Loading...
HomeMy WebLinkAbout2006-5381 Civil ERIE INSURANCE EXCHANGE, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : JO ELLEN BAZDAR, : DEFENDANT : 06-5381 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., November 9, 2009:-- Erie Insurance Exchange filed this suit against Jo Ellen Bazdar seeking a declaratory judgment that she is not eligible to recover underinsured motorist benefits under a policy of insurance it issued to Nathan Gramm. Erie filed a motion for summary judgment which was briefed and argued on October 14, 2009. For the purpose of this motion, the following facts are not in dispute. On September 18, 2005, Jo Ellen Bazdar, was a passenger on a motorcycle owned and operated by Timothy Kalar, and insured by the Foremost Insurance Company. Kalar lost control of the motorcycle, and Bazdar sustained personal injuries in the accident. Bazdar made a claim against Kalar for damages in tort. Foremost Insurance paid its liability limit to Bazdar. At the time of the accident, Bazdar resided part of the time in the residence of her father, Alex Bazdar, who was insured by the Progressive Insurance Company. Bazdar made a claim under that policy for underinsured motorist benefits. Progressive Insurance agreed to make a payment on her claim. Erie Insurance Exchange issued a policy of automobile insurance to Nathan 06-5381 CIVIL TERM Gramm for his three vehicles: a 1987 Honda Civic, a 1989 Chevrolet pickup truck, and a 2005 Ford Explorer. The policy sets forth that Nathan Gramm is the “named insured” and the sole owner of the three vehicles being insured. The policy included uninsured and underinsured motorists coverage. At the time the policy was issued, Jo Ellen Bazdar was Gramm’s girlfriend and she was living part of the time in his residence. When the insurance was obtained, Bazdar filled out an Additional Driver Questionnaire. The policy listed Bazdar as an “additional driver.” Bazdar made a claim to Erie Insurance for underinsured motorist benefits arising out of the accident on September 18, 2005. Erie denied that claim on the basis that Bazdar is not eligible for underinsured motorist benefits under its policy. The Erie Insurance Policy issued to Nathan Gramm provides that the following persons are eligible to recover uninsured or underinsured motorist benefits: (a) the named insured under the policy; (b) a resident relative of the named insured; or (c) an occupant of an auto insured under the policy. The named insured under the policy was Nathan Gramm, not Jo Ellen Bazdar. Bazdar was not a resident relative of Nathan Gramm. She was his girlfriend who lived part of the time in his residence. Bazdar was not an occupant of one of Gramm’s three vehicles that were insured under the policy when she was injured in the accident on September 18, 2005. The eligibility requirements for underinsured benefits under the Caron v. Reliance Insurance Company, Erie Insurance Policy are not ambiguous. In 703 A.2d 63 (Pa. Super. 1997), the Superior Court of Pennsylvania stated: -2- 06-5381 CIVIL TERM This Court has never held that simply being listed as a driver on an insurance policy automatically transforms an individual into a class one insured. In fact, we reached the opposite conclusion in Amica Mut. Ins. Co. v. Donegal Mut. Ins. Co., 376 Pa. Super. 109, 545 A.2d 343 (1988), where we held that the plaintiff could not recover under her father’s automobile insurance policy, although she was listed as a driver of one of the vehicles covered by the policy, when she was not driving a vehicle covered by the policy. (Footnote omitted.) In the present case, Bazdar a non-relative “named driver” living in the residence of Nathan Gramm, is not eligible under the unambiguous terms of the Erie Insurance Policy for underinsured motorist benefits. Bazdar argues in her brief that: “Material issues of fact exist as to why Erie Insurance Exchange chose not to identify Jo Ellen Bazdar as an ‘insured’ under the policy and how it calculated its premiums after ‘rating’ Jo Ellen Bazdar, who was actively seeking insurance coverage from Erie and therefore consented to this insurance investigation of her in the first place.” Such facts do not have to be resolved prior to the resolution of this motion for summary judgment. Nathan Gramm insured his three vehicles. Therefore, he was the named insured. Bazdar, a non-relative who lived part of the time in his home was named on the insurance policy as an additional driver of Gramm’s vehicles. Her designation comported with her status. Because Bazdar is not eligible under the unambiguous terms of the Erie Insurance Policy to recover underinsured motorist benefits arising out of the injuries received in an accident on September 18, 2005 while a passenger in a vehicle owned and operated by Timothy Kalar, the following order is entered. -3- 06-5381 CIVIL TERM ORDER OF COURT AND NOW, this day of November, 2009, the motion of Erie Insurance IS GRANTEDIT IS DECREED Exchange for summary judgment, . that Jo Ellen Bazdar is not eligible to recover underinsured motorist benefits for injuries she sustained in a motor vehicle accident on September 18, 2005 under a policy of insurance issued by Erie Insurance Exchange to Nathan Gramm. By the Court, Edgar B. Bayley, J. James C. Haggerty, Esquire th 50 South 16 Street th 28 Floor Two Liberty Place Philadelphia, PA 19102 For Plaintiff Michael J. Navitsky, Esquire 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 For Defendant :sal -4- ERIE INSURANCE EXCHANGE, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JO ELLEN BAZDAR, : DEFENDANT : 06-5381 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of November, 2009, the motion of Erie Insurance IS GRANTEDIT IS DECREED Exchange for summary judgment, . that Jo Ellen Bazdar is not eligible to recover underinsured motorist benefits for injuries she sustained in a motor vehicle accident on September 18, 2005 under a policy of insurance issued by Erie Insurance Exchange to Nathan Gramm. By the Court, Edgar B. Bayley, J. James C. Haggerty, Esquire th 50 South 16 Street th 28 Floor Two Liberty Place Philadelphia, PA 19102 For Plaintiff Michael J. Navitsky, Esquire 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 For Defendant :sal