy provides that there is no duty to defend nor coverage provided for the following loss: EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: 1. That occurs while your covered auto is being operated by a resident of your household or by a regular user of your covered A auto, unless that person is listed as an additional driver on the Declarations Page. 8. If your covered auto is used without the covered auto owner's permission, or outside the scope of that permission. 17. At the time of the motor vehicle accident which occurred on November 18, 2005, Defendant, Gordon Panilaitis, was a resident of Defendant, Maryann Bricker, was not listed as an additional driver on Maryann Bricker's Declarations Page with Safe Auto and was operating the covered automobile without the permission of Maryann Bricker. WHEREFORE, Plaintiff, Safe Auto Insurance Company, seeks a declaration under the Declaratory Judgment Act, 42 Pa. C.S.A. § 7531, et seq., establishing that no liability coverage is provided by Policy No. PA00118108A-5 to Gordon Panilaitis or Maryann Bricker in connection with the personal injury claim allegedly sustained by James and Barbara Cavanaugh. Respectfully submitted, By: Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. ?ffrey Catanzarite, Esquire ouns l for Plaintiff I VERIFICATION I, Joshua Adkins, verify that I am the of Safe Auto Insurance Company, and I am authorized to execute this verification on behalf the Plaintiff, Safe Auto Insurance Company, and the statements made in the foregoing Complaint in Declaratory Judgment are true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint in Declaratory Judgment is permitted by Pennsylvania RL;!es of Civil Procedure, I have relied upon counsel in verifying the same. /0// -;P- b ? . (Date) shua Adki #14925 PENNSYLVANIA PERSONAL AUTOMOBILE POLICY PENNSYLVANIA FRAUD LAW: ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE COMPANY OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM CONTAINING ANY MATERIALLY FALSE INFORMATION OR CONCEALS FOR THE PURPOSE OF MISLEAD- ING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO COMMITS A FRAUDULENT INSURANCE ACT, WHICH IS A CRIME AND SUBJECTS SUCH PERSON TO CRIMINAL AND CIVIL PENALTIES. AGREEMENT Definitions Used Throughout This Policy .............................................1 What You Should Do In The Event Of A Loss Or An Accident ............3 Notice Of Auto Accident Or Loss .........................................................3 Other Duties ........................................................................................4 PART I - LIABILITY COVERAGE Insuring Agreement, Additional Benefits ............................................ ..5 Protection For Others, Who Is Not Covered, Exclusions ..............:.... ..6 Limits Of Liability ............................................................................... ..8 Other Insurance ............................................................................. .9 PART N - FIRST PARTY BENEFITS COVERAGE insuring Agreement, Definitions Used Only in This Part It ................. 10 Accidental Death, Covered Auto, Funeral Expenses ......................... 10 Income Loss, Insured Person, Medical Expenses ............................. 11 Combination Package, Extraordinary Medical Benefits ..................... 13 Non-Economic Loss, Serious Injury, Exclusions ................................ 13 Limits of Protection ........................................................................... 14 Priority Of Policies, Conditions .......................................................... 15 PART IN - PHYSICAL DAMAGE COVERAGE Insuring Agreement ........................................................................... 16 Losses Not Covered .......................................................................... 17 Limit of Liability ................................................................................. 19 Transportation Expenses, Rental Reimbursement ............................ 19 Towing and Labor ............................................................................. 19 Payment Of Loss, Premium Earned On Total Loss ........................... 20 No Benefit To Sallee, Appraisal, Other Insurance ............................. 20 PART IV - UNINSUREDIUNDERINSURED MOTORISTS COVERAGE Insuring Agreement ........................................................................... 20 Additional Definitions Used Only In This Part IV ................................ 21 Uninsured Motor Vehicle ...................................................................21 Underinsured Motor Vehicle .............................................................. 22 Protection For Others, Those Not Covered ....................................... 22 Limits Of Protection, Payment of Damages ....................................... 24 Stacked Coverage, Unstacked Coverage, Reductions ...................... 25 Trust Agreement, Otiner Insurance, Arbitration ..................................26 GENERAL PROVISIONS. Valid Driver License, Business Use Coverage .................................. 27 Named Driver Exclusion, Our Rohl To Recover Payment ................27 Finked Vehicles, Lienholde Deductible .........................................28 Policy Period And Territory ...............................................................28 Transfer Of This Policy, Number Of Covered Autos Allowed .............29 Changes In Your Policy, Cancellation During The Policy Period .......29 Renewal Provisions.--* .....................................................................30 Bankruptcy, Fraud Or Misrepresentation, Premium Payment ............ 31 Late Payment ................................................................................... .31 Financial Responsibility Laws, Suit Against Us ................................ .32 Punitive Or Exemplary Damages ..................................................... .33 Two Or More Auto Policies, Automatic Termination ......................... .33 NAMED OPERATOR ENDORSEMENT (NON-OWNED AUTOMOBILES) ............................................................................ . 33 AGREEMENT We agree with you, in return for your timely payment of premium, to insure you subject to the terms and conditions of this policy. We will insure you for the coverages and up to the lim- its of liability for which a premium is shown on the Dec- larations Page of this policy. We agree to insure you based upon the informatiori you represented to us in your application for auto in- surance. The Declarations Page and your application are part of this policy contract. DEFINITIONS USED THROUGHOUT THIS POLICY In order to make this policy easier to understand, we have explained some key words that are used throughout this policy. These key words are in bold face print Auto means a four wheel passenger, station wagon, or jeep type vehicle licensed for use on public roads in- cluding pickups, delivery or panel trucks and vans with a classification of % ton or less that is not used in any business or occupation other than farming or ranching, unless the auto qualifies under the business use defi- nition. Auto accident is an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance, or use of an auto. Bodily Injury means physical harm, sickness or disease, including death, caused by an auto accident and suffered by a person. Business use means the use of any auto to convey any operaWb tween his/her place of employment and an- other n duri ng the course of the operator's employ- ment and at the direction of the operator's employer. Business Use shall not include any Commercial Use; however, mileage reimbursement shall not constitute pe- cuniary gain or commercial advantage. Collision means the upset of your covered auto or its impact with another vehicle or object. Commercial use means any auto used for pecuniary gain or commercial advantage, including but not limited to: use of an auto for the purposes of buying, selling, ex- changing, distributing, transportation, and/or delivery of commercial tools, materials, supplies, and/or finished prod- ucts. Commercial use also means any compensated use of an auto for snow or debris removal on roads or real es- tate, except at your residence. Commercial use also means carrying o any person or property for a charge, but does not apply to shared expense car pools or any Busi- ness Use. Comprehensive means loss caused other than by colli- sion. Accidental glass breakage and loss or damage from missiles or fallingg objects, fire, theft, larceny, explosion, earthquake, win rm' , hail, water, flood, malicious mis- chief, vandalism, not, civil commotion, or contact with a bird or animal is considered a comprehensive loss. Covered auto or your covered auto means any auto described on the Declarations Page and any owned or leased auto you replace it with. Your covered auto also means any additional auto, ownership of which you ac- quire during the policy period if we insure, under this policy, all autos you own. However, the replacement auto or ad- ditional auto is insured ONLY if the Named Insured notifies us within thirty (30) days of acquisition of ownership. Prior to notification, a replacement auto is subject to the same coverage as the auto it replaces. Collision and compre- hensive coverage does not apply to any additional auto unless specifics requested by the Named Insured prior to a loss involving the additional auto. A temporary replacement auto qualifies as a covered auto. Your covered auto also means a trailer you own or are using. Physical damage coverage does not transfer to trailers. Your covered auto also means other autos you operate with the permission of the owner, but not for collision or compre- hensive coverage. Any liability coverage we provide with re- spect to an auto you do not own or lease shall be excess over and above any other collectible insurance covering the auto you are driving. Your covered auto does not include other autos owned or leased by you, furnished to or available for your regular use or any autos owned or leased by any resi- dent of your household. A temporary replacement auto qualifies as a covered auto. Damages mean the cost of compensating those who suffer bodily injury or property damage from an auto accident. Declarations Page is the form from us stating the pol- icy period, the types of coverage you have elected, the limit for each coverage, the cost for each coverage, the specific vehicles covered by this policy, the types of coverage for each vehicle, and other information appli- cable to this policy. Loss, losses means sudden, direct, and accidental loss or damage. Motor vehicle is a self-propelled land vehicle on wheels designed for use on public roads and not run- ning on rails or tracks and not running by overhead electric power. Motor vehicle shall not include any ve- hicle which is used as a residence or premises and does not include farm type tractors or equipment de- signed for use off of public roads. Non-owned auto means any private passenger auto not owned or leased by you or a relative, furnished to or available for the regular use of you, a resident, or any relative, while in the custody of or being operated by you or a relative. A rented auto is not considered a non-owned auto. Property Damage means physical damage to, destruc- tion of, or loss of use of tangible property. Occupying means in, on, getting in, or getting out of a covered auto. Relative means a resident living in your household who is under 21 years old, your dependant and related to you by blood, marriage, or adoption, including a ward or foster child. Resident means any person who physically lives in your household for longer than fourteen (14) consecu- tive days. Your unmarred, unemancipated children un- der the age of 24 attending school full-time, living away from home will be considered a resident of your house- hold Temporary replacement auto means any auto not owned or leased by you, a relative, or a resident, while your covered auto is being serviced or repaired, or if it has been stolen or destroyed. Trailer means a vehicle designed to be pulled by an auto. It also means a farm wagon or farm implement while being towed by an auto. A trailer is not a. mobile home or a trailer used as an office, store, display, or passenger trailer. Use, using, used means any utilization of the motor vehicle as a vehicle including occupying, entering into and alighting from it. Vehicle - See Motor Vehicle. We, us, and our refer to Safe Auto Insurance Company. You, your, yourself means the person named on the Declarations Page of this policy as the Named Insured and the spouse of that person if a resident of the same household. WHAT YOU SHOULD DO IN THE EVENT OF A LOSS OR AN ACCIDENT NOTICE OF AUTO ACCIDENT OR LOSS In the event of an auto accident or loss, you must report it to us as soon as reasonably possible. You can report your auto accident or loss 24 hours a day by calling toll-free: 1-800-SAFE-AUTO (1-800-723-3288) or 614-231-0200 3- The report must give the time, place, and circumstances of the auto accident or loss, including the names and ad- dresses of any injured persons and of any witnesses. For any accident involving bodily injury or in which the insured vehicle must be towed from the scene, you must also file a written report with the appropriate law enforcement agency within 24 hours of the auto acci- dent or loss. OTHER DUTIES You or any person claiming coverage under this policy must: 1. Cooperate with us in any matter concerning a claim or lawsuit and promptly send us any legal papers received relating to the claim or lawsuit. 2. Submit to physical or mental examination(s) at' our expense by doctors we select as often as we may reasonably require and authorize us to obtain medical and other records. 3. Provide any written proofs of loss that we require. 4. Refuse to, except at your own expense, assume any obligation or incur any expense other than medical and surgical care imperative at the time of the auto accident. 5. Attend hearings and trials as required. 6. Submit to examination(s) under oath upon our re- quest If you are claiming uninsured motorists coverage, you must file a written report with the appropriate law enforce- ment agency within 24 hours of the auto accident, if a hit- and-run motor vehicle is involved. If you were occupying a motor vehicle at the time of the auto accident, you must make it available for our inspection. If you are claiming physical damage, you must take reasonable steps after the loss to protect the covered auto and. its equipment from further loss. We will ay reasonable expenses incurred in providing that protec- tion. YOU MUST FILE A WRITTEN REPORT OF THE THEFT OR VANDALISM OF YOUR COVERED AUTO TO THE. POLICE WITHIN 24 HOURS OF THE OCCUR- RENCE. You must also allow us to inspect and appraise the damaged covered auto before its repair or dis- posal. FAILURE TO COMPLY WITH ANY OR ALL OF THE CONDITIONS ABOVE MAY RESULT IN OUR REFUSAL TO EXTEND YOU OR ANYONE ELSE REQUESTING COVERAGE ANY PROTECTION UNDER THIS POLICY FOR THE AUTO ACCIDENT OR LOSS. PART 1- LIABILITY COVERAGE INSURING AGREEMENT We will pay damages, other than punitive or exemplary, for bodily injury or property damage for which you, a relative or any additional driver listed on the Declara- tions page becomes legally responsible for because of an auto accident. Liability coverage applies to you while driving your covered auto and to you while driv- ing a non-owned auto, if you have permission from the owner to drive the auto. Liability coverage will not apply to you while driving an auto that is not listed on the Declarations Page and that is: 1. Owned or leased by you; or 2. Available for your regular use; or 3. Owned or leased by a resident of your household. Liability coverage will apply to any other person driving your covered auto with your permission, provided they are not a resident of your household and do not use your covered auto on a regular basis. We will provide liability coverage for an auto you rent from a car rental agency or garage, ONLY while your covered auto is being serviced or repaired, or if it has been stolen or destroyed. Any liability coverage we provide with respect to an auto you do not own or lease shall be excess over and above any other collectible insurance covering the auto you are driving. ADDITIONAL BENEFITS These benefits are in addition to our limit of liability for damages. We will pay for the cost of investigating the auto accident and arranging for the settlement of any claim against you. We will also defend you, hire and pay a lawyer and pay all defense costs for the lawyer hired by us if someone sues you for damages because of an auto accident even if the accusations are not true. However, we have no duty to defend suits for bodily injury and property damage not covered by this policy. We may in- vestigate and settle any claim or lawsuit, as we deem ap- propriate. We will not be obligated to pay for the cost of any further investigation or arrangement for settlement or defend you further after we have offered to pay our entire limit of liability. We will pay up to $100 for the cost of bail bonds required because of an auto accident, including related traffic law violations. The auto accident must result in bodily injury or property damage covered under this policy. We have no obligation to apply for or furnish a bond. If the person who sues you tries to tie up your property by an attachment, we will pay for a bond to release the attachment. However, we will not pay the premium for attachment bond amounts that are more than our limit of liability. If you lose a lawsuit that we are defending, we will pay the court costs, including appeal costs if we decide to appeal. We will also pay pre judgment and post- judgment interest on the amount of the judgment up to the policy limits. We will pay this interest from the day the judgment is entered until we have offered the other party the amount of the judgment up to the full limits of rabi ity available under this coverage. We will pay your expense for first aid to others at the scene of an auto accident involving an auto we insure. We will pay. other reasonable expense incurred at our request including up to $25 a day for loss of earnings because of attendance at hearings or trials at our request PROTECTION FOR OTHERS Anyone using your covered auto with the covered auto owner's permission, and within the scope of such permission, has the same rights and obligations that you.have under this coverage. However, this protection is not afforded to any regular or occasional user of your covered auto or to any resident of your household, unless that person is listed as an additional driver on the Declarations Page. Any change in regular opera- tors, newly licensed drivers or residents in your house- hold must be reported to us immediately. WHO IS NOT COVERED Neither the United States of America nor any of its agencies are protected under this coverage. Anyone for whom the United States government may be held responsible under the Federal Tort Claim Act is not protected under this coverage. In the event of reinstatement, no coverage exists for any person during the period between the cancellation date and the reinstatement date. EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: 1. That occurs while your covered auto is being oper- ated by a resident of your household or by a regu- lar user of your covered auto, unless that person is listed as an additional driver on the Declarations Page. . 2. Resulting from a relative's operation or use of a motor vehicle, other than your covered auto, which is owned or leased by a person who is a resi- dent of your household. 3. Arising while your covered auto is being operated by a person who is listed as an excluded driver on the Declarations Page. 4. Arising out of the ownership, maintenance, or use of any motor vehicle, other than your cov- ered auto, which is owned or leased by you, fur- nished to or available for your regular use. 5. Arising out of the ownership, maintenance or use of any motor vehicle with less or more than four wheels. 6. Arising out of the loading or unloading of any vehi- cle unless it occurs while occupying, entering into, or alighting from it 7. To you or to property owned by, rented to, in charge of, or transported by you. However, this exclusion does not apply to your rented residence or rented private garage damaged by your covered auto. 8. If your covered auto is used without the cov- ered auto owner's permission, or outside the scope of that permission. 9. Sustained while your covered auto is being used to flee or elude law enforcement official(s). 10. Caused intentionally by you or at your direction. 11. If your covered auto is used in the commission of any felony, including theft of your covered auto. 12. If your covered auto is used in any illicit trade or transportation. 13. Arising from any prearranged or organized race, speed contest or performance contest. 14. Arising out of the ownership, maintenance, or use of any motor vehicle during the course of any business or employment, unless you have paid a specific premium for business use cover- age. 15. Arising out of or in the course of employment. However, coverage does apply to a domestic em- ployees unless benefits are payable or required to be provided, for the domestic employee under worker's compensation law or similar law. 16. To your fellow employee(s) in the course of his/ her employment, if such injury arises out of the use of an auto in the business of his/her em- ployer. This exclusion does not apply to injuries for which you are legally liable. 17. If you are operating any motor vehicle in a com- mercial capacity. 18. If your covered auto is used during the course of your employment to transport people, including, but not limited to nursery or school children, medical pa- tients; clients, migrant workers or.hoteUmotel guests. 19. If your covered auto is used for snow removal, or any kind of wholesale or retail delivery, including but not limited to pizza, magazine, flowers, newspaper, mail or other business types of delivery. 20. Arising out of the ownership, maintenance or use of any auto when it is used to carry persons or property for a charge. This exclusion does not apply to shared expense car pools. 21. Arising out of an auto business operation, including but not limited to, the selling, repairing, servicing, testing, storing, or parking of motor vehicles. 22. Occurring while your covered auto is pulling a mobile home or a trailer used. as an office, store, display, or passenger trailer. 23. Arising out of the operation of farm machinery. 24. Arising cut of or due to the use of . the covered I auto for transportation of any explosive substance, flammable liquid, or similarly hazardous material. 25. Assumed by you under any contract or agreement. 26. For any liability imposed upon you by statutes aris- ing from your sponsorship of a minor for an opera- tors license. 27. Caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reaction, radiation, radioactive contamination, or any conse- quence of any of these. l 28. To anyone protected at the time of the auto acci- dent by an atomic or nuclear energy liability in- surance contract. The reason -for this is that, by law, such policies protect. all persons involved in the auto accident, regardless of who was at i fault. 29. Arising during the period between the cancella- tion date and time and the 'reinstatement date and time. LIMITS OF LIABILITY The limit of liability shown on the Declarations Page is the most we will pay regardless of the number of claims made, 9 covered autos, insured persons, lawsuits brought, vehi- cles involved in an auto accident, or premiums paid. Your Declarations Page shows a split limit: 1. The amount shown for "each person" is the most we will pay for all damages due to a bodily injury to one person; and 2. Subject to the "each person" limit, the amount shown for "each accident" is the most we will pay for all damages due to bodily injury sustained by two or more persons in any one auto acci- dent; and 3. The amount shown for property damage is the most we will pay for all property damage for which you become legally liable as a result of any one auto accident. The liability limits apply to each covered auto as stated on the Declarations Page. The insuring of more than one, person or auto under this policy will not increase our liabil- ity limits beyond the amount shown for any one auto, even though a separate premium is charged for each auto. The limits also won't be increased if you have other auto insur- ance policies that apply. The bodily injury limit for "each person" includes the total of all claims made for such bodily injury and all claims de- rived from such bodily injury, including, but not limited to, loss of society, loss of companionship, loss of services, loss of consortium, and wrongful death. No one shall be entitled to duplicate payments for the same elements of damages. Any payment to a person under this Part I shall be reduced by any payment to that person under Part 11 - First Party Benefits Coverage, for the same element of damages. A motor vehicle and attached trailer are considered one motor vehicle. Therefore, the limits of liability will not be increased for an auto accident involving a motor vehicle which has an attached trailer. OTHER INSURANCE This insurance is primary for any auto owned or leased by you and that is described on the Declarations Page, or any additional or replacement auto we insure. If you are using a temporary replacement auto or non-owned auto, our liability insurance will be excess over other collectible insurance. If more than one policy applies to an accident involving your covered auto, we will bear our proportionate share with other collecti- ble liability jointly responsible. If there is other liability insurance applicable on the same primary or excess basis as this coverage, we will pay only our share of the loss. Our share is the propor- tion that our limit of liability bears to the total of all appli- cable limits. PART N_ FIRST PARTY BENEFr S COVERAGE First Party Benefits. consist of. the following benefits which may be purchased individually or as a combina- tion package. Medical Expenses Funeral Expenses, Income Loss, Accidental Death, Extraordinary Medical Benefits and a Combination Package make up . the benefits that are available under First Party Benefits. Coverage will apply only with respect to the coverages appearing on -the Declarations Page for which a pre- mium has been charged. INSURING AGREEMENT In accordance with the Pennsylvania Motor Vehicle Financial Responsibility. Law, we will pay First Party Benefits for: (a) medical expenses, (b) income loss, (c) funeral expenses, and (d) accidental death arising from bodily injury to you resulting from the maintenance or use of a motor vehicle as a vehicle. Only the First Party Benefits shown as applicable in the Declarations Page will apply. DEFINITIONS USED ONLY IN THIS PART II ACCIDENTAL DEATH If a premium appears on the- Declarations Page for this coverage, we will pay for accidental death ansing from bodily in)'ury to the Insured person due to an accident results from the maintenance or use of a motor vehicle as a vehicle. This death benefit will be paid if death occurs within 24 months from the date of the accident. The death benefit shall be paid to the executor or administrator of the deceased's estate. COVERED AUTO A motor vehicle to which the bodily injury liability insur- ance of the policy applies and for which a specific premium is charged and for which the named insured maintains First Party Benefits as required under the Pennsylvania Motor Vehicle Financial Responsibility Law. FUNERALEXPENSES If a premium appears on the Declarations Page for this coverage, we will pay reasonable expenses directly related 10 to the funeral, burial, cremation or other form of disposition of the remains of the deceased, Insured person. Ex- penes incurred must be a result of the death of the in- sured person as a result of the auto accident and within 24 months from the date of the auto accident INCOME LOSS If a premium appears on the Declarations Page for this coverage, we will pay eighty (BWo) percent of gross income actually lost by an insured person. Income loss includes reasonable expenses actually incurred for hiring: (a) a substitute to perform the work of an insured person who is self employed and for which they would have performed if not for bodily injury; or (b) special help, thereby enabling a person to work, thereby reducing loss of gross income. Income loss does not include: (a) loss of expected income for any period following the death of an insured person; or (b) expenses incurred for services performed following the death of an insured person; or (c) any loss of income during the first five (5) working days the insured person did not work after the acci- dent because of the bodily injury. These five (5) working days do not have to be consecutive. INSURED PERSON An insured person is a person named on the Declara- tions Page as the named insured, an additional driver fisted on the Declarations Pale and any other person who sustains bodily injury while occupying the insured motor vehicle as a passenger. An insured person is also a person who is a non-occupant who is inured as a result of an accident in Pennsylvania invohring the cov- ered auto. An unoccupied parked covered auto is not a motor vehicle ..involved in an accident unless it was parked in a manner as to create an unreasonable risk of injury. MEDICAL EXPENSES We will pay reasonable and necessary charges for. (a) medical treatment, including but not limited to: (1). medical, hospital, surgical, nursing and dental services (2) medications, medical supplies and prosthetic de- vises; (3) ambulance. (b) medical and rehabilitative services, including but not II limited to: (1) medical care; (2) licensed physical therapy, vocational rehabilitation and.occu*onal therapy; (3) osteopathic, chiropractic, psychiatric and psycho- logical services; (4) optometric services, speech pathology and audio logy. (c) nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing. Payment of medical expenses will be made pursuant to Section 1797 (a) of th e Pennsylvania Motor Vehicle Finan- cial Responsibility Law, and as it may be amended. All medical treatment and medical and rehabilitative serv- ices must be provided by or prescribed by a person or facility approved by the Department of Health, the equiva- lent govemmenta agency responsibility for health pro- grams or the accrediting designee of a department or agency of the state in which those services are provided. We use Peer Review Organizations (PR(?) which have been approved b the Insurance Commissioner to evalu- ate whether or nor 1. treatment; 2. health care services; 3. products; or 4. accommodations; which were provided conform to professional standards of performance and were reasonable and medically neces- sary. We, the injured person or the provider may request a reconsideration by the PRO within 30 days of the PRO's initial determination. This request for reconsideration as to the reasonableness and n of treatment must be made pursuant :to Section 1797 b) of the Pennsylvania Motor Vehicle Financial Responsibility Law, and as it may be amended. If we refuse payment of a provider's bill and do not chal- lenge it before a PRO within 90 days of receipt, the injured person may ask the court to review our refusal to pay. This 90 day provision -does not apply to continuing treat-. ment or services. Payment of medical expenses incurred after 18 months from the date of the accident causing bodily injury shall be made only if within 18 months from the date of the acci- dent; it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the injury. 