J.A05034/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIE INSURANCE EXCHANGE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
L. GARY BRITCHER AND JANE BRITCHER, :
INDIVIDUALLY AND AS PARENTS AND :
NATURAL GUARDIANS OF MICHAEL :
BRITCHER, A MINOR AND L. GARY :
BRITCHER MASONRY, INC., :
:
Appellant :
:
v. :
:
BODY-BORNEMAN ASSOCIATES, INC. : No. 1540 EDA 2013
Appeal from the Judgment August 10, 2011
In the Court of Common Pleas of Montgomery County
Civil Division No(s).: 05-09485
BEFORE: ALLEN, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 29, 2014
Appellants, L. Gary Britcher and Jane Britcher, individually and as
parents and natural guardians of Michael Britcher, a minor,1 and L. Gary
Britcher Masonry, Inc., appeal from the judgment entered in the
Montgomery County Court of Common Pleas in favor of Appellee, Erie
Insurance Exchange (“Erie”). Based upon an automobile insurance policy
*
Former Justice specially assigned to the Superior Court.
1
Michael is not presently a minor.
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obtained by Body-Borneman Associates, Inc. (“BBA”),2 Appellants contend
that Erie was obligated to provide insurance coverage to them. We affirm
based on waiver under Pa.R.A.P. 1925(b).
We state the facts and procedural history as set forth by a prior panel
of this Court:
The facts regarding this case begin in 1985,
when Mr. Britcher hired BBA to act as his
insurance expert and relied on BBA’s
professional opinion and expertise to tell him
what coverage he needed to insure his masonry
business, L. Gary Britcher doing business as L.
Gary Britcher Masonry. BBA is a business that
deals with prospective insureds, either corporate
or individual, in order to procure insurance for
them. BBA can secure coverage for prospective
insureds with Erie, or eight or nine other
insurance carriers.
Using BBA, Mr. Britcher submitted an
Application for Auto Coverage. Erie accepted
the application and issued a Commercial policy
to L. Gary Britcher doing business as L. Gary
Britcher Masonry for the term of August 27,
1985, through August 27, 1986. Initially the
policy provided full coverage for Mr. Britcher
and his relatives (namely his wife and two
sons), because as a sole proprietor, Mr. Britcher
was the individual named insured. Accordingly,
the policy provided first party benefits for Mr.
Britcher and his family while occupants in any
car, whether named in the policy or not, or as
pedestrians. Thereafter, the policy renewed
annually.
In 1996, Mr. Britcher incorporated his
2
We explain the status of BBA below.
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business, changing the named insured from an
‘individual’ to a ‘corporation,’ Britcher Masonry,
Inc. This change was set into motion by Mr.
Britcher and Mr. Body, an agent of BBA. Mr.
Body traveled to the insureds’ home and
discussed how to maintain the same insurance
coverage, despite the business’ corporate
structure change. During that discussion, Mr.
Britcher informed Mr. Body that he wanted to
secure substantially similar coverage.
Contrary to Mr. Britcher’s request, when his
company underwent a corporate change, his
Commercial Auto policy changed as well. Since
a corporation is not an individual and thus
cannot have relatives, the insureds no longer
had the same coverage as before and thus only
had first party benefits coverage and
uninsured/underinsured motorist coverage while
occupying only cars insured under the
Commercial Auto Policy. No longer were the
insureds covered as pedestrians or occupants in
cars not covered under the policy. As a result,
it is alleged that in procuring the policy at issue,
BBA failed to take the actions necessary to add
available endorsements to ensure that the same
coverage existed as before, thus leaving a gap
in coverage. At the time of the change, no
conversations were ever held between Mr.
Britcher and Erie, nor BBA and Erie’s
Underwriting Department, regarding the policy
change; BBA never told Mr. Britcher that it was
an agent for Erie, and Mr. Britcher never
believed that BBA was acting on Erie’s behalf.
Further, Mr. Britcher testified that had he been
informed of the additional endorsements
available, he would have obtained it to secure
substantially similar coverage.
The instant dispute arose on December 23,
2004, when Michael Britcher sustained serious,
nearly fatal, injuries, in a car accident while
riding as a passenger in an automobile operated
by a friend. When the insureds initiated a claim
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for first party and underinsured motorist
benefits, the claim was denied. Since the post-
1996 policy covered the insureds only while
occupying cars covered under the policy,
Michael Britcher’s claim1 for coverage was
denied.
__________________
1
Since Michael Britcher was a minor at the time
of the accident, the claim was initiated by his
parents, on his behalf, as his natural guardians.
Erie filed a declaratory judgment action on March 24,
2005, seeking a determination that it was not obligated to
provide coverage to Appellants.
On May 23, 2005, Appellants filed two pleadings. That
morning, they filed a joinder complaint naming BBA as an
additional defendant and raising a claim of negligence.
That evening, Appellants filed an answer to Erie’s
complaint with a new matter and raised a claim—which
they labeled a “counterclaim”—of negligence against BBA.
With respect to the declaratory judgment action, a
bench trial was held on April 11, 2011. At trial, Appellants
primarily presented two defenses to the claim that Erie
was not obligated to provide insurance coverage. First,
Appellants asserted that the insurance policy was
ambiguous with respect to the coverage of the vehicles.
