J-A15026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HILDA CID, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ERIE INSURANCE GROUP A/K/A
ERIE INSURANCE EXCHANGE A/K/A
ERIE INSURANCE COMPANY,
Appellee No. 3041 EDA 2015
Appeal from the Order Entered August 21, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 1874 – June Term, 2015
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
DISSENTING MEMORANDUM BY JENKINS, J.: FILED OCTOBER 20, 2016
I respectfully dissent. The insurance agreement between Hilda Cid
and Erie Insurance Exchange (“Erie”) provides that the parties must
arbitrate disputes over “whether or not anyone we protect is legally entitled
to recover damages from the owner or operator of an uninsured motor
vehicle or underinsured motor vehicle.” Cid’s contract and tort actions in her
Philadelphia County action fall within this provision, because they turn upon
whether Cid is entitled uninsured (“UM”) or underinsured (“UIM”) motorist
coverage. In other words, in my view, the arbitration clause not only
encompasses UM/UIM claims but also contract and tort claims that, as in this
case, are actually UM/UIM claims in disguise.
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We held several years ago that Cid was required to arbitrate her UIM
claim against Erie Insurance Exchange (“Erie”) in Montgomery County,
despite her attempt to compel arbitration in Philadelphia County. Cid v.
Erie Insurance Exchange, 63 A.3d 787 (Pa.Super.2013). In 2015, Cid
filed the present action against Erie in the Court of Common Pleas of
Philadelphia County alleging claims for breach of contract, fraud, bad faith,
abuse of process and civil conspiracy. The Philadelphia court sustained
Erie’s preliminary objections and ordered her action transferred to
Montgomery County, reasoning that all issues in Cid’s complaint depended
“on a finding of whether she is entitled to UM/UIM benefits under the Policy.”
I agree with the trial court’s conclusion. Cid alleges in her breach of
contract action that Erie breached the insurance agreement by denying her
UIM claim. Cid alleges in her tort claims for fraud, bad faith, abuse of
process and civil conspiracy by Erie acted tortiously by denying her UIM
claim. All of these claims rise or fall on whether she is entitled to UIM
coverage under her policy. Given this direct relationship between Cid’s UIM
claim and her contract and tort claims, she should litigate her tort and
contract claims in the same forum and same proceeding as her UIM claim –
an arbitration proceeding in Montgomery County.
The analysis in IDT Corp. v. Clariti Carrier Servs., Inc., 772 A.2d
1019 (Pa.Super.2001), provides analogous support for this result. There, a
commercial agreement provided that (1) “the Agreement and the
relationship between the Parties hereto will be governed by the laws of
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England”; (2) any dispute that the parties could not resolve by mediation
“shall be referred to and finally resolved by arbitration under the LCIA
(London Court of International Arbitration)”; and (3) “the seat of the
arbitration shall be London, England.” IDT Corporation filed an action
against Clariti Carrier Services for, inter alia, alter ego and unjust
enrichment. In accordance with the arbitration and forum selection clauses,
the trial court sustained Clariti’s preliminary objections and held that IDT
Corporation was required to pursue arbitration in London.
On appeal, this Court affirmed, reasoning:
the forum selection clause is written in broad terms. It states
that both ‘this Agreement and the relationship between the
Parties hereto will be governed by the laws of England.’ …
Counts II, IV and V each make reference to the Agreement and
seek recovery either under the terms of the agreement or for
services rendered as a result of the agreement. Thus, we
conclude that these counts relate to the alleged contractual
relationship between the parties. As such we conclude that they
are subject to the terms of the forum selection clause included in
the Agreement.
Id., 772 A.2d at 1023.
The alter ego and unjust enrichment claims in IDT Corp. “relate[d] to
the alleged contractual relationship between the parties.” Id. at 1023.
Here, Cid’s contract and tort claims do not merely “relate” to her claim for
UIM coverage; they depend upon her UIM claim. Thus, I view the policy as
requiring arbitration of Cid’s contract and tort claims with her UIM claim.
For these reasons, I respectfully dissent.
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