J-S17003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    STATE FARM MUTUAL AUTOMOBILE                  IN THE SUPERIOR COURT OF
    INSURANCE COMPANY                                   PENNSYLVANIA

                        v.

    ERIN C. DOONER, JEAN A. FONTE,
    JEFFREY KOWALSKI, GARY J.
    FEDORCZYK, AND PROGRESSIVE
    ADVANCED INSURANCE COMPANY

    APPEAL OF: JEAN A. FONTE                           No. 2820 EDA 2017


                  Appeal from the Order Entered August 2, 2017
                 In the Court of Common Pleas of Monroe County
                      Civil Division at No(s): 3140 CIVIL 2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 08, 2018

        Appellant, Jean A. Fonte, appeals from the August 2, 2017 order

granting summary judgment in favor of Appellee, Progressive Advanced

Insurance Company (“Progressive”). After careful review, we affirm.

        The trial court summarized the following undisputed facts and

procedural background of this case in its August 2, 2017 opinion:1

               Prior to the evening of May 15, 2014, Erin C. Dooner [(“Ms.
        Dooner”)] and [Appellant] [] were involved in a romantic
        relationship. While traveling in [Ms.] Dooner’s vehicle, the couple
        was involved in a one[-]car accident. [Ms.] Dooner had a motor
        vehicle insurance policy number 173-0212-A08 through State
        Farm Mutual Insurance Company’s [(“State Farm”)] business. As
____________________________________________


1 On September 20, 2017, the trial court filed a statement pursuant to
Pa.R.A.P. 1925(a), incorporating by reference its August 2, 2017 opinion, in
which the court had previously addressed the issues raised by Appellant on
appeal.
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      a result of this accident, [Ms.] Dooner was arrested and taken to
      the Monroe County DUI Center. [Appellant] then retrieved her
      own vehicle, a 2004 Dodge Stratus, in order to pick up [Ms.]
      Dooner from the DUI Center sometime after midnight on May 16,
      2014. [Appellant’s] vehicle was insured by an automobile policy
      through Progressive bearing the number 17067298-1 (hereinafter
      “the Fonte Policy”). Further, at the time[, Appellant] was residing
      with her mother, Frances Loomis, who had a home insurance
      policy number 26457524-2 (hereinafter “the Loomis Policy”)
      through Progressive. As [Appellant] was driving the couple home,
      they began to fight. [Appellant] claims [Ms.] Dooner struck her
      in the face. As the fight continued, [Ms.] Dooner grabbed the
      bottom of the steering wheel and jerked it. This caused the Dodge
      Stratus to swerve into oncoming traffic and collide head-on with a
      police cruiser. The police cruiser was operated by Jeffrey J.
      Kowalski (hereinafter “[Officer] Kowalski”). Gary J. Fedorczyk
      (hereinafter “[Officer] Fedorczyk”) was a front seat passenger in
      the police vehicle at the time of the accident.

             [Appellant] and [Officer] Kowalski, along with his wife, have
      filed lawsuits in this [c]ourt against [Ms.] Dooner relating to the
      accident. These suits are respectively filed at 3416 CV 2014 and
      1859 CV 2016. On April 27, 2016, [State Farm] filed a Complaint
      for Declaratory Judgment stating that it has no duty to defend,
      indemnify, or otherwise provide liability coverage to [Ms.] Dooner
      under [State Farm’s] insurance policy. On June 16, 2016,
      [Appellant] filed a Joinder Complaint against Progressive[,]
      alleging the Fonte and Loomis Policies are applicable in this matter
      [to cover her own injuries]. On June 5, 201[7], Progressive filed
      a Motion for Summary Judgment seeking declaratory relief that
      no coverage was in effect [to cover injuries to Appellant]. Oral
      argument was not held in this matter and a decision was rendered
      based upon the submissions of the parties.

Trial Court Opinion (“TCO”), 8/2/17, at 1-3.

      On August 2, 2017, the trial court entered an order granting

Progressive’s motion for summary judgment and finding that Progressive does

not owe a duty of coverage for uninsured (“UM”) and underinsured (“UIM”)

motorist benefits to Appellant in this case. Appellant filed a timely notice of

appeal on August 25, 2017, followed by a timely Pa.R.A.P. 1925(b) concise

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statement of errors complained of on appeal. Herein, Appellant presents the

following issue for our review:

      Did the trial court commit [an] error of law and abuse its discretion
      by granting summary judgment on behalf of [Progressive],
      deciding that [Progressive] did not owe a duty of coverage in this
      case, when [Appellant] established that [she] is entitled to [UM]
      and/or [UIM] motorist benefits through her insurance company,
      Progressive, thus misapplying law and relevant precedent?

