J-A27032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COLLEEN M. TRIMMER, Individually;        :       IN THE SUPERIOR COURT OF
COLLEEN M. TRIMMER, Personal             :             PENNSYLVANIA
Representative of the Estate of MARK     :
P. TRIMMER, Deceased; DARION J.          :
TRIMMER, a Minor, by Colleen M.          :
Trimmer, Parent and Natural Guardian;    :
and ANTHONY K. TRIMMER, a Minor, by      :
Colleen M. Trimmer, Parent and Natural   :
Guardian,                                :
                                         :
                  Appellants             :
                                         :
           v.                            :
                                         :
NATIONWIDE MUTUAL INSURANCE              :
COMPANY, a Corporation, AND CARL G.      :
STEVENS AND ANNE E. STEVENS, His         :
Wife,                                    :
                                         :
                  Appellees              :
                                         :
           v.                            :
                                         :
AARON K. STEVENS,                        :
                                         :
                  Appellee               :            No. 54 WDA 2014


               Appeal from the Order entered on January 6, 2014
              in the Court of Common Pleas of Allegheny County,
                        Civil Division, No. GD 12-012754

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED OCTOBER 21, 2014

     Colleen M. Trimmer, individually and as the representative of the

Estate of Mark P. Trimmer, deceased; Darion J. Trimmer, a minor, by

Colleen M. Trimmer, parent and natural guardian; and Anthony K. Trimmer,
J-A27032-14


a minor, by Colleen M. Trimmer, parent and natural guardian (collectively

“Appellants”) appeal the Order granting Nationwide Mutual Insurance

Company’s (hereinafter “Nationwide”) Motion for Summary Judgment.                We

affirm.

      This case arises from a motor vehicle accident that occurred on June 5,

2011, when Aaron K. Stevens (“Stevens”), while operating a 2003 Hyundai

Sonata (“Sonata”), caused the Sonata to collide into another vehicle in which

Mark P. Trimmer (“Trimmer”) was a passenger.1              Trimmer sustained fatal

injuries as a result of the collision.

      The   Sonata    was    owned       by   Stevens’s   brother,   Corey   Stevens

(“Brother”), and was insured under a policy issued to Brother by Geico

Insurance Company (“Geico”) at the state mandated minimum insurance

requirements (“the Geico policy”).2           At the time of the accident, both

Stevens and Brother lived with their parents, Carl and Anne Stevens

(“Parents”), in Parents’ home.3




1
  The police report indicates that, immediately following the accident, police
detected a strong odor of alcohol on Stevens, and Stevens admitted that he
had been drinking. Police Incident Report, 6/5/11, at 3. A chemical breath
test revealed that Stevens’s blood alcohol level was 0.133%. See id.
2
 The limits of liability for bodily injury/death applicable to the Geico policy
are $15,000 per person/$30,000 per occurrence.
3
  Geico determined that Stevens was an insured under the Geico policy on
the basis that Stevens resided in Brother’s household. Thereafter, Geico
tendered its full policy limits, and is not a party to this action.



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     In July 2010, Parents purchased a new automobile insurance policy

from Nationwide (“the Nationwide auto policy”) to provide coverage for their

2002 Toyota Camry.4      When the Nationwide auto policy was issued, it

included an endorsement excluding Stevens as an insured under the policy

while “operating any motor vehicle to which this policy applies” (“the

excluded driver endorsement”).5 See Nationwide Auto Policy, Endorsement

No. V-3283.   The Nationwide auto policy was in effect at the time of the

accident.

     Following the accident, Appellants filed suit against Stevens for the

death of Trimmer. Based on the excluded driver endorsement that excluded

Stevens as an insured driver under the Nationwide auto policy, Nationwide

denied coverage for the loss.   Thereafter, Appellants filed a Complaint for

Declaratory Judgment, seeking a declaration that Stevens was an insured

driver under the Nationwide policies, and that Nationwide was obligated to


4
  The limits of liability for bodily injury/death applicable to the Nationwide
auto policy are $300,000 per person/$300,000 per occurrence. Parents also
purchased an excess/umbrella policy from Nationwide (“the Nationwide
excess/umbrella policy”).      The limits of liability for bodily injury/death
applicable to the Nationwide excess/umbrella policy are $1,000,000 per
occurrence. Appellants contend that the Nationwide excess/umbrella policy
provides additional liability coverage to Stevens in excess of the $300,000
limits of the Nationwide auto policy.
5
  In 2009, prior to Parents’ purchase of the Nationwide auto policy, Stevens
was convicted of driving under the influence (“DUI”), and received a 90-day
suspension of his driver’ license. See Motor Vehicle Record, 7/19/10, at 1.
Stevens’s driving record reveals several other incidents, accidents and
violations in the two years prior to the issuance of the Nationwide auto
policy. See id.


