J-A11021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KERRY ODGERS                           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 RODRIGO SOLERA AND                     :   No. 1687 MDA 2018
 PROGRESSIVE NORTHERN                   :
 INSURANCE COMPANY                      :

             Appeal from the Order Entered September 24, 2018
     In the Court of Common Pleas of Lancaster County Civil Division at
                            No(s): CI-14-01086


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 06, 2019

     Appellant, Kerry Odgers, appeals from the order entered on September

24, 2018, granting the motion for declaratory judgment made by Appellee,

Progressive Northern Insurance Company (“Progressive”). We affirm.

     On January 18, 2013, Appellant sustained severe injuries when she was

struck by a vehicle operated by Rodrigo Solera and insured by Progressive.

At the time, Appellant did not own a motor vehicle, was not a named insured

on any motor vehicle policy, and did not qualify as an insured under a motor

vehicle policy held by anyone with whom she resided.     As such, Appellant

looked to Solera’s Progressive automobile insurance policy for first-party
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benefits. It would be an understatement to say that Appellant’s efforts have

resulted in a lengthy and tortured process.1

        To recover for her injuries and losses, Appellant filed a complaint against

Solera2 and Progressive. Appellant’s complaint made a claim for first-party

benefits from Progressive pursuant to 75 Pa.C.S.A. § 1713(a)(4).3 Appellant

also alleged that Progressive unreasonably refused her claim for first-party

benefits and, therefore, she demanded attorney’s fees and interest pursuant

to 75 Pa.C.S.A § 1716.4


____________________________________________


1 As the trial court noted, “[t]his case began with a motor vehicle and
pedestrian accident on January 18, 2013, and has developed over time into a
seemingly interminable dispute over the payment of interest and attorneys’
fees pursuant to 75 Pa.C.S. § 1716.” Trial Court Opinion, 9/24/2018, at 1.

2 Solera is no longer involved in this case, as he has since passed away and
there has been no substitution of a personal representative as a defendant.

3   The statute provides, in relevant part, the following:

        (a) General rule.--Except as provided in section 1714 (relating to
        ineligible claimants), a person who suffers injury arising out of the
        maintenance or use of a motor vehicle shall recover first party
        benefits against applicable insurance coverage in the following
        order of priority:
                                           ...

        (4) For a person who is not the occupant of a motor vehicle, the
        policy on any motor vehicle involved in the accident.

75 Pa.C.S.A. § 1713(a)(4).

4   The statute provides, in relevant part, the following:




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       Discovery ensued and, eventually, the trial court ordered Progressive to

produce its claim investigation notes, together with its claim-handling and

processing manuals. Rather than produce these materials, Progressive agreed

to pay first-party benefits to Appellant in addition to interest and reasonable

attorney’s fees.5 The trial court then vacated its order compelling discovery.

In resolving Appellant’s request for attorney’s fees, the trial court determined

that Progressive owed reasonable attorney’s fees for the period extending

from March 11, 2013, when Progressive received notice of Appellant’s claim

for first-party benefits, until April 22, 2014, when Progressive provided

coverage.     The trial court also concluded that Appellant’s entitlement to

attorney’s fees after April 22, 2014 could not be determined from the record.

       The trial court summarized the succeeding procedural developments as

follows.




____________________________________________


       Overdue benefits shall bear interest at the rate of 12% per annum
       from the date the benefits become due. In the event the insurer
       is found to have acted in an unreasonable manner in refusing to
       pay the benefits when due, the insurer shall pay, in addition to
       the benefits owed and the interest thereon, a reasonable attorney
       fee based upon actual time expended.

75 Pa.C.S.A. § 1716.

5 After Progressive agreed to pay first-party benefits, as well as reasonable
attorney’s fees, Appellant filed a complaint against Progressive alleging breach
of contract, bad faith, breach of fiduciary duty, negligence, and negligence per
se. Progressive removed the case to federal court, where it was stayed
pending resolution of the instant matter.

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      The history of this dispute is laid out in the Court’s order of June
      16, 2016, and its opinion and order of November 30, 2017.

