Orsag v. Farmers New Century Insurance

Justice BAER,

dissenting.

As noted in the Majority Opinion, we granted review in this case to consider whether a signed application for motor vehicle insurance, which merely identifies the relevant coverage limits, is sufficient to satisfy the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), which provides that “[a] named insured may request in writing the issuance of coverages under section 1731 (relating to availability, scope and amount of coverage) in amounts equal to or less than the limits of liability for bodily injury.” 75 Pa.C.S. § 1734. I respectfully dissent from the Majority’s conclusion that the application is sufficient, and instead conclude that the generic application, without more, does not satisfy the writing requirement of Section 1734.

The parties do not dispute the facts of this case. According to the complaint, in January 2002, Plaintiff Jeffrey Orsag signed a two-page application to obtain motor vehicle insurance coverage from Defendant Farmers New Century Insurance. The first page identifies the applicants, Plaintiffs Jeffrey and Kimberly Orsag, lists the two vehicles to be insured, *401and includes a section detailing the coverages and premiums. The coverages section was completed by hand to indicate bodily injury liability coverage of $100,000 per person and $300,000 per accident, and uninsured and underinsured motorist coverage (“UM/UIM coverage”) of $15,000 per person and $30,000 per accident.

The second and final page of the application contains section^ relating to the applicants’ employment, their prior insurance, and sixteen questions relating to the condition of the cars and the drivers. The final section on the second page is entitled “Binder/Signature” and contains seven sub-sections outlined in separate boxes. The final statement avers, “I understand that the coverage selection and limit choices indicated here or in any state supplement will apply to all future policy renewals, continuations and changes unless I notify you otherwise in writing.” Plaintiff signed and dated that application at the bottom of these statements.

In November 2002, Plaintiff Jeffrey Orsag was involved in a motor vehicle accident. Plaintiffs received consent from Defendant to settle the underlying case with the tortfeasor involved in the accident. When the tortfeasor’s insurance did not cover all of Jeffrey’s claims, Plaintiffs sought UIM benefits from Defendant. Pursuant to the language of the insurance application discussed above, Defendant tendered $15,000 in UIM benefits.

In March 2008, Plaintiffs filed a complaint in Chester County Court of Common Pleas asserting that, pursuant to the MVFRL, Defendant should have paid $100,000 of UIM benefits. Given that Plaintiffs contracted for $100,000 of bodily liability coverage, they contended that Defendant should have offered UM/UIM coverage equal to that amount and provided that coverage absent a “request in writing” for a lesser amount of UM/UIM coverage. 75 Pa.C.S. § 1734. Plaintiffs averred that nothing in the policy application constitutes the written request contemplated in Section 1734. Plaintiffs sought reformation of the insurance policy to provide $100,000, the amount of coverage required absent a proper Section 1734 written request.

*402Defendant filed preliminary objections to the complaint in the nature of a demurrer, asserting that Plaintiffs failed to state a claim upon which relief could be granted. Defendant contended that the policy application met the written request requirement of Section 1734. Agreeing with the Defendant, the trial court sustained the preliminary objections and dismissed the complaint with prejudice.

In July 2009, the Superior Court affirmed the decision of the trial court that the two-page insurance application satisfied the written request requirement of Section 1734. The Superi- or Court acknowledged that the MVFRL requires insureds desiring reduced UM/UIM coverage to seek such reduction through a written request, but also contrasted the open-ended language of Section 1734 with the very specific requirements for complete waiver of UM/UIM coverage which requires the use of a form set forth in Section 1731.1 The Superior Court concluded that the signed two-page application in this case constituted a writing that evidenced Plaintiffs’ desire to purchase UM/UIM coverage in amounts less than the default amount provided by the MVFRL, and thus was sufficient to satisfy the written request requirement of Section 1734. Judge Klein filed a brief concurring opinion in which he agreed that the law required the court to affirm the dismissal of Plaintiffs’ complaint on the preliminary objections raised, but expressed hope that “our Supreme Court will re-examine this issue and require a bit more information so that purchasers of insurance can make the most informed, and thus, best decisions.” Super. Ct. Mem. Op. at 1 (Klein, J., concurring).