12 COMBINATION PACKAGE If a premium appears on the Declarations Page for the Combination Package, we will pay for medical expenses, funeral expenses, income loss, and accidental death as described and limited above. Our payment is limited to $177,500 in the aggregate or to the expenses or losses incurred within three (3) years from the date of the acci- dent, whichever occurs .first However, within this $177,500, we will pay no more than $25,000 for an acci- dental death benefit or $2,500 for funeral expenses. EXTRAORDINARY MEDICAL BENEFITS If a premium appears on the Declarations Page for this coverage, we will pay benefits for reasonable and neces- sary medical expenses in excess of $100,000 arising from bodily injury to an insured person. The injury must be due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. We will pay these bene- fits regardless of fault No benefits will be paid under this coverage until such medical expenses exceed $100,000. Subject to a lifetime aggregate limit of $1,000,000, the most we will pay on behalf of an insured person as a result of one accident is $50,000 per year. However, dur- ing the first 18 months of eligibility, we will make payments in excess of the $50,000 per year limit, subject to the fife- time aggregate limit of $1,000,000. - NON-ECONOMIC LOSS, Non-economic loss is pain and suffering and other non- monetary detriments. SERIOUS INJURY A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement. EXCLUSIONS FIRST PARTY BENEFITS COVERAGE DOES NOT APPLY TO BODILY INJURY: 1. Sustained by ariy person, who is the owner of a cur- rently registered motor vehicle for which Financial Responsibility is not provided, while occupying or when struck by that motor vehicle. 2. Sustained by any person while occupyingg a motor- cycle, motor-driven cycle, motorized pedalcycle or like type vehicle required to be registered under Title 75 or a recreational vehicle not intended for highway use or any other type of motor vehicle not required to be registered under Title 75. 3. Sustained by anyone we protect other than you, a relative or an individual specifically named on the 13 4. 5 6. 7.. 8. 9. Declarations Page for this coverage and that-per, son's relative, who. knowingly steals a motor vehi- cle if the bodily injury arises out of he mainte- nance or use of the stolen vehicle. ' To any person when the conduct of that. person contributed to the bodily injury sustained by that person while intentional) injuring or attempting to intentionally injure himself or another. To any. person when the. conduct of that person contributed to the bodily injury' sustained by that person while committing 'a I Any. To any person when the conduct of that person contributed to the bodily injury sustained by that person while seeking to elude fawful apprehension or arrest by a law enforcement official. To any person engaged in the business. of.repair- ing, servicing, or otherwise maintaining motor ve= hicles if the bodily injury arises out of'that busi- ness unless the conduct occurs off the business premises. Sustained by any person as ',a direct result of load- ing or unloading any motor vehicle. Sustained by any person while occupying any mo- tor vehicle used as a residence or premises. 10. Caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reaction, radiation, radioactive contamination, or any conse- quence of any of ,these. 11. Sustained by any person not occupying a motor vehicle, other than the named insured, if the acci- dent occurs outside the Commonwealth of Penn- Sylvania. LIMITS OF PROTECTION We will pay First Party Benefits to you for any one acci- dent up to the limit of First Party Benefits limits you have selected as shown on the - Declarations . Page for one covered auto. Benefits will not be, increased for :you by adding together the limits. of protection under this policy because there are multiple motor vehicles covered, under this policy or under multiple motor vehicle policies covering you for the same loss. Any amount payable by us for medical expenses greater than $100,000 shall be-excess over any amount paid -or payable under Extraordinary Medical Benefits, and First Party Benefits shall be excess over all benefits that any- person we protect receives or is entitled to receive under any workers compensation law or similar law. 14 PRIORITY OF POLICIES We will pay First Party Benefits in accordance with the folbwing order of priority. We will not pay if there is an- other insurer at a higher level of priority even if that other insurer has paid its limits. The priority levels shown below. are in descending order from highest to lowest: First - The insurer providing benefits to you as an named insured under its policy. Second - The insurer providing benefits to you pro- vided you are not a named insured under another pol- icy providing coverage under the Pennsylvania Motor Vehicle Financial Responsibility Law. Third - The insurer. of the motor vehicle which you are occupying at the time of the accident. Fourth - The insurer providing benefits, on any motor vehicle involved in the accident if you were not occu- pying a motor vehicle and provided covered coverage under any other policy. For the purposes of determining priorities, an unoccu- pied parked motor vehicle is not a motor vehicle in- I volved in an accident unless it was parked in a manner as to create.an unreasonable risk of injury. If two or more policies have equal priority the insurer . against which the claim is first made shall process and pay the claim as if wholly responsible. The insurer is then entitled to recover contributions pro-rata from any l other insurer for the benefits paid andthe .cost of proc- f essing the claim. Under the Fourth priority, proration shall be based on the number of involved motor vehi- cles. In addition, if two or more policies have equal priority, the maximum recovery under all policies will not exceed the amount payable under the policy with the highest, dollar limits of benefits. No one shall be entitled to receive duplicate benefits for the same elements of loss under this or any other similar automobile insur- ance including self-insurance. CONDITIONS 1. Medical report and/or proof of claim. As soon as practicable you or anyone we insure, or by someone on such person's behalf, shall give us written proof of claim under oath if required, fully- describing the nature and extent of bodily injury, treatment. and rehabilitation received and contemplated and other information to assist us' in determining the amount _ due and payable. You or anyone we insure-shall submit to mental and physical examinations by physicians. selected by us when and as often as we may reasonably require. We will pay the costs of such examinations. 15 You or anyone we insure (or, in the event of such person's incapacity, such person's legal representa- tive) shall, if we-request, sign papers to enable us to obtain medical reports and copies of records. A copy of such medical report will be forwarded to such per- son we protect upon such person's written request. If benefits for income loss are claimed, you or any- one we insure presenting such claim shall authorize us to obtain details of earnings paid to such person by an employer or earned since the time of the injury or during the year immediately preceding the date of the accident. 2. Customary, charges for treatment. The amount we pay a person or institution providing treatment, accommodations, products or services to an in- sured person for an injury covered by medical expense benefits shall not exceed the amount the person 'or institution customarily charges for like treatment, accommodations, products and services in cases involving no insurance. 3. Non-Duplication of Benefits..No one we insure shall recover duplicate benefits for the same ele- ments of loss under this or any other similar auto- mobile insurance including self-insurance. 4. Other Insurance. If an insured person is the named insured, a relative, or the occupant of a covered auto, we shall not be liable for a greater proportion of any loss than this policy's limit of liabil- ity bears to the sum of all limits of liability of all appli- cable insurance and self-insurance. The maximum recovery shall not exceed the amount payable under the insurance or self-insurance providing' the highest dollar limit. If the insured person is not the named insured, a relative or the occupant of the covered auto, our share shall be based on the number of motor vehi- cles involved in the accident. PART-III- PHYSICAL DAMAGE COVERAGE INSURING AGREEMENT If you' pay a specific premium for collision and compre- hensive coverage, we will pay for direct and accidental loss to your covered auto, less .any applicable deductible shown on the Declarations-;Page for your covered auto. We do not cover physical damage, on a temporary re- placement auto; however, physical damage coverage will transfer to an auto you rent from a car rental agency or garage while your covered auto is being repaired as a result of a covered loss. A covered loss is defined as a loss that occurs during our policy period in which our Physical Damage Coverage applies. 16 LOSSES NOT COVERED PHYSICAL DAMAGE COVERAGE DOES NOT APPLY TO: 1. A loss that occurs while your covered auto is be- ing operated by a resident of your household or by a regular user of your covered auto, unless that r person is listed as an additional driver on the Dec- larations Page. _ 2. A loss resulting from a relative's operation or use of a motor vehicle, other than your covered auto, a- which is owned or leased by a person who is a resi- k dent of your household. 3. A loss that occurs while your covered auto is be- t ing operated by a person that is listed as an ex- cluded driver on the Declarations Page. 4. A loss arising out of the ownership, maintenance, or use of any motor vehicle, other than your cov- ered auto, which is owned or leased by you, fur- nished to or available for your regular use. 5. A loss caused to a camper body or trailer. 6. A loss while your covered auto is subject to any bail- ment, lease, conditional sale, mortgage, or other en- cumbrance not specifically declared and described on this policy. 7. A loss to any of the following optional equipment whether or not factory installed by the original. auto manufacturer. car telephone equipment~ televisions or their accessories or antennas; radar or laser detection devices; home high fidelity equipment; two-way radios; scanning monitor receivers; awnings, cabanas or equipment designed to provide additional living facili- ties. 8. A loss to wearing apparel or personal effects. 9. A loss while your covered auto is used without the covered auto owner's permission, or outside the scope of that permission. 10. A loss while your covered auto is used to flee or elude law enforcement official(s). 11. A loss caused intentionally by you or at your direc- tion. 12. A loss while your covered auto is used in the commission of any felony, including ' theft of your covered auto. 13. A loss while your covered auto is used in any il- licit trade or transportation. 14. A loss while your covered auto is driven in or pre- paring for any prearranged or organized race, 17 speed contest, or performance contest. 15. A loss due to conversion or embezzlement by any person in possession of your covered auto. 16. A loss while your covered auto is used during"the course of any business or employment, unless you have paid a specific. premium for business use coverage. 17. A loss-while your covered auto 'is'being used in a commercial capacity. 18. A loss while your covered auto is used during the course of your employment to transport people, including but not limited to nursery or school chil- dren, medical patients, clients," migrant workers, or hotel/motel guests. 19. A loss while your covered auto is used for snow removal or any kind of wholesale or retail de- livery, including but not limited to pizza, magazine, newspaper, flowers, mail or other business types of delivery. 20. A loss while your covered auto is used to carry persons or property for a charge. This exclusion does not apply to shared-expense car pools. 21. A loss to your covered autowhen used in an auto business operation, including but not limited to the selling, repamng, servicing, testing, storing,or park- ing of motor vehicles or trailers. 22. A loss while your covered auto is pulling a mobile home or a trailer used as an office, store, display, or passenger trailer. 23. A loss arising out of or due to the use of your cov- ered auto for transportation of any explosive sub- stance, flammable liquid, or similarly hazardous material. 24. A loss resulting from manufacturer's defects wear and tear, freezing, mechanical or electrical breakdown or failure, or road damage to tires. However, coverage does apply if the damage is the result of other loss covered by this policy. 25. Loss to any optional equipment not factory installed by the original auto manufacturer. 26. A loss caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reac- tion, radiation, radioactive contamination, or any con- sequence of any of these. 27. A loss caused by anyone protected at the time of the auto accident by an atomic or nuclear energy liability insurance contract. The reason for this is that by law such policies protect all persons in- 1s volved in the auto accident, regardless of who was at fault. 28. A loss for which the United States Government is liable under the Federal Tort Claims Act. 29. A loss or auto accident which occurred during the period between the cancellation date and time and the reinstatement date and time. LIMIT OF LIABILITY Our maximum limit of liability for losses is the actual cost to repair or replace the damaged property. Payment will not exceed the actual cash value of the property at the time of the loss. If the loss is a part thereof, the payment will not exceed the actual cash value of such part at the time of loss nor what it would. then cost to repair or replace the prope or such part thereof with other of like, kind, and quality. rty 271 payments are reduced by the applica- ble deductible shown on the Declarations Page. TRANSPORTATION EXPENSES We will pay up to $10 per day, to a maximum of $300, for transportation expenses incurred by you. This applies only in the event of the theft of your covered auto. We will pay only' transportation expenses incurred during the period beginning 48 hours after the theft has been reported to us and the police, and ending when your covered auto is returned to use or we pay for its loss. RENTAL REIMBURSEMENT When there is a loss to one of your covered autos -described on the Declarations Page for which a specific premium charge indicates that rental reimbursement cov- erage is afforded, we will reimburse you for expenses you incur, to rent a temporary: replacement auto. This cover- age applies only if the auto is withdrawn from use for more than 24 hours and the loss is caused by collision or cov- ered under the comprehensive part of this policy. Our payment will be limited to the period of time reasonably required to repair or replace the auto. If your covered auto is stolen and not recovered or declared a total loss by us,.we will pay up to fire (5) days after we make an offer to pay for the-loss. The most we will payy under rental re- imbursement coverage is $20 per day fo a maximum of $600. The most we will pay for rental reimbursement and transportation expense coverage in any one (1) occur- rence is $600. TOWING AND LABOR If you pay a specific premium for towing and labor costs, we will pay towing and labor costs incurred each time your covered auto is disabled, up to the amount shown on the Declarations Page as applicable to that vehicle. The most we will pay per occurrence is $40, not to exceed six (6) occurrences per S month policy period. We will only pay 19 for labor performed at the place of disablement, provided disablement does not occur at your place of residence. PAYMENT OF LOSS We may pay for the loss in cash or we may repair or replace the damaged or stolen property. We may take all or part of the damaged property at the agreed or appraised value. Before a loss is paid or the property is replaced, we may return any stolen property to you at our expense with payment for any damage. We may settle any loss either with you or the owner of the property. PREMIUM EARNED ON TOTAL LOSS In the event a claim under any of the physical damage coverages for which a separate premium is shown on the Declarations Page results in the payment of a total loss, that portion of the premium that has not been fully earned as of the time of cancellation will be refunded to you. NO BENEFIT TO BAILEE This coverage shall not directly or indirectly benefit any carrier or other bailee liable for loss to your covered auto. APPRAISAL If we and you do not agree on the amount of loss, either may demand an appraisal of the loss. In that event, each ppaarty will select a competent and disinterested appraiser. The two appraisers will select a third appraiser to decide any differences. Each appraiser will state separately the actual cash value and the amount of the loss. An award in writing by any, two appraisers will determine the amount payable. Ea?c:h party will pay its chosen appraiser and bear the expense of the Third appraiser equally. We do not waive any of our rights under this policy by agreeing to an appraisal OTHER INSURANCE If other insurance also covers the loss, we will pay only our share of the loss. Our share is the. proportion that our limit bears to the total of all applicable limits. PART IV - UNINSURED/UNDERINSURED MOTORISTS COVERAGE INSURING AGREEMENT If you pay a specific premium for uninsured or. underin- sured motorists coverage, we will pay damages, other than punitive or exemplary or attorney fees, ONLY for bod- ily injury physically sustained by you which you are legally entitled to receive from the owner or operator of an uninsured or underinsured motor vehicle. We will pay 20 the damages you suffer in an auto °accident while occu- pying your covered auto as a result of having been struck by an uninsured or underinsured motor vehicle. The owners or operators liability for these damages must arise out of the ownership, maintenance; or use of the uninsured or underinsured motor vehicle. If you sue a person believed to be responsible for the accident, we aren't bound by any resulting judgment unless we receive reasonable notice of the dependency of the lawsuit resulting in the judgment and had a reasonable opportunity to protect our interest in the lawsuit Any judgment for damages arising out of a lawsuit brought without our written consent is not binding on us. We will pay under this coverage damages caused by an auto accident with an underinsured motor vehi- cle only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements. ADDITIONAL DEFINITIONS USED ONLY IN THIS PART N UNINSURED MOTOR VEHICLE An uninsured motor vehicle is a motor vehicle for which there is no liability insurance or self-insurance applicable at the time of the accident. An uninsured motor vehicle also includes a motor vehicle which has insurance available at the time of the auto accident, but the company writing the insurance is or becomes insolvent or denies coverage. An uninsured motor vehicle is a hit-and-run motor vehi- cle that strikes you while you are occupying your covered auto, if neither the driver nor the owner of the hit-and-run motor vehicle can be identified. If the acci- dent involved bodily injury or the insured vehicle had to be towed from the accident scene, the accident must be reported to the proper authorities within 24 hours or as soon as possible. We must be notified within 30 days. If you were occupying the vehicle at the time of the acci- dent, we have a right to inspect it If there is no physical contact with the hit-and-run vehicle, the facts of the acci- dent must be proved by competent evidence other than the testimony of that person making claim under this cov- erage. An uninsured motor vehicle is not a vehicle that is owned or leased by you, a relative or an additional driver that appears on the Declarations Page. An uninsured motor vehicle does not include, under any circumstances, your covered auto. . 21 UNDERINSURED MOTOR VEHICLE An underinsured motor vehicle is a motor vehicle for which there is a bodily injury policy or liability'bond available at the time of the auto accident with less than the limits of liability shown on the Declarations Page of this policy for underinsured motorists coverage. An underinsured motor vehicle is a motor vehicle for which there is a bodily injury policy or liability bond available at the time of the auto accident but the limits of that policy or bond are reduced by payments to per- sons, other than persons insured, injured in the auto accident to less than the limit of liability for underin- sured motorists coverage. An underinsured motor vehicle does not include, under any circumstances, your covered auto. An underinsured motor vehicle is not an uninsured motor vehicle. PROTECTION FOR OTHERS Anyone occupying your covered auto, with your per- mission, has the same rights and obligations that you have under this coverage. THOSE NOT COVERED THIS COVERAGE DOES NOT APPLY TO: 1. A loss that occurs while your covered auto is being operated by a non-relative resident of your house- hold, or by a regular user of your covered auto, -un- less that person is listed as an additional driver on the Declarations Page. 2. A loss resulting from a relative's operation or use of a motor vehicle, other than your covered auto which is owned or leased by a person who is a resi- dent of your household. 3. Anyone occupying your covered auto when it is j being driven by a person that is listed as an ex- cluded driver on the Declarations Page. 4. Bodily injury to you which is caused by your spouse or a member of the family who.is a resi- dent of your household. 5. You, if you or your legal representative, settles a claim without our consent. 6. Anyone occupying or through being struck by any motor vehicle, other than your covered auto, which is owned or leased by you, furnished to or available for your regular use. This includes a trailer of any type used with that motor vehicle. 7. Anyone occupying a motor vehicle driven without 22 the owner's permission, or outside the scope of that permission. 8. A loss while your covered _ auto is used to flee or elude law enforcement official(s). 9: A loss caused intentionally by you or at your direc- tion. 10. A loss while your covered auto is used in the commission of any felony, including theft of your covered auto. 11. A loss while your covered auto is used in any illicit trade or transportation. 12. A loss while your covered auto is driven in or pre- paring for any prearranged or organized race, speed contest, or performance contest. 13. Anyone while occupying your covered auto when it is used during the course of any business or em- ployment, unless you have paid a specific premium for business use coverage. 14. A loss occurring during the course of employment if benefits are payable or must be provided under a worker's compensation law or similar law. 15. Anyone occupying your covered auto when it is used in an auto business operation, including but not limited to the selling, repairing, servicing, test- ing, storing, or parking of motor vehicles or trail- em. 16. Anyone while you are operating any motor vehicle in a commercial capacity. 17. Anyone while occupying your covered auto when it is used during the course of your employment to transport people, including but not limited to nursery or school children, medical patients, clients, migrant workers or hoteVrnotel guests. 18. Anyone' occupying your covered auto if it is used for snow removal, or any kind of wholesale or retail delivery, including but not limited to pizza, magazine, newspaper, flowers, mail or other business types of delivery. 19. Anyone occupying your covered auto if it is used to carry persons or property for a charge. This exclusion does not apply to shared-expense car pools. 20. A loss caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reaction, radiation, radioactive contamination, or any consequence of any of these. - 21. Anyone occupying your covered auto during the r nod between the cancellation date and time and e reinstatement date and time. 23 THIS COVERAGE DOES NOT APPLY TO AN UNIN- SURED OR UNDERINSURED MOTOR VEHICLE: 1. Owned or leased by you, furnished to or available for your regular use, unless said motor vehicle is listed on the Declarations Page. 2. Owned or operated by a self-insurer within the meaning of any motor vehicle financial responsi- .bility law, motor carrier law or similar law. 3. Owned by any governmental authority or agency. 