Government Employees Insurance Company v. Benton, Ernest, in No. 88-1175. Benton, Ernest, in No. 88-1176 v. Government Employees Insurance Company

STAPLETON, Circuit Judge,

dissenting.

In 1984, the Pennsylvania Legislature determined that it was desirable for all motorists to have underinsured motorist coverage. It therefore decreed that “[n]o motor vehicle liability insurance shall be delivered or issued for delivery in [the] Commonwealth, ... unless ... underinsured motorist [coverage is] provided there-in_” 75 Pa.Cons.Stat.Ann. § 1701(a) (1984). The legislature established October 1, 1984 as the effective date of this decree *1154and stipulated that the new requirement “applies to insurance policies issued or renewed on or after the effective date... Section 11 of the Supplemental Provisions of the Act of February 12, 1984, P.L. 53, No. 12, 1984 Pennsylvania Legislative Service 129 (Purdon) (codified at 75 Pa.Cons. StatAnn. § 1701 note). Since Ms. Brisco’s policy was her first with GEICO and not a renewal, the issue for decision is whether or not her policy was “issued ... on or after” October 1, 1984.1 The court equates issuance with the inception of coverage and concludes that it was not. I disagree.

When the Pennsylvania legislature specified that the new requirement would apply to “insurance policies issued ... on or after the effective date,” it had in mind something tangible that could be “delivered or issued for delivery”; it equated the issuance of a policy with the creation of a policy document. This reading is not only supported by the text of the statute but also by considerations relating to the legislative objective of the statute and by industry usage and practice.

The Pennsylvania Legislature set October 1, 1984 as the effective date of its legislation in order to provide advance notice of the new requirement. Such notice having been given, the legislature undoubtedly wished as many motorists as possible to have underinsured motorist coverage as soon as possible. It recognized, however, that the scope of insurance is normally evidenced by a written policy and that additional coverage could not be included in written policies that had left the hands of the insurer. I think it fair to assume that the legislature reconciled these competing considerations by requiring the additional coverage in all policy documents that had not already left the hands of the insurer on the effective date. Accordingly, I think it very doubtful that the legislature intended to give an insurer the option on or after October 1st of either including the new coverage in the policy document or leaving it out and specifying an earlier date for the inception of coverage.

Moreover, this reading of the phrase “issuance of a policy” or “policy issuance” is consistent with industry usage and practice as reflected in Pennsylvania’s Automobile Insurance Plan (the Plan), under which Ms. Brisco’s policy was issued. As we shall hereafter see, the Plan uses these phrases to denote the creation of a policy document and makes it clear that policy issuance is quite .distinct from the commencement of coverage.

With this understanding of the meaning of policy issuance, I turn to the issue of whether the policy document in this case was created before October 1, 1984. The application form that Ms. Brisco signed provided in part as follows:

This application having been completed and duly executed shall be from the effective date and time shown below, evidence of insurance in the limits and coverages specified, subject to the following conditions:
1. Coverage under this evidence of automobile insurance is effective from the effective date and time stated herein. This evidence of automobile insurance will terminate immediately upon (a) the issuance of the policy applied for,....
2. A premium charge will be made for these coverages if the policy, when and as issued, is not acceptable by the insured.
3. The insurance afforded hereunder shall be subject to all the terms and conditions of the policy form prescribed for use in accordance with the rules of the Automobile Insurance Plan.
Effective Date and time
9 28 84 9:00 AM
Month Day Year Hours PM
My signature hereon represents certification of the Statement of the Producer of Record on the face of this application AND I certify this application is sub*1155mitted pursuant to the effective date provisions contained in the Automobile Insurance Plan of this state.
__/s/.. Date 9/28/84 Hour 9:00 A.M.
PRODUCER’S SIGNATURE

App. at 179 (emphasis added).

These provisions indicate' to me that Ms. Brisco received a binder pursuant to Section 12 of the Pennsylvania Automobile Insurance Plan2 which provided her with coverage from the date of the application until the “issuance of the policy applied for.” It is undisputed that GEICO did not execute the policy document evidencing the “policy applied for” until after October 1st. While it is true that there was coverage before that date, I cannot believe the drafters of the Motor Vehicle Financial Responsibility Law intended that the existence of coverage under a binder would excuse an insurer from including the new coverage where the policy itself remained in the insurer’s hands as of October 1, 1984. Accordingly, I conclude that Ms. Brisco’s policy was “issued on or after” October 1, 1984.

Even if Ms. Brisco’s coverage did not take effect immediately, however, the result should be the same. As the court notes, in the absence of special arrangements for immediately effective coverage, the Plan mandates that coverage become effective “at 12:01 A.M. on the day following the date of mailing of the application” unless the postmark is not legible, m which event coverage commences “at 12:01 A.M. on the day following receipt [of the application] by the Plan Office.” Section 12, Supp. Appendix 10. This effective date must be stated in the notice of designation forwarded by the Plan to the applicant and the designated company. The Plan then goes on to mandate the issuance of a policy or a written binder at a later time. Thus, Section 14 provides in part:

A. Original Policy — Upon receipt of the notice of designation and the premium or deposit from the Plan, the designated company shall:
(2) within fifteen days issue a policy if all information necessary for the company to fix the proper rate is contained in the application form, such policy to become effective 12:01 A.M. on the date specified by the Plan in the notice of designation, or
(3) within fifteen days issue a binder if all information necessary for the company to fix the proper rate is not contained in the application form, such binder to become effective 12:01 A.M. on the date specified by the Plan in the notice of designation, ...

Supp.App. at 7 (emphasis added).

I would hold that the policy in this case was “issued” no earlier than the date upon which GEICO satisfied its responsibility *1156under these provisions of Section 14 and, accordingly, that the underinsured motorist coverage required by law should be read into Ms. Brisco’s policy.

. The pertinent statutory language is not "delivered or issued for delivery.” While that language is helpful in deciding what the legislature meant by "issued,” another section of the Act specifically describes the policies to which the Act applies, and it governs the issue before us. See 1 Pa.Cons.Stat.Ann. § 1933 (1972) (Pennsylvania Statutory Construction Act) (specific provision prevails over general one).

. The relevant provisions of Section 12 are as follows:

Should the applicant require that the coverage applied for become effective at the time of application, the producer of record shall indicate the time and date when coverage is required. The coverages and limits for which the applicant is applying shall become effective as of the time the application is completed provided:
1. the producer of record and the applicant certify, on a form prescribed by the Plan, the date (day, month and year) and time (hour, A.M. or P.M.) that the application was written, and
2. the producer forwards to the Plan Office, no later than the day after the application is written two copies of such form as prescribed by the Plan and simultaneously will supply the applicant with a copy of said affidavit duly executed by the producer, and
3. the producer of record maintains appropriate records of all risks for which he has designated the time and date of coverage and agrees that he will permit inspection or photocopying of such office records by the Plan or by a company representative. This inspection or photocopying will be limited to an applicant whose effective date and time of coverage is in question due to the occurrence of an accident or claim arising under the policy issued under this Section.

In no event shall coverage be effective prior to the time shown on the application. The Plan shall forward to the designated carrier the original copy of the application form, the notice of the effective date of the coverage (certification form) and the deposit, same to be credited by the company against the policy premium, if for any reason the applicant refuses to accept the policy, the designated company shall retain the short rate earned premium for the period of coverage or the sum of $10.00 per car, whichever is greater, and return the balance to the applicant.