American States Insurance v. Estate of Braheem

Concurring Opinion

by JOHNSON, J.:

¶ 1 I concur with the result reached by the Majority. I agree with the Majority that American States must demonstrate prejudice in order to properly deny coverage under the notice provisions of the policy. Nevertheless, I write separately to clarify that this conclusion, in my judgment, represents a modest extension of our previous decisions in Nationwide Mut. Ins. Co. v. Lehman, 743 A.2d 933 (Pa.Super.2000) and Cerankowski v. State Farm Mut. Auto. Ins. Co., 783 A.2d 343 (Pa.Super.2001). I am unable to join those portions of the Majority’s Opinion that appear to direct how American States can and cannot prove prejudice.

¶ 2 The only issue presented to this panel on appeal is:

I. Is an insurer that provides underin-sured motorist coverage released from paying UIM benefits to the insured because the insured settled his claim with the primary and excess insurance carriers without notice and consent to the UIM carrier when the UIM carrier has not shown any prejudice as a result thereof?

Brief for Appellant at 4.

¶3 Because of the decision that this Court reached in Nationwide Ins. Co. v. Schneider, 906 A.2d 586 (Pa.Super.2006) (en banc), when reviewed and considered alongside Lehman and Cerankowski, it can be inferred that, subject to the express policy language contained in an insurance policy under review, an insurer cannot escape providing coverage without demonstrating actual prejudice. See Schneider, 906 A.2d at 593. Having concluded that the order of the trial court did not predict (and could not have predicted) the holding subsequently laid down in Schneider, I agree that the order from which this appeal has been taken must be vacated and the matter remanded for further proceedings in the trial court.

¶ 4 To the extent that my distinguished colleagues have gone beyond this narrow question, I must respectfully decline to join them. I find that these issues are not properly before this Court, because they were not raised in or decided by the trial court, and moreover, were not raised during this appeal. The Pennsylvania intermediate appellate courts have been cau*756tioned on numerous occasions to refrain from such review. See, e.g., Danville Area Sch. Dist. v. Danville Area Educ. Assn., 562 Pa. 238, 754 A.2d 1255, 1259 (2000) (relying on and restating Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) (holding Superior Court exceeds its proper appellate function when sua sponte considering issues not presented to it)); Sammons v. Civil Service Comm’n of City of Philadelphia, 555 Pa. 1, 722 A.2d 1012, 1013 (1998) (same); Estep v. Estep, 508 Pa. 623, 500 A.2d 418, 419 (1985) (same); Phillips Home Furnishings, Inc. v. Continental Bank, 467 Pa. 43, 354 A.2d 542, 543-44 (1976) (same). Accordingly, I concur with the result reached by the Majority, but depart from its legal analysis and reasoning that goes well beyond the issue presented.

¶ 5 To support its conclusion that American States is obligated to demonstrate that it suffered prejudice, the Majority cites and relies on Nationwide Ins. Co. v. Schneider, supra, and Cerankowski. Majority Opinion at 751-52, 753. In Ceran-kowski we held that “an insurer must demonstrate prejudice before it can invoke a ‘consent to settle’ clause to prevent its payment of underinsured motorist coverage to an insured who has paid for that insurance.” 783 A.2d at 348. A “consent to settle clause” is a provision that is typically found in an insurance contract and allows the insurance company to deny coverage if the insured does not obtain the written consent of the insurer prior to settling any legal action or releasing any party from suit. See Schneider, 906 A.2d at 591.

¶ 6 In this case, American States is not seeking to enforce a “consent to settle” clause as its basis for denying coverage. Instead, American States is invoking the “notice” clauses of the policy, which dictate that UIM coverage will only apply when it has “been given prompt written notice” of any tentative settlement or potential suit between the insured and other parties. See Brief for Appellee at 13-18. Unlike the notice provision in Schneider, the policy at bar does not expressly contain a prejudice clause, and thus, Schneider is not controlling. See Schneider, 906 A.2d at 593 (“The notice provision of the policy ... explicitly includes a requirement that Nationwide must be precluded from subro-gating against liable parties before Nationwide may deny coverage based upon lack of notice.”) ... (“Accordingly, under the explicit language of the policy, Schneider’s failure to give timely notice cannot be sustained as a genuine ground for the denial of his claim under the policy.”). Nevertheless, in Lehman, Cerankowski’s predecessor, this Court explained that the insurer’s use of a “consent to settle” clause frustrates public policy by depriving the insured of benefits for which he/she had paid. 743 A.2d at 971. In my view, the public policy concerns and underlying rationale in Lehman — that “[wjhere the insured settles with a tortfeasor without the insurer’s consent and does not prejudice the insurer’s interests, the purpose of the consent-to-settle clause is lacking” — applies no less to an insurer’s refusal to honor its obligations based on a policy’s notice provisions. Consequently, I find that Lehman’s doctrine is applicable here and can reasonably be extended to encompass the notice provisions at issue; i.e. “where the insured settles with a tortfea-sor or other carrier without first notifying the insurer, and this failure to provide notice does not prejudice the insurer’s interest, then the purpose of the notice provision is lacking.” Such a conclusion is buttressed by our Supreme Court’s decision in Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977). In Brakeman, the Court held that insurance clauses requiring notice of the claims “as soon as *757practicable” after the accident are not enforceable unless the insurer can prove prejudice. See id. at 196-97. The Court reasoned:

