Orsag v. Farmers New Century Insurance

Justice SAYLOR,

concurring.

I join the majority opinion subject to the following observations.

Section 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1734, only sets forth the minimum requirements necessary for a valid UM/UIM sign-down of coverage to limits below those applicable to bodily injury liability. The type of notice that an insured who selects such coverage must have concerning an insurer’s obligation to offer more is a separate matter, as is the form in which the insurance company may make the offer. Here, Appellants’ complaint, as presented to the common pleas court, does not contain any allegation based on the lack of a Section 1791 “Important Notice.” See id. § 1791, quoted in Majority Opinion, 391-92 n. 1, 15 A.3d at 898 n. 1; see generally Lewis v. Erie Ins. Exch., 568 Pa. 105, 123, 793 A.2d 143, 153 (2002) (“Section 1791 of the MVFRL occupies a central role as it concerns the conveyance of information regarding, inter alia, the insurer’s obligation to offer UM and UIM coverage of up to at least $100,000 per person and $300,000 per accident, and of the insured’s option to purchase coverage carrying lower benefit limits.”). Rather, the complaint merely asserts that “no offer of options or ‘sign down’ forms” were provided to Appellants, resulting in the lack of a “proper offer” for the lower limits appearing on the application. Complaint at 4 ¶ 12. Moreover, although Appellants apparently referred to Section 1791 in their advocacy before the Superior Court, that court found any issue predicated upon the lack of a Section 1791 notice to be waived for lack of development, see Orsag v. Farmers New Century Ins., No. 2659 EDA 2008, slip op. at 12 n. 5, 981 A.2d 946 (Pa.Super. July 29, 2009), and the propriety of such ruling is not presently before this Court.

*399That being the case, and particularly in light of the circumscribed question accepted for review, see Majority Opinion, at 393, 15 A.3d at 899 (quoting Orsag v. Farmers New Century Ins., 604 Pa. 459, 986 A.2d 128 (2009) (per curiam)), the present appeal is substantially limited in scope and does not involve any issue pertaining to Appellants’ notice regarding their options, including the adequacy of the offer provided by Appellee. Instead, it is constrained to the question of whether the application that Appellants executed was legally sufficient to constitute a written request for purposes of Section 1734.1 I share some of the dissent’s concerns regarding the nature of the offer given to Appellants, see Dissenting Opinion, at 404-06, 15 A.3d at 904-07 (comparing the present application, and the one at issue in Erie Insurance Exchange v. Larrimore, 987 A.2d 732 (Pa.Super.2009), with those involved in Lewis and Hartford Insurance Co. v. O’Mara, 907 A.2d 589 (Pa.Super.2006)); see generally Salazar v. Allstate Ins. Co., 549 Pa. 658, 664, 702 A.2d 1038, 1041 (1997) (acknowledging the insurer’s legal obligation to make appropriate offers), and under other circumstances, I might find that a factual issue pertaining to its adequacy was presented for resolution through evidentiary development. Here, however, I ultimately conclude the dissent’s reasoning imports issues pertaining to Appellants’ notice into the distinct question of the adequacy of their written request.

Finally, I am unable to agree with the dissent’s contention that the present holding renders Section 1734’s requirement of a written request “mere surplusage.” Dissenting Opinion, at 409, 15 A.3d at 908. By its terms, Section 1734 only requires that the request for specified UM/UIM coverage be in -writing and made by the insured. A signed application requesting such coverage plainly satisfies that requirement. The “surplusage” argument, moreover, rests on the assertion that every contract for auto insurance in Pennsylvania is made in *400writing via an application containing a provision for UM/UIM coverage, and that every such application is completely filled in — that is, that none of the spaces are ever left blank, accidentally or otherwise. See id. (“It is beyond cavil that all applications, both before and after the enactment of Section 1734, included designations of the amounts of coverage and the signature of the insured.”). This seems unlikely to me, and it is noteworthy that the dissent does not provide any support for this factual claim.2

Justice TODD joins this concurring opinion.

. In this regard, I would not find it necessary to address whether a signed application constitutes the “most effective manner” of forwarding such a request, Majority Opinion, at 396, 15 A.3d at 900-01 — as compared to, say, an amendatory rider dedicated to specifying lower *400coverage' — but only whether it satisfies the statutory requirement of a written request.

. Further, the "surplusage” argument, if applied consistently, would mean that a separate writing would be required for any UM/UIM coverage, including coverage at the same level as personal injury liability. See 75 Pa.C.S. § 1734 (permitting a named insured to request in writing UM and UIM coverage "in amounts equal to or less than the limits of liability for bodily injury” (emphasis added)); see also id. § 1736 (prohibiting UM/UIM coverage in amounts greater than the limits of liability for bodily injury). This result would, in my view, be unreasonable because, if that had been the Legislature’s intent, it would likely have said so more directly.