J. A12037/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DONNA MARIE WILLIAMSON, : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS : PENNSYLVANIA
ADMINISTRATRIX OF THE ESTATE OF :
JOHN P. WILLIAMSON, JR., :
:
Appellant :
:
v. :
:
LIBERTY MUTUAL FIRE INSURANCE :
COMPANY AND LIBERTY MUTUAL : No. 2629 EDA 2017
INSURANCE, T/D/B/A LIBERTY :
MUTUAL GROUP :
Appeal from the Judgment Entered September 21, 2017,
in the Court of Common Pleas of Delaware County
Civil Division at No. 13-000742
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 10, 2018
Donna Marie Williamson, individually and as Administratrix of the Estate
of John P. Williamson, Jr. (hereinafter, “decedent”), appeals from the
September 21, 2017 judgment entered in favor of appellees, Liberty Mutual
Fire Insurance Company and Liberty Mutual Insurance, t/d/b/a Liberty Mutual
Group (collectively, “Liberty Mutual”), following the denial of appellant’s
post-trial motions.1 After careful review, we affirm.
1 Appellant purports to appeal from the trial court’s July 24, 2017 order
denying her post-trial motions; however, “an appeal properly lies from the
entry of judgment, not from the denial of post-trial motions.”
Commonwealth Fin. Sys., Inc. v. Smith, 15 A.3d 492, 493 n.1 (Pa.Super.
2011) (citations omitted). We have amended the caption accordingly.
J. A12037/18
The trial court summarized the relevant facts and procedural history of
this case as follows:
This action was commenced by summons on
January 24, 2013. [Appellant] filed [her] complaint
on February 25, 2015. It was averred that on
January 25, 2009, [decedent] was a passenger in a
motor vehicle owned by John P. Williamson, Sr. and
operated by Andrew Cardamone[,] which was
involved in a single vehicle accident in Williamsport,
Pennsylvania that resulted in the death of [decedent]
and fellow passenger Ian Alexander. The accident
caused personal injury to three other passengers in
the vehicle. It is averred that the accident was caused
solely by the carelessness and negligence of
Andrew Cardamone. [Appellant] was insured
continuously under an automobile policy of Liberty
Mutual since 1982. At the time of the accident, Liberty
Mutual had an automobile policy [that] provided
John P. Williamson, Sr. $500,000.00 in single limit
coverage and $1,000,000.00 in umbrella coverage.
Andrew Cardamone had a separate policy issued by
Liberty Mutual with a $300,000 limit. Total available
coverages amounted to total $1,800,000.00.
[Appellant] further averred that the automobile policy
also provided uninsured and underinsured coverage in
the amount of two million dollars. [Appellant] claimed
that, based upon alleged misrepresentations by
Liberty Mutual, [appellant] agreed to a settlement of
$1,800,000.00 . . . , which was distributed
$600,000.00 to the estate of Ian Alexander,
$600,000.00 to the [decedent’s] estate, with the
remaining $600,000.00 divided among the three
surviving passengers. [Appellant] averred that they
had submitted an underinsured claim to Liberty
Mutual but that the matter was unresolved.
[Appellant] offered Liberty Mutual a $600,000.00
offset against the underinsured policy limits of
$2,000,000.00. The complaint contained counts for
loss of consortium (Count 1), wrongful death action
(Count II) and survival action (Count III). Liberty
Mutual responded with an answer and new matter
filed on April 17, 2015. On December 29, 2015, the
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Honorable Charles Burr, Senior Judge, entered an
order denying [Liberty Mutual’s] Motion for Summary
Judgment without prejudice to resubmit after the
close of discovery. The case was assigned to this
Court in February, 2016 and was listed for trial for its
June 13, 2016 through July 8, 2016 trial term. Oral
argument on [Liberty Mutual’s] Second Motion for
Summary Judgment was conducted in court on
July 21, 2016. That motion was denied on July 22,
2016 and trial was continued to February, 2017. This
Court, on November 2, 2016, granted [Liberty
Mutual’s] Motion for Leave to Re-open Discovery and
granted the parties an extension to complete any
discovery including depositions in this proceeding.
Trial remained scheduled for the Court’s February 13,
2017 through March 10, 2017 term. On February 16,
2017, this Court denied [Liberty Mutual’s] Third
Motion for Summary Judgment. On that date, this
Court also entered an Order that the motion of
[Liberty Mutual] to compel the deposition of Donna
Marie Williamson and Elizabeth Williamson was moot.
Finally, this Court reviewed [Liberty Mutual’s] Motion
in Limine to Preclude [appellant’s] Expert Testimony.
