The opinion
J-S17003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STATE FARM MUTUAL AUTOMOBILE IN THE SUPERIOR COURT OF
INSURANCE COMPANY PENNSYLVANIA
v.
ERIN C. DOONER, JEAN A. FONTE,
JEFFREY KOWALSKI, GARY J.
FEDORCZYK, AND PROGRESSIVE
ADVANCED INSURANCE COMPANY
APPEAL OF: JEAN A. FONTE No. 2820 EDA 2017
Appeal from the Order Entered August 2, 2017
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 3140 CIVIL 2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 08, 2018
Appellant, Jean A. Fonte, appeals from the August 2, 2017 order
granting summary judgment in favor of Appellee, Progressive Advanced
Insurance Company (“Progressive”). After careful review, we affirm.
The trial court summarized the following undisputed facts and
procedural background of this case in its August 2, 2017 opinion:1
Prior to the evening of May 15, 2014, Erin C. Dooner [(“Ms.
Dooner”)] and [Appellant] [] were involved in a romantic
relationship. While traveling in [Ms.] Dooner’s vehicle, the couple
was involved in a one[-]car accident. [Ms.] Dooner had a motor
vehicle insurance policy number 173-0212-A08 through State
Farm Mutual Insurance Company’s [(“State Farm”)] business. As
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1 On September 20, 2017, the trial court filed a statement pursuant to
Pa.R.A.P. 1925(a), incorporating by reference its August 2, 2017 opinion, in
which the court had previously addressed the issues raised by Appellant on
appeal.
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a result of this accident, [Ms.] Dooner was arrested and taken to
the Monroe County DUI Center. [Appellant] then retrieved her
own vehicle, a 2004 Dodge Stratus, in order to pick up [Ms.]
Dooner from the DUI Center sometime after midnight on May 16,
2014. [Appellant’s] vehicle was insured by an automobile policy
through Progressive bearing the number 17067298-1 (hereinafter
“the Fonte Policy”). Further, at the time[, Appellant] was residing
with her mother, Frances Loomis, who had a home insurance
policy number 26457524-2 (hereinafter “the Loomis Policy”)
through Progressive. As [Appellant] was driving the couple home,
they began to fight. [Appellant] claims [Ms.] Dooner struck her
in the face. As the fight continued, [Ms.] Dooner grabbed the
bottom of the steering wheel and jerked it. This caused the Dodge
Stratus to swerve into oncoming traffic and collide head-on with a
police cruiser. The police cruiser was operated by Jeffrey J.
Kowalski (hereinafter “[Officer] Kowalski”). Gary J. Fedorczyk
(hereinafter “[Officer] Fedorczyk”) was a front seat passenger in
the police vehicle at the time of the accident.
[Appellant] and [Officer] Kowalski, along with his wife, have
filed lawsuits in this [c]ourt against [Ms.] Dooner relating to the
accident. These suits are respectively filed at 3416 CV 2014 and
1859 CV 2016. On April 27, 2016, [State Farm] filed a Complaint
for Declaratory Judgment stating that it has no duty to defend,
indemnify, or otherwise provide liability coverage to [Ms.] Dooner
under [State Farm’s] insurance policy. On June 16, 2016,
[Appellant] filed a Joinder Complaint against Progressive[,]
alleging the Fonte and Loomis Policies are applicable in this matter
[to cover her own injuries]. On June 5, 201[7], Progressive filed
a Motion for Summary Judgment seeking declaratory relief that
no coverage was in effect [to cover injuries to Appellant]. Oral
argument was not held in this matter and a decision was rendered
based upon the submissions of the parties.
Trial Court Opinion (“TCO”), 8/2/17, at 1-3.
On August 2, 2017, the trial court entered an order granting
Progressive’s motion for summary judgment and finding that Progressive does
not owe a duty of coverage for uninsured (“UM”) and underinsured (“UIM”)
motorist benefits to Appellant in this case. Appellant filed a timely notice of
appeal on August 25, 2017, followed by a timely Pa.R.A.P. 1925(b) concise
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statement of errors complained of on appeal. Herein, Appellant presents the
following issue for our review:
Did the trial court commit [an] error of law and abuse its discretion
by granting summary judgment on behalf of [Progressive],
deciding that [Progressive] did not owe a duty of coverage in this
case, when [Appellant] established that [she] is entitled to [UM]
and/or [UIM] motorist benefits through her insurance company,
Progressive, thus misapplying law and relevant precedent?
