J-A23026-17 & J-A23027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN J. BIELEC                         :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
           v.                          :
                                       :
                                       :
AMERICAN INTERNATIONAL GROUP,          :
INC., NATIONAL UNION FIRE              :
INSURANCE COMPANY OF                   :   No. 336 EDA 2017
PITTSBURGH, P.A., VERIZON              :
COMMUNICATIONS INC. AND                :
VERIZON PENNSYLVANIA                   :
                                       :
                                       :
APPEAL OF: VERIZON                     :
PENNSYLVANIA LLC AND VERIZON           :
COMMUNICATIONS INC.                    :

            Appeal from the Order Entered December 5, 2016
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 1440 September Term, 2014


JOHN J. BIELEC                         :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
           v.                          :
                                       :
                                       :
AMERICAN INTERNATIONAL GROUP,          :
INC. NATIONAL UNION FIRE               :
INSURANCE COMPANY OF                   :   No. 418 EDA 2017
PITTSBURGH, PA, VERIZON                :
COMMUNICATIONS, INC. AND               :
VERIZON PENNSYLVANIA, INC.             :
                                       :
                                       :
APPEAL OF: NATIONAL UNION FIRE         :
INSURANCE COMPANY                      :
OF PITTSBURGH, PA                      :

            Appeal from the Order Entered December 5, 2016
J-A23026-17 & J-A23027-17



      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): 1440 September Term, 2014


BEFORE:      PANELLA, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                          FILED DECEMBER 26, 2017

        In these consolidated appeals, Appellants, Verizon Pennsylvania LLC

and Verizon Communications, Inc., (“Verizon”) and American International

Group, Inc. and National Union Fire Insurance Company of Pittsburgh, PA

(“National”) (collectively, “Appellants”) appeal from the December 5, 2016

Orders entering summary judgment in favor of Appellee, John J. Bielec, in

this Declaratory Judgment action. After careful review, we affirm.

        The facts and procedural history are as follows.       Appellee was an

employee of Verizon.         On November 21, 2013, during the course of his

employment, Appellee was driving a vehicle owned by Verizon. At a traffic

light, an automobile struck Appellee’s vehicle. The automobile was insured

only for the minimum bodily damage limits allowed under the law. Appellee

alleged that he sustained serious injuries and damages in excess of these

minimum amounts, and consequently made an underinsured motorist

(“UIM”) claim to Verizon’s insurer, National.     National denied the claim on

the grounds that, in 2013, Verizon had rejected UIM coverage, pursuant to


____________________________________________


*
    Former Justice specially assigned to the Superior Court.




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Section 1731(c) of the Motor Vehicle Financial Responsibility Law (“MVFRL”),

75 Pa.C.S. § 1731.

      On September 9, 2014, Appellee commenced the instant Declaratory

Judgment action against Verizon and National.             On November 5, 2014,

Verizon filed an Answer With New Matter to Appellee’s Complaint.                 On

November 11, 2014, National filed an Answer With New Matter and a

counterclaim for a Declaratory Judgment.          In its counterclaim, National

sought a declaration that Verizon had validly rejected UIM coverage.             On

November 26, 2014, Appellee filed a Reply to New Matter and Counterclaim.

      On January 15, 2016, Verizon, National, and Appellee filed Motions for

Summary Judgment. The trial court scheduled a hearing on the Motions and

ordered the parties to file supplemental Briefs addressing the public policy

implications of the issues raised in the Motions.

      Following the hearing, on December 5, 2016, the trial court denied

Appellants’ Motions for Summary Judgment, granted Appellee’s Motion for

Summary Judgment, and dismissed National’s counterclaim.                  The court

concluded that Verizon’s UIM rejection was defective as a matter of law and

that Appellee is entitled to UIM benefits under Verizon’s policy with National.

On December 29, 2016, and December 30, 2016, Verizon and National,

respectively,   filed   Motions   for   Reconsideration   and   Motions    to   Stay

Proceedings. The trial court denied the Motions on January 3, 2017.




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J-A23026-17 & J-A23027-17


      On January 3, 2017, and January 4, 2017, National and Verizon each

filed Notices of Appeal.   The trial court did not order Appellants to file

Pa.R.A.P. 1925(b) Statements.

