J-A27032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COLLEEN M. TRIMMER, Individually; : IN THE SUPERIOR COURT OF
COLLEEN M. TRIMMER, Personal : PENNSYLVANIA
Representative of the Estate of MARK :
P. TRIMMER, Deceased; DARION J. :
TRIMMER, a Minor, by Colleen M. :
Trimmer, Parent and Natural Guardian; :
and ANTHONY K. TRIMMER, a Minor, by :
Colleen M. Trimmer, Parent and Natural :
Guardian, :
:
Appellants :
:
v. :
:
NATIONWIDE MUTUAL INSURANCE :
COMPANY, a Corporation, AND CARL G. :
STEVENS AND ANNE E. STEVENS, His :
Wife, :
:
Appellees :
:
v. :
:
AARON K. STEVENS, :
:
Appellee : No. 54 WDA 2014
Appeal from the Order entered on January 6, 2014
in the Court of Common Pleas of Allegheny County,
Civil Division, No. GD 12-012754
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 21, 2014
Colleen M. Trimmer, individually and as the representative of the
Estate of Mark P. Trimmer, deceased; Darion J. Trimmer, a minor, by
Colleen M. Trimmer, parent and natural guardian; and Anthony K. Trimmer,
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a minor, by Colleen M. Trimmer, parent and natural guardian (collectively
“Appellants”) appeal the Order granting Nationwide Mutual Insurance
Company’s (hereinafter “Nationwide”) Motion for Summary Judgment. We
affirm.
This case arises from a motor vehicle accident that occurred on June 5,
2011, when Aaron K. Stevens (“Stevens”), while operating a 2003 Hyundai
Sonata (“Sonata”), caused the Sonata to collide into another vehicle in which
Mark P. Trimmer (“Trimmer”) was a passenger.1 Trimmer sustained fatal
injuries as a result of the collision.
The Sonata was owned by Stevens’s brother, Corey Stevens
(“Brother”), and was insured under a policy issued to Brother by Geico
Insurance Company (“Geico”) at the state mandated minimum insurance
requirements (“the Geico policy”).2 At the time of the accident, both
Stevens and Brother lived with their parents, Carl and Anne Stevens
(“Parents”), in Parents’ home.3
1
The police report indicates that, immediately following the accident, police
detected a strong odor of alcohol on Stevens, and Stevens admitted that he
had been drinking. Police Incident Report, 6/5/11, at 3. A chemical breath
test revealed that Stevens’s blood alcohol level was 0.133%. See id.
2
The limits of liability for bodily injury/death applicable to the Geico policy
are $15,000 per person/$30,000 per occurrence.
3
Geico determined that Stevens was an insured under the Geico policy on
the basis that Stevens resided in Brother’s household. Thereafter, Geico
tendered its full policy limits, and is not a party to this action.
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In July 2010, Parents purchased a new automobile insurance policy
from Nationwide (“the Nationwide auto policy”) to provide coverage for their
2002 Toyota Camry.4 When the Nationwide auto policy was issued, it
included an endorsement excluding Stevens as an insured under the policy
while “operating any motor vehicle to which this policy applies” (“the
excluded driver endorsement”).5 See Nationwide Auto Policy, Endorsement
No. V-3283. The Nationwide auto policy was in effect at the time of the
accident.
Following the accident, Appellants filed suit against Stevens for the
death of Trimmer. Based on the excluded driver endorsement that excluded
Stevens as an insured driver under the Nationwide auto policy, Nationwide
denied coverage for the loss. Thereafter, Appellants filed a Complaint for
Declaratory Judgment, seeking a declaration that Stevens was an insured
driver under the Nationwide policies, and that Nationwide was obligated to
4
The limits of liability for bodily injury/death applicable to the Nationwide
auto policy are $300,000 per person/$300,000 per occurrence. Parents also
purchased an excess/umbrella policy from Nationwide (“the Nationwide
excess/umbrella policy”). The limits of liability for bodily injury/death
applicable to the Nationwide excess/umbrella policy are $1,000,000 per
occurrence. Appellants contend that the Nationwide excess/umbrella policy
provides additional liability coverage to Stevens in excess of the $300,000
limits of the Nationwide auto policy.
5
In 2009, prior to Parents’ purchase of the Nationwide auto policy, Stevens
was convicted of driving under the influence (“DUI”), and received a 90-day
suspension of his driver’ license. See Motor Vehicle Record, 7/19/10, at 1.
