Salazar v. Allstate Insurance

NEWMAN, Justice,

dissenting.

Because I disagree with the Majority that an insured has no remedy for an insurer’s violation of Section 1791.1 of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1791.1,1 respectfully dissent.

Facts and Procedural History

On November 21, 1992, Rita Salazar was operating her mother’s automobile with her permission. Celitia Salazar was a passenger in the car. While stopped at a red light, Rita and Celitia (Appellants) were struck from behind by a hit-and-run driver. Rita’s mother, Ruby Brown (Brown), had automobile insurance with the Allstate Insurance Company (Appellee). In her original application for coverage in February of 1991, Brown had rejected Uninsured Motorist (UM) coverage. *671When she renewed her policy the following year, Brown did not alter her coverage. However, Appellee had failed to provide Brown the renewal notice required by Section 1791.1, concerning coverage options and requirements. The accident occurred in the second policy year.

Appellants, who reside with Brown, brought a civil action in the Court of Common Pleas of Philadelphia County (trial court) against Appellee for UM benefits pursuant to Brown’s policy. In their complaint, Appellants argued, inter alia, that they are entitled to UM benefits due to Appellee’s failure to comply with the Section 1791.1(a) renewal notice requirement. Appellee filed a motion for summary judgment asserting that Brown had waived UM coverage for resident relatives under her policy.

The trial court granted summary judgment in favor of Appellee, and the Superior Court affirmed, without discussing Section 1791.1. The Majority now affirms the Order of the Superior Court, holding that, although Appellee failed to comply with the Section 1791.1 notice requirement, the MVFRL affords Appellants no remedy.

Discussion

Section 1791.1 provides:

§ 1791.1. Disclosure of premium charges and tort options

(A) INVOICE.—At the time of application for original coverage and every renewal thereafter, an insurer must provide to an insured an itemized invoice listing the minimum motor vehicle insurance coverage levels mandated by the Commonwealth and the premium charge for the insured to purchase the minimum mandated coverages. The invoice must contain the following notice in print of no less than ten-point type:
The laws of the Commonwealth of Pennsylvania, as enacted by the General Assembly, only require that you purchase liability and first-party medical benefit coverages. Any additional coverages or coverages in excess of the *672limits required by law are provided only at your request as enhancements to basic coverages.

The insurer shall provide the itemized invoice to the insured in conjunction with the declaration of coverage limits and premiums for the insured’s existing coverages.

(B) NOTICE OF TORT OPTIONS.—In addition to the invoice required under subsection (a), an insurer must, at the time of application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured the following notice of the availability of two alternatives of full tort insurance and limited tort insurance described in section 1705(c) and (d) (relating to election of tort options):

The laws of the Commonwealth of Pennsylvania give you the right to choose either of the following two tort options:
A. “LIMITED TORT” OPTION—This form of insurance limits your right and the rights of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury,” as set forth in the policy, or unless one of several other exceptions noted in the policy applies.
B. “FULL TORT” OPTION—This form of insurance allows you to maintain an unrestricted right for yourself and other members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering or other nonmonetary damages as a result of injuries caused by other drivers.
*673If you wish to change the tort option that currently applies to your policy, you must notify your agent, broker or company and request and complete the appropriate form.
(C) NOTICE OF PREMIUM DISCOUNTS.—Except where the commissioner has determined that an insurer may omit a discount because the discount is duplicative of other discounts or is specifically reflected in the insurer’s experience, at the time of application for original coverage and every renewal thereafter, an insurer must provide to an insured a notice stating that discounts are available for drivers who meet the requirements of sections 1799 (relating to restraint system), 1799.1 (relating to antitheft devices) and 1799.2 (relating to driver improvement course discounts).
(D) ADDITIONAL INFORMATION.—Upon an oral or written request, an insurer subject to this chapter shall provide to the requestor information on the requestor’s cost to purchase from the insurer the minimum requested automobile insurance coverages under either, of the two tort options described in subsection (b). These requirements shall include the request for and provision of information by telephone.

75 Pa.C.S. § 1791.1 (emphasis added).

Thus, according to the express terms of the statute, an insurer “must” provide an insured an invoice containing the Section 1791.1 notice at the time of every renewal. Appellee does not dispute that it failed to provide either an invoice or the required notice. Although the Section 1791.1 notice requirement is mandatory, the Majority of this Court reasons that the absence of an express remedy for a Section 1791.1 violation precludes Appellants’ recovery of UM benefits. I respectfully disagree.