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extend coverage to Stevens for loss resulting from the accident. Following

discovery, Nationwide filed a Motion for Summary Judgment, which the trial

court granted. Appellants filed a timely Notice of Appeal.

      On appeal, Appellants raise the following issues for our review:

      1. Whether, when there exists genuine issues of material fact as
         to whether Nationwide refused to write [Parents’ an]
         automobile policy with [] Stevens as a covered driver, the
         [trial] court erred in granting Nationwide’s Motion for
         Summary Judgment[?]

      2. Whether, when there exists genuine issues of material fact as
         to whether [] Stevens was a member of [Parents’] household
         or [Brother’s] household, the [trial] court erred in granting
         Nationwide’s Motion for Summary Judgment[?]

Appellants’ Brief at 4 (issues renumbered for ease of disposition).

      Our standard of review of the grant of a motion for summary judgment

is well-settled:

      We view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. Our scope of review
      of a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court’s
      order will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Phillips v. Lock, 86 A.3d 906, 912 (Pa. Super. 2014) (citation omitted).

      In their first issue, Appellants argue that summary judgment was

improperly granted because Nationwide’s exclusion of Stevens from the

Nationwide auto policy was not permissible under the Motor Vehicle Financial



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Responsibility Law (“MVFRL”), 75 Pa.C.S.A. § 1701 et seq.               Brief for

Appellants at 12.      Specifically, Appellants point to section 1718(c), which

provides as follows:

      (c)   Named driver exclusion. An insurer or the first named
      insured may exclude any person or his personal representative
      from benefits under a policy enumerated in section 1711 or 1712
      when any of the following apply:

            (1)     The person is excluded from coverage while
                    operating a motor vehicle in accordance with the act
                    of June 5, 1968 (P.L.140, No.78) [this act, formerly
                    40 P.S. § 1008.1, et seq., was repealed and replaced
                    by 40 P.S. § 991.2001 et seq.], relating to the
                    writing, cancellation of or refusal to renew policies of
                    automobile insurance.

            (2)     The first named insured has requested that the
                    person be excluded from coverage while operating a
                    motor vehicle. This paragraph shall only apply if the
                    excluded person is insured on another policy of
                    motor vehicle liability insurance.

75 Pa.C.S.A. § 1718(c)(1), (2); see also Appellants’ Brief at 12-13.

Appellants point to 40 P.S. § 991.2003(a), which pertains to issuance,

renewal, cancellation and refusal of automobile insurance, and contend that

“[n]one of the circumstances set forth in § 991.2003(a) would have given

Nationwide the right to refuse to write the [Nationwide auto] policy [under

section 1718(c)(1)] had [] Stevens been included as a covered driver.”

Appellants’ Brief at 13. Appellants contend that section 1718(c)(1) does not

apply to this dispute because the evidence supports a finding that

Nationwide did not exclude Stevens from coverage, pursuant to section

1718(c)(1); rather, Parents requested that Stevens be excluded from


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J-A27032-14


coverage, thereby requiring us to analyze the propriety of Nationwide’s

exclusion of Stevens as an insured driver under section 1718(c)(2). Id.

        Here, the record reflects that, in 2009, prior to Parents’ purchase of

the Nationwide auto policy, Stevens had been convicted of DUI and received

a 90-day suspension of his driver’s license.      See Motor Vehicle Record,

7/19/10, at 1. The insurance agent who sold the Nationwide auto policy to

Parents, Jeffrey Dougherty (“the insurance agent”), testified that after

meeting with Carl Stevens, he ran basic information though the Nationwide

quote computer program, which indicated that Parents did not qualify for

insurance through Nationwide because Stevens could not be written as an

insured due to his driving record. N.T., 7/9/13, at 13-17, 22. Thereafter,

the insurance agent provided Parents with a quote for an auto policy through

Nationwide that excluded Stevens.6      Id. at 18.   The insurance agent also

advised Parents that auto coverage for Stevens could be obtained from a

high-risk insurance company; however, the premium quote from a high-risk

insurance company would be much higher. Id. at 19-20, 23-24. The agent

testified that Parents’ options were to either purchase a policy from

Nationwide that excluded Stevens, or purchase a much more expensive

policy that included Stevens as an insured from a high-risk insurance

company. Id. at 20-21. According to the insurance agent, Parents elected




6
    The quote also excluded Brother because he had his own insurance.


                                  -6-
J-A27032-14


to purchase a policy from Nationwide that excluded Stevens as an insured

driver. Id. at 24.