Stevens’s driving record reveals several other incidents, accidents and
violations in the two years prior to the issuance of the Nationwide auto
policy. See id.
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extend coverage to Stevens for loss resulting from the accident. Following
discovery, Nationwide filed a Motion for Summary Judgment, which the trial
court granted. Appellants filed a timely Notice of Appeal.
On appeal, Appellants raise the following issues for our review:
1. Whether, when there exists genuine issues of material fact as
to whether Nationwide refused to write [Parents’ an]
automobile policy with [] Stevens as a covered driver, the
[trial] court erred in granting Nationwide’s Motion for
Summary Judgment[?]
2. Whether, when there exists genuine issues of material fact as
to whether [] Stevens was a member of [Parents’] household
or [Brother’s] household, the [trial] court erred in granting
Nationwide’s Motion for Summary Judgment[?]
Appellants’ Brief at 4 (issues renumbered for ease of disposition).
Our standard of review of the grant of a motion for summary judgment
is well-settled:
We view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review
of a trial court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial court’s
order will be reversed only where it is established that the court
committed an error of law or abused its discretion.
Phillips v. Lock, 86 A.3d 906, 912 (Pa. Super. 2014) (citation omitted).
In their first issue, Appellants argue that summary judgment was
improperly granted because Nationwide’s exclusion of Stevens from the
Nationwide auto policy was not permissible under the Motor Vehicle Financial
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Responsibility Law (“MVFRL”), 75 Pa.C.S.A. § 1701 et seq. Brief for
Appellants at 12. Specifically, Appellants point to section 1718(c), which
provides as follows:
(c) Named driver exclusion. An insurer or the first named
insured may exclude any person or his personal representative
from benefits under a policy enumerated in section 1711 or 1712
when any of the following apply:
(1) The person is excluded from coverage while
operating a motor vehicle in accordance with the act
of June 5, 1968 (P.L.140, No.78) [this act, formerly
40 P.S. § 1008.1, et seq., was repealed and replaced
by 40 P.S. § 991.2001 et seq.], relating to the
writing, cancellation of or refusal to renew policies of
automobile insurance.
(2) The first named insured has requested that the
person be excluded from coverage while operating a
motor vehicle. This paragraph shall only apply if the
excluded person is insured on another policy of
motor vehicle liability insurance.
75 Pa.C.S.A. § 1718(c)(1), (2); see also Appellants’ Brief at 12-13.
Appellants point to 40 P.S. § 991.2003(a), which pertains to issuance,
renewal, cancellation and refusal of automobile insurance, and contend that
“[n]one of the circumstances set forth in § 991.2003(a) would have given
Nationwide the right to refuse to write the [Nationwide auto] policy [under
section 1718(c)(1)] had [] Stevens been included as a covered driver.”
Appellants’ Brief at 13. Appellants contend that section 1718(c)(1) does not
apply to this dispute because the evidence supports a finding that
Nationwide did not exclude Stevens from coverage, pursuant to section
1718(c)(1); rather, Parents requested that Stevens be excluded from
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coverage, thereby requiring us to analyze the propriety of Nationwide’s
exclusion of Stevens as an insured driver under section 1718(c)(2). Id.
Here, the record reflects that, in 2009, prior to Parents’ purchase of
the Nationwide auto policy, Stevens had been convicted of DUI and received
a 90-day suspension of his driver’s license. See Motor Vehicle Record,
7/19/10, at 1. The insurance agent who sold the Nationwide auto policy to
Parents, Jeffrey Dougherty (“the insurance agent”), testified that after
meeting with Carl Stevens, he ran basic information though the Nationwide
quote computer program, which indicated that Parents did not qualify for
insurance through Nationwide because Stevens could not be written as an
insured due to his driving record. N.T., 7/9/13, at 13-17, 22. Thereafter,
the insurance agent provided Parents with a quote for an auto policy through
Nationwide that excluded Stevens.6 Id. at 18. The insurance agent also
advised Parents that auto coverage for Stevens could be obtained from a
high-risk insurance company; however, the premium quote from a high-risk
insurance company would be much higher. Id. at 19-20, 23-24. The agent
testified that Parents’ options were to either purchase a policy from
Nationwide that excluded Stevens, or purchase a much more expensive
policy that included Stevens as an insured from a high-risk insurance
company. Id. at 20-21. According to the insurance agent, Parents elected
6
The quote also excluded Brother because he had his own insurance.
