NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P SANDI AND WILLIAM G. SNYDER, H/W, Appellants IN THE SUPERIOR COURT OF PENNSYLVANIA v. LIBERTY MUTUAL FIRE INSURANCE COMPANY D/B/A/ A/K/A LIBERTY MUTUAL, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND DANIELLE AMOROSO, Appellees No EDA 2012 Appeal from the Order September 12, 2012 In the Court of Common Pleas of Bucks County Civil Division at No.: BEFORE: GANTMAN, J., ALLEN, J., and PLATT, J. * MEMORANDUM BY PLATT, J. FILED JULY 31, 2013 Appellants, Sandi and William G. Snyder, wife and husband, appeal from the order of September 12, 2012, entered in favor of Appellees, Liberty Mutual Fire Insurance Company D/B/A A/K/A Liberty Mutual (Liberty Mutual), State Farm Mutual Automobile Insurance Company (State Farm), and Danielle Amoroso, 1 in this declaratory judgment action. We affirm. The underlying facts and procedural history in this matter are taken from the trial court s January 23, 2013 opinion. * Retired Senior Judge assigned to the Superior Court. 1 Appellee Liberty Mutual has not filed a brief in the instant appeal.

2 [Appellants] were involved in an auto accident with [Appellee] Danielle Amoroso ( Amoroso ) on December 3, On November 20, 2009, the Snyders instituted the underlying tort claim against Amoroso by filing a Writ of Summons. Thereafter, on August 17, 2011, [Appellants] commenced the instant declaratory judgment action to determine the scope of their auto insurance coverage. [Appellants] claim they are entitled to the default full tort coverage because their insurance company failed to send the couple certain forms as required by Pennsylvania law. [Appellants] purchased an auto insurance policy from Prudential Insurance Company ( Prudential ) on January 16, At the time of signing, William Snyder circled the limited tort option on the policy, a valid election of limited tort status which [Appellants] do not now contest. In May 2003, [Appellee] Liberty Mutual Fire Insurance Company ( Liberty Mutual ) purchased all of Prudential s Pennsylvania Auto Insurance business, including [Appellants] policy. [Appellants] claim that a new policy was issued, but have not identified when it was allegedly issued, mailed or signed. Further, [Appellants] have not produced any evidence of the purported new policy. Liberty Mutual denies that a new policy was issued. However, Liberty Mutual agrees that the company did not send the couple a new tort election form, which is normally part of a policy packet, in 2003 or anytime thereafter. The Snyders now argue because Liberty Mutual failed to send them a tort election form pursuant to 75 Pa. C.S in 2003, upon purchase of the Prudential policies, or anytime thereafter, Liberty has triggered the statutory remedy of default full tort status under 75 Pa. C.S. 1705(a)(3). [Appellants] have produced forms showing an insurance contract between the couple and Liberty Mutual, which are dated February Like the original 1996 contract between the Snyder and Prudential, these documents also show that the Snyders have limited tort coverage. [Appellants] offered to pay Liberty Mutual the difference in premium costs between limited tort and full tort coverage if the company would retrospectively reform the policy. [Appellants] only sought to reform the policy from January 27, 2007 through - 2 -