The Majority relies on the statutory analysis set forth in Franks v. Allstate Ins. Co., 895 F.Supp. 77 (M.D.Pa.1995), and Maksymiuk v. Maryland Casualty Ins. Co., 946 F.Supp. 379 (E.D.Pa.1996), concerning a similar issue arising under Section *674r731(c.l) of the MVFRL, 75 Pa.C.S. § 1731(c.l). Both of those cases involved the question of whether an insured who validly rejects UM coverage in the initial application is entitled to such coverage when the insurer fails to provide prominent notice of such waiver in its policy renewal forms as required by Section 1731(c.l). That section provides in part:

§ 1731. Availability, scope and amount of coverage
(A) MANDATORY OFFERING.—No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured [UIM] motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage). Purchase of uninsured motorist and underinsured motorist coverages is optional.
(B) UNINSURED MOTORIST COVERAGE.—Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles. The named insured shall be informed that he may reject uninsured motorist coverage by signing the following written rejection form:
REJECTION OF UNINSURED MOTORIST PROTECTION
By signing this waiver I am rejecting uninsured motorist coverage under this policy, for myself and all relatives residing in my household. Uninsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance to pay for losses and damages. I knowingly and voluntarily reject this coverage.
(C.l) FORM OF WAIVER.—Insurers shall print the rejection forms required by subsections (b) and (c)[relating to underinsured motorist protection] on separate sheets in *675prominent type and location. The forms must be signed by the first named insured and dated to be valid. The signatures on the forms may be witnessed by an insurance agent or broker. Any rejection form that does not specifically comply with this section is void. If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits. On policies in which either uninsured or underinsured coverage has been rejected, the policy renewals must contain notice in prominent type that the policy does not provide protection against damages caused by uninsured or under-insured motorists. Any person who executes a waiver under subsection (b) or (c) shall be precluded from claiming liability of any person based upon inadequate information.

75 Pa.C.S. § 1731(c.l)(emphasis added). The Franks court noted that Section 1731(c.l) provides a specific remedy for an invalid rejection form upon initial application but does not provide a remedy for an improper renewal notice. According to the court, “[t]he fact that the Pennsylvania legislature provided a specific remedy to the insured in one instance and, in the same subsection, failed to provide any remedy indicates an intent that no remedy will exist.” Franks, 895 F.Supp. at 82 (citing Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979)). The Maksymiuk court reached the same conclusion, adopting the Franks court’s analysis.

While the federal courts’ statutory analysis in Franks and Maksymiuk is enticing in its simplicity, it is flawed. To avoid rendering the renewal notice language mere surplusage, the Franks court stated that the renewal notice requirement is a regulatory provision, to be enforced by the Pennsylvania Insurance Department (Department) pursuant to Section 1704 of the MVFRL, 75 Pa.C.S. § 1704(b).1 That section delegates authority to the Department to administer and enforce provisions of the MVFRL in its jurisdiction and to promulgate appropriate rules and regulations. However, the Depart*676ment’s regulations do not demonstrate that the Department itself considers the renewal notice requirements of the MVFRL as regulatory provisions, with no private remedies. When the agency charged with the administration and enforcement of the MVFRL does not deem a provision a regulatory matter only, it is inappropriate for a court to draw that conclusion. See Concerned Residents of the Yough, Inc. v. Department of Environmental Resources, 543 Pa. 241, 670 A.2d 1120 (1995)(agency’s interpretation entitled to great weight).

Specifically, the Department has promulgated various regulations to guide an insurer’s implementation of Section 1731, the statutory provision at issue- in Franks and Maksymiuk. See 31 Pa.Code. § 68.101 (identifying the required forms); 31 Pa.Code § 68.103 (describing form of § 1731 rejection notices). With respect to the renewal notice, the Department interprets Section 1731(c.l) as mandating an insurer to disclose the rejection of UM/UIM coverage. 31 Pa.Code § 68.103(e). Thus, the Department’s regulations reiterate the express statutory renewal notice requirement. However, the Department has promulgated no regulatory scheme for the administration or enforcement of the Section 1731(c.l) renewal notice requirement that would indicate the Department’s interpretation of that section as a regulatory provision.

Likewise, the Department’s regulations implementing Section 1791.1 provide that Section 1791.1(a) “requires a new form giving an itemized comparison of minimum motor vehicle coverage levels with the insured’s current coverages. The invoice shall contain the statutory language.” 31 Pa.Code § 68.106(a). Thus, consistent with the express statutory language, the Department interprets Section 1791.1 as mandating an insurer to provide an insured the statutory notice upon renewal. The Department has not, however, promulgated any regulatory mechanism for the administrative enforcement of violations of Section 1791.1. See 31 Pa.Code § 68.101 (identifying forms), and § 68.604 (detailing § 1791.1 notice requirements).2 When the Department considers the Section *6771791.1(a) renewal notice mandatory, but has promulgated no administrative procedures for its enforcement, I cannot agree with the Majority’s reliance on Franks and Maksymiuk for the proposition that Section 1791.1 is a regulatory provision with no private remedy.