Plaintiffs sought review in this Court, which we granted limited to the following question:

If an insured signs an insurance application that contains lowered uninsured/underinsured motorist coverage limits, is that signature alone sufficient to meet the requirements of *403Section 1734 of Pennsylvania’s Motor Vehicle Financial Responsibility Law?

As this question presents a purely legal issue, our standard of review is de novo and our scope of review is plenary. In re Novosielski, 605 Pa. 508, 992 A.2d 89 (2010).

Although we have not previously defined the requirements for a sufficient Section 1734 written request, we have considered Section 1734 before. In Lewis v. Erie Insurance Exchange, 568 Pa. 105, 793 A.2d 143 (2002), we were asked to determine whether Section 1734 required compliance with the strict waiver provisions of Section 1731. We described the relevant application language as completed in Lewis:

Mr. Lewis’s signature appears on the form in both the UM and UIM sections within the blocks labeled “Reduced Limits of [UM/UIM] Motorist Protection,” and providing as follows:
By signing this waiver, I am rejecting [UM/UIM] coverage limits equal to my bodily injury liability limits. I knowingly and voluntarily select uninsured motorist coverage limits lower than my bodily injury limits. Instead, I select the following limit(s):
$50,000 each person $100,000 each accident.

Id. at 144. I emphasize that the language in Lewis was substantially more informative of the MVFRL’s default coverage provisions than is the language in the application at bar. In Lewis, we concluded that the strict requirements of Section 1731 applied only to situations involving the refusal of UM/ UIM coverage and were not required for reduction of UM/ UIM coverage. We noted, “[Rjequests for specific limits coverage, in contrast to outright waiver/rejection, require not only the signature of the insured, but also, an express designation of the amount of coverage requested, thus lessening the potential for confusion.” Id. at 153. This language has been interpreted by the Superior Court and the federal courts to require a Section 1734 written request to include a signature of the insured and an express designation of the UM/UIM coverage limit selected. Additionally, some courts also re*404quire demonstration of an intent to reduce the UM/UIM coverage below the coverage for bodily injury liability. Id. The decisions of these courts turn on factual distinctions regarding the completed application forms involved in each case, which I now review.

In Motorists Insurance Companies v. Emig, 444 Pa.Super. 524, 664 A.2d 559 (1995), the Superior Court found that the insurance form as completed did not satisfy Section 1734’s requirement that the insureds execute a written request for reduction of UM/UIM coverage. The application in Emig included two sections relevant to Section 1734. First, the form contained a section similar to that in the case at bar, indicating the amounts of coverage for bodily injury and UM/UIM coverage. In this section of the form, the word “reduced” was handwritten near the designated UM/UIM coverage amounts. Critical to the Superior Court’s decision however, was a second section entitled UIM Rejection/Reduction, which was left entirely blank. The court concluded that the first section, indicating only the amounts of coverage, could not constitute a Section 1734 written request for reduction given the presence of the blank second section that clearly was for the purpose of providing a Section 1734 written request for reduction of UM/UIM coverage. The court held that the signature at the end of the insurance policy application “merely evidences the insured[’s] acceptance of the policy” and “cannot amount to a statutorily enforceable waiver of uninsured/underinsured motorist coverage limits equal to bodily injury limits.” Id. at 565 (internal citation omitted).

In a case distinguishable from Emig and the instant case, the Superior Court in an en banc decision in O’Mara, 907 A.2d 589, held that an insured’s signature on the specific application involved satisfied the written request requirement of Section 1734. Specifically, the signed application form in O’Mara provided in relevant part:

Uninsured and Underinsured Motorist Coverage Options
Uninsured and Underinsured Motorist Coverages are optional in Pennsylvania. However, we are required by law to include these coverages unless you reject them in writing. *405We recommend you include both coverages in your policy limits equal to your Liability limits. Your self-protection and that of your passengers should equal the protection you provide others.
If you choose to include Uninsured and/or Underinsured Motorist Coverage in your policy, please indicate the coverage limits you desire below. If you wish to reject one or both of these coverages entirely, please refer to Step B and Step D on the sheet titled How To Select Your Coverages. Uninsured and Underinsured Motorist Coverage Selections
Use this sheet to select your coverage limits. To reject these coverages, you must sign and return the form titled Rejection of Uninsured Motorist Protection and/or the form titled Rejection of Underinsured Motorist Protection. If you do not make a selection for these coverage limits, your policy will include limits equal to your Liability limits (unless you have returned the rejection form).
Uninsured Motorist Coverage limits
[] Maximum amount available (an amount equal to the Liability limits of your policy).
[ ] The following specific amount $_/$_
[] Minimum amount available ($15,000 per person/$30,000 per accident).
Underinsured Motorist Coverage limits
[] Maximum amount available (an amount equal to the Liability limits of your policy).
[ ] The following specific amount $_/$_
[] Minimum amount available ($15,000 per person/$30,000 per accident).

