stating that the parol evidence rule apples to insurance contracts; Genie Trucking Line v. American Home Assurance Co., 362 Pa. Super. 456, 462-63, 524 A.2d 966, 969 (1987
How later courts described this case
- stating that the parol evidence rule apples to insurance contracts; Genie Trucking Line v. American Home Assurance Co., 362 Pa. Super. 456, 462-63, 524 A.2d 966, 969 (1987
- explaining that boilerplate terms .may be construed differently in different subject areas
- although extrinsic evidence may be considered where contract language is ambiguous, to be probative of usage in the trade in demonstrating an ambiguity the evidence must bear on "a generally accepted and applied usage of the phrase by the insurance industry as a whole”
Written by the judges who cited it.
The opinion
McEWEN, President Judge,
concurring and dissenting:
¶ 1 While the author of the majority opinion has, in usual fashion, provided a comprehensive and compelling expression of view, and while I hasten to agree that the breach of contract claim was properly dismissed by the trial court in response to the demurrer filed by appellees, I cannot agree that the regulatory estoppel claim was properly dismissed.
¶ 2 This appeal has been taken from an order which sustained the preliminary objections in the nature of a demurrer filed by appellees. Thus, we must accept as true all of the factual allegations of the complaint, including the allegations of paragraph 46 of the complaint filed by appellants that
[t]he Pennsylvania Insurance Department relied on these representations, and, understood that the proposed endorsement was only a clarification of existing coverages and would not result in a substantial reduction in coverage. Had the Pennsylvania ° Insurance Department been told or understood that the endorsement invoked a fundamental change or limitation of coverage, then the submittal would have required a review and approval from the actuarial division of the Pennsylvania Insurance Department to evaluate the necessity of a premium rate change, and a rate reduction would 'have been warranted. No request for a rate change was submitted by MIRB or IRB relating to this endorsement, and no rate reduction was recommended by the actuarial division of the Pennsylvania Insurance Department or required by the department as a condition for approval.
The trial court, however, sustained the demurrer to the estoppel claim “because Sunbeam could not reasonably establish that the Department relied on the explanatory memorandum submitted to it by the insurance industry.”
¶ 3 However, likelihood or predictability of proof are not elements to be weighed when considering preliminary objections in the nature of a demurrer.
For the purposes of reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, the averments of the complaint must be taken as true, except to the extent that they constitute conclusions of law. Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613 , 702 A.2d 850 (1997).
Since sustaining the demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.... If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objec *1193 tion in the nature of a demurrer to be rejected.
Shick v. Shirey, 552 Pa. 590, 594, 716 A.2d 1231, 1232-83 (1998), quoting County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 372 , 490 A.2d 402, 408 (1985) (citations omitted)(emphasis added). Since both the trial court and this Court in ruling on the merits of the demurrer of appellees are required to accept as true all of the factual allegations in the complaint of appellants and all reasonable inferences flowing therefrom, I would, while affirming that part of the order which dismissed the breach of contract claims, vacate and remand that part of the order which sustained the demurrer to the regulatory es-toppel claim.
¶ 4 DEL SOLE, J. joins this Concurring and Dissenting Statement.