      In the former, the [trial c]ourt determined that [Appellant] was
      entitled to payment of attorneys’ fees incurred between March 11,
      2013, and April 22, 2014, but that, on the state of the record, it
      could not be determined whether [Appellant] was entitled to any
      attorneys’ fees incurred after April 22, 2014. In the latter, after
      Progressive had agreed to pay an additional $1,435.00 for 4.1
      hours of legal work after April 22, 2014, relating to interest on a
      wage loss check, reimbursement and interest to [the Department
      of Public Welfare] and interest on Family Medical Leave Act
      (FMLA)1 paperwork, the dispute focused on attorneys’ fees
      associated with a letter on November 3, 2015, by which
      [Appellant]’s counsel sought to confirm insurance coverage for an
      additional surgery on [Appellant]’s foot, without which [Appellant]
      was unable to even schedule a medical appointment at the
      Rothman Institute. The Court’s order provided

         3. Upon proof that confirmation of insurance coverage was
         a prerequisite for scheduling an appointment for medical
         treatment, [Progressive] is to pay reasonable attorneys’
         fees for the November 3, 2015, confirmation of medical
         coverage with the amount to be determined based on
         [Appellant]’s itemized bills already in [Progressive’s]
         possession.

         [Appellant] is granted 20 days from the entry of this order
         on the docket to determine whether there are any other
         medical benefits outstanding for more than 30 days for
         which interest and attorneys’ fees would be payable and to
         file such information with the court with a copy to
         [Progressive]. [Appellant] will also file with the [c]ourt a
         copy of [Appellant]’s counsel’s itemized billing statements
         setting forth the dates on which work was performed, a
         description of the work performed, the amount of time
         expended for the work and the hourly rate for the work
         performed for each billable event. [Progressive] will have
         15 days from the filing of [Appellant]’s statement to notify
         the [c]ourt whether it intends to pay all, part or none of the
         amounts claimed as due.

         In the event of any dispute, a hearing will be scheduled
         limited solely to the amount of disputed attorneys’ fees.

Trial Court Order, 11/30/17, at para. 3.2

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_____________________________
         1
             29 U.S.C. §§ 2601, 2611-19.
         2
           Item 1 of the order denied Progressive’s motion for summary
         judgment.   Item 2 granted Progressive’s motion for declaratory
         judgment “with respect to the amounts [Progressive] has agreed to
         pay.”

      On December 26, 2017, [Appellant] filed a motion for
      reconsideration and/or clarification of the November 30, 2017
      order. The [c]ourt denied this motion by an order dated March
      19, 2018, and granted [Appellant] 15 days from the entry of the
      order on the docket to comply with the order of November 30,
      2017. Progressive filed the current motion [for sanctions and
      motion for summary judgment/declaratory judgment] on May 29,
      2018. [Appellant] alleged that, in response to the [c]ourt’s March
      19, 2018 order, by correspondence dated April 3, 2018,
      [Appellant] provided [a] notarized affidavit which related to the
      November 3, 2015, confirmation of coverage and which identified
      five dates on which attorney work was done on this issue:
      November 3 and 19, December 3, 11 and 21, 2015. Based on this
      affidavit and [Appellant]’s itemized billing statements, Progressive
      identified five items of legal work, totaling one hour of time, and
      agreed to pay for two: the November 3, 2015, letter requesting
      confirmation of coverage and a November 19, 2015, letter which,
      among other things reiterated that Progressive had yet to confirm
      coverage, totaling 0.4 hours.         Progressive indicated that it
      confirmed coverage by a letter dated November 27, 2015[;
      therefore, it declined to pay for billing entries made on December
      3, 11, and 21, 2015]. [Appellant contends that the entries
      Progressive refused to cover were related to confirmation of the
      amount of coverage and should have been included in the
      calculation of fees.]

Trial Court Opinion, 9/24/18, at 1-3 (footnotes in original).