O’Mara, 907 A.2d at 597-598 (emphasis in original). The above-language in the O’Mara policy, which was fully completed and signed in the appropriate places by the insured, provided the detailed and specific information that I find lacking from the application in the case at bar.

*406Recently, in Erie Insurance Exchange v. Larrimore, 987 A.2d 732 (Pa.Super.2009), the Superior Court held that an insurance application did not meet the requirements of a Section 1734 written request. Citing O’Mara and this Court’s decision in Lewis, the Superior Court summarized its view of the test for a Section 1734 written request: “[T]he writing must: (1) manifest the insured’s desire to purchase uninsured and underinsured coverage in amounts equal to or less than the bodily injury limits; (2) be signed by the named insured; and (3) include an express designation of the amount of uninsured and underinsured coverage requested.” Id. at 737 (internal quotation marks omitted). In Larrimore, the insured signed an eight-page application and a Section 1791 Important Notice.2 The court described the facts presented in the case:

The second page of the application set forth that the coverage applied for included the following: Bodily Injury Liability coverage in the amount of $300,000.00 per person and $300,000.00 per accident; Uninsured Motorist (“UM”) Bodily Injury coverage in the amount of $15,000.00 per person and $30,000.00 per accident, unstacked; and Under-insured Motorist (“UIM”) Bodily Injury coverage in the amount of $15,000.00 per person and $30,000.00 per accident, unstacked. This coverage limits information was inserted in the application by the agent before the application was presented to Donna Larrimore for signature. The eighth page of the application contained the following language immediately preceding the applicant’s signature: I certify that I have given true and complete answers to the questions in this application. I also certify that I have been offered alternative coverage limits and those listed on this application reflect my choices.

Id. at 734.

The court noted that Erie generally employed a special form for insureds who wished to request - lower UM/UIM *407limits, but did not use the form in the case; the unused Erie form included the following language:

By signing this form, I am requesting for myself and members of my household underinsured motorist coverage in an amount less than the limits of my bodily injury liability coverage. I am knowingly and voluntarily rejecting under-insured motorist coverage in an amount equal to my bodily injury liability limits. Rather, I am requesting the following amount of underinsured motorist coverage:

Id. at 735. The Superior Court concluded that this special form would have met Section 1734, which it viewed as requiring that “the written request must be signed by the insured and must contain an express designation of the amount of coverage requested, all manifesting the insured’s desire to purchase coverage in amounts less than the bodily injury limits.” Id. at 740. Unlike the special form, the court concluded that the actual application in Larrimore did not meet this test.

The federal district courts have also considered whether insurance documents satisfy Section 1734. In State Farm Mutual Auto. Insurance Company v. Hughes, 438 F.Supp.2d 526 (E.D.Pa.2006), the court found the documents involved sufficient. In Hughes, the application not only utilized coverage sections similar to the application in this case but also included a separate form entitled “Acknowledgement of Coverage Selection.” Similar to the documents used by the insurers in Lewis, Emig, and O’M ara and referenced in Larrimore, the Acknowledgement of Coverage Selection in Hughes explained UM/UIM coverage and indicated that UM/ UIM coverage “must be written at limits equal to the Bodily Injury limits unless the named insured selects lower limits.” Hughes, 438 F.Supp.2d at 529. Although the federal court concluded that the application, in and of itself, was sufficient because it contained the amount of UM/UIM coverage, the amount of bodily injury coverage that was greater than the UM/UIM coverage, and the insured’s signature, I would have held that the application was sufficient only when viewed in conjunction with the Acknowledgment of Coverage, as both *408documents were necessary to demonstrate the intent of the insured to select lower UM/UIM limits.