3 January 28, 2007, the policy period in which Sandi Snyder was involved in an accident. Reformation would permit [Appellants] to pursue noneconomic damages from Amoroso, who has admitted liability for the accident in the underlying action. State Farm [which is Amoroso s insurance company] argues in opposition that Liberty Mutual was not obligated to send a tort election form to [Appellants] at any time. State Farm argues that [Appellants] original election of limited tort coverage was valid, and policy reformation is inappropriate. On October 1, 2012, [Appellants] filed a Notice of Appeal to the Pennsylvania Superior Court. On October 2, 2012, this Court ordered [Appellants] to file a Statement of Errors Complained of on Appeal, no later than twenty-one (21) days from the date of this order. On October 22, 2012, Snyders filed a Concise Statement of Errors Complained of on Appeal. (Trial Court Opinion, 1/23/13, at 1-3) (footnotes omitted). On appeal, Appellants raise two issues for our review: Whether the [trial] court erred when it held that under the Motor Vehicle Financial Responsibility Law Appellee Liberty Mutual is the same insurance company Prudential, Appellants previous insurer[?] Whether the [trial] court erred when it held that section 1705 of the Motor Vehicle Financial Responsibility Law does not require that Appellants be deemed to be full tort because of Appellee Liberty Mutual s failure to send a Notice to Named Insured tort election form[?] (Appellants Brief, at 2). While Appellants raise two separate questions, they are in essence, the same: whether the trial court erred in its declaration that Liberty Mutual was not required to send a new tort election form when it acquired Appellants insurance policy. (See Appellants Brief, at 5-7). Therefore, we will treat them together. We note the following standard of review

4 When reviewing the determination of the trial court in a declaratory judgment action, our scope of review is narrow. As declaratory judgment actions follow the practice and procedure of an action in equity, we will review the determination of the court below as we would a decree in equity and set aside the factual conclusions of the trial court only where they are not supported by adequate evidence. However, when reviewing an issue of law in a declaratory judgment action, our scope of review is plenary and our standard of review is de novo. Nationwide Mut. Ins. Co. v. Catalini, 18 A.3d 1206, 1209 (Pa. Super. 2011) (citations omitted). We also note that declaratory judgments are final orders and are thus immediately appealable. See Commerce Bank/Harrisburg, N.A. v. Kessler, 46 A.3d 724, 728 (Pa. Super. 2012), appeal denied, 62 A.3d 380 (Pa. 2013). Here, Appellants argue in both claims that the trial court erred in finding that Liberty Mutual is the same insurance company as Appellants prior insurer, Prudential, and was therefore not required to send them a new tort election form. (Appellants Brief, at 7-11). We disagree. Pennsylvania s Motor Vehicle Financial Responsibility Law (MVFRL) imposes certain requirements on insurance companies with respect to tort status notifications. Section 1705 provides in relevant part: Each insurer, not less than 45 days prior to the first renewal of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance.... * * * Each insurer, prior to the first issuance of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, - 4 -

5 shall provide each applicant with the notice required by paragraph (1). A policy may not be issued until the applicant has been provided an opportunity to elect a tort option. 75 Pa.C.S.A. 1705(a)(1) and (4) (emphases added). Another section of the MVFRL requires an insurance company to send information annually about the differences between full tort and limited tort options:... [A]n insurer must, at the time of application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured the following notice of the availability of two alternatives of full tort insurance and limited tort insurance Pa.C.S.A (b) (emphases added). Once an individual selects a particular type of tort insurance, it remains in effect until and unless the insured chooses to change it: The tort option elected by a named insured shall apply to all private passenger motor vehicle policies of the named insured issued by the same insurer and shall continue in force as to all subsequent renewal policies, replacement policies and any other private passenger motor vehicle policies under which the individual is a named insured until the insurer, or its authorized representative, receives a properly executed form electing the other tort option. 75 Pa.C.S.A. 1705(b)(1) (emphasis added). Here, Appellants do not dispute that they elected limited coverage at the inception of their auto policy with Prudential. (See Action for Declaratory Judgment, 8/17/11, at unnumbered page 2 10). However, they claim that, when Liberty Mutual acquired their policy from Prudential in 2003, it was a new insurance company within the meaning of the MVFRL and therefore, Liberty Mutual was required to send them a new tort election - 5 -