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to purchase a policy from Nationwide that excluded Stevens as an insured
driver. Id. at 24.
The agent’s testimony is consistent with the testimony of Carl Stevens,
who stated that, because of Stevens’s driving record, Parents “would have
either been denied insurance or it would have been exorbitantly expensive.”
N.T., 4/16/13, at 16. Carl Stevens stated several times that he could not
remember the impetus behind the decision to exclude Stevens from the
Nationwide auto policy, but indicated that it was either because coverage for
Stevens was refused immediately or the premiums were too high. Id. at
17-18, 20.
Our review of the record discloses no genuine issue of material fact
regarding Nationwide’s refusal to issue to Parents an automobile policy
which included Stevens as a covered driver. Rather, the record clearly
discloses that Nationwide refused to insure Stevens due to his extensive
driving record, including DUI. Having concluded that Nationwide refused to
write a policy that included Stevens, the provisions of section 1718(c)(1)
apply to this dispute. Nationwide’s exclusion of Stevens is valid, therefore, if
the requirements of section 1718(c)(1) are met, i.e., Stevens must have
been excluded in accordance with section 991.2003(a), relating to the
writing of automobile insurance. See Donegal Mut. Ins. Co. v. Fackler,
835 A.2d 712, 718 (Pa. Super. 2003).
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We disagree with Appellants’ argument that section 991.2003(a)
provides Nationwide no basis for refusing to insure Stevens. Section
991.2003(a) enumerates of list of reasons for which an insurer may not
refuse to write a policy of insurance, including, inter alia age, residence,
race, color, creed, national origin, ancestry, marital status, sex, lawful
occupation, illness, disability, certain types of accidents. See 40 P.S.
§ 991.2003(a). An insurer may properly refuse to issue an insurance policy
to a prospective insured under section 1718(c)(1) so long as the insurer’s
decision is not based on any of the reasons enumerated in section
991.2003(a). See Robbins v. Ins. Dep’t., 11 A.3d 1048, 1052 (Pa.
Cmwlth. 2010) (stating that an insurer may properly decline to write a policy
for a reason not enumerated in section 991.2003(a)).
Here, Appellants misapprehend the construction of section
991.2003(a), and have argued that Nationwide was not permitted to refuse
to insure Stevens, because DUI was not an enumerated factor under that
section. Appellants’ Brief at 14. However, it is precisely because DUI was
not an enumerated factor under section 991.2003(a) that Nationwide was
entitled to refuse to issue automobile coverage to Stevens. Nowhere in
section 991.2003(a) does it state that DUI is a prohibited reason for refusing
to write a policy. Nationwide, therefore, was permitted to decline to write a
policy to include Stevens based on his prior DUI. See Robbins, 11 A.3d at
1052.
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The overarching public policy of the MVFRL is concern over the
increasing cost of insurance premiums. See Progressive N. Ins. Co. v.
Schneck, 813 A.2d 828, 831-32 (Pa. 2002). This public policy is
exemplified by section 1718(c), which permits insurers to use policy
exclusions in order to avoid covering someone with a bad driving record.
See id. In excluding Stevens from coverage, Nationwide clearly recognized
the risk associated with his driving Parents’ insured vehicle, and sought to
avoid liability for precisely the scenario that is the subject of this action.
See Fackler, 835 A.2d at 717 (stating that insurer was entitled to exclude
defendant from coverage under an automobile policy due to a prior DUI
offense, and properly denied coverage under the policy when defendant,
while DUI, was involved in an accident involving the insured vehicle). In
return for Stevens’s exclusion and the concomitant risk reduction, Parents
paid a lower premium than they would have paid had they purchased
insurance from a high-risk insurance company to include Stevens in their
policy. This is consistent with the public policy associated with the MVFRL.
See id.
Having determined that Nationwide properly declined to insure
Stevens under section 1718(c)(1), we need not address Appellants’ second
argument regarding section 1718(c)(2). See Fackler, 835 A.2d at 718
(holding that, under 1718(c), the presence of either circumstance
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enumerated in subsection (c)(1) or (c)(2) would justify a lawful exclusion
pursuant to the MVFRL).
Because our review of the record, viewed in the light most favorable to
Appellants, discloses no genuine issue of material fact, we discern no abuse
of discretion by the trial court in granting summary judgment in favor of
Nationwide.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2014
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