The Court examined the motion with [appellant’s]
counsel and granted the motion to preclude expert
testimony due to the representation of [appellant’s]
counsel that no expert would be produced at trial and
due to the fact that [appellant] had missed the
deadline for naming an expert in this Court’s
scheduling order, had ample opportunity to conduct
discovery relative to an expert and did not produce an
expert report. Trial was to commence February 21,
2017. [Appellant] was required to identify all expert
trial witnesses at least eight weeks prior to the trial
date, in accordance with this Court’s Scheduling Order
dated February 18, 2016. The parties appeared on
February 21, 2017 but trial was continued due to
[appellant’s] request for a continuance for personal
reasons. The parties were then given a new date
certain for trial of March 7, 2017.
....
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At the commencement of trial on March 7, 2017, this
Court approved [appellant’s] request to file an
Amended Complaint. Trial commenced with
[appellant] seeking recovery for loss of consortium
(Count I), wrongful death (Count II), survival
(Count III), breach of contract (Count IV), bad faith
(Count V) and deceit (Count VI). The parties
stipulated that Count V and Count VI were withdrawn
from [appellant’s] Amended Complaint. Donna Marie
Williamson and John P. Williamson, Sr. testified
poignantly on behalf of [decedent]. The Williamsons
were married for thirty-five years at the time of this
Court’s hearing. Together, they had three children:
Elizabeth, age thirty-four, and son Daniel, age
thirty-two at the time of trial. [Decedent], in January
2009, was age twenty-one and in his last semester at
Drexel University pursuing a Bachelor of Science in
Biology degree. Upon graduation, he planned to
attend an eleven-month program at Hahnemann to
pursue a bachelor’s degree in nursing. Mrs. Williamson
recounted her son’s achievements in cross-country
and track, in education and in extracurricular
activities. [Decedent] was also a person of strong
faith and organized and participated in many
charitable endeavors. He was a member of a
fraternity at Drexel University. On January 19, 2009,
[decedent] called his mother and requested to borrow
the family SUV (2002 Chevrolet Trailblazer) for
visiting brother fraternities at other universities.
Mrs. Williamson instructed [decedent] that neither he
nor any of the boys could go near alcohol if they were
going to use her car for that weekend. On Friday,
January 23, 2009, [decedent] said goodbye, picked up
the car and drove to Drexel and picked up five
fraternity brothers. On January 25, 2009, two state
troopers appeared at the Williamson household and
informed the Williamsons that [decedent] had died in
a one vehicle car accident in Jackson Township,
Lycoming County.
Andrew Cardamone testified that he was a freshman
in the Alpha Chi Rho fraternity at Drexel University in
January of 2009. Andrew joined in the weekend trip
with the decedent. Before leaving Philadelphia,
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Andrew was aware of one certain stop, which would
be at the founding chapter at Trinity College in
Connecticut. Andrew did not know the owner of the
automobile when the trip commenced, but noticed
that [decedent] had picked everyone up at the
fraternity house. The first stop was at the College of
New Jersey in Princeton, New Jersey. After visiting
campus for a couple of hours, the fraternity brothers
continued on to Rutgers University in East Brunswick.
The brothers then travelled to Trinity College in
Connecticut, then Rensselaer Polytechnic Institute,
then Worcester Polytechnic Institute and arrived at
the State University of New York at Geneseo late
Saturday afternoon or early Saturday evening. The
companions decided to leave at one or two a.m. on
Sunday morning for the Pennsylvania State University
at State College, Pennsylvania. The companions had
dinner and attended a social event at the local chapter
before embarking at one a.m. Andrew Cardamone
testified that all of the fraternity brothers discussed
who would drive from Geneseo to Penn State and
Andrew volunteered. He testified that he was sober
and of sound mind when he was ready to depart.
Andrew Cardamone testified that he had one or two
beers at 10:00 p.m. and that they left around
1:00 a.m. During the trip to Penn State, the boys
stopped and after the stop [decedent] occupied the
front passenger seat and slept during the trip from
Geneseo to State College. Prior to the accident,
Andrew Cardamone had his window cracked slightly
to help keep cold air on his face while all other
passengers were asleep. Andrew testified that he
remembered hitting rumble strips and waking up
upside down and contacting 911. The state police
accident report provides that the vehicle had drifted
to the left and swerved across the roadway before
coming into contact with a large rock facing.
[Decedent] and a second passenger died in the
accident.