      By order entered on September 24, 2018, the trial court denied

Progressive’s motion for sanctions but granted its motion for declaratory

judgment/summary judgment, “subject to [Appellant’s] right to institute

appropriate litigation in the event that [Appellant] can demonstrate the

existence of any medical benefits, outstanding more than thirty days, for


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which attorney’s fees and interest could be collected.”    Trial Court Order,

9/24/18, at para. 2. Specifically, the trial court determined that Progressive

was obligated to pay the additional attorney’s fees detailed in billing

statements entered on December 3, 11, and 21 2015. The court also held

that Appellant was barred from asserting her entitlement to additional

attorney’s fees since she did not submit proof of further fees due and owing

pursuant to the November 30, 2017 order. Accordingly, the court granted

Progressive’s motion for declaratory judgment and/or summary judgment and

ordered it to pay Appellant $21,320.00 within 20 days. On October 10, 2018,

Progressive tendered full payment to Appellant. This appeal followed.

      Appellant presents the following issues on appeal:

   1. Did the trial court commit an error of law when it interpreted 75
      Pa.C.S. § 1716 by disregarding explicit language in the statute
      which requires a finding of “unreasonable” conduct on the part of
      the insurer as a pre-requisite to an award of attorney’s fees?

   2. Should a defendant be allowed to moot a live controversy under
      75 Pa.C.S. § 1716 with an unaccepted offer of settlement?

   3. Did the trial court commit an error of law in precluding Appellant
      from obtaining discovery relevant and necessary to sustain her
      burden of proving a required element of her cause of action,
      specifically the reasonableness of the defendant insurer’s conduct
      under 75 Pa.C.S. § 1716?

   4. Did the trial court commit an error of law when it limited
      Appellant’s attorney’s fees under 75 Pa.C.S. § 1716 to the time
      spent recovering only the interest on overdue benefits instead of
      the actual time expended in proving the defendant insurer acted
      in an unreasonable manner?

Appellant’s Brief at 5.



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       Before we address Appellant’s issues we must determine whether this

Court has jurisdiction to entertain this appeal. On December 12, 2018, this

Court issued an order directing Appellant to show cause, within ten days, why

the appeal should not be quashed as taken from an interlocutory order.

Appellant timely responded to our show cause order.

       Generally, an appeal may be taken as of right from a final order.

Pa.R.A.P 341(a).       A final order disposes of all claims and of all parties.

Pa.R.A.P. 341(b)(1). Notwithstanding this rule, an appeal may also be taken

as of right from an order made final by statute, even though the order does

not dispose of all claims and all parties. Pa.R.A.P. 311(a)(8). The Declaratory

Judgments Act, 42 Pa.C.S.A. § 7532, provides that a declaration of rights,

status, and other legal relations, whether affirmative or negative “have the

full force and effect of a final judgment[.]”

       It is unclear whether the order challenged on appeal disposed of all

claims against all parties since the status of Appellant’s case against the

deceased driver of the vehicle is not immediately apparent. However, the

order sub judice disposed of all claims against Progressive,6 and therefore, is
____________________________________________


6 The order in question grants Progressive’s motion “subject to [Appellant’s
right to institute appropriate litigation in the event [Appellant] can
demonstrate the existence of any additional medical benefits, outstanding
more than thirty days, for which attorney’s fees and interest could be
collected.” Trial Court Order, 9/24/2018, at para. 2. We do not find this
language to indicate a lack of finality in the order. Appellant has had since
June 2016 to provide proof of any outstanding bills for which interest and
attorney’s fees could be collected and has not done so. Moreover, the trial



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a final order. See Nationwide Mutual Insurance Company v. Wickett,

763 A.2d 813 (Pa. 2000) (order granting declaratory relief and dismissing

some but not all defendants is a final order). Thus, we turn to the merits of

Appellant’s issues.

       First, we note that Appellant’s second issue was not included in her

concise statement, thus, it is waived. See Pa.R.A.P. 1925(b)(vii). Appellant’s

first and third issues relate to her contention that the trial court erred by

determining the amount of attorney’s fees to which Appellant is entitled under

75 Pa.C.S.A. § 1716 without first making an explicit finding that Progressive’s

refusal to pay benefits was unreasonable.             Appellant contends that the

declaration should not have been entered without such an explicit finding and

that she was entitled to continue discovery as to the reasonableness of

Progressive’s actions.        Progressive analogizes Appellant’s position to a

negligence action in which the tortfeasor agrees not to contest liability and

proceed to damages and yet the plaintiff insists that a jury trial be held on

liability. Progressive’s Brief at 16.      We agree with Progressive that this issue

is moot.