      National raises the following three issues on appeal, which we have

reordered for ease of disposition:

      1. Does [Appellee] have standing to challenge the validity of the
         rejection of [UIM] coverage made by his employer, the
         Named Insured on the insurance policy issued by [National]?

      2. Is the rejection of UIM coverage in this case by [Verizon] void
         or invalid for failure to comply with 75 Pa.C.S. § 1731?

      3. Does any Pennsylvania public policy relating to the [MVFRL]
         require that notice [ ] be given to an employee of an
         employer’s decision to reject UIM coverage in order for such a
         rejection of UIM coverage be valid?

      4. Does failure by a corporate insured to provide notice to its
         employee that UIM coverage is being rejected obligate the
         insurer to provide such coverage notwithstanding the
         rejection of UIM coverage.

National’s Brief at 6.

      Verizon raises the following two issues on appeal:

      1. Is [Appellee] entitled to UIM benefits as a third-party
         beneficiary of Verizon’s insurance policy because, even
         though Verizon signed a form that reproduced the MVFRL’s
         required rejection language verbatim with a clear intention to
         waive coverage, Verizon signed only on the form’s second
         page?

      2. Is [Appellee] entitled to UIM benefits through Verizon’s
         insurance policy because, on balance, the MVFRL’s public
         policy goals require an employer to notify affected employees
         when it wishes to waive UIM coverage, regardless [of]
         whether they would have taken action in response to such
         notice?



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J-A23026-17 & J-A23027-17



Verizon’s Brief at 5.

                                        Standing

        In its first issue, National claims that Appellee, as a third-party

beneficiary of Verizon’s insurance policy, lacks standing to challenge the

validity of Verizon’s waiver of UIM coverage. National’s Brief at 19-22.1

        It is well-settled that a defendant waives a challenge to the issue of a

plaintiff’s standing to sue if he does not raise the challenge at the “earliest

possible opportunity.” Kuwait & Gulf Link Transport Co. v. Doe, 92 A.3d

41, 45 (Pa. Super. 2014). Where an objection to standing is concerned, the

“earliest possible opportunity” is defined as “in preliminary objections or in

[a defendant’s] answer to the complaint.”           Drake Mfg. Co., Inc. v.

Polyflow, Inc., 109 A.3d 250, 257 (Pa. Super. 2015).

        Our review of the pleadings indicates that National failed to challenge

Appellee’s capacity to bring this action for benefits under Verizon’s policy

before the trial court. In addition, in its Brief, National has not referred to

the place in the record where it preserved this issue.           See Pa.R.A.P.

2119(c), (e). Thus, we conclude that National has waived this issue.2, 3


____________________________________________


1
   Verizon also makes this argument in its Brief, but presents it as an
alternative argument in support of its overarching claim that the trial court
erred in finding its UIM waiver invalid, and not as a separate Question
Involved. See Verizon’s Brief at 31-36.

2
    Verizon has likewise waived this issue for the reasons set forth, supra.




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J-A23026-17 & J-A23027-17



                                    The UIM Waiver

      National’s second issue and Verizon’s first issue are interrelated; thus,

we address them together. In these issues, Appellants essentially challenge

the trial court’s conclusion that Verizon’s UIM coverage waiver was invalid

under the MVFRL. National’s Brief at 22-34; Verizon’s Brief at 20-31.

      We review orders granting summary judgment under a familiar

standard.

          Summary judgment is proper only when the pleadings,
          depositions, answers to interrogatories, admissions and
          affidavits and other materials demonstrate that there is no
          genuine issue of material fact and that the moving party is
          entitled to judgment as a matter of law. The reviewing
          court must view the record in the light most favorable to
          the nonmoving party and resolve all doubts as to the
          existence of a genuine issue of material fact against the
          moving party. Only when the facts are so clear that
          reasonable minds could not differ can a trial court properly
          enter summary judgment.

Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007)

(citations omitted).
                       _______________________
(Footnote Continued)

3
  Even if National had not waived this issue, it would not merit relief as
Appellee has standing to challenge the validity of Verizon’s UIM coverage
waiver in an effort to identify the benefits, if any, he is entitled to under
Verizon’s policy. Appellee would not have standing to bring a claim for UIM
benefits where no such benefits existed. Here, the question is whether UIM
coverage exists. See Petty v. Federated Mut. Ins. Co., 152 A.3d 1020,
1026 n.3 (Pa. Super. 2016) (holding that a third party beneficiary does not
have a claim for UIM benefits where an insured has properly rejected UIM
coverage); General Acc. Ins. Co. of America v. Parker, 665 A.2d 502,
504 (Pa. Super. 1995) (explaining that the rights of a third party beneficiary
are subject to the same limitations as those of a party to the contract).



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J-A23026-17 & J-A23027-17


When considering an order granting summary judgment in the context of a

declaratory judgment action, our scope of review is plenary.      Kvaerner

Metals Division of Kvaerner U.S., Inc. v. Commercial Union Ins. Co.,

908 A.2d 888, 895 (Pa. 2006). We will reverse the Order of the trial court

only if we find that an error of law or an abuse of discretion has occurred.

Id. “The test is not whether we would have reached the same result on the

evidence presented, but whether the trial court's conclusion can reasonably

be drawn from the evidence.” Nationwide Mut. Ins. Co. v. Cummings,

652 A.2d 1338, 1341 (Pa. Super. 1994).

     The issues raised by Appellants challenge the trial court’s conclusion

that Verizon’s UIM coverage waiver was invalid, which is a pure question of

law. Orsag v. Farmers New Century Ins., 15 A.3d 896, 899 (Pa. 2011).

Thus, “our standard of review is de novo, and our scope of review is

plenary.” Id.

     Our analysis begins with consideration of the relevant provision of the

MVFRL. When construing a statute, we must, whenever possible, give each

word meaning.    Winslow–Quattlebaum v. Maryland Ins. Group, 752

A.2d 878, 881 (Pa. 2000), quoting 1 Pa.C.S. § 1921(a).

     Pursuant to the MVFRL, an insured who desires to waive UIM coverage

must sign a rejection form. The form must state as follows:




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J-A23026-17 & J-A23027-17


       REJECTION OF UNDERINSURED MOTORIST PROTECTION

     By signing this waiver I am rejecting underinsured motorist
     coverage under this policy, for myself and all relatives residing in
     my household. Underinsured 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
     enough insurance to pay for all losses and damages.                I
     knowingly and voluntarily reject this coverage.



     ___________________________

     Signature of First Named Insured



     ___________________________

     Date

57 Pa.C.S. § 1731(c). The MVFRL further provides explicit instructions with

respect to the execution of the waivers.

     (c.1) Form of waiver.--Insurers shall print the rejection forms
     required by subsections (b) and (c) on separate sheets in
     prominent 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
     underinsured 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.1) (emphasis added).



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J-A23026-17 & J-A23027-17



      As noted above, the waiver of UIM coverage is effectuated by specific

compliance with the mandates of Section 1731(c.1).       Pennsylvania courts

interpreting this statute have concluded that de minimis or hyper-technical

defects in a UIM coverage waiver will not serve to defeat an otherwise valid

rejection of UIM benefits.   See, e.g., Ford v. Am. States Ins. Co., 154

A.3d 237, 245 (Pa. 2017) (holding that “when a UIM rejection form differs

from the statutory form in an inconsequential manner, the form will be

construed to specifically comply with Section 1731[.]”); Petty v. Federated

Mut. Ins. Co., 152 A.3d 1020 (Pa. Super. 2016) (affirming the trial court’s

finding that “the differences cited by [a]ppellants are hyper-technical and do

not cause confusion or result in an uninformed waiver.”).

      However, as noted by this Court in Jones v. Unitrin Auto & Home

Ins. Co., 40 A.3d 125 (Pa. Super. 2012), Section 1731(c) “prescribes the

proximal relationship between the required language and the required

signature and date lines following the language.”      Id. at 131 (emphasis

omitted). The proximity of the signature line to the text of the waiver is,

thus, significant. In Jones, this Court concluded that the rejection of UIM

benefits was invalid because the insurer’s UIM rejection form “interpose[d] a

sentence, not directly related to [the] rejection of UIM coverage, between

the required language and the signature line.” Id. Thus, the location of the

execution line is not “de minimis” and the requirement of a signature

thereon is not “hypertechnical.”