4. Any vehicle that is not a motor vehicle or is not required to be registered as a motor vehicle. LIMITS OF PROTECTION The limit of uninsured motorists or underinsured motorists bodily injury liability shown on the Declarations Page for `each person" is the maximum we will pay for bodily injury sustained by one person in any one auto accident, including all injuries and damages to others resulting from this bodily injury. Subject to this limit of "each person", the limit of uninsured motorists or underinsured motorists bodily injury liability shown on the Declarations Page for "each accident" is the maximum we will pay for bodily in- jury sustained by two or more persons in the same auto i accident. This is the most we will pay regardless of the number of autos described on the Declarations Page, persons insured, motor vehicles insured, claims, claimants, poli- cies, or motor vehicles involved in the auto accident. In determining the amount payable under this Part IV, the amount of damages which an insured person is 'j entitled to recover shall be reduced by all sums paid because of bodily injury by or on behalf of any person or organization who may be legally responsible for your bodily injury, including, but not limited to, all sums paid under Part i - Edibility, paid or payable under Part li - First Party Benefits, Part IV - Uninsured/Underinsured Motorists and paid or payable because of bodily injury r under workers' compensation law or disability benefits it law. However, this reduction shall not reduce the amount payable under this Part IV - Uninsured/ Underinsured Motorists Coverage below the minimum amount of uninsured motorist coverage required by j Pennsylvania law. PAYMENT OF DAMAGES '. We may pay you, your legal representative, the surviv- ing spouse or anyone authorized by law to receive pay- ' ` ment. When multiple policies apply, payment shall be made in the following order of prionty: 24 1. A policy covering the motor vehicle the injured person is occupying at the time of the accident. 2. A policy covering a motor vehicle not involved in a the accident with respect to which the injured per- son is an insured. If two or more policies have equal priority, the insurer against which the claim is first made shall process and pay the. claim as if wholly responsible. Thereafter, the insurer is entitled to recover a pro rata contribution from any other insurer for the benefits paid and claims costs incurred. If we are the insurer against which the claim is first made, -we will not pay more than our Limit of Protection. No one shall be entitied to duplicate payments for the same elements of damages. STACKED COVERAGE If you purchase Stacked Uninsured Motorist and/or Stacked Underinsured Motorists Coverage and you are injured, we will pay no more than the applicable sum of the Uninsured or Underinsured Motorists coverage limits shown on the Declarations Page. If the injured person is anyone other than you, we will pay no more than the. applicable Uninsured or Underinsured Motor- ists Coverage. limits shown on the Declarations Page for the covered auto involved in the accident, regard- less of the number of persons we protect, autos we insure, premiums paid, claims made or autos involved in the. accident. If none of the covered autos are involved in the accident, the highest limit of Uninsured or Underinsured Motorists Coverage applicable to any one covered auto will apply. UNSTACKED COVERAGE if you purchase Unstacked Uninsured Motorist and/or Unstacked Underinsured Motorists. Coverage, we will pay no more than the Uninsured or Underinsured Motorists Coverage limits shown on the Declarations Page for the covered auto involved in the accident, regardless of the number of persons we protect, autos we insured, premiums paid, claims made or autos in- volved in the accident. If none of the covered autos are involved in the accident the highest limit of Unin- sured or Underinsured Motorists Coverage applicable to any one covered auto will apply. REDUCTIONS The amount of `damages paid or pa able under this Uninsured or Underinsured Motorist Coverage will be reduced by: 1. the amounts paid or payable by or for those liable for bodily injury to you or anyone we protect; 25 2. the amounts paid or payable to you or anyone we protect under Part 1 - Liability Coverage of this policy. TRUST AGREEMENT When we pay your damages under this coverage, you or your legal representative must agree in writing to repay us out of any damages recovered from anyone responsible for your injuries. You or your legal repre- sentative must also agree in writing to hold in trust and preserve for us all rights of recovery. At our request, you must take any necessary action to recover the payments we have made under this overage. You must do so in your own name and through a repre- sentative we select. Any payments made under this coverage and recovered from the .at--fault party must be repaid to us. Expenses of recovery will be repaid to us out of any damages recovered. OTHERINSURANCE If you were in, on, getting into or out of a vehicle you do not own which is insured for this coverage under another policy, this coverage will be excess. This means that when you are legally entitled to recover damages in excess of the other policy limit, we will pay up to your policy limit, but only after the other insurance has been exhausted. If this policy and one or more other policies apply to a motor vehicle accident on a primary basis, we will bear our proportionate share, as it applies to the total. limits available, up to the full limits of liability for this coverage under this policy. If the.a is other applicable insurance available under more than one policy, any recovery for damages for bodily injury sustained by a person insured may not exceed the highest of the applicable limit of any one vehicle under this insurance or any other insurance. We will not pay for any damages which would duplicate any payment made for damages under -any other insur- ance. ARBITRATION Disagreement over the legal right to recover damages from the owner or operator of an uninsured motor vehi- cle or underinsured motor vehicle, or the amount of damages may be settled by arbitration if both the insured person and we agree to settle it by arbitration. The deci- sion of the arbitrators will be binding on these two issues. However, the amount of damages can never exceed the Uninsured or Underinsured Motorists Coverage limits shown on the Declaration Page. All other disagreements shall be decided by a court of 26 competent jurisdiction and not by arbitration. Disagree- ments to be determined by such court include, but are not limited to: 1. Stacking; 2. Residency; 3. Statutes of limitations; 4. Whether a claimant is a person we protect under this coverage; 5. The validity of coverage selections or waivers exe- cuted pursuant to the Pennsylvania Motor Vehicle Fi- nancial Responsibility Law. GENERAL PROVISIONS VALID DRIVER LICENSE Any coverage afforded under any section of this policy when the covered auto is being operated by a person who is not a qualified, licensed driver, or is without a valid driver license, or whose driver license is expired, revoked or sus- pended, or is in violation of any condition of their driving privileges, or is without privileges to drive for any reason may be subrogated against you, the auto's operator, and/ or the auto's titleholder. BUSINESS USE COVERAGE If you pay a specific premium for business use coverage, we will pay for direct and accidental loss that occurs while you are operating your covered auto and traveling between locations during the course and within the scope of your employment, subject to the coverages shown on your :Declarations Page and all the terms, provisions, conditions and exclusions described throughout this policy. NAMED DRIVER EXCLUSION If you have asked us to exclude any person from cover- age under this policy and at the time of an accident or loss, the excluded person is operating your covered auto, a non-owned auto or a temporary replacement auto,' then no coverage will be provided for any claim under any part of this policy. THIS INCLUDES ANY CLAIM FOR DAMAGES MADE AGAINST YOU OR ANY OTHER PERSON OR ORGANIZATION THAT IS VICARIOUSLY LIABLE FOR AN ACCIDENT ARISING OUT OF THE OP- ERATION OF A COVERED AUTO, A NON-OWNED AUTO OR A TEMPORARY REPLACEMENT AUTO BY THE EXCLUDED DRIVER. OUR RIGHT TO RECOVER PAYMENT In the event of any payment under this policy, we have the right to recover from anyone who may be held responsible. You and anyone we protect must sign and .deliver to us any legal papers we may require relating to that recovery, 27 do whatever else is necessary to help us exercise those rights and do nothing after a loss to prejudice our rights. Our right to recover does not apply if we make payment under physical damage coverage against anyone using your covered auto with reasonable belief that that person is enMed to do so. When you and anyone we protect have been paid damages by us under this policy and also recover from another, the amount recovered from the other shall be held by you in trust for us and reimbursed to us to the extent of our payment. In the event we become obligated to make a payment because of a loss for which there would be no cover- age under any terms, conditions or provisions of this policy, then you must reimburse the company for any payment or expense incurred by us. FINANCED VEHICLES If a lienholder or additional interest is shown on the Declarations Page, we may pay any comprehensive or collision loss to: 1. You and/or the additional interest and the repair facil- ity, or 2. You and/or the additional interest and such ,lienhoider or additional interest, as their interest may appear, when we find it is not practical to repair your covered auto; or 3. The lienholder or the additional interest, as to their in- terest, if your covered auto has been repossessed. A lienholder or additional interest's benefits under this ; policy are limited to and may not exceed those benefits and/or rights to which the Named Insured is entitled. LIENHOLDER DEDUCTIBLE The deductible amount that applies to losses adjusted and payable to the lienholder for their interest shall be no more than $250 per loss on comprehensive and collision coverage. This deductible will apply only when your covered auto is a total loss, and when loss or damage causes it to be repossessed by or surren- dered to the lienholder. All other losses shall be subject to the deductible amounts shown on the Declarations Page. POLICY PERIOD AND TERRITORY This policy applies only to auto accidents and losses that occur during the policy period shown on the Declarations Page. In the event we accept your late payment and rein- state your policy, we will not cover any loss or auto acci- dent which occurred during the period between the cancel- lation date and time and the reinstatement date and time. Your policy expiration and/or renewal date will remain un- 28 changed by any reinstatement by us. Coverage applies to your covered auto while it is within the United State of America, its territories or possessions and Canada, or while your covered auto is being transported between their ports. TRANSFER OF THIS POLICY This policy cannot be transferred to any person or organi- zation without our written consent. However, if you die, this policy will provide protection until the end of the policy period (provided premium due has been paid), for the legal representatives and those persons who were protected on the date of death. NUMBER OF COVERED AUTOS ALLOWED Four is the maximum number of covered autos that may be listed on this policy. CHANGES IN YOUR POLICY This policy contains all the agreements between you and us. Only the Named Insured appearing on the Declara- tions Page may request changes to the policy. This policy can only be changed by an endorsement is- sued by us. If a change requires a premium adjustment, we will adjust the premium as of the effective date of the change. We will automatically give you the benefits of any extension or broadening of this policy effective the date the Pennsylvania Department of Insurance approves the change and if the change does not require additional pre- mium. The premium for each term of this policy is determined by information in our possession at the inception date of that tern. Any change in this information which would affect the rating of your policy gives us the right to make an addi- tional charge or refund on a pro-rata basis. REGARD- LESS OF PREMIUM CHANGE, YOU HAVE A DUTY TO INFORM US OF ANY SUCH CHANGE (including but not limited to change in: vehicles, use of vehicles, Named Insured's and additional drivers' occupations which would affect the way in which the vehicle is used, marital status, garaging address, residents in household, children eligible o drive, medications, impairments or physician's restric- tions that may impair or restrict an operator's ability to op- erate a motor vehicle, or moving out of the Commonwealth of Pennsylvania.) CANCELLATION DURING THE POLICY PERIOD The Named Insured appearing on the Declarations Page may cancel this policy by returning it to us or by advising us in writing the future date and time the Named Insured wishes the cancellation to be effective. The earned pre- mium will be computed on a pro-rata basis. This means that we will retain premium for on those days that you were protected. However, a $25.00 cancellation charge will be applied to a policy canceling per insured request 29 We will not refuse to issue or cancel this policy solely because of your age, sex, race, color, creed, religion, national origin, ethnic group, ancestry, marital status, or residence within the Commonwealth of Pennsylvania. We may cancel this policy by mailing notice of cancellation to you at the address shown on the Declarations Page or ;j by delivering the notice. The earned premium will be com- puted on a pro-rata basis. This means that we will retain premium for only those days that you were protected. The effective date of the cancellation staffed in a notice is the end of the policy period. However, if we cancel your policy due to nonpayment of premium, and we choose to rein- state your policy after receipt of your overdue payment, your policy expiration and/or renewal date will remain unchanged by the reinstatement In the event we accept j your late payment and reinstate your policy, we will not i` cover any loss or auto accident which occurred during r the period between the cancellation date and time and the j reinstatement date and time. Proof of mailing a notice of cancellation shall be sufficient proof of notice. All fees are fully earned on any insured initi ated cancel, including non- payment of premium. ` We have the n* ht to cancel this policy for any reason within the first f -nine (59) days from its inception, with at least a fifteen 15) day notice of cancellation. I If we do not cancel this policy within its first fifty-nine (59) days or upon renewal, then we can only cancel this policy for any of the following reasons: I With at least a fifteen (15) day notice of cancellation for: Non-payment of premium. If the named insured's driver license or vehicle registration has been under suspended or revoked during the policy period. With at least a sixty (60) day notice of cancellation: If a determination has been made that the insured has concealed a material fact, or has made a material allegation contrary to fact, or has made a misrepresentation of a material fact and that such concealment, allegation or misrepresentation was material to the acceptance of the risk by the insurer. RENEWAL PROVISIONS We retain/reserve the right not to renew your policy with at least a sixty (60) day notice of non-renewal. If we decide not to renew your policy, we will mail a Notice of Cancella- tion or Refusal to Renew to you at the address shown on the Declarations Page. Proof of mailing such a notice shall be sufficient proof of notice to you. 30 Once a Notice of Cancellation or Refusal to Renew has been mailed to you, you still have an obligation to make any outstanding premium installment payments when due, for the remainder of the. policy period. Failure to pay any such payments when due may result-in an earlier cancella- lion of your policy fQr nonpayment of premium folkywi at least 15 days written notice by us. No late payments wil be accepted and coverage will not be extended to the non- renewal date. BANKRUPTCY We are not relieved of any obligation under this policy because of your bankruptcy or insolvency. FRAUD OR MISREPRESENTATION We do not provide coverage for you if you have made fraudulent statements or engaged in fraudulent conduct in connection with any auto accident or loss for which coverage is sought under this policy. We may void this policy within the first fifty-nine (59) days or cancel or refuse to renew thereafter for fraud or misrepresentation even after the occurrence of an acci- dent or loss. No person who engages in fraudulent conduct in connection with an accident or loss shall be entitled to receive any payment under this policy. PREMIUM PAYMENT If your "initial" premium payment is by check, draft, or any remittance other than cash, coverage under this policy is conditioned upon the check, draft, or remit- tance bem honored upon presentment to the financial institution it is drawn upon. If the check, draft, or remit- tance is not honored upon presentment, this policy will be deemed void from its inception as if the policy never took effect. This means that we will not be liable under the policy for any claims or damages that would other- wise be covered if the check, draft, or remittance had been honored upon presentment to the financial institu- lion it was drawn upon. If your "installment" or "renewal" payment is by check, A draft, or any remittance other than cash,. coverage under this policy will continue provided the check, draft, or remittance is honored upon presentment to the finan- k cial institution it is drawn upon. If the check, draft or remittance is not honored upon presentment, this policy will be cancelled at the hour and date shown on the Notice of Cancellation or Refusal to Renew that would have applied to the payment that was not honored. However, if no notice was previously mailed, a fifteen (15) day Notice of Cancellation of Refusal to Renew will be issued. LATE PAYMENT In order to continue your coverage, your installment or renewal payment must be received in our office prior to 31 the due date shown on your Notice of Payment Due. If payment is not received by the due date, a Notice of Cancellation will be mailed to the address shown on the Declarations Page. Payment effective dates and times vary per the payment method: 1. Payments made through the Safe Auto Phone Pay system or money wiring services are effective the date and time that appears on the check that prints in our office. 2. Mailed payments are effective the day after the post- mark date on the payment envelope at 12:01 A.M. 3. Mailed payments with no legible postmark date are ef- fective the day we receive the payment at 12:01 AM. i 4. Walk-in payments are effective the date and time the Safe Auto cashier receives the payment If the payment effective date and time is prior to the cancellation date and time shown on your Notice of Cancellation, the policy will not cancel. If your payment is effective after the cancellation date and time, your policy will cancel as of the date and time shown on your Notice of Cancellation that applies to that pay- ment. We will accept a payment effective after the cancella- lion date and time and reinstate your policy, as long as the payment's effective date and time is no more than seven (7) days after the cancellation's effective date and time. In the event we accept your late payment and reinstate your policy, we will not cover any loss or auto accident which occurred dunng the period between the cancellation date and time and the reinstatement date and time. In the event that this policy is reinstated, it will reinstate under the same policy terms, limits, conditions, elections, and exclu- sions which were in effect prior to cancellation. Your pok icy expiration and/or renewal date will remain unchanged by any reinstatement by us. We reserve the right not to- accept late payments on policies that have cancelled. We cannot accept any payment that is effective more than seven (7) days after the cancellation date and time. FINANCIAL RESPONSIBILITY LAWS When we certify this policy as proof of financial respon- sibility, this policy will comply with the law to the extent required. You must reimburse us if we make a pay- ment that we would otherwise not have made, had this poly not been certified as proof of financial responsi- bui. SUIT AGAINST US We may not be sued unless there is full compliance 32 with all terms of this policy. We may not be sued under the liability coverage until your obligation to pay is finally determined either by Judgment against the per- son after actual trial or by written agreement of the per- son, the claimant, and us. No one shall have any right to make us a party to a lawsuit to determine your liabil- ity. Any lawsuit against us seeking recovery of underinsured motorists benefits under Part IV - Uninsured/Underinsured Motorists Coverage must be filed no later than one (1) year after the limits of liability under all applicable bodily injury liability bonds or policies have been exhausted by payment of judgements or settlements. PUNITIVE OR EXEMPLARY DAMAGES IT IS AGREED THAT NO COVERAGE IN THIS INSUR- ANCE POLICY (INCLUITRG UNDER PART I - LIABILITY, PART II - FIRST PARTY BENEFITS, PART IV - UNIN- SURED/UNDERINSURED MOTORISTS) SHALL APPLY TO PUNITIVE OR EXEMPLARY DAMAGES. TWO OR MORE AUTO POLICIES If this policy and any other auto insurance policy issued to. you by us applies to the same auto accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under any one policy, even though separate premiums have been paid. You cannot stack coverages or policies. AUTOMATIC TERMINATION If you obtain other insurance on your covered auto, or if a person other than you or a relative becomes the owner of your covered auto, any coverage provided by this policy will terminate as to that auto on the effective date and time of legal transfer of that auto. NAMED OPERATOR ENDORSEMENT ?(NOWOWNED AUTOMOBILES) As used in this part, the Named Operator is defined as ONLY the Named Insured listed on the Declarations Page of this policy. We agree that this insurance as is af- forded by this policy for Bodily Injury, Property Damage, ,Excess Medical Expense, and rnnsured/Underinsured 'Motorists coverages (provided these coverages are listed `on the Declarations Page and a premium shown for them) applies with respect to the use of any non-owned auto by the Named Operator, subject to the following pro- visions: Any provisions of this policy which extends cover agge to other than the Named Operator are hereby er6inated. 2. We will insure any newly acquired auto only if the Named Operator notifies us within thirty (30) days 33 of the acquisition. 3. No coverage is afforded under this policy for any auto owned in full or in part of registered in the name of the Named Operator or any resident of the Named Operators household. This exclusion does not apply to any newly acquired auto by the Named Operator as defined in paragraph No. 2 above. 4. No coverage is afforded under this policy for any auto used during the course of any business or employment, or when used in an Auto Business Operation, including but not limited to the selling, repairing, servicing, testing, storing, or parking of motor vehicles. 5. No overage is afforded under this policy for any auto used as a public or livery conveyance or in the busi- ness of trucking or hauling far others. 6.. The provisions of this policy in reference to other valid and collectible insurance are hereby eliminated and it is agreed that if there exists, at the time of any loss covered by this policy, any insurance issued to, taken out by or effected on behalf of anyone other than the Named Operator and under the terms of which the Named Operator is entitled to protection or overage, then the coverage provided by this policy shall be ex- cess insurance over and above the amount of such other valid and collectible insurance. All other terms, limits, and provisions of this policy remain unchanged. In witness whereof, we have caused this policy to be executed and attested by our President and Secretary. 4AP Jon P. Diamond April D. Miller PRESIDENT SECRETARY 34 ! hereby t "s ---"'-"'i? Sp,FE A a true 3W acour*e copy to PANT' c INSURANCE VL .? oG Date Insurance Gorr?Pa?y to to safe, Gor+porate Broad Street 3883 East Br 13-1129 bus, Oh1 OZ p ?alutt?tg14} 2 E-AUrt0 1(8p 1 (S OO) 723-3288 FOKM PAiai4ji296 05/5/2005 17 16 FAX 6146278218 SEP-?I-ZOD6 12:9M FROMAELLs SPRING RD JAMES CAVANAUGH AND BARBARA CAVANAUGH, PI fiintlffs V. GORDON PANU-AIT'IS AND MARYANN BRICKER, Defendants SAFE AUTO d 006/016 +7172496397 T-6Z3 P 80Z F-700 cc r, IN THE COURT OF COMMON PL':',&S CUMBERLAND COUNTY, PENNSYLVANIA NO. C)(. CIVIL ACTION - LAW NOTICE YOU HAVE BEEN -ciX;D YN t -(3URT. If you wish to defend again st the claims set forth in the following page e , you must take action within twenty (201 days after this Complaint and Noticc are , crved, by entering a written appearance ptz?onally or by attorney and filing in wzitirLg with the Court your defenses or objections to the claims set forth against you. You are r yarned that if you fail to do so the case may proceed without you and a judgment may be a ntered against you by the Court without !'Luther notice for any money claimed in the Comp] lint or for any other claim or relief request.eI by the Plaintiff. You may lose money or prope rty or other rights important to you. YOU SHOULD TAKF, ' 'HIM PAPER To YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE. THE Ok''F'ICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAMOT AFI ORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFC ?RMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PFl'SONS AT A REDUCED FEE OR NO FEE. CUId 3ERiAND COUNTY BAR ASSOCIATION 32 S, BEDFOR11 STREET CARLISLE PA 17013 ?Cc? ??.,'•? C a (800) 990-9106 a </ 3 - q'06 AIa5- t G? A'e' c ?Srri oh %c?rv Date: 8 / 28 /06 and E. Freeburn, Esquire FREEBURN & HAMILTON 4415 North Front Street Harrisburg PA 17110 TRM 1N" MOM RUX (717) 671-1955 In TadMa whmd, I here unto Set a I.D. #30965 aW 06 MI d $Ad Y at QtV We. Attorney for Pl Es 091"25 /2006 17 16 FAX 6148278218 SEP-21-21106 12:38PM Mik-NELLS SPRING RD JAMES CAVANA'UGH AND BARBARA CAVANAUGH, Plaintiffs V. GORDON DPANa.AMS AND MARYANN BRICKER, Defendants IN THE COURT OF COMMON F'L &AS CUMBERLAND COUNTY, PENNSYLVANIA' NO. 0 f ?p C,l 1 C", CTM ACTION - LAW CONTI A= AND NOW come Plaint Ts, James Cavaaaugb and rus wife, Barbar& -::hv;maugh, by Their attorneys, F reeburn 8. Hamilton, and file the following Complaint 1. Plaintiffs, James Cavanaugh and his wife, Barbara Cavanaug bL, are adult individuals who reside at 2 808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Gord m Panilaitis, is an adult individual who resic.e8 at 563 F Street, Carlisle, Cumberland ('ounty, Pcnnsylvania. _ 3. Defendant, Mary an.n Bricker, is an adult individual who re-:ides at 563 F Street, Carlisle, Cumberland County, Pemsy)vania. 4. The facts and c =cun a me hereinafter related took place on or about November 18, 2005 at apprw imately 8:15 p.m, at or about the intcruection of South Pitt and Wast Willo'w Stree s, in the Borough of Carlisle, Cumberland County, PannsylvarLia. 5. At or about the,.t time and place, Plaintiff, James Cavanaugh wus driving his automobile eastbound (.n W9et Willow Street, in the Borough >f Carlisle, SAFE AUTO lQ 007/016 *-7fT149639T T-621 P 003 F-700 Cumberland County, Pennsyh a=-a. 09,425/2006 17 17 FAX 6148278218 SAFE AUTO it 008/016 SEP,2!-t0o6 I2:38PM FROIf-iIELLS SPRING RD +TIT2496397 -623 P 004/012 F-Too 6. At or about th it tune and place, Defendant, Gordon N ailaitis was driving an automobile owned by Defendant, Maryann Bricker, southboi?r,d on South Pitt Street in the Borough of C arlisle, Cumberland County, Pennsylvan. . 