Appellant’s Brief at 5.
Preliminarily, we note that:
Generally, the proper construction of a policy of insurance is a
matter of law which may properly be resolved by a court pursuant
to a motion for summary judgment. Nationwide Mut. Ins. Co.
v. Nixon, … 682 A.2d 1310, 1313 ([Pa. Super.] 1996). Thus, the
issue of whether a claim is within a policy’s coverage or barred by
an exclusion is properly determined[,] provided that the policy’s
terms are clear and unambiguous so as to preclude any issue of
material fact. See Butterfield v. Giuntoli, … 670 A.2d 646, 651
([Pa. Super.] 1995).
As with all questions of law, our scope of review of a trial
court’s order granting summary judgment is plenary. Our
standard of review is the same as that of the trial court; we
must review the record in the light most favorable to the
nonmoving party granting [it] the benefit of all reasonable
inferences and resolving all doubts in [its] favor. We will
reverse the court’s order only where the appellant …
demonstrates that the court abused its discretion or
committed legal error.
Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185, 190
(Pa. Super. 2003) (internal citations omitted).
When interpreting a policy of insurance, we employ an analysis
which, while derived from the law of contracts, recognizes that
most insurance transactions are not freely bargained between
equals but are largely adhesive in nature. See Betz. V. Erie Ins.
Exchange, 957 A.2d 1244, 1252-53 (Pa. Super. 2008).
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Insurance policies, like all contracts, are enforceable in
accordance with the language used[,] and the scope of their
coverage may be determined by the court as a matter of
law. See Pappas v. UNUM Life Ins. Co. of Am., 856 A.2d
183, 187 (Pa. Super. 2004). “In construing a contract, the
intention of the parties is paramount and the court will adopt
an interpretation which under all circumstances ascribes the
most reasonable, probable, and natural conduct of the
parties, bearing in mind the objects manifestly to be
accomplished.” Charles D. Stein Revocable Trust v.
Gen. Felt Indus., Inc., 749 A.2d 978, 980 (Pa. Super.
2000).
…
Id. at 1252-53 (Pa. Super. 2008).
Safe Auto Ins. Co. v. Berlin, 991 A.2d 327, 331 (Pa. Super. 2010) (quoting
Bishops, Inc. v. Penn Nat. Ins., 984 A.2d 982, 989-90 (Pa. Super. 2009)
(footnotes omitted)). Moreover, “[w]hen construing a policy, words of
common usage … are to be construed in their natural, plain and ordinary sense
… and we may inform our understanding of these terms by considering their
dictionary definitions.” Wagner v. Erie Ins. Co., 801 A.2d 1226, 1231 (Pa.
Super. 2002) (internal citations and quotation marks omitted).
Section 1731(a) of the Motor Vehicle Financial Responsibility Law
mandates that all motor vehicle liability insurance policies offer coverage for
uninsured or underinsured motorists. 75 Pa.C.S. § 1731(a). “The purpose of
[UIM] coverage is to protect the insured … from the risk that a negligent driver
of another vehicle will cause injury to the insured … and will have inadequate
liability coverage to compensate for the injuries caused by his negligence.”
Kelly v. Nationwide Ins. Co., 606 A.2d 470, 474 (Pa. Super. 1992) (quoting
Wolgemuth v. Harleysville Mut. Ins. Co., 535 A.2d 1145, 1149 (Pa. Super.
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1988)); see also 75 Pa.C.S. § 1731(c). Similarly, UM coverage seeks to
protect “persons who suffer injury arising out of the … use of a motor vehicle
and are legally entitled to recover damages therefor from owners or operators
of uninsured motor vehicles.” 75 Pa.C.S. § 1731(b).2
Here, Appellant claims that the trial court erred in granting summary
judgment in favor of Progressive, as she believes sufficient evidence was
introduced to establish that she is entitled to UM or UIM coverage under the
Fonte policy. Appellant’s Brief at 11. According to Appellant, the uninsured
or underinsured motorist in this instance is Ms. Dooner. Id. at 10. Appellant
argues that Ms. Dooner was “in control” of the vehicle at the time of the
accident and, in fact, caused the collision with the police cruiser. See id. at
12-14. She concludes that State Farm is, therefore, responsible for providing
coverage to the limits of Ms. Dooner’s policy for injuries sustained in the
accident.3 Upon the exhaustion of the State Farm coverage, Appellant
suggests that she would then be entitled to UIM coverage pursuant to the
Fonte Policy. Alternatively, if State Farm will not provide coverage, Appellant
asserts that she would then be entitled to UM coverage under the Fonte Policy.