                                    -9-
J-A23026-17 & J-A23027-17



      Here, the form tracked verbatim the language of the statute. The UIM

rejection paragraph at issue in Verizon’s policy on page 1, entitled “Rejection

of Underinsured Motorist Protection,” included the required signature and

date lines. Verizon UIM Waiver Form, dated 4/26/13. In addition, National

had inserted a “tick-box” next to the rejection paragraph on page 1, a

feature not required by statute.     On the same page, the form had two

additional sets of paragraphs, signature and date lines, and “tick-boxes,”

entitled “Selection of Limits” and “Underinsured Coverage Limits.”

      Although Verizon’s authorized representative placed a mark in the

“tick-box” next to the paragraph entitled “Rejection of Underinsured Motorist

Protection,” she did not sign or date on the lines immediately following the

rejection paragraph as required by statute.      Instead, on page 2 of the

coverage form, she signed after the following untitled paragraph:

      I understand the protection afforded by Underinsured Motorist
      Coverage and the selection(s) I have made on this Notice
      regarding Underinsured Motorist Coverage. I further understand
      and agree that my selection(s) will apply to this policy and all
      future transfers, substitutions, amendments, alterations,
      modifications, reinstatements or replacements of this policy, and
      all future renewals of this policy, unless I make a written request
      to change my selection(s) and such request is received and
      approved by the Company.

      All other terms, conditions, and exclusions of the policy remain
      unchanged.

      _____________            ______________________________

      Effective Date          Authorized Signature of Named Insured




                                    - 10 -
J-A23026-17 & J-A23027-17


      _____________           _______________________________

      Date Signed             Name and Title

      Although Verizon’s authorized representative signed and dated on each

line immediately following the untitled paragraph indicating she had made

“selection(s),” she failed to sign on the line immediately following as

required by case law and statute to indicate explicit waiver of coverage.

Such omission created an ambiguity.      As a result, Verizon did not validly

waive UIM coverage.

      National argues that the UIM rejection form signed by Verizon

specifically complied with the MVFRL because: (1) it contained the required

statutory language; (2) Verizon, the named insured, signed the form; (3)

any deviations from the prescribed statutory language were de minimis; (4)

the text of the form did not modify coverage or inject ambiguity into the

statutory form; and (5) the subjective intent of the contracting parties was

clear. National’s Brief at 22-34.

      Verizon set forth variations on the same arguments: (1) that the

language of the UIM form signed by Verizon matches verbatim the language

of Section 1731(c); (2) that the court erred in concluding that the location of

Verizon’s representative’s signature has legal significance; (3) that, in

keeping with its longstanding practice, Verizon intended to waive UIM

coverage; and (4) that there is no reason to invalidate the UIM rejection and

impose strict liability on National where Verizon, and not National, failed to

observe a statutory technicality. Verizon’s Brief at 20-31.


                                    - 11 -
J-A23026-17 & J-A23027-17



       We are not convinced by Appellants’ bald assertion that Verizon’s

placement of an “X” in the “tick-box” next to the UIM coverage waiver

paragraph on National’s form, together with the signature on page 2 of the

form, were sufficient to effectuate Verizon’s waiver.     Appellants have not

supported this argument by citing to any authority.       The mandatory form

described in Section 1731(c.1) does not include a “tick-box” or any similar

method for indicating an intent to waive coverage.        Rather, the express

terms of Section 1731(c) and (c.1) emphasize the importance of the

proximal relationship between the waiver language and the insured’s

signature, indicating an explicit requirement that the insured must sign on

the line directly below the waiver paragraph in order to effectuate a valid

rejection of UIM coverage.

       Accordingly, we agree with the trial court that by failing to sign on the

line below the UIM waiver option paragraph, Verizon failed to select the

waiver of UIM coverage as it purportedly intended.

       Thus, the trial court did not err in granting summary judgment in favor

of Appellee.4

       Order affirmed. Jurisdiction relinquished.

       Judge Panella joins the memorandum.

____________________________________________


4
  In light of our disposition, we decline to address the public policy issues
raised by the trial court’s summary conclusion that “an employer who fails to
notify its employee driver that UIM coverage has been rejected is acting
against public policy.” Trial Ct. Op. at 13.



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     Judge Fitzgerald files a dissenting statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2017




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