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HomeMy WebLinkAbout92-3397 Civil LawEDGAR A. FREED, JR., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : ALLSTATE INSURANCE : COMPANY, : Defendant : NO. 3397 CIVIL 1992 IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of April, 1995, after careful consideration of Defendant's Motion for Summary Judgment, and for the reasons stated in the accompanying Opinion, Defendant's motion is DENIED. BY THE COURT, /. 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 EDGAR A. FREED, JR., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : ALLSTATE INSURANCE : COMPANY, : Defendant : NO. 3397 CIVIL 1992 IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This action on a motor vehicle insurance policy arises out of an automobile accident involving a vehicle owned and driven by Edgar A. Freed, Jr. (Plaintiff). Presently before the Court is a motion for summary judgment filed by Allstate Insurance Company (Defendant). For the reasons stated in this Opinion, Defendant's motion will be denied. Statement of Facts Plaintiff is an adult individual who resides at 1290 Oyster Mill Road, Camp Hill, Cumberland County, Pennsylvania. Defendant is a corporation doing business under the laws of the Commonwealth of Pennsylvania and having a business address of Suite 100, 4930 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. In approximately 1984, Plaintiff met Kelly Mae Popp (Popp).~ A romantic relationship developed between them and they began living together around 1985 or 1986.2 They continued to live ~ Deposition of Edgar A. Freed, Jr., February 1, 1993, N.T. 8 (Freed Depo., N.T. __). 2 Freed Depo., N.T. 9. NO. 3397 CIVIL 1992 together off and on until March of 1990, when Popp moved out.3 On October 4, 1989, Plaintiff purchased a 1980 Ford Econoline van, borrowing the money to do so from the Pennsylvania National Bank. The van was registered in Plaintiff's name and was subjected to an encumbrance in favor of the bank.4 At this time, Popp had an automobile insurance policy with Defendant. Popp "added" the van to her policy and "added" Plaintiff as another driver sometime in October of 1989.s Popp's policy with Allstate defined the "Named Insured" as "the person or organization named in the declarations including the spouse if a resident in the same household.''6 After Popp moved out of the residence she was sharing with Plaintiff, in March of 1990, she had him removed from her insurance policy with Allstate.7 Allstate removed Plaintiff from the policy effective March 20, 1990.8 According to Popp, she specifically told Plaintiff around this time that he had been removed from the policy.9 Plaintiff, however, disputes this account, claiming Popp Freed Depo., N.T. 10. Freed Depo., N.T. 11. Deposition of Kelly Mae Popp, March 12, 1993, N.T. 7-8 (Popp Depo., N.T. __). 6 Answer with New Matter of Defendant Allstate Insurance Company, Exhibit A. Popp Depo., N.T. 9. Id. Popp Depo., N.T. 10. 2 NO. 3397 CIVIL 1992 told him she wanted to take him off the policy, not that she actually did.~° Additionally, while having this conversation, which occurred within a month after Popp moved out, Popp told Plaintiff that a Mrs. T. Bird, the agent from Allstate handling her policy, was trying to get in touch with him.~ Plaintiff called Mrs. Bird, who gave him a quote as to what the insurance on the van would cost if he decided to purchase it himself; however, he denies that she told him he had been dropped from Popp's policy.~2 Plaintiff was involved in an automobile accident while driving the van on October 4, 1990, and allegedly suffered a whiplash injury for which he has received medical treatment.~3 According to Plaintiff, he called Popp on the night of October 4, 1990, following his accident, and learned for the first time that he had been removed from the policy.TM Plaintiff initiated this action by filing a complaint on September 28, 1992. In the complaint, Plaintiff alleges that Defendant violated 40 P.S. §1008.5 by failing to notify Plaintiff or Pennsylvania National Bank of his being removed from Popp's Freed Depo., N.T. 23. Freed Depo., N.T. 20-21; Popp Depo., N.T. 10. Freed Depo., N.T. 21. Freed Depo., N.T. 21, 28. Freed Depo., N.T. 27. 3 NO. 3397 CIVIL 1992 insurance policy.~s Plaintiff asserts that Defendant's denial of coverage at the time of his accident was thus improper and that he has sustained monetary damages as a result.