Consequently, I am persuaded that to construe the statute as the Majority does renders the Section 1791.1 renewal notice provision mere surplusage, and yields an absurd result. Instead, pursuant to the rules of statutory construction, I conclude that Appellants are entitled to UM benefits.

The goal of statutory construction is to ascertain and effectuate the intention of the legislature. 1 Pa.C.S. § 1921(a). In ascertaining the legislative intent, we may presume that the General Assembly did not intend an absurd or unreasonable result, 1 Pa.C.S. § 1922(1), and intended the entire statute to be effective, 1 Pa.C.S. § 1922(2). Accordingly, “[ejvery statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a).

The MVFRL does not contain a statement of findings and purpose. Prior to the 1990 amendments that rendered UM and UIM coverages optional, this Court stated that the legislature enacted the MVFRL to reduce the rising cost of automobile insurance and the resultant increase in uninsured motorists. Paylor v. Hartford Ins. Co., 536 Pa. 583, 640 A.2d 1234 (1994). Since the 1990 amendments, the Superior Court has held that one of the objects of the MVFRL is to afford the injured claimant the broadest possible coverage. Motorists Ins. Cos. v. Emig, 444 Pa.Super. 524, 664 A.2d 559 (1995), alloc. denied, 546 Pa. 665, 685 A.2d 545 (1996). In this way, *678the MVFRL is to be liberally construed. 1 Pa.C.S. § 1928(c); Motorists. With these principles in mind, I turn to the statutory provisions at issue here.

By its express terms, the MVFRL mandates compliance with the following procedures to establish a waiver of UM coverage:

1. An insurer must offer an insured uninsured motorist coverage, 75 Pa.C.S. § 1731(a), and inform the insured that he/she may reject such coverage by signing a “Rejection of Uninsured Motorist Protection” waiver, 75 Pa.C.S. § 1731(b).
2. On policy renewals in which the insured has rejected UM protection, the insurer must provide a policy renewal containing notice in prominent type that the policy does not provide UM protection, 75 Pa.C.S. § 1731(c.l).
3. At the time of application for original coverage, the insurer must advise the insured of the available policy benefits and limits, presumptively established through the provision to the insured of the “Important Notice,” 75 Pa.C.S. § 1791.3
*6794. At the time of application for original coverage and every subsequent renewal, an insurer must provide to an insured an itemized invoice displaying premium charges and tort options, and the specific Section 1791.1 notice, 75 Pa.C.S. § 1791.1.

As the Majority notes, Section 1791.1 is in para materia with Sections 1731 and 1791. 1 Pa.C.S. § 1932. Construing these sections together, one discerns a comprehensive statutory scheme to ensure that an insurer will advise the insured of all the benefits, options, minimum legal coverage, and costs associated with each choice under the MVFRL. The legislature has, therefore, protected the consumer by providing him or her with sufficient information to intelligently and knowingly elect options or reject coverage upon the initial application and upon renewal. Requiring insurers to fully inform consumers is consistent with the legislature’s intent to provide the broadest possible coverage while reducing the rising cost of insurance. See Pennsylvania Financial Responsibility As*680signed Claims Plan v. English, 541 Pa. 424, 664 A.2d 84 (1995) (MVFRL seeks, in part, to ensure owners of registered vehicles purchase adequate insurance); see also Donnelly v. Bauer, 453 Pa.Super. 396, 413, 683 A.2d 1242, 1250 (1996) (Del Sole, J., dissenting) (“The goal of providing for an informed consumer is not in conflict with the equally important goal of making automobile insurance more affordable and more available.”), alloc. granted, 548 Pa. 627, 693 A.2d 967 (1997).

Accordingly, the legislature has provided that an insurer’s noncompliance with the Section 1731(c.l) rejection form for UM protection entitles the insured to UM coverage equal to the bodily injury liability limits of the insured’s policy. 75 Pa.C.S. § 1731(c.l); Lucas v. Progressive Casualty Ins. Co., 451 Pa.Super. 492, 680 A.2d 873 (1996), alloc. denied, 548 Pa. 619, 693 A.2d 589 (1997). Additionally, noncompliance with the Section 1791 “Important Notice” provision eviscerates any presumption that the insured has been advised of the benefits and limits available under the MVFRL, and results in coverage in the amount of bodily injury liability unless the insured otherwise knowingly and affirmatively waived such coverage. 75 Pa.C.S. § 1791; Botsko v. Donegal Mutual Ins. Co., 423 Pa.Super. 41, 620 A.2d 30, alloc. denied, 536 Pa. 624, 637 A.2d 284 (1993) (citing Johnson v. Concord Mutual Ins. Go., 450 Pa. 614, 300 A.2d 61 (1973)).