Specifically, they maintained that because they leased—
and did not own—the vehicles, there was no coverage
under the policy. Appellants extrapolated that because
they paid premiums for no coverage, the policy was
illusory. Thus, Appellants concluded the ambiguous policy
should be construed in favor of coverage. Second,
Appellants suggested that BBA was an agent of Erie. Erie,
Appellants theorized, therefore had an affirmative
obligation to inform them of any coverage gap.
Initially, the court held that the policy was not
ambiguous and therefore not illusory. Second, the court
held that BBA was not an agent of Erie. Thus, the court
opined, Erie did not have to provide insurance benefits to
Appellants pursuant to the reasonable expectations
doctrine, which examines whether the insured reasonably
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expected coverage.
Appellants filed a post-trial motion requesting an order
compelling Erie to provide coverage. Erie opposed and, for
the first time, alleged that Appellants settled their
negligence claim against BBA:
Interestingly, following the non-jury trial on the
legal coverage issue, the jury trial of the
negligence claims of Appellants against BBA,
was to begin. Just as trial was to begin, the
claims of Appellants against BBA, seeking
recovery of damages, i.e. the first party benefits
and UIM benefits, as a result of the failure of
the broker to procure appropriate insurance
coverage, was settled. The terms of the
settlement were apparently confidential.
However, the insurer for BBA, made as a
condition of the settlement the requirement that
Appellants file these Post-Trial Motions and
continue to pursue the coverage claims against .
. . Erie. Apparently, Appellants, who have been
compensated for the loss, are pursuing this
appeal only because the insurer for the broker
required same as part of the settlement.
Mem. of Law of Erie in Opp’n to Mot. for Post-Trial Relief,
6/27/11, at 2 n.1. The docket and certified record reflects
no discontinuance or other appropriate order disposing of
Appellants’ outstanding claims against BBA.
The court denied Appellants’ post-trial motion on July
19, 2011. The court explained that the reasonable
expectations “doctrine is only applied in very limited
circumstances to protect a non-commercial insured from
policy terms not readily apparent and from insurer
deception.” Appellants, the court observed, are a
commercial insured. Further, the court noted, BBA—and
not Erie—made the representations regarding coverage.
The court also held that the insurance policy was not
illusory because it did provide coverage for the insured
vehicles. Finally, the court opined that BBA’s
representations did not bind Erie because BBA was acting
as an insurance broker and not as an agent of Erie.
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Appellants filed a notice of appeal on July 25, 2011.
Judgment was entered in favor of Erie and against
Appellants on August 10, 2011.
Erie Ins. Exch. v. Britcher, 2002 EDA 2011, slip op. at 2-6 (Pa. Super.
Feb. 6, 2013) (“Erie I”) (footnote, alterations, and most citations omitted).
The Erie I Court quashed Appellants’ appeal because the negligence
claims against BBA remained outstanding. On March 8, 2013, Appellants
moved to discontinue the action against BBA, which the court granted on
May 17, 2013.3 Appellants timely appealed.
On July 10, 2013, the court docketed an order instructing Appellants
to comply with Pa.R.A.P. 1925(b) within twenty-one days. The docket entry
complied with Pa.R.C.P. 236. The order notified Appellants “that issues shall
be deemed waived if not properly included in the Statement timely filed and
served pursuant to Pa.R.A.P. 1925(b).” Order, 7/10/13. The record and
docket do not reflect Appellants’ filing of a Rule 1925(b) statement, but the
court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Recently, in In re Boyle, 77 A.3d 674 (Pa. Super. 2013), this Court
discussed the background of Rule 1925:
In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306
(1998), our Supreme Court held that in order to preserve
claims for appellate review, an appellant must comply with
a trial court order to file a Statement of Matters
Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b).
3
The order was dated and mailed on May 15, 2013.
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Our Supreme Court recently reiterated the bright-line rule
established in Lord, holding that “failure to comply with
the minimal requirements of Pa.R.A.P. 1925(b) will
result in automatic waiver of the issues raised [on
appeal].” If an appellant does not comply with an order to
file a Rule 1925(b) statement, all issues on appeal are
waived—even if the Rule 1925(b) statement was served on
the trial judge who subsequently addressed in an opinion
the issues raised in the Rule 1925(b) statement. Although
recognizing that such a strict application of the Rule may
be harsh, our Supreme Court stressed that failure to file
the Rule 1925(b) statement “results in the inability of the
appellate courts to determine which issues were presented
to the trial court, and thus preserved for appeal, and
whether the trial court received the statement within the
required time period.”
However, as an en banc panel of this Court has recently
held, strict application of the bright-line rule in Lord
necessitates strict interpretation of the rules regarding
notice of Rule 1925(b) orders. The Pennsylvania Rules of
Civil Procedure require the prothonotary to give written
notice of the entry of a court order to each party and to
note on the docket that notice was given. [Pa.R.C.P. 236].
Boyle, 77 A.3d at 677 (some citations and punctuation omitted); accord
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 223 (Pa. Super. 2014) (stating appellants must comply
whenever trial court orders them to file Rule 1925 statement of errors
complained of on appeal).
Instantly, the trial court’s July 10, 2013 order complied with Rule
1925(b), and the court gave written notice of the order to each party and
indicated on the docket that notice was given. See Boyle, 77 A.3d at 677.
To quote the Boyle Court, because we have found “no error in the trial
court’s order or the trial court docket, and no applicable exception which
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could prevent waiver, we are constrained to find all of Appellants’ issues
waived for failure to file a timely court-ordered 1925(b) statement.” See id.
at 678. Accordingly, we affirm the judgment because Appellants failed to file
a Rule 1925(b) statement. See id.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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