Appellant’s Brief at 5.

      Preliminarily, we note that:

      Generally, the proper construction of a policy of insurance is a
      matter of law which may properly be resolved by a court pursuant
      to a motion for summary judgment. Nationwide Mut. Ins. Co.
      v. Nixon, … 682 A.2d 1310, 1313 ([Pa. Super.] 1996). Thus, the
      issue of whether a claim is within a policy’s coverage or barred by
      an exclusion is properly determined[,] provided that the policy’s
      terms are clear and unambiguous so as to preclude any issue of
      material fact. See Butterfield v. Giuntoli, … 670 A.2d 646, 651
      ([Pa. Super.] 1995).

         As with all questions of law, our scope of review of a trial
         court’s order granting summary judgment is plenary. Our
         standard of review is the same as that of the trial court; we
         must review the record in the light most favorable to the
         nonmoving party granting [it] the benefit of all reasonable
         inferences and resolving all doubts in [its] favor. We will
         reverse the court’s order only where the appellant …
         demonstrates that the court abused its discretion or
         committed legal error.

      Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185, 190
      (Pa. Super. 2003) (internal citations omitted).

      When interpreting a policy of insurance, we employ an analysis
      which, while derived from the law of contracts, recognizes that
      most insurance transactions are not freely bargained between
      equals but are largely adhesive in nature. See Betz. V. Erie Ins.
      Exchange, 957 A.2d 1244, 1252-53 (Pa. Super. 2008).



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         Insurance policies, like all contracts, are enforceable in
         accordance with the language used[,] and the scope of their
         coverage may be determined by the court as a matter of
         law. See Pappas v. UNUM Life Ins. Co. of Am., 856 A.2d
         183, 187 (Pa. Super. 2004). “In construing a contract, the
         intention of the parties is paramount and the court will adopt
         an interpretation which under all circumstances ascribes the
         most reasonable, probable, and natural conduct of the
         parties, bearing in mind the objects manifestly to be
         accomplished.” Charles D. Stein Revocable Trust v.
         Gen. Felt Indus., Inc., 749 A.2d 978, 980 (Pa. Super.
         2000).
                                         …

      Id. at 1252-53 (Pa. Super. 2008).

Safe Auto Ins. Co. v. Berlin, 991 A.2d 327, 331 (Pa. Super. 2010) (quoting

Bishops, Inc. v. Penn Nat. Ins., 984 A.2d 982, 989-90 (Pa. Super. 2009)

(footnotes omitted)).    Moreover, “[w]hen construing a policy, words of

common usage … are to be construed in their natural, plain and ordinary sense

… and we may inform our understanding of these terms by considering their

dictionary definitions.” Wagner v. Erie Ins. Co., 801 A.2d 1226, 1231 (Pa.

Super. 2002) (internal citations and quotation marks omitted).

      Section 1731(a) of the Motor Vehicle Financial Responsibility Law

mandates that all motor vehicle liability insurance policies offer coverage for

uninsured or underinsured motorists. 75 Pa.C.S. § 1731(a). “The purpose of

[UIM] coverage is to protect the insured … from the risk that a negligent driver

of another vehicle will cause injury to the insured … and will have inadequate

liability coverage to compensate for the injuries caused by his negligence.”

Kelly v. Nationwide Ins. Co., 606 A.2d 470, 474 (Pa. Super. 1992) (quoting

Wolgemuth v. Harleysville Mut. Ins. Co., 535 A.2d 1145, 1149 (Pa. Super.


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1988)); see also 75 Pa.C.S. § 1731(c).           Similarly, UM coverage seeks to

protect “persons who suffer injury arising out of the … use of a motor vehicle

and are legally entitled to recover damages therefor from owners or operators

of uninsured motor vehicles.” 75 Pa.C.S. § 1731(b).2

       Here, Appellant claims that the trial court erred in granting summary

judgment in favor of Progressive, as she believes sufficient evidence was

introduced to establish that she is entitled to UM or UIM coverage under the

Fonte policy. Appellant’s Brief at 11. According to Appellant, the uninsured

or underinsured motorist in this instance is Ms. Dooner. Id. at 10. Appellant

argues that Ms. Dooner was “in control” of the vehicle at the time of the

accident and, in fact, caused the collision with the police cruiser. See id. at

12-14. She concludes that State Farm is, therefore, responsible for providing

coverage to the limits of Ms. Dooner’s policy for injuries sustained in the

accident.3    Upon the exhaustion of the State Farm coverage, Appellant

suggests that she would then be entitled to UIM coverage pursuant to the

Fonte Policy. Alternatively, if State Farm will not provide coverage, Appellant

asserts that she would then be entitled to UM coverage under the Fonte Policy.