John P. Williamson, Sr. started practicing law in May
1997. He has a general practice [that] specifically
includes personal injury/auto accident cases. After
the memorial services were completed for his son,
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John P. Williamson, Sr. became involved in
communications with Liberty Mutual involving
personal injury claims for the three surviving
passengers of the vehicle and for the two estates. The
driver, Andrew Cardamone, had a $300,000.00
automobile policy through his parents for liability
purposes. John P. Williamson, Sr. testified that he had
1.5 million dollars in coverage, consisting of
$500,000.00 from his automobile policy and
$1,000,000.00 from an umbrella policy. Liberty
Mutual agreed to tender $1,800,000.00 for the loss
and it was distributed $600,000.00 to [decedent’s]
estate, $600,000.00 to the estate of the other
decedent passenger, and $600,000.00 among the
three surviving passengers injured. A release was
signed by all parties. The joint tortfeasor release
signed by Donna Marie Williamson provided
specifically: “By entering into this release, I am not
relinquishing any claim that the estate may have for
underinsured motorist benefits.”
At the conclusion of the [appellant’s] case, this Court
granted [Liberty Mutual’s] Motion for Non-Suit as to
the count for loss of consortium and the counts for
wrongful death and survival. Trial continued on the
count for breach of contract/negligent
misrepresentation claim.
Trooper Douglas Hoffman testified by video and the
Pennsylvania State Police Crash Report was admitted
into evidence. [Liberty Mutual] admitted into
evidence the Williamson automobile and umbrella
insurance policies. Liberty Mutual determined in its
investigation that Andrew Cardamone was an
authorized driver of the Williamson vehicle and
provided the automobile liability and the umbrella
liability coverage to the Williamson family.
Trial court opinion, 10/13/17 at 1-8 (citations omitted).
Following a two-day non-jury trial, the trial court entered a verdict on
March 24, 2017, in favor of Liberty Mutual. On April 3, 2017, appellant filed
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timely post-trial motions that were denied by the trial court on July 24, 2017.
Appellant filed a notice of appeal on August 14, 2017. On August 17, 2017,
the trial court ordered appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Appellant
filed a timely Pa.R.A.P. 1925(b) statement on September 5, 2017, raising
17 claims of error. (See Rule 1925(b) statement, 9/5/17 at ¶¶ 7-23.) On
September 7, 2017, this court ordered appellant to praecipe the Delaware
County Prothonotary to enter judgment in this matter. Judgment was
ultimately entered in favor of Liberty Mutual on September 21, 2017.2
Thereafter, on October 13, 2017, trial court filed a comprehensive 26-page
Rule 1925(a) opinion.
Appellant raises the following issues for our review:
1. Whether the Court erred in finding that the
driver, Andrew Cardamone, had a reasonable
belief that he had permission to operate the
Williamson vehicle when he never met, nor had
any conversations with, Donna Marie Williamson
or John P. Williamson, Sr., prior to the trip, and
as such did not know or abide by the pre-trip
conditions for permission to operate the vehicle
imposed by Donna Marie Williamson[?]
2Pursuant to Pennsylvania Rule of Appellate Procedure 905, appellant’s notice
of appeal shall be treated as filed after the entry of judgment. See
Pa.R.A.P. 905(a)(5) (stating, “[a] notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof[]”). This court
has long recognized that “even though [an] appeal was filed prior to the entry
of judgment, it is clear that jurisdiction in appellate courts may be perfected
after an appeal notice has been filed upon the docketing of a final judgment.”
Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,
3 (Pa.Super. 2013).
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2. Whether the Court erred in finding that the
driver, Andrew Cardamone, had a continuing
reasonable belief that he had permission to
operate the Williamson vehicle even as the
driving conditions on the road trip changed and
deteriorated dramatically[?]
3. Whether the Court erred in finding that it was
proper for [Liberty Mutual] to extend insurance
coverage to the driver, Andrew Cardamone,
through [a]ppellant’s policy of insurance,
against the will and desire of [a]ppellant[?]
Appellant’s brief at 5.3
Our standard of review of a non-jury trial is well settled:
Our review in a nonjury case is limited to whether the
findings of the trial court are supported by competent
evidence and whether the trial court committed error
in the application of law. We must grant the court’s
findings of fact the same weight and effect as the
verdict of a jury and, accordingly, may disturb the
nonjury verdict only if the court’s findings are
unsupported by competent evidence or the court
committed legal error that affected the outcome of the
trial. It is not the role of an appellate court to pass on
the credibility of witnesses; hence we will not
substitute our judgment for that of the factfinder.
Thus, the test we apply is not whether we would have
reached the same result on the evidence presented,
but rather, after due consideration of the evidence
which the trial court found credible, whether the trial
court could have reasonably reached its conclusion.
Berg v. Nationwide Mut. Ins. Co., Inc., A.3d , 2018 WL 2682196,
at *3 (Pa.Super. 2018) (citation omitted).