       “[T]he mootness doctrine requires an actual case or controversy to be

extant at all stages of a proceeding[.]” Pilchesky v. Lackawanna County,

88 A.3d 954, 964 (Pa. 2014).             An issue may become moot due to an

____________________________________________


court specifically stated that it was unlikely that Appellant could make such a
demonstration or institute litigation aimed at such a recovery. Hence, the
present litigation is terminated by the order challenged on appeal.

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intervening change in the facts of the case. Id. Here, the reasonableness of

Progressive’s conduct under § 1716 was only an issue up to the point that

Progressive agreed to provide all of the relief available under the statute.

      In its entirety, 75 Pa.C.S.A. § 1716 provides,

      [b]enefits are overdue if not paid within 30 days after the insurer
      receives reasonable proof of the amount of the benefits. If
      reasonable proof is not supplied as to all benefits, the portion
      supported by reasonable proof is overdue if not paid within 30
      days after the proof is received by the insurer. Overdue benefits
      shall bear interest at the rate of 12% per annum from the date
      the benefits become due. In the event the insurer is found
      to have acted in an unreasonable manner in refusing to pay
      the benefits when due, the insurer shall pay, in addition to
      the benefits owed and the interest thereon, a reasonable
      attorney fee based upon actual time expended.

75 Pa.C.S.A. § 1716 (emphasis added).

      Appellant’s complaint sought first-party benefits, interest on overdue

benefits, and reasonable attorney’s fees from Progressive.           Appellant’s

Complaint, 4/18/13, at para. 51. Progressive paid the benefits together with

interest at a rate of 12% on overdue benefits.         Moreover, the trial court

ordered Progressive to pay attorney’s fees for time expended in seeking

overdue benefits and interest thereon.     Progressive has provided or been

ordered to provide all of the relief available to Appellant under the law. Thus,




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there is no longer a controversy regarding the reasonableness of Progressive’s

conduct.7 Appellant is not entitled to relief on these issues.

       Appellant’s final, and only, justiciable issue relates to the amount of

attorney’s fees to which she is entitled. This presents a question of statutory

interpretation, therefore, our standard of review is de novo and our scope of

review is plenary. Schappell v. Motorists Mut. Ins. Co., 934 A.2d 1184,

1187 (Pa. 2007). Appellant contends that she is entitled to payment of all of

her attorney’s fees that relate to proving that Progressive’s conduct was

unreasonable.      Appellant argues that this includes fees incurred prior to

notifying Progressive of her claim. We find this position untenable. Section

1716 expressly authorizes payment of attorney’s fees when there has been

an unreasonable delay in payment of benefits.          Progressive cannot be

considered to have delayed payment of benefits before it received notice that

benefits were due. This is especially true where, as in the instant case, the

claimant is not an insured of Progressive. The trial court ordered Progressive

to pay Appellant’s attorney’s fees from the date it received notice of her claim

to the date it accepted the claim, as well as fees incurred after the claim was

accepted, which related to payment of overdue benefits as well as interest

thereon. We perceive no error in this ruling.



____________________________________________


7The issue of reasonableness and the discovery requested by Appellant is
more relevant to Appellant’s bad faith claim which is pending in federal
court.

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      The trial court’s determination is in line with our Supreme Court’s

holding in Schappell, supra. In that case, the plaintiff sought interest on

overdue benefits as well as attorney’s fees. The Court found that where the

insurer unreasonably failed to make a timely payment, the plaintiff was

entitled to “the attorney fees expended in seeking the interest.” Id. at 1190.

Under § 1716, a reasonable attorney’s fee may be imposed if the insurer acts

unreasonably in refusing to pay benefits when due (or interest on benefits that

are past due). The provision does not authorize compensation for the time

counsel expends in proving that an insurer acted unreasonably after benefits

and interest have been paid. Appellant is not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2019




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