Id. at 18. We deem Appellant’s claim to be meritless.
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2In the instant case, both parties agree that the Fonte Policy covers UM and
UIM benefits. TCO at 4.
3 “The State Farm policy at issue provides for coverage for a ‘non-owned car’
if the car is in lawful possession of you or any resident relative.” Id. at 12
(internal citation omitted) (emphasis added by Appellant).
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Appellant bases her argument on the assumption that Ms. Dooner was
in lawful possession of the Dodge Stratus when she grabbed the steering
wheel and caused the crash. Contrary to Appellant’s assertions, however, the
issue of whether Appellant or Ms. Dooner was in control of the vehicle at the
time of the accident is irrelevant in determining whether the Dodge Stratus
qualifies for UM or UIM coverage under either the Fonte or the Loomis Policy.
First, we examine the applicable language of the Fonte Policy regarding
UM and UIM coverage:
INSURING AGREEMENT – UNINSURED MOTORIST COVERAGE
If you pay the premium for this coverage, we will pay for damages
that an insured person is legally entitled to recover from the owner
or operator of an uninsured motor vehicle because of bodily
injury:
1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an
uninsured motor vehicle.[4]
INSURING AGREEMENT – UNDERINSURED MOTORIST COVERAGE
If you pay the premium for this coverage, we will pay for damages
that an insured person is legally entitled to recover from the owner
or operator of an underinsured motor vehicle because of bodily
injury:
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4 The Fonte Policy expressly states that an “uninsured motor vehicle” does not
include any vehicle: “a. owned by you [(the policyholder)] or a relative or
furnished or available for the regular use of you or a relative; b. owned or
operated by a self-insurer under any applicable motor vehicle law, except a
self-insurer that is or becomes insolvent; … f. that is a covered auto; or g.
that is an underinsured motor vehicle.” TCO at 6.
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1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an
underinsured motor vehicle.[5]
Progressive’s Brief at 4. See also Progressive’s Supplemental Reproduced
Record at 16b.
Based on our plain reading of the policy, it is clear that neither a vehicle
owned by the policyholder nor an auto shown on the declarations page
qualifies as an uninsured or underinsured motor vehicle. Thus, we agree with
the trial court that Appellant is not entitled to UM or UIM benefits from
Progressive for injuries that were caused by the negligent conduct of a
passenger in Appellant’s own vehicle. As the trial court further explained,
the [Fonte] policy is unambiguous that UM and UIM benefits do
not apply to a vehicle the policyholder owns. There has been no
dispute that [Appellant] was the holder of the Fonte Policy or that
this accident occurred in the 2004 Dodge Status [sic] she owned.
These facts alone would bar [Appellant] from claiming UM or UIM
benefits. Additionally, the policy prevents claims for UM and UIM
benefits for “covered autos.” Covered autos are defined as “any
auto or trailer shown on the declarations page for the coverages
applicable to that auto or trailer.” Progressive’s Brief[,] Exhibit
“D,” p. 1. There is no dispute that the automobile covered by the
policy was [Appellant’s] 2004 Dodge Stratus. See Progressive’s
Brief, Exhibit “D”. Therefore, based upon a plain reading of the
insurance policy, [Appellant] cannot claim UM or UIM benefits for
an accident which occurred in her own vehicle caused by a
passenger in that vehicle.
[Appellant’s] argument regarding control of the vehicle is
not relevant at this time. In this instance, the insurance policy
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5 The Fonte Policy defines an “underinsured motor vehicle,” in relevant part,
as one that is not: “a. owned by you [(the policyholder)] or a relative or
furnished or available for the regular use of you or a relative; … e. that is a
covered auto; or f. that is an uninsured motor vehicle.” Id. at 6.
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clearly looks to ownership of the vehicle the accident occurred in,
and not who was driving it. [Appellant] also argues that
preventing her from claiming UM or UIM benefits in this scenario
will render the benefits useless. Pennsylvania courts have
previously upheld such exceptions and declared them not to be
against public policy. See Kelly v. Nationwide Ins. Co., [606
A.2d 470 (Pa. Super. 1992)]. In Kelly, a husband and wife owned
two cars which were covered under the same insurance policy.
