Richmond v. Prudential Property & Casualty Insurance

BECK, J.,

Dissenting.

¶ 1 The majority concludes that the instant insurance policy provisions are ambiguous, contrary to the purposes of the relevant statutes, and against public policy. I respectfully dissent.

¶ 2 The interpretation of an insurance contract is a matter of law for the courts to decide. Paylor v. Hartford Ins. Co., 536 Pa. 583, 640 A.2d 1234, 1235 (1994). In interpreting an insurance contract, we must ascertain the intent of the parties as manifested by the language of the written agreement. Id. A clear and unambiguous contract provision must be given its plain meaning, unless to do so would be contrary to a clearly expressed public policy. Windrim v. Nationwide Ins. Co., 537 Pa. 129, 641 A.2d 1154, 1157 (1994) (exclusion from UIM coverage for resident relative who was driving his own uninsured vehicle was valid and enforceable under the MVFRL; legislative purpose was to decrease number of uninsured drivers).

¶ 3 The relevant policy provision states: “If you have this coverage [Underinsured Motorist Coverage], we will pay up to our limit of liability for bodily injury that is covered under this part when an insured (whether or not occupying a car) is struck *279by an underinsured motor vehicle ...” There was no allegation in this case that appellant was “struck” by an underinsured motor vehicle. Coverage under the policy is otherwise limited to injuries caused by cars, the definition of which clearly does not include motorcycles. I therefore agree with the trial court’s conclusion that these policy provisions clearly and unambiguously exclude coverage under the facts of this case.

¶ 4 Even clear and unambiguous insurance policy language may conflict with an applicable statute, and in such situations, we cannot give effect to the contractual provision. Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 746 A.2d 1118, 1121 (Pa.Super.1999), appeal granted, 566 Pa. 647, 771 A.2d 1285 (2001). Appellant argues, and the majority concludes, that the policy language in this case is contrary to the relevant statutes, and void as against public policy.

¶ 5 The Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1731-1738 (MVFRL), is to be construed liberally to afford the greatest possible coverage to injured claimants. Danko v. Erie Ins. Exchange, 428 Pa.Super. 223, 630 A.2d 1219, 1222 (1993), aff'd, 538 Pa. 572, 649 A.2d 935 (1994). In close or doubtful cases, a court should resolve the meaning of insurance policy provisions or the legislative intent in favor of coverage for the insured. Id. However, there is no doubt that, although underinsured motorist coverage must be offered by insurers, 75 Pa.C.S. § 1731(a), several different kinds of exclusions from such coverage have nonetheless been upheld by our courts. See, e.g., Nationwide Ins. Co. v. Cummings, 438 Pa.Super. 586, 652 A.2d 1338 (1994) (exclusion from uninsured/underinsured motorist coverage for passenger whose driver did not have permission to use vehicle was upheld); St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 630 A.2d 28 (1993) (exclusion for antique car policy upheld); Marino v. General Accident Ins. Co., 416 Pa.Super. 1, 610 A.2d 477 (1992) (exclusion from coverage where vehicle was used to transport persons or property for a fee upheld). The MVFRL does not prohibit an insurer from limiting underinsured motorist coverage to damage caused by cars only.2

¶ 6 The majority nonetheless concludes that Prudential’s policy language is void as against public policy.

“Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest ... It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in [declaring what is or is not in accord with public policy] ...”

Paylor, supra at 586-87, 640 A.2d at 1235 (citations omitted) (family car exclusion does not violate public policy). However, it is only in the clearest of cases that a court may make an alleged public policy the basis of a judicial decision. Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006, 1010 (1998).

¶ 7 The purpose of underinsured motorist coverage is to protect the insured from the risk that a negligent driver of another vehicle will cause injury to the insured and have inadequate coverage to compensate *280for the injuries caused by his negligence. Paylor, supra at 585-89, 640 A.2d at 1235-36. But our cases do not clearly set forth a public policy in favor of the type of coverage here denied by Prudential. Indeed, the cases indicate that certain kinds of conduct by the insured increases the risk of injury such that denial of coverage is justified. For example, certain exclusions may not be against public policy where the insured’s own voluntary choices or actions increase the risk of loss. Insureds in such eases have a “part in creating the risk that contributed to the loss,” and have “control over the identity of the tortfeasor that caused their injuries.” Kmonkr-Sullivan, supra at 1125.

¶ 8 Although a policy exclusion from un-derinsured motorist coverage for government owned vehicles was held to be against public policy because it penalized the insureds “for a factor beyond their control, ... the identity of the tortfeasor,” such reasoning is not applicable to the denial of coverage in this case. Id. at 1126. This case, involving a passenger on a motorcycle, is more analogous to cases where exclusions were upheld by our courts in part because the insured’s own voluntary choices or action increased the risk of loss. Id. at 1125. I would therefore hold Prudential’s policy provisions, which take into account the increased risks occasioned by motorcycle riding, are not contrary to public policy, and would affirm the trial court’s decision denying underin-sured motorist coverage to appellant.

. The fact that the form of Prudential’s insurance policy was approved by the insurance commissioner, though certainly not conclusive, has been declared a "significant” factor in determining the validity of policy exclusions. Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 648 A.2d 755 (1994).