Finally, in Brethren Mutual Insurance Company v. Triboski-Gray, 584 F.Supp.2d 687 (M.D.Pa.2008), the federal district court considered whether an insurance application met the requirements of Section 1734, where the application mirrored the two-page document at issue in the case at bar, and additionally provided a Section 1791 Important Notice. The federal district court found the application insufficient for purposes of Section 1734.

The above-cited cases present a range of potentially sufficient Section 1734 written requests for reduced UM/UIM coverage, and I agree with the Majority that “it is laudable for insurance companies to provide additional information regarding UM/UIM insurance beyond what is found in the application” in the case at bar. Majority Opinion at 397, 15 A.3d at 901. Unlike the Majority, however, I view the additional information to be required for a sufficient Section 1734 written request for the reasons discussed below.

All agree that the legislature intended that, absent a Section 1734 written request, an insurer must issue a policy with UM/UIM coverage equal to the coverage limits of the bodily injury liability of the policy. See Blood v. Old Guard Insurance Co., 594 Pa. 151, 934 A.2d 1218, 1226 (2007). Equally clear, is that the MVFRL does not require a Section 1734 written request for reduced coverage to have the formality of a Section 1731 rejection of UM/UIM coverage. Lewis, 793 A.2d at 155. In Lewis, we held that a Section 1734 written request must include “not only the signature of the insured, but also, an express designation of the amount of coverage requested, thus lessening the potential for confusion.” Id. at 153. In my view, the application at issue in this case fails this test and instead increases the potential confusion due to an insured’s absence of knowledge regarding the protections in the MVFRL related to UM/UIM coverage. To rectify this potential for confusion, I conclude that a Section 1734 written request must include more than a signature on an application for insurance that provides the coverage amounts. Specifieal*409ly, the application must include an indication that the insured intended to contract for UM/UIM coverage limits less than the otherwise statutorily mandated coverage equal to the amount of bodily injury liability coverage.

To hold otherwise would be to conclude that the legislature enacted Section 1734 as mere surplusage. 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. When the legislature enacted Section 1734 to require a request in writing if an insured desired reduced UM/UIM coverage, it could not have intended to require merely something that was already included in every application. Even though the General Assembly decided not to require as much formality as it did for the absolute rejection of UM/UIM coverage in Section 1731,1 conclude that Section 1734 must be read to require a writing that is more than a mere application for coverage, and that an insureds’ intention to reduce their UM/UIM limits must be evident from the written request in order to “less[en] the potential for confusion” of the insured. Lewis, 793 A.2d at 153, and, more importantly, to meet the statutory scheme established by the Pennsylvania Legislature.

The above-described cases demonstrate that insurance companies are capable of producing with little difficulty and, indeed, regularly utilize such documents. Like my colleagues in the Majority, I encourage that continued practice. Such documents detail the requirements of the MVFRL regarding UM/UIM coverage, permit the insured to indicate his or her choice of UM/UIM limits lower than the chosen bodily injury liability limits, and finally, require a signature in close proximity to these choices. See Lewis, 793 A.2d 143; Larrimore, 987 A.2d 732; O’Mara, 907 A.2d 589; Emig, 664 A.2d 559; Hughes, 438 F.Supp.2d 526. I agree that the documents, if completed, in all of these cases were sufficient to meet the requirements of Section 1734. I differ from the Majority, however, because I would hold that a document like the application in the case at bar, containing nothing more that the amounts of coverage on page one and the insured’s *410signature at the policy’s end on page two, does not meet the requirements of a written request for reduction in coverage.

Accordingly, I would remand the case to the trial court for entry of an order overruling the Preliminary Objections, and for further proceedings consistent with this opinion.

Justice McCAFFERY joins this dissenting opinion.

. 75 Pa.C.S. § 1731 requires specific language for the rejection of UM/UIM coverage. Additionally, the section provides for placement of the waivers on separate sheets of paper in prominent type and location. 75 Pa.C.S. § 1731(c.1). If the requirements of Section 1731 are not met, the waiver is void. Id. (c.1).

. The relevant text of Section 1791 is set forth in the Majority Opinion. See Maj. Op. at 391-92, n. 1, 15 A.3d at 898, n. 1.