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HomeMy WebLinkAbout89-2885 Civil (2)ROBERT F. NEALY and MARYL1N K. NEALY, Administrators of Estate Of Troy Robert Nealy, Deceased, Plaintiffs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND H. DAVID MILLER, JR., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 89-2885 CIVIL TERM CIVIL ACTION - LAW IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT MILLER BEFORE HESS, OLER, GUIDO, JJJ.~ OPINION AND ORDER OF COURT This action was originally commenced by plaintiffs in 1989. It involved a claim against defendant State Farm Automobile Insurance Company in which plaintiffs sought to set aside their election of reduced uninsured/underinsured motorist benefits. It also involved a separate claim against their insurance agent, defendant Miller.2 By Order of this Court dated October 9, 1991, the proceedings against defendant Miller were stayed pending the outcome of the claim against defendant State Farm. The latter claim involved lengthy litigation with appeals to both the Pennsylvania Supreme Court and the United States Court of Appeals for the Third Circuit. The litigation involving defendant Judge Oler did not participate in this decision. The claim against defendant Miller is based upon his alleged negligence in failing to provide the uninsured/underinsured motorist coverage requested by plaintiffs. NO. 2885 CIVIL 1989 State Farm has been finally decided and the stay with respect to the claim against defendant Miller has been lifted. Currently before us is a Motion for Summary Judgment filed by defendant Miller. For the reasons hereafter set forth, the motion will be denied. DISCUSSION Defendant has requested summary judgment in accordance with Pa. Rule of Civil Procedure 1035.2 which provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (2) 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, or 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. 1035.2. Defendant contends that he is entitled to summary judgment because plaintiffs have failed to come forward with sufficient evidence to submit the matter to a jury. In determining whether to grant a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Ertel v. Patriot News Company, 544 Pa. 93, 674 A.2d 1038 (1996). Summary judgment should only be granted in cases which are clear and free from doubt. Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 661 A.2d 397 (1995). 2 NO. 2885 CIVIL 1989 In the instant case, there are several facts which are not disputed. The plaintiffs' decedent was killed in a car accident on February 6, 1989. He was driving a vehicle insured by State Farm. The policy had been obtained by the plaintiffs from defendant Miller's agency in June, 1986. Prior to obtaining insurance through defendant Miller, plaintiffs had been insured through the Erie Insurance Group. Their Erie policy had uninsured/underinsured motorists coverage limits of $100,000/$300,000. The policy obtained through defendant Miller had uninsured/underinsured motorist coverage limits of only $25,000/$50,000. The facts surrounding the purchase of the State Farm Policy from defendant Miller are hotly disputed. Viewing the record in the light most favorable to the plaintiffs, they are able to establish that they provided a copy of the Erie Policy to defendant Miller's agency and gave instructions to keep the same coverages. While they signed documents which clearly set forth the reduced uninsured/underinsured motorist coverage, they do not recall reading those documents. It is likely that they did not read the documents because they trusted their insurance agent. In any event, they were not aware of the reduced coverages. Based upon the above, we are satisfied that the plaintiffs have produced evidence of facts sufficient to present the case to a jury. Plaintiffs cite the case of Aresto v. National-Ben Franklin Fire Insurance Company, 184 Pa. Super. 114, 133 A.2d 304 (1957) in which the Superior Court upheld a verdict against an insurance agent, even though the insurance company was exonerated. As the Court stated: ·.. it is the law that where an insurance agent or broker promises, or gives some affirmative assurance, that he will procure or renew a ~ The above facts were obtained by a fair reading of the deposition testimony of plaintiffs as well as a review of the exhibits made a part thereof. 3 NO. 2885 CIVIL 1989 policy of insurance under such circumstances as to lull the 'insured' into the belief that such insurance has been effected, the law will impose upon the broker or agent the obligation to perform the duty which he has thus assumed... (O)ne who agrees to obtain insurance and neglects to fulfill his obligation becomes personally liable. (citations and quotations omitted) 133 A.2d at 306. Further, the Supreme Court stated in Tonkovic v. State Farm Mut. Auto. Ins. Co._, 513 Pa. 445, 521 A.2d 920 (1987). We find a crucial distinction between cases where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested, and cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for. When the insurer elects to issue a policy differing from what the insured requested and paid for, there is clearly a duty to advise the insured of the changes so made. The burden is not on the insured to read the policy to discover such changes, or not read it at his peril. 521 A.2d at 925 (emphasis added). While defendant Miller testified that he specifically advised the plaintiffs of the reduced coverages, and that they agreed to those coverages in order to save money,4 we cannot grant summary judgment based upon his assertions, even if they are uncontradicted. Borough ofNanty-Glo v. America Surety Co. of New York, 309 Pa. 236, 163 A. 523(1932). The jury must be given the opportunity to decide the truth of the testimony offered and to apply the law to the facts as they find them. Id. At 524. For the reasons set forth above, defendant Miller' s Motion for Summary Judgment must be denied. Plaintiffs do not remember any such conversations with defendant Miller. 4 NO. 2885 CIVIL 1989 ORDER OF COURT AND NOW, this 12TM day of APRIL, 2001, defendant Miller's Motion for Summary Judgment is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Richard C. Angino, Esquire For the Plaintiff Robert E. Kelly, Esquire For the Defendant :sld