7. The intersection of West Willow Street and South Pitt Street : s controlled by a flashing red signal for b 2J c traveling south on South Pitt Street and a flashing yellow signal for vehicles traw ling east on West Willow Street. I H. Defendant, Gcr ion Panilaitis, entered the intersection against the red traffic signal when it was not safe to do so and the front of the automobile that he was driving stnick the automobile operated by Plaintiff, James Cavanaugh in the le-fit rear, 4. As a result of th ! aforesaid collision, the automobile operated by Plaintiff, James Cavanaugh hit a hots s,! on the southeast corner of the intersection, 10. It is believed a ad therefore averred that at the time of uze oolliaior_, Defendant, Gordon Panilaib a did not have a valid driver's license, and tha t his license was under suspension, and c cpired at that time. 11. It is believcd a ad therefore averred that at the time of t ze collision, Defendant, Gordon Panilai t s, was driving the automobile owned by Defendant, Maryann Brick=, ovith Mar a an Bricker's permission. 12. By reason of th ; aforesaid collision, Plaintiff James Cavanaugh suffered painful and severe injuries -co his nerves, bones and sofa rissues which inc]ucle, but are not limited to, back, neck, sh )Ulder and hip injuries. 13. By reason of t -,e aforesaid collision and injuries, Plaintiff suffered a heightened possibility that h : will suffer other or additional injury in tJae future, and claim is made therefore. 2 05/25/2006 17 17 FAX 6148278216 SAFE AUTO 1Q 009/016 SEP-7 1-2006 12:39PS1 FRO"ELLS SPRING RD +TiT2486397 T-8Z3 P 005/012 F-700 14. The aforesaid Collision and injuries suffered by Plaintiff may have aggravated or been aggraval e l by an existing infirmity, condition or dise•a:;e, resulting in •a prolongation or worser.L'ng of the injuries and an enhanced risk of future harm to Plaintiff, and claim is made -tr. =fore. 15. By reason of the aforesaid collision and injuries, Plaintiff has been forced to incur livability for reasonable and necessary medical tests, medical exuni Rtiions, medical treatment, medieatio, is, hospitalizations and similar expenses in an effort to diagnose his injuries and to n store himself to health, and claim is made therefore. 16. Plaintiff has not fully recovered from his injuries and it is reasonably likely that he will incur simile, expenses in the future, and claim is made therefore. 17. By reason of the aforesaid collision and injuries, Plaintiff ha; suffered a loss of earnings and earnin{l rapacity and is entitled to recover the value of the time, earnings and eacpkrfrnent bei tefits he has lost and which she might mast inably have earned in the pursuit of his or unary calling, and clai= is made therefore. 18. By reason of the aforesaid collision and injuries, Plaintiff hat& suffered a loss or impairment of fliture.- a uming capacity, and claim is made therefom.. 19. h BY reaacm of tbi aforesaid collision and injuries, Plaintiff # is incurred incidental costs and expense a the exact amount of which cannot be ascert:a ined at this time, and claim is made there: are. 20. By reason of the aforesaid collision and injuries, Plaintfff has undergone and ire, the future will underlp great physical and mental peon and suflr.rin.g, great inconvenience in carrying c ut his daily activities, loss of life's pleE.surfs and enjoyment, and claim is made therefore. 3 09i25/2006 17 18 FAX, 6148278218 SEP-21-2006 12:28pw FRM-WELLS SPRING RD SAFE AUTO 1Q0101016 +T1T249638T T-GZ3 F 0061012 F-700 21. By reason of tae aforesaid collision and irk uries, Plainti l has been subjected to severe hum;ilia.tic n., embarrassment, shame, worry and anger. 22. By reason of; t ae aforesaid collision and injuries., Plaintiff has been subjected to severe mentE:_ anguish, emotional distress, nervous shock, Fright and horror. 23. By reason of tb, • aforesaid collision and injuries, Plaintiff -ail, co=itinue to endure great mental angui>: h, emotional distress, shame, wont' and i nl;er in the futvxe, 24. By reason of I he aforesaid collision and ir4 uries, Plaintiff bas been deprived his enjoyment of tht pleasures of life. 25. By reason of th•: aforesaid collision and injuries, Plaintiff coittinues to be plagued by persistent pain r nd limitation and. therefore, avers that his 'njuries may be of a permanent nature, t;F using residual problems for the remainder of bis lifetime, and claim is made therefore. 26. Plaintiffs are ei ititicd to recover non-economic damages be-mutic at the time of this accident, they mare insureds under an automobile insuranc t policy that I provided the full Last option _ CO T Y James Cavaa J ;h, Plaintil_Y w. Gordon Panilaitis, Defendan t , 27. Paragraphs 1-2 i are incorporated herein by reference then(-Ui. 4 05725/2066 17 18 FAX 6146278218 SEP-Z1-2006 17:40PM FROM-HELLS SPRING Rb SAFE AUTO I t o 11/016 ETiT2416397 T-8Z3 P.007/012 F-700 28, The foregoing; a ccident and all of the injuries and damag -!9 set forth hereinafter suffered by PlaiJil iffs, James Cavanaugh and Barbara C$vssLa igh, are the direct and proximate result o r the negligent, careless, wanton and reckle.s a marmer in Which Defendant, Gordon Rau ilaitis, operated a motor vehicle as follows: a. In opera ing the vcbicle at an excessive rate of speed under the cireumst vices; b. In faiIiag to apply his brakes in time to avoid the colth ion; C. In negll; g :ntly appbying his brakes; d. In failing to observe plerintifl's vehicle on the highway; e. In failing to operate his vehicle in accordance with ax isting traffic conditi.ur s and traffic controls; f. In perms ting or allowing his vehicle to strike and call ide with the vehicle o )crated by the plaintiff; g- In failing to exercise the high degree of care required c -f a motorist entering a_n intersecticra; h. In operas ing his motor vehicle at a time when defenc.ant did not have a ci rreat Pennsylvania operator's license; i. In failing to drive at a speed and in the manner that would alloy,, defendEm t to stop within the assured clear distance ah. ead; j. In failir g to properly observe traffic signals controlling defendE n ['s direction of travel; k. In failing to keep a reasonable look-out for other vehicles lawfully on the ro id; 11 In atte•m pting to enter an intersection when such movement could no, be safely accomplished; M. In failing to yield the right-of-wavy to traffic alread;i upon the hi.ghwa'r; n. In opcrat rig his vehicle in a manner not consistent ur. th the road and wc:it ter conditions prevailing at the time, 5 09'25/20"06 17 18 FAX 6148278218 SAFE AUTO u Jg012/016 S214-21-Mi 12:dOPM FRI)WNELLS SPRING RD +T1T249639T T-623 P.006/012 P-TDD o. In failin ; to prudently proceed through the interse ciion so as to avoid neating a dangerous situation for other vebiclea on the highway, P. In faili i ; to observe oncoming traffic; q. In pr 3 c. ;eaing through an intersection when such movement could ric t be made in safety; r. In failinj ; to keep a proper look-out for approaching v ebicles; 9. In faLUil to yield the right-of-way to on-coating traffic; T_ In ope-r. a Ling his vehicle so as to create a dangerous situation for other .;,a iicle on the roadway; and. U. In faiL=nzl to have yielded half of the highway to onccrad g traffic. 29. Defendant's co aduct, as set forth above, was in violation of the Pennsylvania Motor Vehicle Code. which is intended to protect persons lawfully on the highway ouch as Plaintiff, James Cavanaugh, from personal injury, and thus constitutes negligence per se Wf-MREFORE, Plaintif ', James Cavanaugh, demands judgment in I as favor and against Defendant, Gordcu) Panilairs, in an amount in excess of ')\MNTY-FIVE THOUSAND as 00/ 100 ($2;1,1000.00) DOLLARS, exclusive of interest and..:osts and in rxcess of any jurisdictional a nount requiring compulsory arbitration. COUNT 13 James Cavauaa10 :1L. Pb liatiff y, KA = Bricker, Defendant 30. Paragraphs 1-2( are incorporated herein by reference thereto.- 6 09725/2006 17 19 FAX 6148278218 SAFE AUTO it 0 13/0 16 SEP-21-2006 12:40Ph1 FROM-TELLS SPRING RD +7172419397 T-623 P 009/012 F-700 31. The foregoing accident and all of the injuries and damages set forth hereinafter suffered by Plaint iffs, James Cavanaugh and Barbara Cavarla agh, are the direct and proximate resu't': :)f the negligence of Maryann Bricker in e=.- asting her automobile to Defendant, Gor Ion ParWaitis. WHEREFORE, Plaintiff, James Cavanaugh, demands judgment in his havor and against Defendant, Gordo« Panil,aitis, in an amount in excess of Tv TEVIN-FIVE THOUSAND & 00/ 100 ($25,( 00.00) DOLLARS, exclusive of interest and Coat; and in excess of any juriadictional ai count requiring compulsory arbitration. COUNT III Jonas Cavaaaty h. Mainti f v. Maryann $nleker. Defeadamt 32. Paragraphs 1- 3 ) are incorporated herein by reference thereto 33. Pursuant to Pa. s. §I574, Defendant, Maryann Bricker, is Jointly and severally liable with Deferad, nt, Gordon Panilaitis, for any damage ru Lsed by the negligence of Gordon Pa anti s. WHEREFORE:, Plaintiff James Cavanaugh, demands judgment in h is favor and against Defendant, Gordon Panilaitia, in an amount in excess of TWENTY-FIVE THOUSAND & 00/100 ($2S,(00.00) DOLLARS, exclusive of interest and oomte and in excess of any jurisdictional w count requiring compulsory arbitration. 7 09/25/200,6 17 19 FAX SEP-21. 101)6 I ? : 40PLI 6146278218 SAFE AUTO It 014/016 FROWNELLS SPRING RD *T1TZ496367 T-SZ3 P.0)0/0I2 F-700 ccL-V WT IV - LASS OF CONSORTIUM Bambara Cay W.Zt 6L. PlainUff %r_ g9rdan Pi - Us. DetftAdW Lt 34. Paragraphs 1-3 3 are incorporated herein by reference there-tci. 35 As a result of the aforementioned injuries suffered by her husband, James Cavanaugh, Plaintiff, Barbara Cavanaugh, has been and may ir? 1 he future be deprived df the aid. assiabro' n, eamfort, care, companionship, society amd consortium of her husband, all of whicli vii] be of great detriment, and claim is madc hcrefore. 36. As a result of the aforementioned injuries suffered by her husband, Plaintiff, Barbara Cavawtu gh, has incurred expenses and/or liability for the reasonable and necessary r iedical tests, medical examinations, mediud treatment, medications, hospitalization: and similar expenses in an effort to diagnos,: hiM injuries and to restore him to health, and claim is made therefore. WHEREFORE, Plainti f, Barbara Cavanaugh, demands judgment in her favor and against Defendant, Gor Ion Panilaitis, in an amount in excess of 'rtWENIT-FIVE THOUSAND & 00/ 100 ($-e_','5,)00.00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional a mount requiring compulsory arbitration. S'AL -WT v - W@19 OF CQNSORTIUM 1331bara Cavvm ig gh. Plaintiff v. Maryann B! i2Mr, De&xLdan t 37. Paragraphs 1-3 i are incorporated herein by reference therc u.. 8 09/-25/20H 17 20 FAX 6148278218 SEP-71-ME 12;40PM FROMAELLS SPRING RD SAFE AUTO it 0 15/0 16 +7177496397 T-GZ3 P.OS1/M F-700 38. As a result of the aforementioned injuries suffered by ti•!r husband, James Cavanaugh, Plaintiff:, Barbara Cavanaugh, has been and may is the future be deprived of the aid, assistant c, comfort, care, companionship, society ant consortium of her husband, all of whkt.,1 •rill be of great detriment, and claim is madc: iherefore. 39. As a result of the aforementioned injuries suffered by h,!r husband, Plaintiff, Barbara Cavauau ;h, has incurred expenses and/or Liability for the rea9vrtable and necessary n edical tests, medical examinations, medical treatment, medications, hospitalizatfons and similar expenses in an effort to diagnose bis injuries and to restore him to health, Ind claim is made therefore. WHEREFORE, Plaintif Barbara Cavanaugh, demands judgment :n her favor and against Defendant, Man ann Bricker, in an amount in excess of TWENTY-FIVE THOUSAND & 00/ 100 ($25,( 00,00) DOLLARS, exclusive of interest and costs and in excess of any jurisdictional ar count requiring compulsory arbitration, Respectfully Submitted. FREEBURS & EEAMILTOW I By: Ri d E. Freeburn, Eaq I.D. No, 30965 4415 North Fmrxt Street Harrisburg PA 17110 (717) 671-1955 Date: 8/28/06 Counsel for Plaintiffs 9 09/.25/200,6 17 20 FAY 6146276216 SEP-21-2006 12:41Pu FROM-NELLS SPRING RD SAFE AUTO +7172499397 YLM-MuTION it 0 16/0 16 T-EZ3 P.012/D12 F-T00 We hereby verif ? that the statements in the foregoing document are true and correct. We understand that false statements hers i are =a& subject to the I enalties of 18 Pa_C.S. Seczi= 4904, relstsig to urnswora falsification tc authorities. Dated: Barbara Cavanaugh AUTO INSURANCE POLICY DECLARATIONS Policy No. PA0011810BA-5 Policy Period From 10/04/200500:01:00 To 04/04/2006 00:01:00 Standard time at the address of the named insured as stated herein. This Amended Declaration Page Supersedes prior Declaration Page Issued on 07/07/2004 01:20:48 NAMED INSURED: Endorsement Reasons: MARYANN BRICKER Auto Renewal Update 563 F ST Endorsement Effective 10/04/2005 00:01:00 CARLISLE PA 17013 IF YOU CARRY COLLISION COVERAGE FOR DAMAGE TO YOUR AUTO, THIS POLICY PROVIDES COLLISION COVERAGE FOR RENTAL AUTOMOBILES, BUT ONLY IF THE RENTAL VEHICLE IS RENTED AS A RESULT OF A COVERED LOSS. PLEASE THAT THE DEDUCTIBLE AND ALL APPLICABLE POLICY TERMS AND LIMITATIONS APPLY. This Declarations Page along with the Policy Jacket (Form PA1010/1298), your signed application (Form PA1000/0999) and any endorsementstforms listed m below complete the above Policy. The insurance afforded is only with respect to such and so many of the following coverages as are indicated with respect to each described vehicle where appropriate. The limit of the company's liability against such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto. VEH # YEAR MAKE MODEL BODY TYPE SERIAL NUMBER SYM TERR DRIVER PTS 1 1985 FORD BRONCO II UT 1 FMBU14S5FUA80892 10 1 F S 41 0 COVERAGE BODILY INJURY PROPERTY DAMAGE FIRST PARTY BENEFITS MEDICAL EXPENSE UNINSURED MOTORIST BODILY INJURY STACKED LIMIT OF LIABILITY $15,000 EACH PERSON/ $ 30,000 EACH ACCIDENT $ 10,000 EACH ACCIDENT $ 5,000 EACH PERSON $ 15,000 EACH PERSON/ $ 30,000 EACH ACCIDENT TOTAL DISCOUNTS PER VEHICLE: VIOLATION SURCHARGE PER VEHICLE OTHER SURCHARGES PER VEHICLE TOTAL PREMIUM PER VEHICLE TOTAL POLICY PREMIUM: EXCLUDED DRIVERS: JERRY HULL ALL DRIVERS HAVE CHOSEN LIMITED TORT OPTION ENDORSEMENTSJFORMS MADE PART OF THIS POLICY AT TIME OF ISSUE: PA100010999 PA1010/1298 PA1020/0202 PA1110/1298 PA1011/1002 PA1510/0603 PA1605/0302 PA1606/0603 PA1610/0999 PA1500/0603 PA130o/0999 I hereby certify thislwM?N to be a true and accurate copy of SAFE AUTO INSURANCE COMPANY'S Axer,, I rv?vam cj * * * * 6 MONTHS PREMIUM VEH 1 $153 INCL INCL. $56 $13 0.00% 0 0 $222 $222 I Da oI- Ems' r Y1 In witness whereof, we have caused this policy to be executed and attested by our President and Secretary and countersigned by our licensed aaent on 9/27/2006 1 - -4 J06 P. Dian nd President April D. Miller Secretary 4V4'-Z? Countersignature of Licensed Agent Date Issued: 9/27/2006 BY 11148 Form PA 1020/0202 I 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, v. No: 06-6404 Civil PRAECIPE FOR DEFAULT JUDGMENT AGAINST DEFENDANTS, GORDON PANILAITIS AND MARYANN BRICKER JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. #14925 (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 o -n Ir Z ko N G7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: 1. Kindly enter default judgment against Defendants, Gordon Panilaitis and Maryann Bricker, in the above-captioned matter. 2. Attached are copies of the 10-Day Important Notices directed to Defendants, Gordon Panilaitis and Maryann Bricker. 3. Attached is are Affidavit of Service of the 10-Day Important Notices to Defendants, Gordon Panilaitis and Maryann Bricker. 4. 1 certify that the residence of Defendants, Gordon Panilaitis and Maryann Bricker, is 563 F Street, Carlisle, PA 17013. 5. Please enter judgment by default against Defendants, Gordon Panilaitis and Maryann Bricker, declaring that, "Safe Auto Insurance Company has no legal obligation to provide insurance coverage to Gordon Panilaitis or Maryann Bricker in reference to the personal injury claim filed by James and Barbara Cavanaugh as a result of a motor vehicle accident which occurred on November 18, 2005, pursuant to the terms of the insurance policy issued by Safe Auto Insurance Company to Maryann Bricker." JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: ffne* C Latanzarite, Esquire u sel for Plaintiff 4 9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. AFFIDAVIT OF SERVICE 1 . I, Jeffrey C. Catanzarite, Esquire, hereby certify and state that I served on Defendant, Gordon Panilaitis, the attached 10-Day Important Notice at his residence located at 563 F Street, Carlisle, PA 17013. 2. I, Jeffrey C. Catanzarite, Esquire, hereby certify and state that I served on Defendant, Maryann Bricker, the attached 10-Day Important Notice at her residence located at 563 F Street, Carlisle, PA 17013. 3. The 10-Day Important Notices were served on Mr. Panilaitis and Ms. Bricker by regular mail on December 13, 2006 as evidence by a copy of the December 13, 2006 correspondence attached to this Affidavit. Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Dated: /.,)-07 By . foreKor Catanzarite, Esquire Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. No: 06-6404 Civil 10-DAY IMPORTANT NOTICE DIRECTED TO DEFENDANT, GORDON PANILAITIS JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants. (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 e ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. Date of Notice: December 13, 2006 IMPORTANT NOTICE YOU ARE IN DEFAULT because you have failed to take action required of you in this case. Unless you act within ten (10) days of the date of this Notice, Judgment of Default may be entered against you without a hearing and you may lose your property or other important rights. You should take this notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: `---? Je( ey C nzarite, Esquire unsel oC laintiff CERTIFICATE OF SERVICE hereby certify that a true and correct copy of the within Ten-Day Important Notice was served upon the following individual on the 13th day of December, 2006, certified mail, return receipt requested and regular U.S. Mail: Gordon Panilaitis 563 F Street Carlisle, PA 17013 James and Barbara Cavanaugh 3808 Chippenham Road Mechanicsburg, PA 17055 Summers, McDonnell, Hudock, G,Whrie & Skeel, L.L.P. By: Jefrfey G?atrfarite, Esquire Tunsel for Plaintiff V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. No: 06-6404 Civil 1 O-DAY IMPORTANT NOTICE DIRECTED TO DEFENDANT, MARYANN BRICKER JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. Date of Notice: December 13, 2006 IMPORTANT NOTICR YOU ARE IN DEFAULT because you have failed to take action required of you in this case. Unless you act within ten (10) days of the date of this Notice, Judgment of Default may be entered against you without a hearing and you may lose your property or other important rights. You should take this notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: Vey atanzarte, Esquire uns r Plaintiff CERTIFICATE OF SERVICE hereby certify that a true and correct copy of the within Ten-Day Important Notice was served upon the following individual on the 13t' day of December, 2006, certified mail, return receipt requested and regular U.S. Mail: Maryann Bricker 563 F Street Carlisle, PA 17013 James and Barbara Cavanaugh 3808 Chippenham Road Mechanicsburg, PA 17055 Summers, McDonnell, Hudock, .Guthrie &,skeel, L.L.P. By: ,Aanzarifw, Esquire for Plaintiff STEPHEN J. SUMMERS THOMAS A. MCDONNELL JOSEPH A HUDOCK, JR GREGG A GUTHRIE PETER B SKEEL PATRICK M CONNELLY* JEFFREY C CATANZARITE *ALSO ADMITTED IN WV SUMMERS, MCDOI` HELL, G UTHRIE & SKEEL, ATTORNEYS AT LAW PITTSBURGH OFFICE: GULF TOWER, SUITE 2400 707 GRANT STREET PITTSBURGH, PA ISZ19 PHONE 412-261.3232 FAX 412-261.3239 December 13, 2006 CERTIFIED MAIL RETURN RECEIPT REQUESTED AND REGULAR U.S. MAIL Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 H UDOCK, L.L.P. JASON A. HINES KEVIN D. RAUCH ERIN M. BRAUN GUY E. BLASS MARK J. GOLEN BRETT L. HUSTON ROBERT J. FISHER. JR KIMBERLY L. GALLUCCI ANDREW D. ZEITER JESSICA M. JURASKO AMANDA J. LOPICGOLo JASON P W RONA ERICK V. V IOLAGO In Re: Safe Auto Insurance Company v. James Cavanaugh, et al. Docket Number 06-6404 Civil (Cumberland County) Our File Number 14925 Dear Ms. Bricker and Mr. Panilaitis: Enclosed please find 10-Day Important Notices in the above-referenced matter. If you have any questions or concerns, please do not hesitate to contact me. cerely . Catanzarite JCC/pk Enclosures HARRISBURG OFFICE: 1017 MUMMA ROAD, LEMOYNE, PA 17043 PHONE: 717.901-5916 FAX: 717-920-9129 10 W IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil v. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant (Gordon Panilaitis) ( )Garnishee ( )Additional Defendant You are hereby notified that the following Order, Decree or Judgment has been entered against you on () Decree Nisi in Equity. () Final Decree in Equity. (X) Judgment of ( ) Confession () Verdict () Court Order (X) Default () Non-Suit ( ) Non-Pros () Arbitration Award () Judgment in the amount of $ plus costs. () District Justice Transcript of Judgment in the amount of $ plus costs. () If not satisfied with sixty (60) days, your motor vehicle operator's license will be suspended by the Pennsylvania Department of Transportation. MICHAEL LAMB, PROTHONOTARY By Deputy If you have any questions concerning the above, please contact: Name of (Attorney/Filing Party) Jeffrey C. Catanzarite, Esquire Address The Gulf Tower, Suite 2400, 707 Grant St. Pittsburgh, PA 15219 Telephone Number (412) 261-3232 C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. NOTICE OF ORDER, DECREE OR JUDGMENT TO: () Plaintiff (X) Defendant (Maryann Bricker) ( )Garnishee ( )Additional Defendant You are hereby notified that the following Order, Decree or Judgment has been entered against you on () Decree Nisi in Equity. () Final Decree in Equity. (X) Judgment of ( ) Confession () Verdict () Court Order (X) Default () Non-Suit ( ) Non-Pros () Arbitration Award () Judgment in the amount of $ plus costs. () District Justice Transcript of Judgment in the amount of $ plus costs. (} If not satisfied with sixty (60) days, your motor vehicle operator's license will be suspended by the Pennsylvania Department of Transportation. MICHAEL LAMB, PROTHONOTARY By Deputy If you have any questions concerning the above, please contact: Name of (Attomey/Filing Party) Jeffrey C. Catanzarite, Esquire Address The Gulf Tower, Suite 2400, 707 Grant St Pittsburgh PA 15219 Telephone Number (412) 261-3232 i • CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Default Judgment was served upon the following individuals via first-class U.S. mail, postage prepaid on the 2"d day of January, 2007: Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 Jeffrey B..Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for James and Barbara Cavanaugh) Summers, McDonnell, Hudock, /QothrieA-Skeel, L.L.P. By: Vz2z z ?eo wsior Catanzarite, Esquire Plaintiff f. W IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant (Gordon Panitaitis) ( )Garnishee { )Additional Defendant You are hereby n tified that the following Order, Decree or Judgment has been entered against you on a 7 () Decree Nisi in Equity. () Final Decree in Equity. (X) Judgment of ( ) Confession () Verdict () Court Order (X) Default (} Non-Suit ( ) Non-Pros (} Arbitration Award () Judgment in the amount of $ plus costs. () District Justice Transcript of Judgment in the amount of $ plus costs. () If not satisfied with sixty (60) days, your motor vehicle operator's license will be suspended by the Pennsylvania Department of Transportation. PROTHONOTARY By . . If you have any questions concerning the above, please contact: Name of (Attorney/Filing Party) Jeffrey C. Catanzarite. Esquire Address The Gulf Tower, Suite 2400, 707 Grant St Pittsburgh PA 15219 Telephone Number (412) 261-3232 a t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. ORDER OF COURT AND NOW, to-wit, this day of 2007, after consideration of the within Motion, and the Court being mindful of the default judgment that has been entered against Defendant, Gordon Panilaitis, it is hereby ORDERED, ADJUDGED and DECREED, pursuant to the Declaratory Judgment Act, 42 Pa. C.S.A., § 7531, et seq., that no liability coverage is provided by Policy Number PA00118108A-5 to Gordon Panilaitis in connection with the bodily injury and/or property damage allegedly sustained by James and Barbara Cavanaugh on or about November 18, 2005. BY THE COURT: J. #14925 it i CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Motion to Enter Declaratory Judgment Against Defendant, Gordon Panilaitis, Pursuant to Pa.R.C.P. 1037(c) was served upon the following individuals via first-class U.S. mail, postage prepaid on the 14th day of February, 2007: Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for James and Barbara Cavanaugh) rs, McDonnell, Hudock, e,l, L.L.P. By: Mrey??atanzarite` Esquire ouni or Plaintiff r•a ? C -n MCI) ? r © ? ; fz .ti CO CO -< a1 FEB 2 1 2W7 /W IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil v. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. ORDER OF COURT AND NOW, to-wit, this c??day of 2007, it is hereby ORDERED, ADJUDGED and DECREED that the Plaintiff's Motion to Enter Declaratory Judgment Against Defendant, Gordon Panilaitis, Pursuant to Pa. R.C.P. 1037(c) and Petition to Open Default Judgment Against Defendant, Maryann Bricker, are scheduled for argument on the day of 2007 at 940a.m./P-m. ? 7. BY THE COURT: J. #14925 9C s I I Wl 9Z 83J tON 03 xi ?11? Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (717)232-3046 irettiaahoslawnaxom SAFE AUTO INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS, and MARYANN BRICKER, Defendants NO. 06-6404 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY OF DEFENDANTS JAMES CAVANAUGH AND BARBARA CAVANAUGH TO PLAINTIFF'S MOTION TO ENTER DECLARATORY JUDGMENT AGAINST DEFENDANT GORDON PANILAITIS AND NOW, come James and Barbara Cavanaugh, by their attorneys, Osborne & Rettig, P.C., and response to Plaintiff's Motion for Declaratory Judgment against Defendant Gordon Panilaitis as follows: 1. Admitted. 2. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded. 3. Denied as stated. The Complaint speaks for itself. 4. Denied as stated. The Complaint in Declaratory Judgment speaks for itself. 5. Admitted. 6. Admitted. 7. Denied as stated. It is admitted that the Plaintiff seek such a judgment. It is denied that the entry of such a judgment would be proper in this case. C Wherefore, Defendants James and Barbara Cavanaugh requests that the Plaintiff's request for a Order of Judgment be denied. Respectfully submitted, OSBORNE & RETTIG, P.C. By Jeffrey B. R ' Esquire I.D. No.: 19616 126-128 Walnut Street Harrisburg, PA 17101 (717) 232-3046 Date: Attorneys for Defendants r ? 1 CERTIFICATE OF SERVICE I, Jeffrey B. Rettig, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Jeffrey C. Catanzarite, Esquire Summers, McDonnell, et al. 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 Gordon Panilaitis 563 F. Street Carlisle, PA 17013 Maryann Bricker 563 F. Street Carlisle, PA 17013 Date: 2 Z 7 OSBORNE & RETTIG, P.C. r-o rrl co N ?? d Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (717)232-3046 jrettijzna,hoslawua.com SAFE AUTO INSURANCE COMPANY, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS, and MARYANN BRICKER, Defendants : NO. 06-6404 CIVIL : CIVIL ACTION - LAW : JURY TRIAL DEMANDED REPLY OF DEFENDANTS JAMES AND BARBARA CAVANAUGH TO PLAINTIFF'S PETITION TO OPEN DEFAULT JUDGMENT AGAINST DEFENDANT MARY ANN BRICKER AND NOW come the Defendants, James and Barbara Cavanaugh, by their attorneys, Osborne & Rettig, P.C., and Reply to the Petition to Open Default Judgment Against Defendant Mary Ann Bricker as follows: 1. Admitted. 2. Denied as stated. It is admitted that the Plaintiff filed a Complaint in Declaratory Judgment and a Praecipe for Default Judgment. As to the balance of the allegations of this paragraph, after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof and proof is demanded. 3. Admitted. 4. No reply required. Wherefore, Defendants respond to Plaintiff's Petition as indicated. Respectfully submitted, OSBORNE & RETTIG, P.C. (717) 232-3046 ?126-128 Walnut Street Attorneys for Defendants Date: 2-1 Harrisburg, PA 17101 CERTIFICATE OF SERVICE I, Jeffrey B. Rettig, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Jeffrey C. Catanzarite, Esquire Summers, McDonnell, et al. 