3 For the purposes of our review, we have elected to address appellant’s first
two claims simultaneously.
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Appellant first argues that the trial court erred in concluding that
Cardamone had a reasonable belief that he had permission to operate
appellant’s vehicle on the evening in question. (Appellant’s brief at 5.) In
support of this contention, appellant avers that the trial court disregarded the
fact that Cardamore “never met nor spoke with [appellant] nor her husband,
John P. Williamson, Sr., until after the accident, nor did he know of or abide
by the pre-trip conditions for permission to operate the vehicle imposed by
appellant.” (Id. at 10.) Appellant further argues that, given the fact that the
driving conditions had deteriorated dramatically on the evening in question,
Cardamone could not have had “a continuing reasonable belief that he had
permission to operate [appellant’s] vehicle[.]” (Id. at 5, 10.) For the
following reasons, we disagree.
“Part A” of appellant’s automobile policy with Liberty Mutual extended
liability coverage to any person using the insured’s automobile, provided an
exclusion did not apply. Specifically, the policy provided as follows:
INSURING AGREEMENT
A. We will pay damages for “bodily injury” or
“property damage” for which any “insured”
becomes legally responsible because of an auto
accident . . . .
B. “Insured” as used in this Part means:
....
2. Any person using “your covered
auto[.]”
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EXCLUSIONS
A. We do not provide Liability Coverage for any
person:
....
8. Using a vehicle without a
reasonable belief that the person is
entitled to do so[.]
Defense trial exhibit D-1.
Here, the trial court found that “Cardamone[] did have a reasonable
belief that he had permission to operate the vehicle and the weight of the
evidence supports this conclusion.” (Trial court opinion, 10/13/17 at 17.)
Viewing the evidence and all reasonable inferences therefrom in a light most
favorable to Liberty Mutual, the verdict winner, we find that the record amply
supports the trial court’s determination. At trial, Cardamone testified that the
group discussed alternating designated drivers during the trip and agreed that
he would be the designated driver from Geneseo College to the Pennsylvania
State University in State College, Pennsylvania. (Notes of testimony, 3/7/17
at 102.) Decedent was present during this conversation and did not object to
Cardamone driving appellant’s vehicle for this leg of the trip. (Id. at 102-103,
107.) The record further reflects that Cardamone explicitly indicated that he
possessed a reasonable belief that he was entitled to operate appellant’s
vehicle on the evening in question:
Q. Now do you remember me asking this question
at your deposition?
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....
Q. I asked, “So it was your belief that you had the
right to use the vehicle?” And there was an
objection. You said, “I don’t know about a
right.” [Then I asked,] “But did you have a
belief that you were entitled to use the vehicle?”
And you said “yes, I was. It was my
understanding that I had the opportunity, if it
was needed, to drive the car. That I would be
able to. Yes. Okay. So you say that you had a
reasonable belief that you were entitled to use
the vehicle? Objection. Yes, I believe I was
allowed to use the car without getting specific
permission from [Decedent] because we all had,
in my opinion, my understanding at the time,
Blanket approval to use the care because we
were changing positions.” Is that accurate?
A. Yes.
Id. at 103-104.
Moreover, our review reveals that Cardamone’s operation of the vehicle
did not deviate from his permitted scope of operation. Cardamone continued
to operate the vehicle from the time the group departed Geneseo College until
the time of the accident, and reiterated on redirect examination that, he
“based [his] assumption of permission [] on the fact that other people had
. . . driven earlier in that day and that it was -- if it was my turn then it was
-- I was allowed to do that.” (Id. at 110). Additionally, Cardamone’s blood
alcohol content was 0.00 when tested by police following the accident, and
State Trooper Douglass Hoffman indicated that he was cooperative, did not
exhibit any signs of intoxication, nor smell of alcohol. (Id. at 103; see also
notes of testimony, 3/1/17 at 13-14.)
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Here, the trial court found the testimony of Cardamone credible and
elected not to believe appellant’s version of the events. “It is not the role of
an appellate court to pass on the credibility of witnesses or to act as the trier
of fact, and an appellate court will not substitute its judgment for that of the
fact-finder.” Zimmerman v. Harleysville Mut. Ins. Co., 860 A.2d 167, 172
(Pa.Super. 2004) (citation omitted), appeal denied, 881 A.2d 820 (Pa.
2005). Accordingly, we discern no abuse of the trial court’s discretion.