6 form. (See Appellant s Brief, at 7-11). The trial court disagreed and found that the Liberty Mutual Policy was a replacement or renewal policy, and therefore the MVFRL did not require the issuance of a new tort election form. (See Trial Ct. Op., 1/23/13, at 8). We agree. Initially we note, as did the trial court (see id. at 8-9), that the only differences pointed to by Appellants between the two policies were the name of the company and the policy number. (See Appellant s Brief, at 7-11). Appellants do not contend that that Liberty Mutual required them to apply for new insurance coverage when it acquired their policy. (See id.). Appellants also do not contest that their motor vehicle insurance coverage continued, without interruption, from the date they purchased it through the time of the accident. (See id.). In Breuninger v. Pennland Ins. Co., 675 A.2d 353 (Pa. Super. 1996), this Court held that the transfer of a motor vehicle insurance policy from one company to another does not constitute a new policy. See id. at In Breuninger, the appellant sought to determine the amount of her uninsured/underinsured motorist coverage (UM/UIM), a provision of the MVFRL that is similar to the tort election; while 75 Pa.C.S.A requires a notice to be sent regarding UM/UIM coverage, the statute does not mandate an election form. See 75 Pa.C.S.A The appellant purchased motor vehicle insurance from one company and was sent the Section notice; however, her insurance company - 6 -

7 sold her policy to the appellee, which did not send a new Section notice. See id. at 355. The appellant continued to renew her policy under the same terms for the next several years. See id. As in the instant matter, the appellant in Breuninger was involved in an accident and sought greater UM/UIM coverage than she originally selected. See id. Again, like the instant matter, the appellant claimed she was entitled to reform her policy retroactively because the appellee never sent her a new Section notice when it acquired her policy. See id We disagreed, stating: We find that the language of Section 1791 is plain, unambiguous and conveys a clear and definite meaning. Also, we find that the context of the statute does not require a meaning other than the popular, plain and everyday meaning of the words employed. Clearly, as the express language of Section 1791 indicates, the MVFRL requires insurers to provide individuals with notice concerning the availability of UM/UIM coverage only at the time of application for original coverage or at the time of the first renewal after October 1, Here, the statute does not define the meaning of application for original coverage or at the time of the first renewal after October 1, Therefore, we shall construe the language of Section 1791 according to its common, plain and everyday meaning. We note that Black s Law Dictionary defines application in the context of insurance as [t]he preliminary request, declaration, or statement made by a party applying for an insurance policy.... Black s Law Dictionary 90 (5th ed. 1979). The record is clear that the insured never applied for original coverage with [the appellee]. That is, she never made a preliminary request, declaration or statement in regard to the insurance policy at issue after it was transferred to [the appellee]. In fact, it would have been impossible for the insured to have done so because the policy held by [the appellee] was exactly the same policy held by [the original insurer]. It is - 7 -

8 undisputed that the insured s policy remained in effect and unchanged when it was transferred to [the appellee]. In addition, the record is clear that she was provided with notice as to the available UM/UIM coverage prior to her first renewal after October 1, 1984, when the policy at issue was held by [the original insurer. Therefore, we find that based on the express language of Section 1791, the legislature did not intend for another Important Notice to be sent to the insured by [the appellee] in this situation. Accordingly, we reject the insured s argument that [the appellee] was required to provide her with an Important Notice form pursuant to Section See id. at We see no meaningful distinction between Breuninger and the instant matter. 2 Liberty Mutual was not a new insurance company which issued a new policy to Appellants, requiring the issuance of a new tort election form pursuant to Section Thus, the trial court did not err in so holding. Accordingly, for the reasons discussed above, we affirm the decision of the trial court. Order affirmed. Jurisdiction relinquished. 2 We note with disapproval Appellants attempts to distinguish Breuninger by relying on this Court s unpublished memorandum in Hockenberry v. Liberty Mutual Fire Ins. Co., 1292 MDA 2011 (Pa. Super. March 15, 2012) (unpublished memorandum). (See Appellant s Brief, at 7, 11, 12, 13, 14). It is long settled that a party may not cite an unpublished decision except in limited situations such as res judicata or collateral estoppel. See Coleman v. Wyeth Pharmaceutical, Inc. 6 A.3d 502, 522 n.1 (Pa. Super. 2010); see also Superior Court I.O.P (A)

9 Judgment Entered. Prothonotary Date: 7/31/