      The agent’s testimony is consistent with the testimony of Carl Stevens,

who stated that, because of Stevens’s driving record, Parents “would have

either been denied insurance or it would have been exorbitantly expensive.”

N.T., 4/16/13, at 16. Carl Stevens stated several times that he could not

remember the impetus behind the decision to exclude Stevens from the

Nationwide auto policy, but indicated that it was either because coverage for

Stevens was refused immediately or the premiums were too high.           Id. at

17-18, 20.

      Our review of the record discloses no genuine issue of material fact

regarding Nationwide’s refusal to issue to Parents an automobile policy

which included Stevens as a covered driver.        Rather, the record clearly

discloses that Nationwide refused to insure Stevens due to his extensive

driving record, including DUI. Having concluded that Nationwide refused to

write a policy that included Stevens, the provisions of section 1718(c)(1)

apply to this dispute. Nationwide’s exclusion of Stevens is valid, therefore, if

the requirements of section 1718(c)(1) are met, i.e., Stevens must have

been excluded in accordance with section 991.2003(a), relating to the

writing of automobile insurance. See Donegal Mut. Ins. Co. v. Fackler,

835 A.2d 712, 718 (Pa. Super. 2003).




                                  -7-
J-A27032-14


        We disagree with Appellants’ argument that section 991.2003(a)

provides Nationwide no basis for refusing to insure Stevens.           Section

991.2003(a) enumerates of list of reasons for which an insurer may not

refuse to write a policy of insurance, including, inter alia age, residence,

race, color, creed, national origin, ancestry, marital status, sex, lawful

occupation, illness, disability, certain types of accidents.     See 40 P.S.

§ 991.2003(a). An insurer may properly refuse to issue an insurance policy

to a prospective insured under section 1718(c)(1) so long as the insurer’s

decision is not based on any of the reasons enumerated in section

991.2003(a).     See Robbins v. Ins. Dep’t., 11 A.3d 1048, 1052 (Pa.

Cmwlth. 2010) (stating that an insurer may properly decline to write a policy

for a reason not enumerated in section 991.2003(a)).

        Here,   Appellants   misapprehend   the   construction    of   section

991.2003(a), and have argued that Nationwide was not permitted to refuse

to insure Stevens, because DUI was not an enumerated factor under that

section. Appellants’ Brief at 14. However, it is precisely because DUI was

not an enumerated factor under section 991.2003(a) that Nationwide was

entitled to refuse to issue automobile coverage to Stevens.       Nowhere in

section 991.2003(a) does it state that DUI is a prohibited reason for refusing

to write a policy. Nationwide, therefore, was permitted to decline to write a

policy to include Stevens based on his prior DUI. See Robbins, 11 A.3d at

1052.



                                  -8-
J-A27032-14


      The overarching public policy of the MVFRL is concern over the

increasing cost of insurance premiums.       See Progressive N. Ins. Co. v.

Schneck, 813 A.2d 828, 831-32 (Pa. 2002).                   This public policy is

exemplified by section 1718(c), which permits insurers to use policy

exclusions in order to avoid covering someone with a bad driving record.

See id. In excluding Stevens from coverage, Nationwide clearly recognized

the risk associated with his driving Parents’ insured vehicle, and sought to

avoid liability for precisely the scenario that is the subject of this action.

See Fackler, 835 A.2d at 717 (stating that insurer was entitled to exclude

defendant from coverage under an automobile policy due to a prior DUI

offense, and properly denied coverage under the policy when defendant,

while DUI, was involved in an accident involving the insured vehicle).          In

return for Stevens’s exclusion and the concomitant risk reduction, Parents

paid a lower premium than they would have paid had they purchased

insurance from a high-risk insurance company to include Stevens in their

policy. This is consistent with the public policy associated with the MVFRL.

See id.

      Having determined that Nationwide properly declined to insure

Stevens under section 1718(c)(1), we need not address Appellants’ second

argument regarding section 1718(c)(2).        See Fackler, 835 A.2d at 718

(holding   that,   under   1718(c),   the   presence   of    either   circumstance




                                  -9-
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enumerated in subsection (c)(1) or (c)(2) would justify a lawful exclusion

pursuant to the MVFRL).

     Because our review of the record, viewed in the light most favorable to

Appellants, discloses no genuine issue of material fact, we discern no abuse

of discretion by the trial court in granting summary judgment in favor of

Nationwide.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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