Loading...
HomeMy WebLinkAbout92-3397 CivilEDGAR A. FREED, JR., Plaintiff Ve ALLSTATE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3397 CIVIL 1992 IN RE: DEFENDANT'S [SECOND] MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this ~% day of February, 1996, after careful consideration of Defendant's [Second] Motion for Summary Judgment, and for the reasons stated in the accompanying Opinion, Defendant's motion is DENIED. David W. Knauer, Esq. 411-A East Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff BY THE COURT, James G. Nealon, III, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant : rc EDGAR A. FREED, JR., Plaintiff Ve ALLSTATE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3397 CIVIL 1992 IN RE: Oler, J. DEFENDANT'S [SECOND] MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., HOFFER and OLER, JJ. OPINION and ORDER OF COURT This action on a motor vehicle insurance policy arises out of a traffic accident involving a truck owned and driven by Edgar A. Freed, Jr. (Plaintiff). Presently before the court is a second motion for summary judgment filed by Allstate Insurance Company (Defendant). Defendant's motion is identical to one which it previously filed. Defendant's prior motion for summary judgment was denied on the ground that the record was insufficient to sustain it. The present motion must also be denied. STATEMENT OF FACTS Plaintiff's claim in this case is premised upon the existence of insurance coverage at the time of his accident. Defendant's defense is based upon a termination of such coverage prior to the accident. A detailed statement of the factual background of the case is provided in the court's opinion dated April 7, 1995, on Defendant's initial summary judgment motion. A critical issue with respect to the duration of insurance coverage is whether Plaintiff and his truck could properly have NO. 3397 CIVIL 1992 been removed from an insurance policy to which they had been added, if the notice of such termination which is generally required to be given to a named insured had not been provided to Plaintiff. The notice requirement in this regard is statutory: No cancellation or refusal to renew by an insurer of a policy of automobile insurance shall be effective unless the insurer shall deliver or mail, to the named insured at the address shown in the policy a written notice of the cancellation or refusal to renew .... Act of June 5, 1968, P.L. 140, §5, 40 P.S. §1008.5. Defendant's motion for summary judgment is based upon the premise that Plaintiff was not a "named insured" on the policy, entitled to notice of loss of coverage. Plaintiff counters that he was a named insured, or at least that Defendant is estopped from denying him such status. In declining to grant Defendant's prior motion for summary judgment, the court noted that the insurance policy itself was not part of the record. It also noted the absence of insurance testimony which might have clarified Plaintiff's status. It appears from Defendant's present brief that a deposition of an agent of Defendant who handled the addition of Plaintiff and his truck to the policy in question, and who handled their removal from the policy, was taken after the court's ruling on the first motion for summary judgment. It appears further from the brief that exhibits at the deposition included documents pertaining to these transactions. Neither the transcript nor the exhibits have been 2 NO. 3397 CIVIL 1992 filed of record, however. The copies of the transcript and exhibits appended to Defendant's brief tend to show that the automobile insurance policy in question was initially issued to Plaintiff's fiancee; that she thereafter asked Defendant's agent to add Plaintiff and the aforesaid truck to the policy; that at a later date she asked Defendant's agent to remove Defendant and the truck from the policy; and that Defendant's agent did so in each case. These materials also tend to show that the agent listed the fiancee as owner of the truck - the agent's testimony being that she would have done so upon information received from the fiancee. The agent's deposition was to the further effect that she regarded Plaintiff as an "additional insured" rather than a "named insured." However, the exhibits do not contain these terms, and the agent did not recall explaining the distinction between them to the fiancee. In addition, the agent's testimony was to the effect that Allstate "trusted their agents" to correctly identify ownership of an insured vehicle, that a vehicle owned by Plaintiff could not legitimately have been added to a policy in which he was not a named insured, and that no verification as to ownership of the truck was undertaken by Allstate. Finally, Allstate's lack of knowledge of Plaintiff's ownership of the truck as of the time he and the vehicle were removed from the policy may be questioned in light of a quote allegedly generated by Allstate for issuance of a 3 NO. 3397 CIVIL 1992 policy to Plaintiff upon the vehicle. DISCUSSION Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A court should grant summary judgment "only in the clearest of cases, where the right is clear and free from doubt." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468 (1979). In the present case, the record is technically in the same state as it was when Defendant's prior motion for summary judgment was decided. As a general rule, attachments to a brief are not to be treated as part of the record. Cf. McAllonis v. Pryor, 301 Pa. Super. 473, 448 A.2d 5 (1982). More substantively, the attachments to Defendant's brief would not warrant an award of summary judgment on the merits. First, a court may not base an award of summary judgment upon oral deposition testimony alone, even if uncontradicted, because the credibility of the witness is a matter for the trier of fact. 3 Goodrich-Amram ~1035(b):15 (1991); cf. Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). The factual elements of an estoppel claim are particularly within the province of a jury. NO. 3397 CIVIL 1992 Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964). Second, the testimony of the agent is far from conclusive on the issue set forth above, particularly as it may be affected by the doctrine of estoppel. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 5th day of February, 1996, after careful consideration of Defendant's [Second] Motion for Summary Judgment, and for the reasons stated in the accompanying Opinion, Defendant's motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. David W. Knauer, Esq. 411-A East Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff James G. Nealon, III, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant : rc 5