When the wife was injured while riding in one of the vehicles, she
attempted to make a UM/UIM claim under the other half of the
policy, claiming the couple’s other vehicle had not been involved
in the accident. The policy excluded UM/UIM benefits for any
vehicle insured under that policy. The court found that “the public
policy behind the underinsurance provisions of the Motor Vehicle
Financial Responsibility Act [was] not violat[ed] by” the policy’s
exclusion. Id. at 474. Further, the court reasoned that when the
legislature required UM and UIM coverage provisions, they did not
intend that individuals would be able to recover both third party
liability benefits and first party underinsurance motorist benefits
from the same policy. Id. at 475. To allow otherwise “would turn
underinsurance coverage into additional liability coverage” which
was not its intended purpose. Id. Therefore, we find that
[Appellant] may not claim UM or UIM benefits under the Fonte
Policy … and that summary judgment is appropriate at this time.
TCO at 7-8.
Next, the trial court considered whether Appellant is eligible for UM or
UIM benefits under her mother’s home insurance policy, as it is undisputed
that Appellant was a resident relative of her mother at the time of the accident.
See id. at 8. The Loomis Policy provides, in relevant part:
EXCLUSIONS – READ THE FOLLOWING CAREFULLY, IF AN
EXCLUSION APPLIES, COVERAGE WILL NOT BE AFFORDED UNDER
THIS PART III.
Coverage under this Part III will not apply:
To bodily injury sustained by any person while using or occupying;
b. A motor vehicle that is owned by or available for regular use of
you [policyholder] or a relative. This exclusion does not apply to
a covered auto that is insured under this Part III.
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Id. at 9 (citation omitted) (emphasis added by trial court).
Based on the plain language of the Loomis policy, the trial court agreed
with Progressive that, as a result of the “family car” or “household exclusion,”
Appellant may not make a UM or UIM claim under her mother’s policy. See
id. at 9.
[I]t is undisputed this accident occurred while [Appellant] was
driving her own 2004 Dodge Stratus. It is further undisputed that
she was a resident relative of her mother at the time of the
accident. Lastly, the 2004 Dodge Stratus was not a covered auto
under the Loomis Policy. Therefore, [Appellant] cannot use the
Loomis Policy to claim UM or UIM benefits. Pennsylvania courts
has [sic] held that “household” and “family car” exclusions are
valid and not against public policy. See Prudential Prop. & Cas.
Ins. Co. v. Colbert, 572 Pa. 82, 813 A.2d 747 (2012);
Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006
(1998). The Eichelman court noted that “there is a correlation
between premiums paid by the insured and the coverage the
claimant should reasonably expect to receive.” Eichelman[, 711
A.2d] at 1011 [(]quoting Hall v. Amica Mut. Ins. Co., 538 Pa.
337, 349, 648 A.2d 755, 761 (1994)[)]. The Prudential [C]ourt
noted that disallowing family car exceptions under home
insurance policies would lead to “gratis coverage on a vehicle that
[the] insurer never knew existed.” Prudential[, 813 A.2d] at
754. Further, rather than making insurance more affordable,
insurance companies “would be compelled to underwrite unknown
risks that the insureds neither disclosed nor paid to insure” and
could potentially lead to car owners collecting UM or UIM benefits
under an unlimited number of family member’s insurance policies.
Id. This would be fundamentally unfair to both the insurance
companies and to those that dutifully insure their vehicles and pay
premiums.
Id. at 9-10.
In conclusion, the trial court opined:
[Appellant] has failed to provide any argument against a
plain reading of the policy. [Appellant] has avoided the plain
language argument under the Loomis Policy by arguing “insurance
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giant” Progressive is attempting to prevent her from “stacking”
policies. [Appellant] is correct that insurance benefits may be
stacked and an injured party may recover under multiple policies
under certain fact patterns. See Tallman v. Aetna Cas. & Sur.
Co., 372 Pa. Super. 593, 539 A.2d 1354 (1998). However, we
find no merit in the argument that Progressive is attempting to
prevent [Appellant] from stacking the policies. Rather,
Progressive correctly argues that the exclusions in the Fonte and
Loomis policies individually prevent [Appellant] from receiving
benefits. Therefore, we find that summary judgment in favor of
Progressive is appropriate at this time.
Id. at 10. After careful review, we deem the trial court’s findings to be well-
supported by the record.
As Appellant failed to establish a genuine issue of material fact, we
conclude that the trial court did not commit an error of law or abuse its
discretion when it granted Progressive’s motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/18
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