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 Gordon Panilaitis 563 F. Street Carlisle, PA 17013 Maryann Bricker 563 F. Street Carlisle, PA 17013 Date: -,212.,(10-7 OSBORNE & RETTIG, P.C. t ? -Y t rrl rl , s aj -a .r - 1 0 N L SAFE AUTO INSURANCE IN THE COURT OF COMMON PLEAS OF COMPANY, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW 06-6404 CIVIL TERM JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants IN RE: MOTION TO ENTER DECLARATORY JUDGMENT ORDER OF COURT AND NOW, this 29th day of March, 2007, without opposition, the default judgment entered against Maryann Bricker in the captioned matter is opened. Action on the request for entry of a default judgment against Gordon Panilaitis is deferred in accordance with the agreement of counsel as announced in open court this date. By the Court, vi A. Hess, J. son P. Wrona, Esquire For the Plaintiff effrey Rettig, Esquire For the Cavanaughs .b g J 4.L?'t HIV ^????? 69, 0 Wd 6Z dV LOOZ Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com Attorneys for Defendants James and Barbara Cavanaugh SAFE AUTO INSURANCE COMPANY, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04 NO-0'5-6404 JAMES CAVANAUGH, CIVIL ACTION -- LAW BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants PRAECIPE TO WITHDRAW APPEARANCE THE PROTHONOTARY, Please withdraw the appearance of Jeffrey B. Rettig, Esquire and Osborne & Rettig, P.C., on behalf of Defendants James and Barbara Cavanaugh in the above- captioned action. OSBORNE & RETTIG, P.C. By: y 4B. Rettig, Ei?Viree PRAECIPE TO ENTER APPEARANCE THE PROTHONOTARY, Please enter the appearance of Jeffrey B. Rettig, Esquire and Johnson, Duffle, Stewart & Weidner, on behalf of the Defendants James and Barbara Cavanaugh in the above-captioned action. JOHNSON, DUFFIE, STEWART & WEIDNER B• ffrey ZBARettig, E ire CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on the day of 2007: Jeffrey C. Catanzarite, Esquire 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 JOHNSON, DUFFIE, STEWART & WEIDNER Jeffrey B. Rettig, quire :297594 - r-? ? y - [ ? ? s T ', C" ' ! ?- ..-- .? ) .ti` t --;„ ?,? i s"1 _ ?,,? a ?„ j v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, CIVIL DIVISION No.: o6-6404 Civil PLAINTIFF'S REPLY TO DEFENDANT JAMES AND BARBARA CAVANAUGH'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO ENTER DECLARATORY JUDGMENT Defendants, Filed on Behalf of the Plaintiff: Safe Auto Insurance Company Counsel of Record for This Party: Jeffrey C. Catanzarite, Esquire Pa. I.D. No.: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, LLP Firm No.: 911 707 Grant Street Suite 2400, Gulf Tower Pittsburgh, PA 15219 (412) 261-3232 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No.: o6-6404 Civil -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants, PLAINTIFF'S REPLY TO DEFENDANT JAMES AND BARBARA CAVANAUGH'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO ENTER DECLARATORY JUDGMENT AND NOW, comes the plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, LLP and Jeffrey C. Catanzarite, Esquire, and files the within Brief in Support of Plaintiffs Motion to Enter Declaratory Judgment Against Defendant Gordon Panilaitis, Pursuant to Pa. R.C.P. 1037(c) and proposed order of court, and in support thereof avers as follows: A. FACTUAL BACKGROUND Plaintiffs statement of the factual background in this matter is fully set forth in Plaintiffs Brief in Support of Plaintiffs Motion to Enter Declaratory Judgment. The same is hereby incorporated by reference, as though more fully set forth at length. B. ISSUES i. Whether a default judgment can be properly entered against Defendant Panilaitis when Defendant Cavanaugh responded to the complaint. Suggested Answer: Yes. 2. Whether the court must enter declaratory judgment against Defendant Panilaitis based on the default judgment entered by the Prothonotary. Suggested Answer: Yes. C. ANALYSIS In their Brief in Opposition, the Cavanaugh Defendants cite Mother's Restaurant, Inc. v. Krystkiewicz, 861 A.2d 327 (Pa. Super. 2004), for the proposition that the plaintiff is not entitled to have a declaratory judgment entered on the basis of a default judgment. However, that proposition misinterprets the Superior Court's holding. In Krstkiewicz, the plaintiff filed a complaint in equity against the defendant in the Court of Common Pleas of Bucks County, seeking an injunction. The defendant responded to the complaint by way of preliminary objections, which the plaintiff sought to rectify by filing an amended complaint. Thereafter, when the defendant did not reply to the amended complaint, the plaintiff filed a praecipe to enter a default judgment. The same was entered on the docket, by the Bucks County Prothonotary, on June 13, 2001. Nearly a month later, on July 10, 2001, the defendant filed a petition for relief, seeking to have the default judgment opened. The basis for this motion was that the defendant never received notice of the default from either the plaintiff or the Prothonotary. The trial court denied the defendant's petition, and the plaintiff appealed. On appeal, the Superior Court indicated that a default judgment is a two-step process, requiring both the "determination of liability and the determination of the appropriate relief." Kustkiewicz, 861 A.2d at 334• The court went on to explain that "[o]nce a litigant files a proper praecipe seeking the entry of a default judgment, the Rules direct the court to perform two essential steps. Foremost, in actions at law and in equity, the Rules direct the prothonotary to enter a default judgment on the docket[.] Once the prothonotary has entered the default judgment, the next step involves the determination of the appropriate remedy for the opponent's default." Id. at 334-35• After explaining the steps required for a default, the court then specifically stated that the plain language of the rules demonstrates that the entry of the default judgment occurs upon the completion of the first step, namely, when the prothonotary recognizes that a litigant has filed a proper praecipe for the entry of a default judgment and then the prothonotary enters a default judgment on the docket. The assessment of legal damages or the determination of relief in an equity action is not a precursor to the proper entry of a default judgment. Id. at 335• In so holding, the court opened the door for an aggrieved parry to seek to open, strike or vacate the entry of a default judgment "prior to the assessment of damages or the entry of a final decree." Id. Accordingly, Kastkiewicz stands for the proposition that the defa dgment is final when the prothonotary enters the judgment on the doc Not, s the defendants allege, when the court enters a final order granting relie£?111o er, the court in no way stated that the entry of a final decree was optional. To the contrary, the court specifically noted that the determination of an appropriate remedy for the plaintiff, by the court, is the required second step in completion of a default judgment. In the current instance, the plaintiff filed a proper complaint, naming Gordon Panilaitis as a defendant. The complaint contained the requisite "Notice to Defend," informing Defendant Panilaitis that he had twenty (2o) days to respond to the complaint. Defendant Panilaitis did not do so, and a default judgment was properly entered against him by the Court of Common Pleas of Cumberland County. Further, to this date, Defendant Panilaitis has taken no steps to have that default judgment opened, stricken or vacated. Accordingly, there is no reason for the court to delay in granting relief to the plaintiff, and it is error for this court to continue to do so. The defendant's have admitted, in their Brief in Opposition, that their argument is one of "fairness." However, the only "fair" action to be taken in this case is for the court to comply with the Rules of Civil Procedure, and grant to the plaintiff the relief to which it is entitled by law. The Rules of Civil Procedure specifically state that when the relief sought is equitable in nature "the court shall enter an appropriate order upon the judgment of default or admission[.]" Pa. R.C.P. io r(d)(emphasis added). This requirement was reiterated by the Superior Court in Krystkiewicz. D. CONCLUSION It is unfortunate that, in this instance, Defendant Panilaitis chose not to protect his own interests. However, that decision was one that he, legally, had the right to make. The issue in this declaratory judgment action stems from an insurance contract that existed solely between Defendant Panilaitis and the plaintiff. The Cavanaugh defendants were not parties to this contract, and had no rights under this contract. Though the reality of the entry of a declaratory judgment action against Defendant Panilaitis may seem harsh to the Cavanaughs, it is the reality of the law that was provided by the Pennsylvania Supreme Court when it drafted the Rules of Civil Procedure. This reality was recognized by the Court, and avenues were provided for an aggrieved party, such as the Cavanaughs, to seek relief through other avenues, namely a direct action against the tortfeasor or a uninsured or underinsured motorist claim against their own insurance company. While the Cavanaughs would like this court to believe that compliance with the rules would cause them an unspeakable hardship, this is simply not the case. There are other possible means through which they can recover for their alleged injuries. The plaintiff in this case complied with the law, by following the proper procedure to default Defendant Panilaitis. Accordingly, the plaintiff is entitled, under the law, to have the declaratory judgment it seeks entered by this court. The Rules of Civil Procedure are clear, the court does not have an option at this juncture. Defendant Panilaitis has not sought relief and, accordingly, "the court shall enter an appropriate order upon the judgment of default or admission[.]" Pa. R.C.P. io,y(d)(emihasis added). WHEREFORE, Plaintiff Safe Auto Insurance Company respectfully requests that this Honorable Court enter an order declaring that no liability coverage is provided by Policy Number PA oo1181o8A-5 to Gordon Panilaitis in connection with the bodily injury and/or property damage allegedly sustained by James and Barbara Cavanaugh on or about November 18, 2005. Respectfully Submitted, SUMMERS, MCDONNELL, HUDOCK, GUTHRIA & SKEEL, LLP By: Il ey &,Catanzarite, Esquire ounsel for Plaintiff Safe Auto Insurance Company CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Reply to Defendant James and Barbara Cavanaugh's Brief in Opposition to Plaintiff's Motion to Enter Declaratory Judgment was served upon the following individuals via first- . f? class U.S. mail, postage prepaid on the day of 2007: Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 (Defendants, Pro Se) Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for James and Barbara Cavanaugh) SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: J rey C. Catanzarite, Esquire unsel for Plaintiff afe Auto Insurance Company C ? .c- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, No.: 06-6404 Civil PLAINTIFF'S REPLY TO DEFENDANT JAMES AND BARBARA CAVANAUGH'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO ENTER DECLARATORY JUDGMENT Defendants, Filed on Behalf of the Plaintiff: Safe Auto Insurance Company Counsel of Record for This Parry: Jeffrey C. Catanzarite, Esquire Pa. I.D. No.: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, LLP Firm No.: 911 707 Grant Street Suite 2400, Gulf Tower Pittsburgh, PA 15219 (412) 261-3232 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No.: o6-6404 Civil -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants, PLAINTIFF'S REPLY TO DEFENDANT JAMES AND BARBARA CAVANAUGH's BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO ENTER DECLARATORY JUDGMENT AND NOW, comes the plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, LLP and Jeffrey C. Catanzarite, Esquire, and files the within Brief in Support of Plaintiffs Motion to Enter Declaratory Judgment Against Defendant Gordon Panilaitis, Pursuant to Pa. R.C.P. I037(c) and proposed order of court, and in support thereof avers as follows: A. FACTUAL BACKGROUND Plaintiffs statement of the factual background in this matter is fully set forth in Plaintiffs Brief in Support of Plaintiffs Motion to Enter Declaratory Judgment. The same is hereby incorporated by reference, as though more fully set forth at length. B. ISSUES 1. Whether a default judgment can be properly entered against Defendant Panilaitis when Defendant Cavanaugh responded to the complaint. Suggested Answer: Yes. 2. Whether the court must enter declaratory judgment against Defendant Panilaitis based on the default judgment entered by the Prothonotary. Suggested Answer: Yes. C. ANALYSIS In their Brief in Opposition, the Cavanaugh Defendants cite Mother's Restaurant. Inc. v. Krystkiewicz, 861 A.2d 327 (Pa. Super. 2004), for the proposition that the plaintiff is not entitled to have a declaratory judgment entered on the basis of a default judgment. However, that proposition misinterprets the Superior Court's holding. In Krystkiewicz, the plaintiff filed a complaint in equity against the defendant in the Court of Common Pleas of Bucks County, seeking an injunction. The defendant responded to the complaint by way of preliminary objections, which the plaintiff sought to rectify by filing an amended complaint. Thereafter, when the defendant did not reply to the amended complaint, the plaintiff filed a praecipe to enter a default judgment. The same was entered on the docket, by the Bucks County Prothonotary, on June 13, 2001. Nearly a month later, on July 10, 2001, the defendant filed a petition for relief, seeking to have the default judgment opened. The basis for this motion was that the defendant never received notice of the default from either the plaintiff or the Prothonotary. The trial court denied the defendant's petition, and the plaintiff appealed. On appeal, the Superior Court indicated that a default judgment is a two-step process, requiring both the "determination of liability and the determination of the appropriate relief." Krystkiewicz, 861 A.2d at 334• The court went on to explain that "[o]nce a litigant files a proper praecipe seeking the entry of a default judgment, the Rules direct the court to perform two essential steps. Foremost, in actions at law and in equity, the Rules direct the prothonotary to enter a default judgment on the docket[.] Once the prothonotary has entered the default judgment, the next step involves the determination of the appropriate remedy for the opponent's default." Id. at 334-35• After explaining the steps required for a default, the court then specifically stated that the plain language of the rules demonstrates that the entry of the default judgment occurs upon the completion of the first step, namely, when the prothonotary recognizes that a litigant has filed a proper praecipe for "the entry of a default judgment and then the prothonotary enters a default judgment on the docket. The assessment of legal damages or the determination of relief in an equity action is not a precursor to the proper entry of a default judgment. Id. at 335• In so holding, the court opened the door for an aggrieved party to seek to open, strike or vacate the entry of a default judgment "prior to the assessment of damages or the entry of a final decree." Id. Accordingly, I rUstkiewicz stands for the proposition that the defa?-judgment is final when the prothonotary enters the judgment on the docked Not, s the defendants allege, when the court enters a final order granting relief.,How er, the court in no way stated that the entry of a final decree was optional. To the contrary, the court specifically noted that the determination of an appropriate remedy for the plaintiff, by the court, is the required second step in completion of a default judgment. In the current instance, the plaintiff filed a proper complaint, naming Gordon Panilaitis as a defendant. The complaint contained the requisite "Notice to Defend," informing Defendant Panilaitis that he had twenty (20) days to respond to the complaint. Defendant Panilaitis did not do so, and a default judgment was properly entered against him by the Court of Common Pleas of Cumberland County. Further, to this date, Defendant Panilaitis has taken no steps to have that default judgment opened, stricken or vacated. Accordingly, there is no reason for the court to delay in granting relief to the plaintiff, and it is error for this court to continue to do so. The defendant's have admitted, in their Brief in Opposition, that their argument is one of "fairness." However, the only "fair" action to be taken in this case is for the court to comply with the Rules of Civil Procedure, and grant to the plaintiff the relief to which it is entitled by law. The Rules of Civil Procedure specifically state that when the relief sought is equitable in nature "the court shall enter an appropriate order upon the judgment of default or admission[.)" Pa. R.C.P. lo?7(d)(em hp asis added). This requirement was reiterated by the Superior Court in Krystkiewicz. D. CONCLUSION It is unfortunate that, in this instance, Defendant Panilaitis chose not to protect his own interests. However, that decision was one that he, legally, had the right to make. The issue in this declaratory judgment action stems from an insurance contract that existed solely between Defendant Panilaitis and the plaintiff. The Cavanaugh defendants were not parties to this contract, and had no rights under this contract. Though the reality of the entry of a declaratory judgment action against Defendant Panilaitis may seem harsh to the Cavanaughs, it is the reality of the law that was provided by the Pennsylvania Supreme Court when it drafted the Rules of Civil Procedure. This reality was recognized by the Court, and avenues were provided for an aggrieved party, such as the Cavanaughs, to seek relief through other avenues, namely a direct action against the tortfeasor or a uninsured or underinsured motorist claim against their own insurance company. While the Cavanaughs would like this court to believe that compliance with the rules would cause them an unspeakable hardship, this is simply not the case. There are other possible means through which they can recover for their alleged injuries. The plaintiff in this case complied with the law, by following the proper procedure to default Defendant Panilaitis. Accordingly, the plaintiff is entitled, under the law, to have the declaratory judgment it seeks entered by this court. The Rules of Civil Procedure are clear, the court does not have an option at this juncture. Defendant Panilaitis has not sought relief and, accordingly, "the court shall enter an appropriate order upon the judgment of default or admission[.]" Pa. R.C.P. io.37(d)(emphasis added). WHEREFORE, Plaintiff Safe Auto Insurance Company respectfully requests that this Honorable Court enter an order declaring that no liability coverage is provided by Policy Number PA ooll81o8A-5 to Gordon Panilaitis in connection with the bodily injury and/or property damage allegedly sustained by James and Barbara Cavanaugh on or about November 18, 2005. Respectfully Submitted, SUMMERS, MCDONNELL, HUDOCK, GUTHRI,? & SKEEL, LLP By: (./ J#frey atanzarite, Esquire ounsel for Plaintiff f afe Auto Insurance Company CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Reply to Defendant James and Barbara Cavanaugh's Brief in Opposition to Plaintiffs Motion to Enter Declaratory Judgment was served upon the following individuals via first- class U.S. mail, postage prepaid on the `-7day of J , 2007: Gordon Panilaitis Maryann Bricker 563 F Street Carlisle, PA 17013 (Defendants, Pro Se) Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for James and Barbara Cavanaugh) SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: J ey C. Catanzarite, Esquire unsel for Plaintiff Safe Auto Insurance Company Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 7614540 jbr@jdsw.com SAFE AUTO INSURANCE COMPANY, Plaintiff V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Ole NO. W6404 CIVIL ACTION - LAW Defendants DEFENDANT'S OBJECTIONS TO PLAINTIFF'S REQUEST FOR ADMISSIONS AND NOW comes Defendant, James Cavanaugh, by and through his counsel, Johnson, Duffie, Stewart & Weidner, and objects to the Request for Admissions filed by Plaintiffs counsel, and in support thereof represents as follows: 1. Plaintiff's counsel has addressed Request for Admissions to the Co-Defendants in this Declaratory Judgment action seeking to have them admit, through their non-participation in this litigation, certain facts that Plaintiff feels are critical to their Declaratory Judgment. 2. Under the specific and unique circumstances of this Declaratory Judgment action, the pursuit of such Request for Admissions would be prejudicial to Defendant, James Cavanaugh. 3. Indeed, since Plaintiff's counsel has every reason to believe that the Defendants will not respond to the Request for Admissions, Plaintiff feels that it will be able to establish a Attorneys for Defendants James and Barbara Cavanaugh IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA factual background for Plaintiff's Declaratory Judgment. 4. Defendant James Cavanaugh could and will, if necessary, serve contrary Request for Admissions on the Co-Defendants which will likely result in non-responses and thus admissions of facts contrary to the claims of Plaintiff. 5. It was patently unfair for Plaintiff to attempt to take advantage of the non- participation of the Co-Defendants in this case to establish facts which are otherwise open to question. WHEREFORE, Defendant James Cavanaugh requests that Plaintiff's Request for Admissions be stricken or quashed. Respectfully submitted, Duffie, Stqwart & Weidner A?"ejV .D/No: 19616" 3 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043 717.761.4540 ibrCa?idsw.com Date: January 31, 2008 Attorney for Defendants, James Cavanaugh Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19618 301 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SAFE AUTO INSURANCE COMPANY, Plaintiff V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITISS and MARYANN BRICKER, Defendants Attorneys for Defendants, James and Barbara Cavanaugh IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6404 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a copy of the foregoing Defendant's Objections to Plaintiffs Request for Admissions upon all parties of interest in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure by depositing a copy of the same in the United States Mail, first-class postage pre-paid as follows on this 31s' day of January, 2008 Jeffrey C. Catanzarite, Esquire Summers, McDonnel, Hudock, Guthrie & Skeel, LLP Gulf Tower, Suite 2400 707 Grant Street Pittsburgh, Pennsylvania 15219 Johnson, Duffle, Stewart & Weidner By: 322581 n?23 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, No: 06-6404 Civil PLAINTIFF'S RESPONSE TO DEFENDANT, JAMES CAVANAUGH'S OBJECTIONS TO PLAINTIFF'S REQUESTS FOR ADMISSIONS (Jury Trial Demanded) Filed on Behalf of Plaintiff Defendants. Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. PLAINTIFF'S RESPONSE TO DEFENDANT, JAMES CAVANAUGH'S OBJECTIONS TO PLAINTIFF'S REQUESTS FOR ADMISSIONS Plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Jeffrey C. Catanzarite, Esquire, files the following Response to Defendant, James Cavanaugh's Objections to Plaintiff's Requests for Admissions: 1 . Denied. To the contrary, Plaintiff addressed Request for Admissions to Defendants, Maryann Bricker and Gordon Panilaitis, seeking to have them admit facts consistent with the information that they provided in their recorded statements to the Plaintiff on November 18, 2005. 2. It is denied that the pursuit of Requests for Admissions would be prejudicial to Defendants, James and Barbara Cavanaugh due to any specific and unique circumstances of the declaratory judgment action. To the contrary, Request for Admissions is a proper vehicle to obtain verified information and facts in any case. By way of further answer, the Requests for Admissions were served pursuant to the Pennsylvania Rules of Civil Procedure. 3. This allegation is denied and has been proven to be incorrect. Defendants, Gordon Panilaitis and Maryann Bricker, have responded to the Requests for Admissions within 30 days as required by the Pennsylvania Rules of Civil Procedure. A true and correct copy of their responses are attached hereto as Exhibit "A" and Exhibit "B". 4. The Defendant did serve Requests for Admissions on Defendants Bricker and Panilaitis and the 30-day time period within which to serve a response has not yet expired. However, these Defendants have already responded to Requests for Admissions in this case. 5. Denied. To the contrary, using Requests for Admissions to obtain facts and information to assist in the streamline of a case is completely within the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff, Safe Auto Insurance Company, requests that Defendant, James Cavanaugh's objections to Plaintiff's Requests for Admissions be stricken or quashed. JURY TRIAL DEMANDED Respectfully submitted, Summers, McDonnell, Hudock, G rie & Skeel, .L.P. By. 0 - 6?- f?6 C. Catanzarite, squire Counsel for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, v. No: 06-6404 Civil REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, GORDON PANILAITIS JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, GORDON PANILAITIS Plaintiff, Safe Auto Insurance Company, requests Defendant, Gordon Panilaitis, within 30 days after the service of this Request, to make the following admissions for the purpose of this action only subject to all punitive objections to admissibility which may be interposed at trial: 1. Defendant, Maryann Bricker, owned a 1985 Ford Bronco, License Plate #EPF5188, on November 18, 2005, when the incident in the above claim occurred. _ Admitted Denied 2. Defendant, Gordon Panilaitis, was operating the 1985 Ford Bronco, License Plate #EPF5188, on November 18, 2005, at the time of the above-claimed incident and did not have Defendant, Maryann Bricker's permission to be operating the motor vehicle at said time. Admitted Denied 3. On November 18, 2005, Defendant, Gordon Panilaitis, resided in the same household as Defendant, Maryann Bricker, for longer than 14 consecutive days. -T Admitted Denied JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: , Jeff C C anzarite, Esquire Co nse or Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Request for Admissions Directed to Gordon Panilaitis was served upon the following individual on the 17`h day of January, 2008, via certified mail, return receipt requested and regular U.S. Mail: Gordon Panilaitis 563 F Street Carlisle, PA 17013 Maryann Bricker 563 F Street Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Summers, McDonnell, Hudock, 06%rie & Skeel, L.L.P. By: Jef rey C C4ariearite,?quire C u?isel or Plaintiff VERIFICATION Defendant verifies that he/she is the Defendant in the foregoing action; that the foregoing RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has furnished to his/her counsel and information which has been gathered by his/her counsel in the preparation of the lawsuit. The language of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel and not of the Defendant. Defendant has read the RESPONSE TO REQUEST FOR ADMISSIONS and to the extent that the RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has given to his/her counsel, it is true and correct to the best of his/her knowledge, information and belief. To the extent that the content of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel, he/she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: U Gordon Panilaitis, D ndant #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, v. No: 06-6404 Civil REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, MARYANN BRICKER JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT MARYANN BRICKER Plaintiff, Safe Auto Insurance Company, requests Defendant, Maryann Bricker, within 30 days after the service of this Request, to make the following admissions for the purpose of this action only subject to all punitive objections to admissibility which may be interposed at trial: 1. On November 18, 2005, 1 was the owner of a 1985 Ford Bronco, License Plate #EPF51188, that was involved in a motor vehicle accident. I,/- Admitted Denied 2. On November 18, 2005, Defendant, Gordon Panilaitis, was operating a vehicle that was owned by me, but which he was operating without my knowledge or consent. V/ Admitted Denied 3. As such, Mr. Panilaitis had neither my express nor implied permission to operate my vehicle ? at the time of the accident. ? Admitted Denied 4. Had I known that Gordon Panilaitis intended to take possession of and operate the 1985 Ford Bronco, I would have unequivocally denied him permission to do so. t/ Admitted Denied 5. On November 18, 2005, Gordon Panilaitis was not running any errands on my behalf, or acting as my employee, workman, servant, agent, and/or representative. To the contrary, Gordon Panilaitis was utilizing my vehicle strictly for his own purposes at the time of the accident. ?./ Admitted Denied 6. Defendant, Gordon Panilaitis, and Defendant, Maryann Bricker, were residents of the same household for longer than 14 consecutive days before November 18, 2005. Admitted Denied JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: J rey atanzarite, Esquire nuns or Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Request for Admissions Directed to Maryann Bricker was served upon the following individual on the 17th day of January, 2008, via certified mail, return receipt requested and regular U.S. Mail: Maryann Bricker 563 F Street Carlisle, PA 17013 Gordon Panilaitis 563 F Street Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Summers, McDonnell, Hudock, Guffiop & Skeel, L.L.P. By: J f YC. at?arite, 6quire o nsel f Or Plaintiff VERIFICATION Defendant verifies that he/she is the Defendant in the foregoing action; that the foregoing RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has furnished to his/her counsel and information which has been gathered by his/her counsel in the preparation of the lawsuit. The language of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel and not of the Defendant. Defendant has read the RESPONSE TO REQUEST FOR ADMISSIONS and to the extent that the RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has given to his/her counsel, it is true and correct to the best of his/her knowledge, information and belief. To the extent that the content of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel, he/she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date:' CJ?' Mar ann icker, Defendant #14925 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Plaintiff's Response to Defendants' Objections to Plaintiff's Requests for Admissions was served upon the following individuals via first-class U.S. mail, postage prepaid on the 13`" day of February, 2008: Jeffrey B. Rettig, Esquire Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (Counsel for James and Barbara Cavanaugh) Summers, McDonnell, Hudock, G hrie & Skeel, L.P. ?Jf By: X/,,? J f . Catanzarite, Esquire Counsel for Plaintiff c> ? Q rrl 77 ?rn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants, CIVIL DIVISION No.: 06-6404 Civil PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, BRIEF IN SUPPORT AND PROPOSED ORDER OF COURT Filed on Behalf of the Plaintiff: Safe Auto Insurance Company Counsel of Record for This Party: Jeffrey C. Catanzarite, Esquire Pa. 1. D. No.: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, LLP Firm No.: 911 707 Grant Street Suite 2400, Gulf Tower Pittsburgh, PA 15219 (412) 261-3232 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No.: 06-6404 Civil -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants, MOTION FOR SUMMARY JUDGMENT AND NOW, comes the plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, LLP and Jeffrey C. Catanzarite, Esquire, and files the within Motion for Summary Judgment, and in support thereof avers as follows: 1. The above-captioned matter arises out of a motor vehicle accident that occurred on November 18, 2005. 