In short, the function of a notice requirement is to protect the insurance company’s interest from being prejudiced. Where the insurance company’s interest have [sic] not been harmed by late notice, even in the absence of extenuating circumstances to excuse the tardiness, the reason behind the notice condition in the policy is lacking, and it follows neither logic nor fairness to relieve the insurance company of its obligations under the policy in such a situation.

Id. at 197.

¶ 7 Choosing to follow in the spirit, reasoning and trend of Bmkeman, Lehman and Cerankowski, I agree with the Majority that in order to invoke the “notice” provisions of its policy and deny coverage, American States must, as a prerequisite, demonstrate that it suffered prejudice.

¶ 8 While I agree with the Majority that American States is required to make a showing of prejudice, I disagree with the portions of the Majority’s Opinion that direct how American States can and cannot prove prejudice and conclude that certain aspects of the case must be submitted to arbitration. Here, the trial court granted summary judgment in favor of American States, because it Opinion (T.C.O.), 5/16/05, at 3 (unnumbered) (citing Weichey v. Doerr, 60 Pa. D. & C.4th 88, 93-94 (Butler Co.2001)) (“The issue of prejudice is only necessary in cases where the insurer received notice of the settlement claim and denied the UIM benefits.”). Accordingly, the Estate’s sole contention on appeal is that the trial court erred when it determined that Lehman and Cerankowski are inapplicable. Brief for Appellant at 10-12.

¶ 9 Given the procedural posture of this case, the issues of whether American States can establish prejudice, and whether certain aspects of the case must be submitted to arbitration are not properly before this Court, because they were not raised in or decided by the trial court and were not raised during this appeal. See Fisher v. Brick, 358 Pa. 260, 56 A.2d 213, 215 (1948) (“An appellate court does not sit to review questions that were neither raised, tried nor considered in the trial court.”); see also Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 179-80 (1978) (stating that “an appellate court is not to raise sua sponte issues which it perceives in the record where, as here, those issues are not presented at the appellate level.”). The Majority, nonetheless, appears to sift through the record and determine the situations in which American States can and cannot demonstrate prejudice. See Majority Opinion at 752 “We disagree that the settlement with the tortfeasor and Braheem’s own UIM carrier without notifying American States would prejudice American States. Assuming any applicable credit for the policy limits would be given, American States could suffer no prejudice by Braheem settling claims for the full value of the policies.”; Id. at 752-53 n. 2 “In this matter, there is no question of prejudice because the full policy limits were tendered. As to subrogation against the tortfeasor, the driver died leaving no estate so there was nothing to subrogate against.”; Id. at 753 “Because an insurer is not entitled to a set-off from the third party tortfeasor, it is especially important to protect the insurer’s subrogation rights. Thus, if a claimant defeats a viable subrogation right, this will provide the prejudice needed for the insurer to deny coverage.”; Id. at 753 “While it is true that there is no evidence of prejudice to support American States’ position that it was prejudiced by the set*758tlements with the driver and Braheem’s UIM carrier, there is sufficient evidence of prejudice regarding the potential dram shop action. Thus, Braheem is not entitled to summary judgment on that issue.”; Id. at 754 “The Estate has presented sufficient evidence, in the form of affidavits, indicating the taverns in question did not have dram shop insurance, did not own the property, and that there was no viable dram shop action, to defeat American States’ motion for summary judgment.”. The Majority also concludes that “[i]t is up to the arbitrators to determine the value of the possible dram shop action and to determine how that affects the liability of American States.” Id. at 754. Even if the Majority is correct in its legal analysis, I believe that as an appellate court, our job is complete once we find an error in the trial court’s conclusion of law, i.e., the trial court erred as a matter of law when it determined that American States was not required to demonstrate prejudice. Our Supreme Court has prohibited this Court from deciding extraneous issues sua sponte. See, e.g., Danville Area Sch. Dist; Phillips Home Furnishings; and Wiegand v. Wiegand, Therefore, I am unable to join these portions of the Majority’s Opinion.

¶ 10 While I agree that disposition of this case requires remand in order for the trial court to determine whether American States can establish prejudice, I would take no position on the ground(s) upon which American States must proceed in order to prevail in the trial court. I would also take no position on whether or not the arbitrators need to determine the value of a dram shop action and the corresponding liability of American States.

¶ 11 For the foregoing reasons, I concur with the result reached by the Majority, but respectfully depart from its legal analysis and reasoning.