Id. at 18. We deem Appellant’s claim to be meritless.


____________________________________________


2In the instant case, both parties agree that the Fonte Policy covers UM and
UIM benefits. TCO at 4.

3 “The State Farm policy at issue provides for coverage for a ‘non-owned car’
if the car is in lawful possession of you or any resident relative.” Id. at 12
(internal citation omitted) (emphasis added by Appellant).

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       Appellant bases her argument on the assumption that Ms. Dooner was

in lawful possession of the Dodge Stratus when she grabbed the steering

wheel and caused the crash. Contrary to Appellant’s assertions, however, the

issue of whether Appellant or Ms. Dooner was in control of the vehicle at the

time of the accident is irrelevant in determining whether the Dodge Stratus

qualifies for UM or UIM coverage under either the Fonte or the Loomis Policy.

       First, we examine the applicable language of the Fonte Policy regarding

UM and UIM coverage:

       INSURING AGREEMENT – UNINSURED MOTORIST COVERAGE

       If you pay the premium for this coverage, we will pay for damages
       that an insured person is legally entitled to recover from the owner
       or operator of an uninsured motor vehicle because of bodily
       injury:

       1. sustained by an insured person;
       2. caused by an accident; and
       3. arising out of the ownership, maintenance, or use of an
          uninsured motor vehicle.[4]

       INSURING AGREEMENT – UNDERINSURED MOTORIST COVERAGE

       If you pay the premium for this coverage, we will pay for damages
       that an insured person is legally entitled to recover from the owner
       or operator of an underinsured motor vehicle because of bodily
       injury:

____________________________________________


4 The Fonte Policy expressly states that an “uninsured motor vehicle” does not
include any vehicle: “a. owned by you [(the policyholder)] or a relative or
furnished or available for the regular use of you or a relative; b. owned or
operated by a self-insurer under any applicable motor vehicle law, except a
self-insurer that is or becomes insolvent; … f. that is a covered auto; or g.
that is an underinsured motor vehicle.” TCO at 6.




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       1. sustained by an insured person;
       2. caused by an accident; and
       3. arising out of the ownership, maintenance, or use of an
          underinsured motor vehicle.[5]

Progressive’s Brief at 4. See also Progressive’s Supplemental Reproduced

Record at 16b.

       Based on our plain reading of the policy, it is clear that neither a vehicle

owned by the policyholder nor an auto shown on the declarations page

qualifies as an uninsured or underinsured motor vehicle. Thus, we agree with

the trial court that Appellant is not entitled to UM or UIM benefits from

Progressive for injuries that were caused by the negligent conduct of a

passenger in Appellant’s own vehicle. As the trial court further explained,

       the [Fonte] policy is unambiguous that UM and UIM benefits do
       not apply to a vehicle the policyholder owns. There has been no
       dispute that [Appellant] was the holder of the Fonte Policy or that
       this accident occurred in the 2004 Dodge Status [sic] she owned.
       These facts alone would bar [Appellant] from claiming UM or UIM
       benefits. Additionally, the policy prevents claims for UM and UIM
       benefits for “covered autos.” Covered autos are defined as “any
       auto or trailer shown on the declarations page for the coverages
       applicable to that auto or trailer.” Progressive’s Brief[,] Exhibit
       “D,” p. 1. There is no dispute that the automobile covered by the
       policy was [Appellant’s] 2004 Dodge Stratus. See Progressive’s
       Brief, Exhibit “D”. Therefore, based upon a plain reading of the
       insurance policy, [Appellant] cannot claim UM or UIM benefits for
       an accident which occurred in her own vehicle caused by a
       passenger in that vehicle.

             [Appellant’s] argument regarding control of the vehicle is
       not relevant at this time. In this instance, the insurance policy
____________________________________________


5 The Fonte Policy defines an “underinsured motor vehicle,” in relevant part,
as one that is not: “a. owned by you [(the policyholder)] or a relative or
furnished or available for the regular use of you or a relative; … e. that is a
covered auto; or f. that is an uninsured motor vehicle.” Id. at 6.