2. At the time of the subject accident, Defendant Gordon Panilaitis was operating a vehicle owned by Defendant Maryann Bricker. 2 14925 3. Defendant Panilaitis entered an intersection against a red light, impacting a vehicle owned and operated by Defendant James Cavanaugh. 4. On the date of the subject accident, Defendant Bricker's vehicle was covered by a policy of automobile insurance issued by the plaintiff. Defendant Bricker was the only driver listed on the policy. 5. Following the subject accident, Defendant James Cavanaugh and his wife, Defendant Barbara Cavanaugh, filed a lawsuit, in Cumberland County, against Defendants Bricker and Panilaitis, alleging various injuries from the subject collision. 6. Defendant Bricker's policy provided liability coverage in the amount of $15,000.00 per person and $30,000.00 per accident to any person driving Defendant Bricker's vehicle with her permission, provided that the person was not a resident of her household and did not use her vehicle on a regular basis. (Safe Auto Pennsylvania Personal Automobile Policy, copy of which is attached hereto as Exhibit "A", at Page 5). 7. Defendant Panilaitis and Defendant Bricker have both admitted that Defendant Panilaitis was a resident of Defendant Bricker's household on the date of the subject accident. See Transcript of Recorded Statement of Defendant Maryann Bricker, a copy of which is attached hereto as Exhibit "B"; See Transcript of Recorded Statement of Defendant Gordon Panilaitis, a copy of which is attached hereto as Exhibit "C"). 8. Defendant Panilaitis was not listed as a driver on Defendant Bricker's automobile insurance policy. (See Declarations Page for Policy Number PAoo1181o8A- 5, a copy of which is attached hereto as Exhibit "D"). 9. Given the aforementioned findings, Safe Auto filed a Declaratory Judgment action against Defendant Bricker, Defendant Panilaitis and the Cavanaughs, seeking a finding that coverage was not due for the November 18, 2005 accident. (See 3 14925 Plaintiffs Complaint in Declaratory Judgment, a copy of which is attached hereto as Exhibit "E"). 10. Due to the Defendant Panilaitis' failure to file any form of responsive pleading, Plaintiff obtained a default judgment against him. 11. As a result of the default judgment any factual averments in the complaint would be deemed admitted by Defendant Panilaitis. 12. Consequently, Defendant Panilaitis is deemed to have admitted that he did not have permission to drive Defendant Bricker's vehicle and that he was a resident of Defendant Bricker's household at the time of the subject motor vehicle accident. 13. The Cumberland County Court of Common Pleas refused to enter declaratory judgment against Defendant Panilaitis. 14. Requests for Admissions were served on both Defendant Bricker and Defendant Panilaitis by Plaintiff and Defendant Cavanaugh. 15. in the response to Requests for Admissions, both Defendant Bricker and Defendant Panilaitis admitted that Defendant Panilaitis did not have permission to drive Defendant Bricker's vehicle and that Defendant Bricker and Defendant Panilaitis were residents of the same household for fourteen (14) consecutive days before, and at the time of, the subject motor vehicle accident. (See Defendant Bricker's Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "Y', see also Defendant Panilaitis' Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "G"). 16. The responses provided by Defendant Bricker and Defendant Panilaitis support the denial of coverage for the subject motor vehicle accident. 4 14925 17. There is no genuine issue of material fact remaining in the subject action; accordingly, Plaintiff is entitled to judgment in its favor, as a matter of law. Respectfully Requested, SUMMERS, WDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: Je ery C. Catanzarite, Esquire Counsel for Plaintiff Safe Auto Insurance Company 14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, CIVIL DIVISION No.: o6-6404 Civil -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants, BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, LLP and Jeffrey C. Catanzarite, Esquire, and files the within Brief in Support of Plaintiffs Motion for Summary Judgment, and in support thereof avers as follows: I. FACTUAL BACKGROUND The above-captioned matter arises out of a motor vehicle accident that occurred on November 18, 2005. On that date, Defendant Gordon Panilaitis was operating a vehicle owned by Defendant Maryann Bricker. During said operation, Defendant Panilaitis entered an intersection against a red light, causing Defendant Bricker's vehicle to impact a vehicle owned and operated by Defendant James Cavanaugh. On the date of the subject accident, Defendant Bricker's vehicle was covered by a policy of automobile insurance issued by the plaintiff. Defendant Bricker was the only driver listed on the policy, which provided for liability coverage in the amount of $15,000.00 per person and $30,000.00 per accident. According to the policy, liability coverage was available to any other person driving Defendant Bricker's vehicle with her permission, provided that person was not a resident of her household and did not use her vehicle on a regular basis. (See copy of Safe Auto Pennsylvania Personal Automobile Policy, attached hereto as Exhibit "A", at Page 5) Following the subject accident, Defendant James Cavanaugh and his wife, Defendant Barbara Cavanaugh, filed a lawsuit, in Cumberland County, against Defendants Bricker and Panilaitis, alleging various injuries from the subject collision. During the course of that litigation, various demands were made upon Plaintiff Safe Auto Insurance Company to indemnify and assume a defense on behalf Defendants Bricker and Panilaitis. A question arose with regards to Defendant Panilaitis, when it was determined that not only was he a resident of Defendant Bricker's household on the date of the accident, but that on that date he was driving the subject vehicle without Defendant Bricker's permission. (See Transcripts of Recorded Statements of Defendant Gordon Panilaitis and Defendant Maryann Bricker, copies of which are attached hereto as Exhibit "B" and Exhibit "C"). As Defendant Panilaitis was not listed as a driver on Defendant Bricker's automobile insurance policy, (See Declarations Page for Policy Number PAoo1181o8A-5, a copy of which is attached hereto as Exhibit "D"), was a resident of Defendant Bricker's household and was operating the vehicle without permission, (See Transcripts of Recorded Statements of Defendant Gordon Panilaitis and Defendant Maryann Bricker, copies of which are attached hereto as Exhibit "B" and Exhibit "C"), coverage was properly excluded under Defendant Bricker's Safe Auto insurance policy. 2 14925 The automobile insurance policy issued to Defendant Bricker specifically states that coverage will be extended to "any other person driving your covered auto with your permission, provided they are not a resident of your household and do not use your covered auto on a regular basis." (See copy of Safe Auto Pennsylvania Personal Automobile Policy, attached hereto as Exhibit "A", at Page 5). After determining that Defendant Panilaitis was operating the vehicle without permission and was a resident of Defendant Bricker's household, Safe Auto filed a Declaratory Judgment action against Defendant Bricker, Defendant Panilaitis and the Cavanaughs, seeking a finding that coverage was not due for the November 18, 2005 accident. Support for the plaintiffs position is found in the "Exclusions" section of the policy, which states: EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: 1. That occurs while your covered auto is being operated by a resident of your household or by a regular user of your covered auto, unless that person is listed as an additional driver on the Declarations Page. 8. If your covered auto is used without the covered auto owner's permission, or outside the scope of that permission. (See copy of Safe Auto Pennsylvania Personal Automobile Policy, attached hereto as Exhibit "A", at Pages 6 & 7). Clearly, under the above-cited language, Safe Auto could validly deny coverage to Defendant Panilaitis if he was a resident of Defendant Bricker's household but was not listed on the declarations page OR if Defendant Panilaitis was operating the vehicle without permission. In the current instance, both exclusions 3 14925 apply. Defendant Panilaitis and Defendant Bricker both admitted that Defendant Panilaitis was a resident of Defendant Bricker's household on the date of the subject accident. (See Transcripts of Recorded Statements of Defendant Gordon Panilaitis and Defendant Maryann Bricker, copies of which are attached hereto as Exhibit "B" and Exhibit "C"). Further, Defendant Panilaitis was not listed as an "additional driver" on Defendant Bricker's declarations page. (See Declarations Page for Policy Number PAoo1181o8A-5, a copy of which is attached hereto as Exhibit "D"). Consequently, coverage was properly excluded under Exclusion Number 1. (See copy of Safe Auto Pennsylvania Personal Automobile Policy, attached hereto as Exhibit "A", at Pages 6 & 7) Additionally, both Defendant Bricker and Defendant Panilaitis admitted that Defendant Panilaitis did not have permission to operate Defendant Bricker's vehicle on the date of the subject accident. (See Transcripts of Recorded Statements of Defendant Gordon Panilaitis and Defendant Maryann Bricker, copies of which are attached hereto as Exhibit "B" and Exhibit "C"). Accordingly, coverage was also properly denied under Exception Number 8. (See copy of Safe Auto Pennsylvania Personal Automobile Policy, attached hereto as Exhibit "A", at Pages 6 & 7). Plaintiff filed a Complaint in Declaratory Judgment with the Cumberland County Prothonotary. Defendant Panilaitis was thereafter served with a copy of the complaint by the Cumberland County Sheriff. Thereafter, due to the defendant's failure to file any form of responsive pleading, Plaintiff obtained a default judgment against him. After entry of the default judgment by the Cumberland County Prothonotary, Plaintiff filed a motion with this Honorable Court, requesting that the court enter declaratory judgment against Defendant Panilaitis. The Court denied this request. 4 14925 H. ANALYSIS A. Standard of Review A motion for summary judgment should be granted when there is no genuine issue of material fact and a movant is entitled to judgment as a matter of law. Santilo v. Radeo, 430 Pa. Super. 29o, 634 A.2d 264 (1993); Buckno v. Penn Linen & Uniform Service, Inc., 428 Pa. Super. 563, 631 A.2d 674 (1992)• The threshold question in determining the need for trial is whether there is any genuine issue of material fact that can only be resolved by a fact-finder. Keenhell v. Cmwlth. of PA Securities Commission, 134 Pa. Cmwlth. 494, 579 A•2d 1358 (1990)• Summary judgment serves to eliminate the waste of time and resources of both litigants and courts in cases where a trial would be a useless formality. Lyles v. Balmer, 389 Pa. Super. 451, 567 A.2d 691(1989)• The relevant summary judgment standard provides that, after the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any parry may move for summary judgment in whole or in part as a matter of law: (1) whenever there is no genuine issue of any material fact as to a necessary element of a cause of action or defenses which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035 (emphasis added). 5 14925 T T B. There is no genuine issue of material fact regarding whether coverage is owed for the subject accident. Following the subject incident, an issue arose regarding whether Defendant Panilaitis should be extended coverage for the accident with the plaintiffs. On the date of the accident, Defendant Panilaitis was operating a vehicle owned and insured by Defendant Bricker. Defendant Panilaitis was not a named insured on Defendant Bricker's policy, nor was he listed as a driver. (See Declarations Page for Policy Number PAoo1181o8A-5, a copy of which is attached hereto as Exhibit "D"). However, the policy in question did provide coverage to "any other person driving [Defendant Bricker's] auto with [Defendant Bricker's] permission, provided they are not a resident of [Defendant Bricker's] household and do not use [Defendant Bricker's] covered auto on a regular basis." (Safe Auto Pennsylvania Personal Automobile Policy, a copy of which is attached hereto as Exhibit "A", at Page 5). The policy further provides two (2) exclusions which makes coverage inapplicable if (1) an accident were to occur while Defendant Bricker's automobile was "being operated by a resident of [her] household or by a regular user of [her] covered auto" or (2) if Defendant Bricker's "covered auto is used without [Defendant Bricker's]permission." (Safe Auto Pennsylvania Personal Automobile Policy a copy of which is attached hereto as Exhibit "A", at Pages 6 & 7). In an effort to determine if coverage was due under the subject policy, Safe Auto took recorded statements from both Defendant Bricker and Defendant Panilaitis. In Defendant Bricker's statement, she gave her home address as 563 F Street, Carlisle, Pennsylvania 17013. (See Transcript of Recorded Statement of Defendant Maryann Bricker, a copy of which is attached hereto as Exhibit "B" at Page 2, Line 17). Defendant Bricker then proceeded to describe Defendant Panilaitis as her "roommate," noting that 6 14925 he had been residing with her since May of 2005. (See Transcript of Recorded Statement of Defendant Maryann Bricker, a copy of which is attached hereto as Exhibit "B" at Page 2, Lines 20-24; Page 3, Lines 5-8). Defendant Bricker further testified that Defendant Panilaitis did not have permission to drive her vehicle on the date of the subject accident, noting that he never drove her vehicle. (See Transcript of Recorded Statement of Defendant Maryann Bricker, a copy of which is attached hereto as Exhibit "B" at Page 3, Line 9 through Page 4, Line 3). Defendant Panilaitis, when giving his recorded statement, also noted his address as 563 F Street, Carlisle, Pennsylvania 17013. (See Transcript of Recorded Statement of Defendant Gordon Panilaitis, a copy of which is attached hereto as Exhibit "C", at Page 2, Line 22). According to Defendant Panilaitis, he had been residing at this location for approximately six (6) months. (See Transcript of Recorded Statement of Defendant Gordon Panilaitis, a copy of which is attached hereto as Exhibit "C", at Page 2, Line 25 through Page 3, Line 2). In addition, Defendant Panilaitis also testified that he did not have Defendant Bricker's permission to drive her vehicle on the date of the subject accident. (See Transcript of Recorded Statement of Defendant Gordon Panilaitis, a copy of which is attached hereto as Exhibit "C", at Page 3, Lines 8-12). In addition to the statements of Defendant Bricker and Defendant Panilaitis, the pleadings in the declaratory judgment action support the conclusion that coverage is not due in this instance. In Plaintiffs complaint, it is alleged that both Defendant Bricker and Defendant Panilaitis reside at "563 F. Street, Carlisle, Cumberland County, Pennsylvania." (See Plaintiffs Complaint in Declaratory Judgment, a copy of which is attached hereto as Exhibit "E" at ¶¶ 4 and 5). Further, the plaintiffs complaint alleges that "[a]t the time of the collision that occurred on November 18, 2005, Defendant, 7 14925 Gordon Panilaitis, resided in the same household as Defendant, Maryann Bricker." (See Plaintiffs Complaint in Declaratory Judgment, a copy of which is attached hereto as Exhibit "E" at ¶ 13). The complaint also alleges that, at the time of the accident, Defendant Panilaitis "was not listed as an additional driver on Maryann Bricker's Declarations Page ...and was operating the covered automobile without the permission of Maryann Bricker." (See Plaintiffs Complaint in Declaratory Judgment, a copy of which is attached hereto as Exhibit "E" at ¶ 17). The Declaratory Judgment action docket clearly reflects that neither Defendant Bricker nor Defendant Panilaitis filed an answer in response to the plaintiffs complaint. Accordingly, under the Pennsylvania Rules of Civil Procedure, "all averments of fact in the [complaint] may be deemed admitted" by these defendants. Pa. R.C.P. 2o6.7. As such, the complaint presents additional evidence supporting the conclusion that there is no genuine issue of material fact regarding the issue of coverage in this instance. Furthermore, during the course of this litigation, counsel for the plaintiff and counsel for the Cavanaugh Defendants both forwarded Requests for Admissions to Defendant Bricker and Defendant Panilaitis. Defendant Bricker, when responding to the plaintiffs Requests for Admissions, admitted that Defendant Panilaitis was operating her vehicle without her permission at the time of the subject accident. (See Defendant Bricker's Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "F", at ¶ 3). Further, Defendant Bricker admitted that she and Defendant Panilaitis had been "residents of the same household for longer than 14 consecutive days before November 18, 2005." (See Defendant Bricker's Responses to Plaintiff's Requests for Admissions, a copy of which is attached hereto as Exhibit "F", at ¶ 6). Likewise, in Defendant Panilaitis' Responses to Plaintiffs Requests for 8 14925 Admissions, he indicated that he "did not have Defendant, Maryann Bricker's permission to be operating [her] motor vehicle" at the time of the subject incident. (See Defendant Panilaitis' Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "G", at ¶ 2). Furthermore, Defendant Panilaitis also admitted that he had, as of November 18, 2005, been residing in the same house as Defendant Bricker "for longer than 14 consecutive days." (See Defendant Panilaitis' Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "G", at ¶ 3). The defendants maintained these positions when responding to the Requests for Admissions served upon them by the Cavanaughs. Defendant Bricker denied that Defendant Panilaitis was operating her vehicle with permission and denied that Defendant Panilaitis had never lived in her household for 14 consecutive days. (See Defendant Bricker's Responses to Defendant Cavanaughs' Requests for Admissions, a copy of which is attached hereto as Exhibit "H", at ¶¶ 2 and 5). Likewise, Defendant Panilaitis denied that he was operating Defendant Bricker's vehicle with permission and denied that he had never lived in her household for 14 consecutive days. (See Defendant Panilaitis' Responses to Defendant Cavanaughs' Requests for Admissions, a copy of which is attached hereto as Exhibit "I", at ¶¶ 2 and 5). The Safe Auto Insurance Policy issued to Defendant Maryann Bricker, which provided coverage on the vehicle involved in the subject accident, clearly states that: EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: 1. That occurs while your covered auto is being operated by a resident of your household or by a regular user of your covered auto, unless 9 14925 that person is listed as an additional driver on the Declarations Page. 8. If your covered auto is used without the covered auto owner's permission, or outside the scope of that permission. (See copy of Safe Auto Pennsylvania Personal Automobile Policy, attached hereto as Exhibit "A", at Pages 6 & 7). Relative to the first exclusion, the record clearly reveals that Defendant Panilaitis had resided in Defendant Bricker's home for more than fourteen (14) consecutive days immediately preceding the subject accident.l (See Transcript of Recorded Statement of Defendant Maryann Bricker, a copy of which is attached hereto as Exhibit "B" at Page 2, Line 17; Page 2, Lines 20-24; Page 3, Lines 5- 8); Transcript of Recorded Statement of Defendant Gordon Panilaitis, a copy of which is attached hereto as Exhibit "C", at Page 2, Line 22; Page 2, Line 25 through Page 3, Line 2; Plaintiffs Complaint in Declaratory Judgment, a copy of which is attached hereto as Exhibit "E" at ¶$ 4, 5 and 13; Defendant Bricker's Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "F", at ¶ 6; Defendant Panilaitis' Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "G", at $ 3; Defendant Bricker's Responses to Defendant Cavanaughs' Requests for Admissions, a copy of which is attached hereto as Exhibit "H", at $$ 2 and 5; Defendant Panilaitis' Responses to Defendant Cavanaughs' Requests for Admissions, a copy of which is attached hereto as Exhibit "I", at $T 2 and 5). Further, Defendant Panilaitis was not listed as an additional driver on Defendant Bricker's Safe Auto Declaration's Page. (See Declarations Page for Policy Number PAoo1181o8A-5, a copy of which is attached hereto as Exhibit "D"). Accordingly, under exclusion (1) of 10 14925 Defendant Bricker's Safe Auto policy, coverage is not due for the subject motor vehicle accident. Likewise, the record in this matter reveals that Defendant Panilaitis was operating Defendant Bricker's automobile without her permission at the time of the subject incident. (See Transcript of Recorded Statement of Defendant Maryann Bricker, a copy of which is attached hereto as Exhibit "B" at Page 3, Line 9 through Page 4, Line 3; Transcript of Recorded Statement of Defendant Gordon Panilaitis, a copy of which is attached hereto as Exhibit "C", at Page 3, Lines 8-12; Defendant Bricker's Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit T", at ¶ 3; Defendant Panilaitis' Responses to Plaintiffs Requests for Admissions, a copy of which is attached hereto as Exhibit "G", at ¶ 2; Defendant Bricker's Responses to Defendant Cavanaughs' Requests for Admissions, a copy of which is attached hereto as Exhibit "H", at ¶¶ 2 and 5; Defendant Panilaitis' Responses to Defendant Cavanaughs' Requests for Admissions, a copy of which is attached hereto as Exhibit "I", at ¶¶ 2 and 5). Accordingly, under exclusion (1) of Defendant Bricker's Safe Auto policy, coverage is not due for the subject motor vehicle accident. III. CONCLUSION The Safe Auto policy that provided coverage on Defendant Bricker's vehicle at the time of the subject accident contains two (2) exclusions that mandate coverage is not due to any of the defendants in this instance. Both Defendant Bricker and Defendant Panilaitis have testified to facts making the exclusions applicable and, as there is no 1 Pursuant to Defendant Bricker's Safe Auto insurance policy, a "resident" is defined as "any person who physically lives in your household for longer than fourteen (14) consecutive days." (Safe. Auto Pennsylvania Personal Automobile Policy, copy of which is attached hereto as F..xhibit "A", at Page 3). 11 14925 argument that the exclusions are invalid for any reason, they should be upheld, and applied, as a matter of law. WHEREFORE, Plaintiff Safe Auto Insurance Company respectfully requests that this Honorable Court GRANT its Motion for Summary Judgment, entering judgment in its favor, and against Safe Auto Insurance Company. Respectfully Submitted, SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP B ?? J rey C. Catanzarite, Esquire Counsel for Plaintiff Safe Auto Insurance Company 12 14925 PENNSYLVANIA PERSONAL AUTOMOBILE POLICY A k B PENNSYLVANIA FRAUD LAW: ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE COMPANY OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM CONTAINING ANY MATERIALLY FALSE INFORMATION OR CONCEALS FOR THE PURPOSE OF MISLEAD- ING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO COMMITS A FRAUDULENT INSURANCE ACT, WHICH IS A CRIME AND SUBJECTS SUCH PERSON TO CRIMINAL AND CIVIL PENALTIES. DEPOSMON EXHIBIT s/ Table of Contwft AGREEMENT Definitions Used TWWhod This Policy...-.. ......................?.. _._._. i What You Shouid DD in The Everd Ol A Lass Or An Aaadent .... ....... 3 Notice Of Auk AajW Or L.oss..__.................................. -__....3 Obw Duim.-._ ....._.__....... _........ ...................... __.._..4 PART I - LL43L TY COVERAGE Insuring Aoream nt., AdRiorsa! BenaHks.__.__..._......._..._..__......._...5 Pnmiian For Ob as, Who Is Nat Covered, Excisions ........ _. Limits Of LrabiGly...._.....__._.._..._._._..___.._...__....---•._......... 6 000Ifoxarne _ _... ._...__.__..__..._ ................._._ .._....9 PART B - FIRST PARTY BENEF{T8 COVERAGE Insuring Agrearrrent, Ddirfto:s Used Only in This Part II........ ....... 10 Accidental Death, Cowered Auk, Funeral Expanses ......... ...... --_--.10 Income Loss, insured Person, Macke! Expenses 11 Canrbiuation PadW- EAraardrrary MKkal BaneFts .......... __-._ 13 Non-Er onorr 1, Loss, Serious ir*q, Exclusions..._ ................ -.-..-13 Limits of Pnoecbm __..... _ ............._..........._._._......_..14 _..._.....15 Priorky Of Pofides, ...... PART 0 • PHYSICAL DAMAGE COVERAGE Insuring Agreemard------------------------------------------------- ----------- -------- 1s Losses Nat Covered _.... -....... _..-......... -......... -.............................. 17 Lind of L.iab* _ _ ..._..._._...._..._._.....__._._.........._.......__--•__--. 