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HomeMy WebLinkAbout2005-4264 Civil MYRA BARNHART, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 05-4264 CIVIL STATE FARM MUTUAL : AUTOMOBILE INSURANCE : COMPANY; GREGORY : BARNHART; AIG SPECIALTY : AUTO INSURANCE; and : NANETTE MYERS, : Defendants : JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY BEFORE BAYLEY, P.J. AND HESS, J. OPINION AND ORDER 1 The facts in this matter are not in dispute. On November 3, 2001, the plaintiff, Myra Barnhart, was involved in an automobile accident when she was struck by a vehicle operated by a Nanette Myers. Ms. Myers was insured by AIG Specialty Auto Insurance. Upon being notified of the accident, defendant AIG declined to indemnify or defend Ms. Myers on the basis that she had failed to pay her insurance premiums. Plaintiff then placed defendant, State Farm, on notice of an uninsured/underinsured motorist (UM/UIM) claim. State Farm has denied the uninsured motorist claim on the basis that Gregory Barnhart, the policyholder, waived UM/UIM coverage at the time he purchased his State Farm Mutual policy in May of 2000. At the same time, Mr. Barnhart elected limited tort liability coverage. 1 The defendant’s request for admissions have been filed of record in this case. Said requests are not denied by the plaintiff. NO. 05-4264 CIVIL On June 29, 2001, five months prior to the accident, Mr. Barnhart requested that his liability coverage be increased from limited to full tort. The number was changed slightly on his insurance policy. The “replacement” policy carries the same policy number except for the “38E” annotation which denotes a fifth change to the policy. He was not asked to, nor did he, sign a provision waiving UM/UIM coverage. Any party may move for summary judgment as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. Pa.R.P. 1035.2. Where there are no material underlying facts in dispute disposition of an insurance action on summary judgment is particularly appropriate. McMillan v. State Mut. Life Assur. Co. of America, 922 F.2d 1073, 1074 (C.A. 3 Pa. 1990) (citing Little v. MGIC Indemnity Corporation, 836 F.2d 789, 792 (3rd Cir.1987)). When determining factual materiality, the record must be viewed in the light most favorable to the non-moving party. Universal Underwriters Ins. Co. v. A. Richard Kacin Inc., 916 A.2d 686, 689 (Pa. Super. 2007) (quoting Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001). We are satisfied that, once original notice and original waiver of UM/UIM benefits is made as required by the Motor Vehicle Financial Responsibility Law (MVFRL), a change to the policy, viz. adjusting liability coverage, does not create a new requirement for the insured to again waive UM/UIM benefits in writing. The MVFRL states that once proper notice and/or rejection of a benefit is given, no other notice or rejection is necessary. See 75 Pa.C.S. 1791. Moreover, an insured may elect to purchase lower benefit levels than those enumerated in the statute. Id. 2 NO. 05-4264 CIVIL Our conclusion in this case is, we believe, supported by the holding in Smith v. Hartford Ins. Co., 849 A.2d 277 (Pa.Super. 2004). In that case, Mr. Smith executed a waiver of UM/UIM benefits in June of 1990. In 1994, he increased liability coverage on his insurance policy. Id. at 279. In 1999, the Smiths were involved in an accident with an uninsured motorists. The Hartford refused to pay any amount above the tort coverage claiming that Mr. Smith’s UM/UIM waiver was still in effect. The trial court held that a change in liability coverage was the equivalent of the issuance of a new policy and that Mr. Smith was, therefore, entitled to a new UM/UIM rejection form. The Superior Court reversed. The court held that when an insured makes an affirmative election with respect to UM/UIM coverage, that election runs for the lifetime of the policy. Id. at 281. We believe that the same rule is applicable in this case. There is very little difference between Mr. Barnhart’s adjustment to his policy and the Smiths’ change. Each person increased their liability coverage in some form (Barnhart by changing from limited to full tort; Smith by increasing bodily injury coverage). Barnhart relies on the fact that State Farm refers to the adjusted policy as a “replacement.” Barnhart, however, points to no authority for the proposition that this nomenclature is of importance. Simply put, the adjustment and liability coverage did not create a new policy. At the same time, we are satisfied that reaching such a conclusion does not involve the resolution of any disputed issue of material fact. Accordingly, we will grant the motion of State Farm for summary judgment. ORDER th AND NOW, this 18 day of June, 2007, the motion of State Farm Automobile 3 NO. 05-4264 CIVIL Insurance Company for summary judgment is GRANTED. BY THE COURT, _____________________________ Kevin A. Hess, J. Karl Rominger, Esquire For the Plaintiff Vincent Quinn, Esquire For the Defendants :rlm 4 MYRA BARNHART, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 05-4264 CIVIL STATE FARM MUTUAL : AUTOMOBILE INSURANCE : COMPANY; GREGORY : BARNHART; AIG SPECIALTY : AUTO INSURANCE; and : NANETTE MYERS, : Defendants : JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY BEFORE BAYLEY, P.J. AND HESS, J. ORDER th AND NOW, this 18 day of June, 2007, the motion of State Farm Automobile insurance Company for summary judgment is GRANTED. BY THE COURT, _____________________________ Kevin A. Hess, J. Karl Rominger, Esquire For the Plaintiff Vincent Quinn, Esquire For the Defendants :rlm