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      clearly looks to ownership of the vehicle the accident occurred in,
      and not who was driving it.          [Appellant] also argues that
      preventing her from claiming UM or UIM benefits in this scenario
      will render the benefits useless.        Pennsylvania courts have
      previously upheld such exceptions and declared them not to be
      against public policy. See Kelly v. Nationwide Ins. Co., [606
      A.2d 470 (Pa. Super. 1992)]. In Kelly, a husband and wife owned
      two cars which were covered under the same insurance policy.
      When the wife was injured while riding in one of the vehicles, she
      attempted to make a UM/UIM claim under the other half of the
      policy, claiming the couple’s other vehicle had not been involved
      in the accident. The policy excluded UM/UIM benefits for any
      vehicle insured under that policy. The court found that “the public
      policy behind the underinsurance provisions of the Motor Vehicle
      Financial Responsibility Act [was] not violat[ed] by” the policy’s
      exclusion. Id. at 474. Further, the court reasoned that when the
      legislature required UM and UIM coverage provisions, they did not
      intend that individuals would be able to recover both third party
      liability benefits and first party underinsurance motorist benefits
      from the same policy. Id. at 475. To allow otherwise “would turn
      underinsurance coverage into additional liability coverage” which
      was not its intended purpose. Id. Therefore, we find that
      [Appellant] may not claim UM or UIM benefits under the Fonte
      Policy … and that summary judgment is appropriate at this time.

TCO at 7-8.

      Next, the trial court considered whether Appellant is eligible for UM or

UIM benefits under her mother’s home insurance policy, as it is undisputed

that Appellant was a resident relative of her mother at the time of the accident.

See id. at 8. The Loomis Policy provides, in relevant part:

      EXCLUSIONS – READ THE FOLLOWING CAREFULLY, IF AN
      EXCLUSION APPLIES, COVERAGE WILL NOT BE AFFORDED UNDER
      THIS PART III.

      Coverage under this Part III will not apply:

      To bodily injury sustained by any person while using or occupying;

      b. A motor vehicle that is owned by or available for regular use of
      you [policyholder] or a relative. This exclusion does not apply to
      a covered auto that is insured under this Part III.

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Id. at 9 (citation omitted) (emphasis added by trial court).

      Based on the plain language of the Loomis policy, the trial court agreed

with Progressive that, as a result of the “family car” or “household exclusion,”

Appellant may not make a UM or UIM claim under her mother’s policy. See

id. at 9.

      [I]t is undisputed this accident occurred while [Appellant] was
      driving her own 2004 Dodge Stratus. It is further undisputed that
      she was a resident relative of her mother at the time of the
      accident. Lastly, the 2004 Dodge Stratus was not a covered auto
      under the Loomis Policy. Therefore, [Appellant] cannot use the
      Loomis Policy to claim UM or UIM benefits. Pennsylvania courts
      has [sic] held that “household” and “family car” exclusions are
      valid and not against public policy. See Prudential Prop. & Cas.
      Ins. Co. v. Colbert, 572 Pa. 82, 813 A.2d 747 (2012);
      Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006
      (1998). The Eichelman court noted that “there is a correlation
      between premiums paid by the insured and the coverage the
      claimant should reasonably expect to receive.” Eichelman[, 711
      A.2d] at 1011 [(]quoting Hall v. Amica Mut. Ins. Co., 538 Pa.
      337, 349, 648 A.2d 755, 761 (1994)[)]. The Prudential [C]ourt
      noted that disallowing family car exceptions under home
      insurance policies would lead to “gratis coverage on a vehicle that
      [the] insurer never knew existed.” Prudential[, 813 A.2d] at
      754. Further, rather than making insurance more affordable,
      insurance companies “would be compelled to underwrite unknown
      risks that the insureds neither disclosed nor paid to insure” and
      could potentially lead to car owners collecting UM or UIM benefits
      under an unlimited number of family member’s insurance policies.
      Id. This would be fundamentally unfair to both the insurance
      companies and to those that dutifully insure their vehicles and pay
      premiums.

Id. at 9-10.

      In conclusion, the trial court opined:

            [Appellant] has failed to provide any argument against a
      plain reading of the policy. [Appellant] has avoided the plain
      language argument under the Loomis Policy by arguing “insurance

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      giant” Progressive is attempting to prevent her from “stacking”
      policies. [Appellant] is correct that insurance benefits may be
      stacked and an injured party may recover under multiple policies
      under certain fact patterns. See Tallman v. Aetna Cas. & Sur.
      Co., 372 Pa. Super. 593, 539 A.2d 1354 (1998). However, we
      find no merit in the argument that Progressive is attempting to
      prevent [Appellant] from stacking the policies.           Rather,
      Progressive correctly argues that the exclusions in the Fonte and
      Loomis policies individually prevent [Appellant] from receiving
      benefits. Therefore, we find that summary judgment in favor of
      Progressive is appropriate at this time.

Id. at 10. After careful review, we deem the trial court’s findings to be well-

supported by the record.

      As Appellant failed to establish a genuine issue of material fact, we

conclude that the trial court did not commit an error of law or abuse its

discretion when it granted Progressive’s motion for summary judgment.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




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