19 Transporbtion Egu sses, Rental Reimbursement ........................ 19 Towing and Labor ..__............... .... .... ........... ........... ............._ -19 Payrnerd Of Loss, Premium Earned On Total Lass.... _......... _..... __2D No Benefit To Sallee, Appraisal, Other insurance ............... _------ 20 PART N - UNINSUREWUNDERINSURED MOTORISTS COVERAGE kksrrirg Agreement........... _ ..........................._ ._....__....._.._ ...._.20 Additional Ddinitionrs Used Only In This Part N._........ _....... _.. ..... _21 Uninsured Molor Vehide .................. _................................... ...._ ....... 21 _._._...22 Underinsured Moto Vehicle ._...... _.................................. Pnrtection For Ohn, Those Not Cowered ....._.. ............. ....... _._22 Limits Of Prolec6on, Payment of Damages .............. _................. ...... 24 Stacked Coverage, Unstadced Coverage, Reductions ............... ...... 25 Trust Agmemerd, Dam insurance, Aft f -dfien ................. _........ ....... 26 GENERAL PRDVLWMS Valid Driver License, Business Use Coverage _ ......................... .._...27 Named Driver Exclusion, Our Right To Recover Payment. ......... ....... 27 Financed Vehicles, Lie"der Deductible .................................. .......2B Poky Period And Territory ............................... ........... _......... _ ....... 26 Transfer Of This Policy, Number Of Covered Autos Allowed .............29 Charges In Your Polky, Cankaitabon During The Policy Period .-.-.29 Renewal Provisions :................. _................................................. .......30 Bankruptcy, Fraud Or Misrepresentation, Premium Payment..... ....... 31 Late Payment_ ..................................................._..................... ........31 Financial Responsibility Laws, Suit Against Us .............................. _. 32 Punitive Or Exemplary Damages ............................................... .......33 Two Or More Auto Pokies, Automatic Termination ................... .......33 NAMED OPERATOR ENDORSEMENT (NON-OWNED AUTOMOBRES) ...................................................................... .......33 I . AGREEMENT We agree with you, in return for your timely payment of premium, to insure you subject to the terms and conditions of this policy. We will insure you for the coverages and up to the lim- its of liability for which a premium is shown on the Dec- larations Page of this policy. We agree to insure you based upon the informatiori you represented to us in your application for auto in- surance. The Declarations Page and your application are part of this policy contract. DEFINITIONS USED THROUGHOUT THIS POLICY In order to make this policy easier to understand, we have expiained some key words that are used throughout this policy. These key words are in bold tare print Auto means a four wheel passenger, station wagon, or jeep type vehicle licensed for use on public roads in- cluding pickups, delivery or panel trucks and vans with a classification of % ton or less that is not used in any business or occupation other than farming or ranching, unless the auto qualifies under the business use defi- nition. Auto accident is an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance, or use of an auto. Bodily Injury means physical harm, sickness or disease, inducting death, caused by an auto accident and suffered by a person. Business use means the use of any auto to convey any operator between his/her place of employment and an- other location during the course of the operator's employ- ment and at the direction of the operator's employer. Business Use shall not include any Commercial Use; however, mileage reimbursement shag not constitute pe- cuniary gain or commercial advantage. Collision means the upset of your covered auto or its impact with another vehicle or object Commercial use means any auto used for pecuniary gain or commercial advantage, including but not if mited to: use of an auto for the purposes of buying, selling, ex- changing, distributing, transportation, and/or delivery of commercial toois, materials, supplies, and/or finished prod- ucts. Commercial use also means any compensated use of an auto for snow or debris removal on roads or real es- tate, except at your residence. Commercial use also means carrying of any person or property for a charge, but does not apply to shared expense car pools or any Busi- ness Use. e ? Comprehensive means loss caused other than by colli- sion. Accidental glass breakage and loss or damage from missiles or fall objects, fire, theft, larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mm- chief, vandafrsm, not, civil commotion, or contact with a bird or animal is considered a comprehensive loss. Covered auto or your covered auto means any auto described on the Declarations Page- and any owned or leased auto you replace it with. Your covered auto also means any additional auto, ownership of which you ac- quire during the policy period if we insure, under this policy, all autos you own. However, the replaceiment auto or ad- ditional auto is insured ONLY if the Named Insured notifies us within thirty (30) days of acquisition of ownership. Prior to notification, a replacement auto is subjed to the same coverage as the auto it replaces. Collision and compre- hensive overage does not apply to any additional auto unless specifi 1 requested by the Named Insured prior to a loss - involving the additional auto. A temporary replacement auto qualifies as a covered auto. Your covered auto also means a trailer you own or are using. Physical damage coverage does not transfer to trailers. Your covered auto also means other autos you operate with the permission of the owner, but not ftx collision or compre- hensive coverage. Any qty Co0elage vie provide with re- sped to an auto you do not awn or lease shat be excess over and above any other collectible insurance covering the auto you are driving. Your covered auto does not include other autos owned or leased by you, fumished to or available for your regular use or any autos owned or based by any resi- dent of your household. A temporary replacemer auto quaGfies as a covered auto. Damages mean the cost of compensating those who suffer bodily injury or property damage from an auto accident Declarations Page is the form from us stating the pol- icy period, the types of coverage you have elected, the limit for each coverage, the cost for each coverage, the specific vehicles covered by this policy, the types of coverage for each vehicle, and other information appli- cable to this policy. Loss, losses means sudden, direct, and accidental loss or damage. Motor vehicle is a self-propelled land vehicle on wheels designed for use on public roads and not run- ning on rails or tracks and not running by overhead electric power. Motor vehicle shall not include any ve- hicle which is used as a residence or premises and does not include farm type tractors or equipment de- signed for use off of public roads. Non-owned auto means any private passenger auto not owned or leased by you or a relative, furnished to r or available for the regular use of you, a resident, or any relative, while in the custody of or being operated by you or a relative. A rented auto is not considered a non-owned auto. Property Damage means physical damage to, destruc- Lion of, or loss of use of tangible property. Occupying means in, on, getting in, or getting out of a covered auto. Relative means a resident living in your household who is under 21 years old, your dependant and related to you by blood, marriage, or adoption, including a ward or Toster child. Resident means any person who physically lives in your household for longer than fourteen (14) consecu- tive days. Your unmarried, unemancipated children un der the age of 24 attending school full-time, living away I from home will be considered a resident of your house- i hold E E Temporary replacement auto means any auto not owned or {eased by you, a relative, or a resident, while your covered auto is being serviced or repaired, or K it has been stolen or destroyed. Trailer means a vehicle designed to be pulled by an auto. It also means a farm wagon or farm implement while being towed by an auto. A trailer is not a mobile home or a trailer used as an office, store, display, or passenger trailer. 1 Use, using, used means any u6{ization of the motor vehicle as a vehicle including occupying, entering into and alighting from it Vehicle - See Motor Vehicle. We, us, and our refer to Safe Auto Insurance Company. You, your, yourself means the person named on the Declarations Page of this policy as the Named Insured and the spouse of that person if a resident of the same household. WHAT YOU SHOULD DO IN THE EVENT OF A LOSS OR AN ACCIDENT NOTICE OF AUTO ACCIDENT OR LOSS In the event of an auto accident or foss, you must report it to us as soon as reasonably possible. You can report your auto accident or loss 24 hours a day by calling toll-free: 1-800SAFE-AUTO (1-800-723-3288) or 614-231-0200 3 The report must give the fime, place, and circumstances of the auto accident or loss, inciudin the names and ad- dresses of any injured persons and of any witnesses. For any accident involving bodily injury or in which the insured vehiclis must be towed from the scene, you must also file a written report with the appropriate law enforcement agency within 24 hours of the auto accl- dent or loss. OTHER DUTIES You or any person claiming coverage under this policy must 1. Cooperate with us in any matter conceming a claim or lawsuit and promptly send us any legal papers received relating to the claim or lawsuit. 2. Submit to physical or mental .examination(s) at' our expense by doctors we select as often as we may reasonably require and authorize us to obtain medical and other records. 3. Provide any written proofs of loss that we require. 4. Refuse to, except at your own expense, assume any obligation or incur any expense other than medical and surgical care imperative at the time of the auto accident 5. Attend hearings and trials as required. 6. Submit to examination(s) under oath upon our re- quest if. you are claiming uninsured motorists coverage, you must file a written report with the appropriate law enforce- ment agency within 24 hours of the auto accident, if a hit- and-run motor vehicle is involved. If you were occupying a motor vehicle at the time of the auto accident, you must make it available for our inspection. If you are claiming physical damage, you must take reasonable steps after the loss to protect the covered auto and its equipment from further loss. We will pay reasonable expenses incurred in providing that protec- tion. YOU MUST F11 E A WRITTEN REPORT OF THE THEFT OR VANDALISM OF YOUR COVERED AUTO TO THE. POLICE WITHIN 24 HOURS OF THE OCCUR- RENCE. You must also allow us to inspect and appraise the damaged covered auto before its repair or dis- posal. FAILURE TO COMPLY WITH ANY OR ALL OF THE CONDITIONS ABOVE MAY RESULT IN OUR REFUSAL TO EXTEND YOU OR ANYONE ELSE REQUESTING COVERAGE ANY PROTECTION UNDER THIS POLICY FOR THE AUTO ACCIDENT OR LOSS. 4 PARS I - LiABUTY COVERAGE INSURING AGREEMENT We will pay damages, other than punitive or exemplary, for bodily injury or property damage for which you, a relative or any additional driver listed on the Declara- tions page becomes legally responsible for because of an auto accident. Liability coverage applies to you while driving your covered auto and to you while driv- ing a non-owned auto, if you have permission from the owner to drive the auto. Liability coverage will not apply to you while driving an auto that is not listed on the Declarations Page and that is: 1. Owned or leased by you; or 2. Available for your regular use; or 3. Owned or leased by a resident of your household. Liability coverage VAN apply to any other person driving your covered auto with your permission, provided they are not a resident of your household and do not use your covered auto on a regular basis. We will provide fiabif y coverage for an auto you rent from a car rental agency or garage, ONLY while your covered auto is being serviced or repaired, or if it has been stolen or destroyed. Any liability coverage we provide with respect to an auto you do not own or lease shalt be excess over and above any other collectible insurance covering the auto you are driving. ADDITIONAL BENEFITS These benefits are in addition to our firm of liability for damages. We will pay for the cost of investigating the auto accident and arranging for the settlement of any claim against you. We will also defend you, hire and ?y a lawyer and pay all defense costs for the lawyer hired by us if someone sues you for damages because of an auto accident even if the accusations are not true. However, we have no duty to defend suits for bodily injury and property damage not covered by this policy. We may in- vestigate and settle any claim or lawsuit, as we deem ap- propriate. We will not be obligated to pa for the cost of any further investigation or arrangement for settlement or defend you further after we have offered to pay our entire Y limit of liability. t We will pay up to $100 for the cost of bail bonds required because of an auto accident, including related traffic law r violations. The auto accident must result in bodily injury or property damage covered under this policy. We have no obfigation to apply for or furnish a bond. F If the person who sues you tries to be up your property by an attachment, we will pay for a bond to release the 5 attachment However, we will not pay the premium for attachment bond amounts that are more than our iimit of liability. If you lose a lawsuit that we are defending, we will pay the court costs, including appeal costs if we decide to appeal. We will also pay prejudgment and post- judgment interest on the amount of the judgment up to the policy limits. We will pay this interest from the day the judgment is entered until we have offered the other party the amount of the judgment up to the full limits of kabGty available under this coverage. We will pay your expense for first aid to others at the scene of an auto accident involving an auto we insure. We wig pay. other reasonable expense incurred at our request ' mg up to $25 a clay for loss of earnings because' of attendance at hearings or trials. at our request PROTECTION FOR OTHERS Anyone using your covered auto with the covered auto owner's permission, and within the scope of such permission, has the same rights and obligations that you .have under this coverage. However, this protection is not afforded to any regular or occasional user of your covered auto or to any resident of your household, unless that person is fisted as an additional driver on the Declarations Page. Any change in regular opera- tors, newly licensed drivers or residents in your house- hold must be reported to us immediately. WHO IS NOT COVERED Neither the United States of America nor any of its agencies are protected under this coverage. Anyone for whom the United States government may be held responsible under the Federal Tort Claim Act is not protected under this coverage. In the event of reinstatement, no coverage exists for any person during the period between the cancellation date and the reinstatement date. EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: That occurs while your covered auto is being oper- ated by a resident of your household or by'a regu- lar user of your covered auto, unless that person is listed as an additional driver on the Declarations Page. Resulting from a relative's operation or use of a motor vehicle, other than your covered auto, which is owned or leased bjr a person who is a resi- dent of your household. 3. Arising while your covered auto is ing operated by a person who is listed as an excluded driver on the Dectarabons Page. 4. Arising out of the ownership, maintenance, or use of any motor vehicle, other than your cov- ered auto, which is owned or leased by you, fur- E nished to or available for your regular use. Arising out of the ownership, maintenance or use of any motor vehicle with less or more than four wheels. 6. Arising out of the loading or unbad'ing of any vehl- cie unless it occurs while occupying, entering into, or akjhbng from it 7. To you or to property owned by, rented to, in charge of, or transported by you. However, this exclusion does not apply to your rented residence or rented private garage damaged by your covered auto. 8. If your covered auto is used without the cov- ered auto owner's permission, or outside the scope of that permission. 9. Sustained while your covered auto is being used to flee or elude law enforcement official(s). 10. Caused intentionally by you or at your direction. 11. If your covered auto is used in the commission of any felony, including theft of your covered auto. 12. If your covered auto is used in any illicit trade or transportation. 13. Arising from any prearranged or organized race, speed contest or performance contest. 14. Arising out of the ownership, maintenance, or use of any motor vehicle during the course of any business or employment, unless you have paid a specific premium for business use cover- age. 15. Arising out of or in the course of employment. However; coverage does apply to a domestic em- ployees unless benefits are payable or required to be provided, for the domestic employee under worker's compensation law or similar law. 15. To your fellow employee(s) in the course of his/ her employment, if such injury arises out of the use of an auto in the business of his/her em- ployer_ This exclusion does not apply to injuries for which you are legally liable. 17. If you are operating any motor vehicle in a com- mercial capacity. 18. If your covered auto is used during the course of your employment to transport people, including, but not limited to nursery or school children, medical pa- tients, clients, migrant workers or.hotellmotel guests. 19. If your covered auto is used for snow removal, or any kind of wholesale or retail delivery, including but not limited to pizza, magazine, flowers, newspaper, mail or other business types of delivery. 20. Arising out of the ownership, maintenance or use of any auto when it is used to carry persons or property for a charge. This exclusion does not apply to shared expense car pools. 21. Arising out of an auto business operation, including but not limited to, the selling, repairing, servicing, testing, storing, or parking of motDr vehicles. 22. Occurring while your covered auto is pulling a mobile home or a trailer used as an office, store, display, or passenger trailer. 21 Arising out of the operation of farm machinery. 24. Arising out of or due to the use of the covered auto for transportation of any explosive substance, flammable liquid, or similarty hazardous material. 25. Assumed by you under any contract or agreement 26. For any liability imposed upon you by statutes aris- ing from your sponsorship of a minor for an opera- tor's license. 27. Caused by war (declared or undeclared), civil war, insurrection, rebellion, revolution, nuclear reaction, radiation, radioactive contamination, or any conse- quence of any of these. 28. To anyone protected at the time of the auto acci- dent by an atomic or nuclear energy liability in- surance contract The reason -for this is that, by law, such policies protect all persons involved in the auto accident, regardless of who was at fault. 29. Arising during the period between the cancella- tion date and time and the 'reinstatement date and time. LIMITS OF LIABILITY The limit of liability shown on the Declarations Page is the most we will pay regardless of the number of claims made, 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 MARY ANN BRICKER RECORDED STATEMENT SAFE AUTO INSURANCE COMPANY, ) VS. ) JAMES CAVANAUGH, et al., ) Claim No. 231729 1 RECORDED STATEMENT OF MARY ANN BRICKER, transcribed by Kelly M. Hvizdos, Court Reporter in and for the Commonwealth of Pennsylvania, on Monday, February 5, 2007. ORIGINAL SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 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 MARY ANN BRICKER P R O C E E D I N G'S MARY ANN BRICKER, was examined over the telephone as follows: EXAMINATION 2 BY MS. RODALLEGA: Q. This is Amy, and I'm speaking with Mary Ann Bricker regarding the accident that happened on the 18th of November 2005. Ms. Bricker, do you realize I'm recording this interview and I have your permission to record it? A. Yes, ma'am. Q. If you could state your name and spell your last name. A. Mary Ann Bricker, B-R-I-C-K-E-R. Q. And your home address? A. Is 563 F Street, Carlisle, Pennsylvania 17013. Q. And your home phone number? A. Area code (717) 249-5844. Q. Okay. On the date of the accident, who was driving your vehicle? A. Gordon Pamilaitis. Q. Is he a relative or... A. He's just a, I guess a roommate. Q. Okay. And, let's see here, is he over the age SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 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 MARY ANN BRICKER 3 of 21? A. Yes, ma'am. Q. Okay. And how long has he been living with you? A. Uh, he's been here in the house since, uh, May, I believe. Q. Okay. May of this year? A. Yes, ma'am. Q. Okay. And how often does he drive your vehicle? A. He never drives my vehicle. He didn't even have permission to drive my vehicle that evening. I was in bed and he just took it. Q. Okay. Did you know it was missing at any point before the accident happened? A. No, ma'am. Q. Okay. Does he own his own vehicle? A. He does have a truck of his own, but it is not running. Q. Has he ever driven your vehicle? A. No, ma'am. Q. Never? Okay. A. Not to my knowledge, anyway. Had everything went well for him that night, I probably wouldn't have known it then. SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 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 MARY ANN BRICKER 4 Q. Yeah. So he would have no reason to believe he had permission to take the vehicle? A. Exactly. Q. Okay. Are the keys just left in an area where he has -- A. Uh, yeah. We have a key chain holder right inside our door. Q. All right. And did he explain anything that happened that night? A. Pardon me? Q. Did he explain to you what happened in the accident? A. Evidently he had stopped at a stop sign and then continued through thinking it was a two-way and it was -- I mean, thinking it was a four-way and it was a two-way. Q. Okay. Any damage to your vehicle? A. Yes, there was some damage to my vehicle. Q. Is that the front end? A. Uh-huh. The front right. Q. Okay. Front passenger? A. Yeah. Q. Okay. Was he injured at all? A. No, ma'am. Q. Did the police talk to you at all about the SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 • 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 5 MARY ANN BRICKER accident since it was your vehicle? A. Uh, no, they did not. Q. Okay. All right. A. I know there was no arrest made or anything of that nature. Gordie, he just had to pull my vehicle over to the side for me to come claim it, then. Q. Okay. So the police never asked you if he had permission, or did he tell the police he had? A. He had told the police that he did not have permission. So, he told them the truth. Q. Okay. How long has his truck been down, would you say? A. What do you mean? Q. His truck that he owned, do you have any idea of how long it hasn't been running? A. Uh, my goodness, hon, it's probably been a good four, five months. Q. Okay. A. Yeah. Q. Okay. All right. Then from my interview, you've understood all of my questions? A. Yes, ma'am. Q. And your answers have been true and correct to the best of your knowledge? A. Yes, ma'am. SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 f Y 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 MARY ANN BRICKER Q. Okay. I'll end the recording. (Recording concluded.) 6 SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 w 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 C E R T I F I C A T I O N I hereby certify pursuant to Pa.R.C.P. No. 4017(d) that the foregoing transcript is a true record of the proceedings as transcribed from a previously recorded statement. Kelly t6l Hvizdos. Court Reporter SNYDER REPORTING SERVICES (412) 338-1058 (412) 243-3644 (888) 853-0523 MARY ANN BRICKER - 2/5/07 Page 1 accident 2:8,20 3:15 4:12 5:1 address 2:16 age 2:25 al 1:8 Amy 2:7 Ann 1:14 2:3,7,15 answers 5:23 anyway 3:23 area 2:19 4:4 arrest 5:4 asked 5:7 AUTO 1:4 bed 3:13 believe 3:6 4:1 best 5:24 Bricker 1:14 2:3,8,9,15 B-R-I-C-K-E-R2:15 C 2:1 Carlisle 2:17 CAVANAUGH 1:8 chain 4:6 claim 1:6 5:6 code 2:19 come 5:6 Commonwealth 1:16 COMPANY 1:4 concluded 6:2 continued 4:14 correct 5:23 Court 1:15 D 2:1 damage 4:17,18 date 2:20 door 4:7 drive 3:9,12 driven 3:20 drives 3:11 driving 2:21 E 2:1,1 et 1:8 evening 3:12 Evidently 4:13 Exactly 4:3 EXANLINATION 2:5 examined 2:4 explain 4:8,11 F F2:17 February 1:17 five 5:17 follows 2:4 four 5:17 four-way 4:15 front 4:19,20,21 G G 2:1 good 5:16 goodness 5:16 Gordie 5:5 Gordon 2:22 guess 2:24 H happened 2:8 3:15 4:9 4:11 holder 4:6 home 2:16,18 hon 5:16 house 3:5 Hvizdos 1:15 I idea 5:14 injured 4:23 inside 4:7 INSURANCE 1:4 interview 2:10 5:20 JAMES 1:8 Kelly 1:15 key 4:6 keys 4:4 know 3:14 5:4 knowledge 3:23 5:24 known 3:25 L left 4:4 let's 2:25 living 3:3 long 3:3 5:11,15 M M 1:15 Mary 1:14 2:3,7,15 ma'am 2:12 3:2,8,16,21 4:24 5:22,25 mean 4:15 5:13 missing 3:14 Monday 1:16 months 5:17 N N 2:1 name 2:13,14 nature 5:5 never 3:11,22 5:7 night 3:24 4:9 November 2:9 number 2:18 O 02:1 Okay 2:20,25 3:3,7,9,14 3:17,22 4:4,17,21,23 5:3,7,11,18,20 6:1 owned 5:14 P P 2:1 Pamilaitis 2:22 Pardon 4:10 passenger 4:21 Pennsylvania 1:16 2:17 permission 2:10 3:12 4:2 5:8,10 phone 2:18 point 3:14 police 4:25 5:7,8,9 probably 3:24 5:16 pull 5:5 questions 5:21 R R 2:1 realize 2:9 reason 4:1 record 2:11 RECORDED 1:1,14 recording 2:10 6:1,2 regarding 2:8 relative 2:23 Reporter 1:15 right 4:6,8,20 5:3,20 RODALLEGA 2:6 roommate 2:24 running 3:19 5:15 S 2:1 SAFE 1:4 see 2:25 side 5:6 sign 4:13 speaking 2:7 spell 2:13 state 2:13 STATEMENT 1:1,14 stop 4:13 stopped 4:13 Street 2:17 take 4:2 talk 4:25 telephone 2:4 tell 5:8 thinking 4:14,15 told 5:9,10 transcribed 1:15 truck 3:18 5:11,14 true 5:23 truth 5:10 two-way 4:14,16 SNYDER REPORTING SERVICES (888)853-0523 (412)338-1058 MARY ANN BRICKER - 2/5/07 Page 2 U uh 3:5,5 4:6 5:2,16 Uh-huh 4:20 understood 5:21 V vehicle 2:213:10,11,12 3:17,20 4:2,17,18 5:1 5:5 vs 1:6 W went 3:24 wouldn't 3:24 Y yeah 4:1,6,22 5:19 year 3:7 1 17013 2:17 18th 2:9 2 2005 2:9 2007 1:17 213:1 231729 1:6 249-58442:19 5 51:17 563 2:17 717 2:19 SNYDER REPORTING SERVICES (888)853-0523 (412)338-1058 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 GORDON PAMILAITIS RECORDED STATEMENT SAFE AUTO INSURANCE COMPANY, ) VS. ) JAMES CAVANAUGH, et al., ) Claim No. 231729 1 RECORDED STATEMENT OF GORDON PAMILAITIS, transcribed by Kelly M. Hvizdos, Court Reporter in and for the Commonwealth of Pennsylvania, on Monday, February 5, 2007. ORGINAL SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 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 GORDON PAMILAITIS P R O C E E D I N G S GORDON PAMILAITIS, was examined over the telephone as follows: EXAMINATION 2 BY MS. RODALLEGA: Q. This is Amy Rodallega. I'm speaking with Gordon Pamilaitis regarding an accident that happened on the 18th of November 2005. Do you realize I'm recording this interview and I have your permission to record it? A. (No response.) Q. Mr. Pamilaitis, do you realize I'm recording this information and I have your permission to record it? A. Yes, ma 'am. Q. Okay. If you could state your name and spell your last name? A. Gordon Pamilaitis. Last name, P-A-M -I-L-A-I-T -I-S. Q. Okay. And your home addr ess? A. 563 Eff Street, Carlisle, 17013. Q. And the home phone number there? A. 249-584 4. Q. Okay. And for about how long have you been at SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 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 GORDON PAMILAITIS this address? A. Oh, about six months. Q. Okay. And do you own a vehicle yourself? A. Yeah. I got an old beat up truck sitting in the driveway, but I don't use it. Q. Okay. Does it work? A. Yeah, it runs. Q. Okay. All right. And on the day of the accident, did you have permission to take Mary Ann Bricker's vehicle? A. No, ma'am, I didn't. She was asleep at the time. 3 Q. Okay. Had you ever driven her vehicle before? A. No. No, not really. I'd run it in the yard when