~6 Defendant filed an answer with new matter on October 20, 1992, alleging that Plaintiff was notified by a memo dated March 20, 1990, which advised that he and his van were being removed from Popp's insurance.~7 Plaintiff filed a reply to Defendant's new matter on November 25, 1992, denying that he had been informed that he was removed from Popp's policy.~8 Following this, depositions were taken of Plaintiff and Popp. The motion of Defendant for summary judgment was filed on December 19, 1994. Defendant's motion is based on a refutation of Plaintiff's position that either he or the bank were required to be notified of his removal from the policy under the terms of 40 P.S. §1008.5.~9 Plaintiff's Complaint, paragraphs 10-12. Plaintiff's Complaint, paragraphs 13-14. Answer with New Matter of Defendant, Allstate Insurance Company, paragraph 17, Exhibit B. ~ Answer to New Matter of the Defendant Allstate, paragraph 17. ~9 See Defendant Allstate Insurance Company's Motion for Summary Judgment. 4 NO. 3397 CIVIL 1992 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." In this regard, "[t]he moving party has the burden of proving the non-existence of any genuine issue of fact." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-469 (1979). "A fact is 'material' if its determination could affect the outcome of the case, and a dispute concerning a material fact is 'genuine' where the evidence is such that a reasonable jury could return a verdict for the non-moving party." Barlow v. Greenridge Oil Co., 744 F. Supp. 108, 110 (W.D. Pa. 1990), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Additionally, "[t]he record must be examined in the light most favorable to the non-moving party." Schacter v. Albert, 212 Pa. Super. 58, 62, 239 A.2d 841, 843 (1986). "All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979). A court should grant summary judgment "only in the clearest of cases, where the right is 5 NO. 3397 CIVIL 1992 clear and free from doubt." Id. Section 1008.5 of Title 40 df Purdon's Statutes provides, in pertinent part, as follows: 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, as amended, 40 P.S. S1008.5. In addition, Section 1008.6 provides in part as follows: Nothing in this act shall apply:... (2) If the named insured has demonstrated by some overt action to the insurer or its agent that he wishes the policy to be cancelled or that he does not wish the policy to be renewed. Act of June 5, 1968, P.L. 140, ~6, as amended, 40 P.S. S1008.6(2). In the past, courts have been reluctant to expand provisions requiring notification by insurers beyond the plain meaning of the legislative language. Thus, in a case in which an automobile insurance policy covering an encumbered vehicle expired without renewal, the Court of Common Pleas of Lawrence County noted that it could "find no statutory duty imposed upon an insurance carrier to notify a loss payee that an insurance policy had expired." First National Bank of Western Pennsylvania v. Hartford Insurance Company, 1 D. & C.4th 285, 287 (Lawrence Co. 1988). The court observed that, "[w]hile First National may hold an insurable interest in the property, Commonwealth of Pennsylvania v. 6 NO. 3397 CIVIL 1992 Rodebaugh, 102 Pa. Commw. 592, 519 A.2d 555 (1986), this court cannot expand the word 'insured' as utilized in the statute to include 'loss payee. '" Id. Although an argument can thus be made that no duty as to notice on the part of an insurer would be breached where a policy's termination resulted from an instruction to terminate it by or on behalf of all named insureds, or where all named insureds were notified of a cancellation or nonrenewal by the insurer, the record in the present case is not clear as to the precise status of Plaintiff on the policy in question. The policy itself and any endorsements relating to Plaintiff have not yet been made part of 2O the record, nor has any testimony been received from an insurance representative which might clarify the issue of his status. For this reason, it would appear to be premature to hold that Defendant's right to judgment is so clear and free from doubt that the case must be resolved in its favor at this time. ORDER OF COURT AND NOW, this ~ day of April, 1995, after careful consideration of Defendant's Motion for Summary Judgment, and for 20 What appears to be a form policy, with no specific references to Ms. Popp or to Plaintiff, is attached to the Answer with New Matter of Defendant, Allstate Insurance Company, as Exhibit A. 7 NO. 3397 CIVIL 1992 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 :re