# Egan v. USI Mid-Atlantic, Inc.

> Superior Court of Pennsylvania · April 2, 2014 · 92 A.3d 1

URL: https://www.frixlaw.com/law-library/cases/4968850

## Case

- **Full name:** Michael EGAN, Jr. and Jill Egan, h/w and Mark Buzby v. USI MID-ATLANTIC, INC. and USI Holdings Corporation and Bristol Township and Zurich American Insurance Company Michael Egan, Jr. and Jill Egan, h/w and Mark Buzby v. USI Mid-Atlantic, Inc. and Robert Brown and Freda Batipps and Linda Magovern and Douglas Schroer and Lisa McKernan and USI Holdings Corporation and Suzanne Newsome v. Bristol Township. Appeal of USI Mid-Atlantic Inc., USI Holdings Corporation, Freda Batipps, Robert Brown and Linda Magovern Michael Egan, Jr. and Jill Egan, h/w and Mark Buzby v. USI Mid-Atlantic, Inc. and USI Holdings Corporation and Bristol Township and Zurich American Insurance Company Michael Egan, Jr. and Jill Egan, h/w and Mark Buzby v. USI Mid-Atlantic, Inc. and Robert Brown and Freda Batipps and Linda Magovern and Douglas Schroer and Lisa McKernan and USI Holdings Corporation and Suzanne Newsome v. Bristol Township. Appeal of USI Mid-Atlantic Inc., USI Holdings Corporation, Freda Batipps, Robert Brown and Linda Magovern Michael Egan, Jr. and Jill Egan, h/w and Mark Buzby v. USI Mid-Atlantic, Inc. and USI Holdings Corporation and Bristol Township and Zurich American Insurance Company Michael Egan, Jr. and Jill Egan, h/w and Mark Buzby v. USI Mid-Atlantic, Inc. and Robert Brown and Freda Batipps and Linda Magovern and Douglas Schroer and Lisa McKernan and USI Holdings Corporation and Suzanne Newsome v. Bristol Township
- **Court:** Superior Court of Pennsylvania
- **Decided:** April 2, 2014
- **Citations:** 92 A.3d 1
- **Precedential status:** Published
- **Opinion:** Dissent by Panella
- **Judges:** Bender, Gantman, Panella
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4968850

## How later opinions describe it (automated extraction)

- clarifying that while, under Everhart, commercial policies are excluded from the statutory default of stacked UM/UIM coverage absent compliance with the specific waiver requirements of section 1978, differing considerations weighed in favor of interpreting the General Assembly…
- finding waiver where Appellant failed to establish that the trial court erred and “provide[d] no discussion as to why the attorney-client privilege applied”
- stating that the “gist of the action” doctrine is designed to maintain the conceptual distinction between breach of contract and tort claims
- stating that, the “duty extends to insurance brokers”

## Opinion text

DISSENTING OPINION BY
PANELLA, J.:
While I agree with the Majority’s apt description of the trial court’s instruction *24 on the necessity of a written waiver of stacked UM/UIM coverage as “flawed,” I cannot conclude that the flaw was harmless error. I must therefore dissent from my esteemed colleagues in the Majority.
The Majority concludes that the errant instruction was harmless, as the written waiver at issue contained provisions for waiving non-stacked UM/UIM, pursuant to 75 Pa.C.S. § 1731, as well as for waiving stacked UM/UIM coverage pursuant to 75 Pa.C.S. § 1738. Furthermore, since Ap-pellees presented evidence of industry practice and custom, and the trial court correctly instructed the jury on the issue of waiver of non-stacked UM/UIM coverage, the Majority reasons that the error on the issue of waiver of stacked UM/UIM coverage was therefore harmless.
Although I always hesitate to dissent from my learned colleagues, I do not reach the same conclusion here. In this trial, the jury was tasked with determining whether the Appellants were liable for fraud. The “flawed” jury instruction at issue here incorrectly buttressed plaintiffs’ theory of the case that Appellants had a clear-cut motive to misrepresent the status of stacked UM/UIM coverage. The Supreme Court in Everhart v. PMA Ins. Group, 595 Pa. 172 , 938 A.2d 301 (2007), clearly decided the issue to the contrary. Furthermore, Appellants presented expert testimony that disputed the existence of a settled custom or practice in the insurance industry regarding written waivers of stacked UM/UIM prior to the decision in Everhart .
Thus, the binding instruction undercut Appellants’ theory of the case that they were not doing anything improper, under the law or the industry custom at the time, by not requiring a written waiver of stacked UM/UIM benefits. Appellants also argued to the jury that the failure to require a written waiver of non-stacked UM/UIM coverage was an innocent practice that, given the decision reached only today by the Majority, was not explicitly against the law or industry custom at the time. To a substantial extent, the issue of the appropriateness of not requiring a written waiver of UM/UIM benefits was the central issue in this trial. I therefore cannot conclude that a binding instruction that stated that Appellants’ central arguments were wrong as a matter of law was harmless error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4968850. Public record. Not legal advice.