In the context of the entire MVFRL framework, it is, therefore, absurd to construe an insurer’s failure to provide the notice mandated by Section 1791.1 upon policy renewal as innocuous. To give effect to the Section 1791.1 notice requirement, I would hold that due to Appellee’s failure to provide the required invoice and notice, Appellee has failed to establish a valid waiver of UM benefits in Brown’s second policy year. Accordingly, I believe that Appellants are entitled to UM benefits in the amount of the bodily injury liability limits of Brown’s policy.

Moreover, my decision is further supported by analogy to case law considering whether a private cause of action for damages is implicit in a statute not expressly providing one. The United States Supreme Court set forth the standard for *681determining when a private cause of action may be implied from a federal statute in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975):

1. Is the plaintiff one of the class for whose special benefit the statute was enacted?
2. Is there any indication of legislative intent, either explicit or implicit, to create such a remedy or to deny one?
3. Is implication of such a remedy consistent with the underlying purposes of the legislative scheme?
4. Is the cause of action one traditionally relegated to state law?

Id. at 78, 95 S.Ct. at 2087. Applying the relevant factors of the Cort test to this case, I believe it is appropriate to imply a remedy for Appellee’s violation of the Section 1791.1 renewal notice requirement.4 Because the MVFRL is designed, in part, to protect consumers and provide the broadest possible coverage to injured parties, Appellants are among the particular group for whose benefit the statute was enacted. In the context of the entire MVFRL scheme, an implied private remedy for an insurer’s violation of Section 1791.1 is consistent with the spirit and purpose of the statute, particularly in the absence of any legislative or regulatory enforcement procedures.

Accordingly, I would reverse the Superior Court’s affirmance of the trial court’s grant of summary judgment in favor of Appellee and remand for further proceedings.

NIGRO, J., joins in this dissenting opinion.

. I note that the Franks court incorrectly identified the relevant statutory provision as 75 Pa.C.S. § 1705(b).

. Section 68.604 specifically provides:

*677Under 75 Pa.C.S. § 1791.1(a) (relating to disclosure of premium charges and tort options), an insurer is required to provide an itemized invoice to an insured which displays the minimum limits and coverages required for the limited tort option. In implementing 75 Pa.C.S. § 1791.1(b), an insurer should include up-to-date premium comparisons for the full and limited tort options in its notifications to customers. The Insurance Department encourages insurers to mail selection forms to those customers who did not complete forms during the initial implementation of the act of February 7, 1990 (P.L. 11, No. 6).

31 Pa.Code § 68.604.

. Section 1791 specifically provides:

§ 1791. Notice of available benefits and limits
It shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required:
IMPORTANT NOTICE
Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you, your spouse or other relatives or minors in your custody or in the custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle:
(1) Medical benefits, up to at least $100,000.
(1.1) Extraordinary medical benefits, from $100,000 to $1,100,000 which may be offered in increments of $100,000.
(2) Income loss benefits, up to at least $2,500 per month up to a maximum benefit of at least $50,000.
(3) Accidental death benefits, up to at least $25,000.
(4) Funeral benefits, $2,500.
(5) As an alternative to paragraphs (1), (2), (3) and (4), a combination benefit, up to at least $177,500 of benefits in the aggregate or *679benefits payable up to three years from the date of the accident, whichever occurs first, subject to a limit on accidental death benefit of up to $25,000 and a limit on funeral benefit of $2,500, provided that nothing contained in this subsection shall be construed to limit, reduce, modify or change the provisions of section 1715(d) (relating to availability of adequate limits).
(6) Uninsured, underinsured and bodily injury liability coverage up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident or, at the option of the insurer, up to at least $300,000 in a single limit for these coverages, except for policies issued under the Assigned Risk Plan. Also, at least $5,000 for damage to property of others in any one accident. Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above.
Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected.
If you have any questions or you do not understand all of the various options available to you, contact your agent or company. If you do not understand any of the provisions contained in this notice, contact your agent or company before you sign.

75 Pa.C.S. § 1791.

. The last factor does not apply to a state statute. See, e.g., In re: Resolution of State Comm’n of Investigation, 108 NJ. 35, 527 A.2d 851 (1987).