Appellant next argues that the trial court “erred in finding that it was
proper for [Liberty Mutual] to extend insurance coverage to the driver,
[Cardamone], through [a]ppellant’s policy of insurance, against the will and
desire of [a]ppellant.” (Appellant’s brief at 5.) Appellant maintains that
“Cardamone has his own Liberty Mutual insurance policy and all the injured
parties had their own UIM[4] policies,” and that she should have been
permitted to make a claim under her own policy’s UM5/UIM coverage in the
amount of $2,000,000. (Id. at 10, 18.)
Preliminarily, we note that,
[t]he task of interpreting [an insurance] contract is
generally performed by a court rather than by a jury.
The purpose of that task is to ascertain the intent of
the parties as manifested by the terms used in the
written insurance policy. When the language of the
policy is clear and unambiguous, a court is required to
give effect to that language. When a provision in a
policy is ambiguous, however, the policy is to be
4 UIM is an abbreviation for “underinsured motorist.”
5 UM is an abbreviation for “uninsured motorist.”
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construed in favor of the insured to further the
contract’s prime purpose of indemnification and
against the insurer, as the insurer drafts the policy,
and controls coverage. Contractual language is
ambiguous if it is reasonably susceptible of different
constructions and capable of being understood in
more than one sense. Finally, [i]n determining what
the parties intended by their contract, the law must
look to what they clearly expressed. Courts[,] in
interpreting a contract, do not assume that its
language was chosen carelessly. Thus, we will not
consider merely individual terms utilized in the
insurance contract, but the entire insurance provision
to ascertain the intent of the parties.
Erie Ins. Exch. v. E.L., 941 A.2d 1270, 1273 (Pa.Super. 2008), appeal
denied, 956 A.2d 435 (Pa. 2008) (citations omitted).
Upon review, we find that appellant has waived her UM/UIM claim by
failing to properly develop it in her appellate brief. Specifically, the
“Argument” section of appellant’s brief is largely comprised of a number of
bullet points and hypothetical questions, and does not contain a separate
subsection that develops her UM/UIM claim with citation to relevant legal
authority and corresponding analysis. Notably, appellant’s entire “Argument”
section contains only two scant references to case law and not a single citation
to the notes of testimony or certified record. (See appellant’s brief at 11-21.)
“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.” McEwing v.
Lititz Mut. Ins. Co., 77 A.3d 639, 647 (Pa.Super. 2013) (citation omitted);
see also Pa.R.A.P. 2119(b) (compels a finding of waiver “where an appellate
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brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable
of review [.]”). Accordingly, we conclude that appellant’s third issue is waived.
In any event, even if appellant did not waive her UM/UIM claim, it would
still not merit relief. We agree with the trial court’s well-reasoned conclusion
that UM/UIM coverage does not apply. As the trial court properly reasoned in
its opinion, all coverage applicable to the accident had been exhausted and
appellant’s argument fundamentally misconstrues Liberty Mutual’s liability
policy:
The automobile involved in this proceeding was
insured and liability coverage was afforded. In
addition, the driver, [] Cardamone, also had insurance
and that policy was provided for damages. In
addition, the policy states that “uninsured motor
vehicle” does not include any vehicle that is owned by
“you” and that the term “you” refers to the named
insured as well as the spouse of the named insured, if
they are residents of the same household. Mr. and
Mrs. Williamson are residents of the same household.
The terms of [appellant’s] automobile policy expressly
precluded underinsurance coverage when liability
coverage had already been extended. Exhibit D-1. As
such, underinsured motorist benefits could also not be
recovered under that policy. The language in the
policy states that a vehicle covered by liability under
the policy cannot be an underinsured vehicle.
Trial court opinion, 10/13/17 at 15-16 (case citation omitted).
Thus, if we were to accept appellant’s contention that Cardamone did
not possess a reasonable belief that he had permission to operate appellant’s
vehicle, appellant would not have been entitled to collect UM/UIM coverage
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under its policies with Liberty Mutual because Cardamone would not qualify
as an “insured” and there would have existed no “underlying coverage.” (See
Liberty Mutual Auto Policy, “Exclusions” at 2, § A.8 and Liberty Mutual Personal
Liability Protection Policy, “Exclusions” at 4, § II.e; defense trial exhibits D-1,
D-2.) Additionally, an underinsured vehicle under the policy specifically
precludes any vehicle for which liability coverage is provided. Here, because
Cardamone was a permissive user of the vehicle and the Estate received
coverage under the liability provisions of the policy, the vehicle cannot be an
underinsured vehicle. Based on the foregoing, we find that even if appellant
had not waived her claim, she would not be entitled to relief.
Having determined that the trial court’s findings are supported by
competent evidence and that appellant failed to demonstrate that the trial
court committed error in application of the law, we affirm the September 21,
2017 judgment entered in favor of Liberty Mutual.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/18
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