I'm working on it for her. Q. Okay. A. But I've never actually driven it on the street, no. Q. Okay. So you would have no reason to believe that you were allo wed to take the vehicle? A. No. Q. Okay. And what exactly h appened on the date of the a ccident? A. Excuse me? I didn't hear you. Q. I'm so rry. What happened on the date of the SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 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 GORDON PAMILAITIS 4 accident? A. See, I normally ride a bicycle. It was real cold that day, and had to go down and get coveralls for work. So, I jumped in the truck and went to Delmont (phonetic) to get coveralls for work. And it was a four-way stop sign, or I thought it was a four-way stop sign and it wasn't. And I took out. I was right in the middle of traffic and I hit a car going the other way. Q. Okay. And were you injured at all? A. No, ma'am. Q. All right. Okay. For this recording, you've understood my questions? A. I'm sorry? It's noisy here. Q. You've understood my questions? A. Yes, ma'am. Q. And your answers are, then, true and correct to the best of your knowledge? A. Yes, ma'am. Q. Okay. I'll go ahead and end the recording. (Recording concluded.) SNYDER REPORTING SERVICES (888) 853-0523 (412) 338-1058 ,?r 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 C E R T I F I C A T I O N I hereby certify pursuant to Pa.R.C.P. No. 4017(d) that the foregoing transcript is a true record of the proceedings as transcribed from a previously recorded statement. cam„ Kelly Hvizdos. Court Reporter SNYDER REPORTING SERVICES (412) 338-1058 (412) 243-3644 (888) 853-0523 GORDON PAMILAITIS - 2/5/07 Page 1 accident 2:8 3:9,23 4:1 address 2:213:1 ahead 4:20 al 1:8 allowed 3:20 Amy 2:7 Ann 3:9 answers 4:17 asleep 3:11 AUTO 1:4 beat 3:4 believe 3:19 best 4:18 bicycle 4:2 Bricker's 3: 10 C 2:1 car 4:8 Carlisle 2:22 CAVANAUGH 1:8 Claim 1:6 cold 4:3 Commonwealth 1:16 COMPANY 1:4 concluded 4:21 correct4:17 Court 1:15 coveralls 4:3,5 D 2:1 date 3:22,25 day 3:8 4:3 Delmont 4:4 driven 3:13,17 driveway 3:5 E 2:1,1 Eff 2:22 et 1:8 exactly 3:22 EXAMINATION 2:5 examined 2:4 Excuse 3:24 F February 1:17 follows 2:4 four-way 4:6,6 G G 2:1 go 4:3,20 going 4:8 Gordon 1:14 2:3,8,19 I3 happened 2:8 3:22,25 hear 3:24 hit 4:8 home 2:21,23 Hvizdos 1:15 information 2:14 injured 4:10 INSURANCE 1:4 interview 2:10 JAMES 1:8 jumped 4:4 Kelly 1:15 knowledge 4:18 long 2:25 M 1:15 Mary 3:9 ma'am 2:16 3:114:11 4:16,19 middle 4:8 Monday 1:16 months 3:2 N2:1 name 2:17,18,19 never 3:17 noisy 4:14 normally 4:2 November 2:9 number 2:23 O O 2:1 Oh 3:2 Okay 2:17,21,25 3:3,6,8 3:13,16,19,22 4:10,12 4:20 old 3:4 P P 2:1 Pamilaitis 1:14 2:3,8,13 2:19 Pennsylvania 1:16 permission 2:10,14 3:9 phone 2:23 phonetic 4:5 P-A-M-I-L-A-I-T-I-S 2:20 questions 4:13,15 R 2:1 real 4:2 realize 2:9,13 really 3:14 reason 3:19 record 2:11,14 RECORDED 1:1,14 recording 2:10,13 4:12 4:20,21 regarding 2:8 Reporter 1:15 response 2:12 ride 4:2 right 3:8 4:7,12 Rodallega 2:6,7 run 3:14 runs 3:7 S 2:1 SAFE 1:4 See 4:2 sign 4:6,7 sitting 3:4 six 3:2 sorry 3:25 4:14 speaking 2:7 spell 2:17 state 2:17 STATEMENT 1:1,14 stop 4:6,6 street 2:22 3:18 T take 3:9,20 telephone 2:4 thought 4:6 time 3:12 traffic 4:8 transcribed 1:15 truck 3:4 4:4 true 4:17 U understood 4:13,15 use 3:5 V vehicle 3:3,10,13,20 vs 1:6 W wasn't 4:7 way 4:9 went 4:4 work 3:6 4:4,5 working 3:15 Y yard 3:14 Yeah 3:4,7 17013 2:22 18th 2:9 SNYDER REPORTING SERVICES (888)853-0523 (412)338-1058 GORDON PAMILAITIS - 2/5/07 Page 2 SNYDER REPORTING SERVICES (888)853-0523 (412)338-1058 AUTO INSURANCE POLICY DECLARATIONS Policy No. PA0011810BA-5 Policy Period From 10/04/200500:01:00 To 04/04/2006 00:01:00 Standard time at the address of the named insured as stated herein. This Amended Declaration Page Supersedes prior Declaration Page Issued on 07/07/2004 01:20:48 NAMED INSURED: Endorsement Reasons: MARYANN BRICKER Auto Renewal Update 563 F ST Endorsement Effective 10/04/2005 00:01:00 CARLISLE PA 17013 IF YOU CARRY COLLISION COVERAGE FOR DAMAGE TO YOUR AUTO, THIS POLICY PROVIDES COLLISION COVERAGE FOR RENTAL AUTOMOBILES, BUT ONLY IF THE RENTAL VEHICLE IS RENTED AS A RESULT OF A COVERED LOSS. PLEASTWTE THAT THE DEDUCTIBLE AND ALL APPLICABLE POLICY TERMS AND LIMITATIONS APPLY. MOM This Declarations Page along with the Policy Jacket (Form PA1010/1298), your signed application (Form PA1000/0999) and any endorsements/forms listed below complete the above Policy. The insurance afforded is only with respect to such and so many of the following coverages as are indicated with respect to each described vehicle where appropriate. The limit of the company's liability against such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto. VEH # YEAR MAKE MODEL BODY TYPE SERIAL NUMBER SYM TERR DRIVER PTS 1 1985 FORD BRONCO II UT 1 FMBU14S5FUA80892 10 1 F S 41 0 COVERAGE BODILY INJURY PROPERTY DAMAGE FIRST PARTY BENEFITS MEDICAL EXPENSE UNINSURED MOTORIST BODILY INJURY STACKED LIMIT OF LIABILITY $ 15,000 EACH PERSON/ $ 30,000 EACH ACCIDENT $ 10,000 EACH ACCIDENT $ 5,000 EACH PERSON $15,000 EACH PERSON/ $ 30,000 EACH ACCIDENT TOTAL DISCOUNTS PER VEHICLE: VIOLATION SURCHARGE PER VEHICLE OTHER SURCHARGES PER VEHICLE TOTAL PREMIUM PER VEHICLE TOTAL POLICY PREMIUM: EXCLUDED DRIVERS: JERRY HULL ALL DRIVERS HAVE CHOSEN LIMITED TORT OPTION ENDORSEMENTS/FORMS MADE PART OF THIS POLICY AT TIME OF ISSUE: PA1000/0999 PA1010/1298 PA102010202 PA1110/1298 PA1011/1002 PA1510/0603 PA1605/0302 PA1606/0603 PA1610/0999 PA1500/0603 PA1300/0999 I hereby certify thioAM . ?' to be a true and accurate copy of SAFE AUTO INSURANCE COMPANY'S IaIoTo )wsvaaw; * * * * 6 MONTHS PREMIUM VEH 1 $153 INCL. INCL. $56 $13 0.00% 0 0 $222 $222 In witness whereof, we have caused this policy to be executed and attested by our President and Secretary and countersigned by our licensed anent on 9/27/2006 Kj- Jon P. Diam nd President April D. Miller Secretary 4xez4w?? Countersignature of Licensed Agent Date Issued: 9/27/2006 BY 11148 Form PA1020/0202 T I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. #14925 No: Ot. -- ( qby alt?,, L COMPLAINT IN DECLARATORY JUDGMENT (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 0 G ._ f "G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. COMPLAINT IN DECLARATORY JUDGMENT Plaintiff, Safe Auto Insurance Company, by and through its attorneys, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Jeffrey C. Catanzarite, Esquire, files the following Complaint in Declaratory Judgment seeking a declaration of its rights, of which the following is a statement: 1. Plaintiff, Safe Auto Insurance Company (hereinafter referred to as "Safe Auto"), is an Ohio corporation doing business in Pennsylvania, with a principal place of business located at 4328 East Fifth Avenue, Columbus, Ohio 43219. 2. Defendant, James Cavanaugh, is an adult individual who resides at 3808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 3. Defendant, Barbara Cavanaugh, is an adult individual who resides at 3808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania. 4. Defendant, Gordon Panilaitis, is an adult individual who resides at 563 F Street, Carlisle, Cumberland County, Pennsylvania. 5. Defendant, Maryann Bricker, is an adult individual who resides at 563 F. Street, Carlisle, Cumberland County, Pennsylvania. 6. Plaintiff, Safe Auto, issued Maryann Bricker an auto insurance policy, Policy No. PA001 181 08A-5, for a 1985 Ford Bronco (hereinafter referred to as "the vehicle"), with effective coverage dates of September 5, 2005 to September 4, 2006. 7. Attached hereto and incorporated herein as Exhibit "A" to Plaintiff's Complaint is a copy of Maryann Bricker's Safe Auto Policy No. PA001181 OBA-5. 8. The policy provides for liability coverage in the amount of $15,000.00 per person and $30,000.00 per accident. 9. Safe Auto believes and avers that on or about November 18, 2005, Defendant, Gordon Panilaitis, was operating the vehicle, which was owned by Maryann Bricker. 10. At that time, it is alleged that while Gordon Panilaitis was operating the vehicle, he entered an intersection against a red traffic signal when it was not safe to do so and the front of the vehicle that he was operating struck the vehicle operated by Defendant, James Cavanaugh, in the left rear causing personal injuries to Defendant, James Cavanaugh. 11. As a result of said collision, James and Barbara Cavanaugh have instituted suit in the Court of Common Pleas of Cumberland County. Attached hereto and marked as Exhibit "B" is a true and correct copy of the Complaint filed against Gordon Panilaitis and Maryann Bricker. 12. Various demands have been made upon Safe Auto Insurance Company to indemnify and assume a defense on behalf of Gordon Panilaitis and Maryann Bricker. 13. At the time of the collision that occurred on November 18, 2005, Defendant, Gordon Panilaitis, resided in the same household as Defendant, Maryann Bricker. 14. When Policy No. PA00118108A-5 was issued, Defendant, Gordon Panilaitis, was not listed as an additional driver on the Declarations Page. Attached hereto and marked Exhibit "C" is a true and correct copy of the Declarations Page for Policy No. PA001 18108A-5. 15. The coverage afforded to Maryann Bricker under the terms and conditions of the policy does not include coverage for users of the covered automobile by residents of the insured household, unless that person is listed as an additional driver on the Declarations Page. Furthermore, the coverage afforded to Maryann Bricker under the terms and conditions of the policy does not include coverage for users of the covered automobile, unless that user was operating the covered automobile with the permission of the covered automobile's owner. 16. The Safe Auto policy provides that there is no duty to defend nor coverage provided for the following loss: EXCLUSIONS LIABILITY COVERAGE AND OUR DUTY TO DEFEND DO NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE: 1. That occurs while your covered auto is being operated by a resident of your household or by a regular user of your covered auto, unless that person is listed as an additional driver on the Declarations Page. 8. If your covered auto is used without the covered auto owner's permission, or outside the scope of that permission. 17. At the time of the motor vehicle accident which occurred on November 18, 2005, Defendant, Gordon Panilaitis, was a resident of Defendant, Maryann Bricker, was not listed as an additional driver on Maryann Bricker's Declarations Page with Safe Auto and was operating the covered automobile without the permission of Maryann Bricker. WHEREFORE, Plaintiff, Safe Auto Insurance Company, seeks a declaration under the Declaratory Judgment Act, 42 Pa. C.S.A. § 7531, et seq., establishing that no liability coverage is provided by Policy No. PA00118108A-5 to Gordon Panilaitis or Maryann Bricker in connection with the personal injury claim allegedly sustained by James and Barbara Cavanaugh. Respectfully submitted, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: ?Yz 1z JYffreyCatanzarite, Esquire ouns l for Plaintiff VERIFICATION 1, Joshua Adkins, verify that I am the of Safe Auto Insurance Company, and I am authorized to execute this verification on behalf the Plaintiff, Safe Auto Insurance Company, and the statements made in the foregoing Complaint in Declaratory Judgment are true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint in Declaratory Judgment is permitted by Pennsylvania ?u:es of Civil Procedure, I have relied upon counsel in verifying the same. 1 /0// (Date J shua Adki s #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. No: 06-6404 Civil REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, MARYANN BRICKER JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. #14925 (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 Lr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil V. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, MARYANN BRICKER Plaintiff, Safe Auto Insurance Company, requests Defendant, Maryann Bricker, within 30 days after the service of this Request, to make the following admissions for the purpose of this action only subject to all punitive objections to admissibility which may be interposed at trial: 1. On November 18, 2005, 1 was the owner of a 1985 Ford Bronco, License Plate #EPF5188, that was involved in a motor vehicle accident. I Admitted Denied 2. On November 18, 2005, Defendant, Gordon Panilaitis, was operating a vehicle that was owned by me, but which he was operating without my knowledge or consent. 1/ Admitted Denied 3. As such, Mr. Panilaitis had neither my express nor implied permission to operate my vehicle at the time of the accident. r/ Admitted Denied 4. Had I known that Gordon Panilaitis intended to take possession of and operate the 1985 Ford Bronco, I would have unequivocally denied him permission to do so. Admitted Denied 5. On November 18, 2005, Gordon Panilaitis was not running any errands on my behalf, or acting as my employee, workman, servant, agent, and/or representative. To the contrary, Gordon Panilaitis was utilizing my vehicle strictly for his own purposes at the time of the accident. Admitted Denied 6. Defendant, Gordon Panilaitis, and Defendant, Maryann Bricker, were residents of the same household for longer than 14 consecutive days before November 18, 2005..1 4/" Admitted Denied JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: Jeffrey ?- atanzarite, Esquire ouns or Plaintiff t CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Request for Admissions Directed to Maryann Bricker was served upon the following individual on the 17th day of January, 2008, via certified mail, return receipt requested and regular U.S. Mail: Maryann Bricker 563 F Street Carlisle, PA 17013 Gordon Panilaitis 563 F Street Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Summers, McDonnell, Hudock, Guj*jq & Skeel, L.L.P. By: J f i( C. atAKzarite,'Esquire o Yin el f r Plaintiff r VERIFICATION Defendant verifies that he/she is the Defendant in the foregoing action; that the foregoing RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has furnished to his/her counsel and information which has been gathered by his/her counsel in the preparation of the lawsuit. The language of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel and not of the Defendant. Defendant has read the RESPONSE TO REQUEST FOR ADMISSIONS and to the extent that the RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has given to his/her counsel, it is true and correct to the best of his/her knowledge, information and belief. To the extent that the content of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel, he/she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: Mar ann Acker, Defendant #14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, V. No: 06-6404 Civil REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, GORDON PANILAITIS JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants. #14925 (Jury Trial Demanded) Filed on Behalf of Plaintiff Counsel of Record for this Party: Jeffrey C. Catanzarite, Esquire PA I.D. #: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. Firm No.: 911 2400 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412) 261-3232 _ I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, CIVIL DIVISION Plaintiff, No: 06-6404 Civil v. JAMES CAVANAUGH, BARBARA CAVANAUGH,GORDON PANILAITIS and MARYANN BRICKER, Defendants. REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, GORDON PANILAITIS Plaintiff, Safe Auto Insurance Company, requests Defendant, Gordon Panilaitis, within 30 days after the service of this Request, to make the following admissions for the purpose of this action only subject to all punitive objections to admissibility which may be interposed at trial: 1. Defendant, Maryann Bricker, owned a 1985 Ford Bronco, License Plate #EPF5188, on November 18, 2005, when the incident in the above claim occurred. Admitted Denied 2. Defendant, Gordon Panilaitis, was operating the 1985 Ford Bronco, License Plate #EPF5188, on November 18, 2005, at the time of the above-claimed incident and did not have Defendant, Maryann Bricker's permission to be operating the motor vehicle at said time. _>!;?_ Admitted Denied 3. On November 18, 2005, Defendant, Gordon Panilaitis, resided in the same household as Defendant, Maryann Bricker, for longer than 14 consecutive days. Admitted Denied JURY TRIAL DEMANDED Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. By: Jeffr' C//C Ianzarite, Esquire CO nse or Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Request for Admissions Directed to Gordon Panilaitis was served upon the following individual on the 17th day of January, 2008, via certified mail, return receipt requested and regular U.S. Mail: Gordon Panilaitis 563 F Street Carlisle, PA 17013 Maryann Bricker 563 F Street Carlisle, PA 17013 Jeffrey B. Rettig, Esquire Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Summers, McDonnell, Hudock, CiMrie & Skeel, L.L.P. By: 1 Jef ray C Ca a arite, squire C unsel or Plaintiff VERIFICATION Defendant verifies that he/she is the Defendant in the foregoing action; that the foregoing RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has furnished to his/her counsel and information which has been gathered by his/her counsel in the preparation of the lawsuit. The language of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel and not of the Defendant. Defendant has read the RESPONSE TO REQUEST FOR ADMISSIONS and to the extent that the RESPONSE TO REQUEST FOR ADMISSIONS is based upon information which he/she has given to his/her counsel, it is true and correct to the best of his/her knowledge, information and belief. To the extent that the content of the RESPONSE TO REQUEST FOR ADMISSIONS is that of counsel, he/she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: --.2 Gordon Panilaitis, DMndant #114925 C(OPY Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SAFE AUTO INSURANCE COMPANY, Plaintiff V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Attorneys for Defendants James and Barbara Cavanaugh IN THE COURT OF.COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6404 CIVIL ACTION - LAW Defendants REQUEST FOR ADMISSIONS DIRECTED TO MARYANN BRICKER Defendant, James Cavanaugh requests Defendant Maryann Bricker, within thirty (30) days after service, to make the following admissions for the purposes of this action only: 1. On November 18, 2005, Defendant Gordon Panilaitis was operating a vehicle that was owned by me and was operating it with my knowledge and consent. Admitted: Denied: ?-. 2. As such, Mr. Panilaitis had my express or implied permission to operate my vehicle at the time of the accident. Admitted: Denied: f r 3. Gordon Panilaitis had used my vehicle prior to November 18, 2005 with my permission. Admitted: Denied: a` 4. At this point in time, I am unsure whether on November 18, 2005 Gordon Panilaitis was running any errands on my behalf or acting as my workman, servant, agent and/or representative. Admitted: Denied: 5. Mr. Panilaitis never lived in my household for 14 consecutive days. Admitted: Denied: °Respectfully submitted, Johnson, Duffle, Stewart & Weidner By: l/ (J J ey B. Rettig, Esqui e Attorney I.D. No: 1961 301 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043 717.761.4540 jbr@'Ndsw. com Date: February 1, 2008 Attorney for Defendants, James Cavanaugh Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SAFE AUTO INSURANCE COMPANY, Plaintiff V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants VERIFICATION NO. 05-6404 CIVIL ACTION - LAW I am the Defendant, and I hereby verify and state that the facts set forth in the foregoing Response to Request for Admissions is true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn verification to authorities. Dated: //? / MarYann Bric er : Attorneys for Defendants James and Barbara Cavanaugh IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA M604 Johnson, Duffle, Stewart $ Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SAFE AUTO- INSURANCE COMPANY, Plaintiff V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants Attorneys for Defendants, James and Barbara Cavanaugh IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6404 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a copy of the foregoing Request for Admissions directed to Maryann Bricker upon all parties of interest in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure by depositing a copy of the same in the United States Mail, first-class postage pre-paid as follows on this 15, day of February, 2008 Jeffrey C. Catanzarite, Esquire Summers, McDonnel, Hudock, Guthrie & Skeel, LLP Gulf Tower, Suite 2400 707 Grant Street Pittsburgh, Pennsylvania 15219 Maryann Bricker 563 F Street Carlisle, Pennsylvania 17013 Gordon Panilaitis 563 F Street Carlisle, Pennsylvania 17013 Johnson, Duffle, tewart & Weidner By: 322594 Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street P. O. Box 1 D9 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SAFE AUTO INSURANCE COMPANY, Plaintiff v. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants C(OPY Attorneys for Defendants James and Barbara Cavanaugh IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6404 CIVIL ACTION - LAW REQUEST FOR ADMISSIONS DIRECTED TO GORDON PANILAITIS Defendant, James Cavanaugh requests Defendant Gordon Panilaitis, within thirty (30) days after service, to make the following admissions for the purposes of this action only: 1. On November 18, 2005, 1 was operating a vehicle owned by Maryann Bricker and I believe that I had her consent and permission to do so. Admitted: Denied: 2. 1 had utilized her vehicle on prior occasions as well. Admitted: Denied: 3. At no time on November 18, 2005 or prior thereto did I ever understand or realize that I was not supposed to use Maryann Bricker's vehicle. Admitted: Denied: X. - S y r '4 4. 1 never lived with Maryann Bricker for 14 consecutive days in her househould. Admitted: Denied: Respectfully submitted, Johnson, Duffle, Stewart & Weidner By: J r B. Rettig, Esqu Ai ney I . D. No? 1961 301 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043 717.761.4540 ibrCrDidsw.com Date: February 1, 2008 Attorney for Defendants, James Cavanaugh Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 Attorneys for Defendants 301 Market Street James and Barbara Cavanaugh P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SAFE AUTO INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 05-6404 V. CIVIL ACTION - LAW JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, : Defendants VERIFICATION I am the Defendant, and I hereby verify and state that the facts set forth in the foregoing Response to Request for Admissions is true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn verification to authorities. Dated: 322604 Gordon Panilaitis Johnson, Duffle, Stewart & Weidner By: JEFFREY B. RETTIG, ESQUIRE I.D. No. 19616 301 Market Street Post Office Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SAFE AUTO INSURANCE COMPANY, Plaintiff V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants Attorneys for Defendants, James and Barbara Cavanaugh IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6404 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a copy of the foregoing Request for Admissions directed to Gordon Panilaitis upon all parties of interest in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure by depositing a copy of the same in the United States Mail, first-class postage pre-paid as follows on this 1" day of February, 2008 Jeffrey C. Catanzarite, Esquire Summers, McDonnel, Hudock, Guthrie & Skeel, LLP Gulf Tower, Suite 2400 707 Grant Street Pittsburgh, Pennsylvania 15219 Maryann Bricker 563 F Street Carlisle, Pennsylvania 17013 Gordon Panilaitis 563 F Street Carlisle, Pennsylvania 17013 Johnson, Duffle, Stewart & Weidner By: 322605 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Motion for Summary Judgment, Brief in Support and Proposed Order of Court was served upon the up following individuals via first-class U.S. mail, postage prepaid on the day of 20o8: Maryann Bricker 563 F Street Carlisle, PA 17013 (Defendant, Pro Se) Gordon Panilaitis 563 F Street Carlisle, PA 17013 (Defendant, Pro Se) Jeffrey B. Rettig, Esquire Johnson Duffle 301 Market Street P.O. Box log Lemoyne, PA 17043-0109 (Counsel for James and Barbara Cavanaugh) SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: ( 14?7 ey C. Catanzarite, Esquire isel for Plaintiff Auto Insurance Company 14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, CIVIL DIVISION No.: o6-6404 Civil -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants, ORDER OF COURT AND NOW, to-wit, this day of , 2008, after consideration of the within Motion, it is hereby ORDERED, ADJUDGED and DECREED, that Plaintiff Safe Auto Insurance Company's Motion for Summary Judgment is hereby GRANTED. Judgment is hereby entered in favor of Plaintiff, Safe Auto Insurance Company, and against the defendants, Gordon Panilaitis and Maryann Bricker. Furthermore, it is hereby ORDERED, ADJUDGED and DECREED that, in accordance with this ORDER, Safe Auto Insurance Company is not required to provide coverage for the subject accident. BY THE COURT: J. 14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, CIVIL DIVISION No.: 06-6404 Civil -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, Defendants, ORDER OF COURT AND NOW, to-wit, this day of , 2007, it is hereby ORDERED, ADJUDGED and DECREED that the Plaintiffs Motion for Summary Judgment is scheduled for argument on the day of 2008 at a.m./p.m. BY THE COURT: J. 14925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAFE AUTO INSURANCE COMPANY, Plaintiff, -vs- JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, CIVIL DIVISION No.: o6-6404 Civil PRAECIPE FOR LISTING CASE FOR ARGUMENT Filed on Behalf of the Plaintiff: Safe Auto Insurance Company Defendants, Counsel of Record for This Party: Jeffrey C. Catanzarite, Esquire Pa. I.D. No.: 72765 Summers, McDonnell, Hudock, Guthrie & Skeel, LLP Firm No.: 911 707 Grant Street Suite 2400, Gulf Tower Pittsburgh, PA 15219 (412) 261-3232 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) SAFE AUTO INSURANCE COMPANY, Vs. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS and MARYANN BRICKER, No. 06-6404 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's motion for summary judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jeffrey C Catanzarite Esquire Summers McDonnell. Hudock. Guthrie & Skeel Gulf Tower Suite 2400, 707 Grant Street Pittsburgh, PA 15219 (Name and Address) (b) for defendants: Jeffrey B Reddick Esquire Johnson Duffie 301 Market Street P.O. Box 109, Lemoyne PA 17043 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for Argument. 4. Argument Court Date: July 9 2008 Date: June 12. 2008 rint your name Plaintiff, Safe Auto Ins. Company Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prpior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATIOR ( not the Prothonotary) after the case is relisted. 14925 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Listing Case for Argument was served upon the following individuals via first-class U.S. mail, postage prepaid on the I; day of 2008: Jeffrey B. Rettig, Esquire Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 (Counsel for James and Barbara Cavanaugh) SUMMERS,MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: Je y C. Catanzarite, Esquire l for Plaintiff C nZ S fe to Insurance Company n c- N CS C32 r _ HIM I M SAFE AUTO INSURANCE IN THE COURT OF COMMON PLEAS OF COMPANY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. JAMES CAVANAUGH, BARBARA CAVANAUGH, GORDON PANILAITIS AND MARYANN BRICKER, DEFENDANTS 06-6404 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this 6) day of July, 2008, IT IS ORDERED that the motion of plaintiff, Safe Auto Insurance Company, for summary judgment, IS GRANTED. Judgment is entered in favor of plaintiff, Safe Auto Insurance Company, and against the defendants, Gordon Panilaitis and Maryann Bricker. It is DECREED that Safe Auto Insurance Company is not required to provide insurance coverage for the subject accident. By the C?att, rfzt-l Edgar B. Bayley,'J. ILI ? exa Jeffrey C. Catanzarite, Esquire For Plaintiff Jeffrey B. Rettig, Esquire For James Cavanaugh and Barbara Cavanaugh Maryann Bricker, Pro se 563 F Street Carlisle, PA 17013 Gordon Panilaitis, Pro se 563 F Street Carlisle, PA 17013 :sal ,? 7/1 °/ 0k