J-A16024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICK GRIFFIN                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

ERIE INSURANCE EXCHANGE

                         Appellee                    No. 3350 EDA 2014


           Appeal from the Judgment Entered October 16, 2014
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): August Term, 2013 No. 03348

BEFORE: LAZARUS, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 28, 2015

      Appellant, Patrick Griffin, appeals from the judgment entered on

October 16, 2014. We affirm.

      The factual background and procedural history of this case are as

follows. Appellant is the sole member of Griffin Technologies Solutions, LLC

(“GTS”). During the relevant time period, GTS had commercial liability and

commercial automobile policies with Erie Insurance Exchange (“Erie”). The

commercial automobile policy lists GTS as the only insured.         Appellant is

listed as the owner of the vehicle covered by the policy.

      At approximately 4:45 p.m. on August 2, 2012, Appellant was crossing

the 4800 block of Broad Street in Philadelphia.       A vehicle operated by

Michelle Howell struck Appellant.    Her automobile insurer, Omni Insurance

Company, tendered the policy limit to Appellant.            Appellant’s personal



* Retired Senior Judge assigned to the Superior Court
J-A16024-15


automobile insurer, Nationwide Insurance, tendered the full amount of his

underinsured motorist coverage.     This, however, was insufficient to cover

Appellant’s injuries.    Appellant thereafter submitted an underinsured

motorist claim to Erie. In that claim, he argued that he is a named insured

under GTS’ commercial automobile policy. Erie denied the claim because, in

its view, Appellant is not a named insured under GTS’ commercial

automobile policy.

      On August 29, 2013, Appellant filed a complaint against Erie seeking

coverage under GTS’ commercial automobile policy.          On July 7, 2014,

Appellant filed a motion for partial summary judgment and Erie filed a cross-

motion for summary judgment. On October 16, 2014, the trial court denied

Appellant’s motion for partial summary judgment and granted Erie’s motion

for summary judgment. This timely appeal followed.1

      Appellant presents two issues for our review:

      1. Must a motor vehicle insurance policy provide underinsured
         motorist coverage to an injured person who: [i]s the sole
         owner and operator of his company; [s]igned an application
         for insurance that identified the applicant as an individual and
         not a corporation; [p]urchased underinsured motorist
         coverage; and, [p]aid increased premiums for underinsured
         motorist coverage?

      2. When an insurance policy lists the sole owner of the company
         and the sole owner of the vehicle insured under the policy as


1
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal.         See Pa.R.A.P. 1925(b).        Nonetheless, on
December 17, 2014, the trial court issued an opinion explaining its rationale
for granting Erie’s motion for summary judgment.


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         a “[n]amed [i]nsured,” must the policy provide underinsured
         motorist coverage to the owner of the vehicle?

Appellant’s Brief at 4 (paragraph breaks omitted).

      When reviewing a trial court’s grant of summary judgment, our

standard of review is de novo and our scope of review is plenary. Kennedy

v. Consol Energy Inc., 116 A.3d 626, 634 (Pa. Super. 2015) (citation

omitted). We must

      review[] all the evidence of record to determine whether there
      exists a genuine issue of material fact. We view the record in
      the light most favorable to the non-moving 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
      [the grant of summary judgment be affirmed]. All doubts as to
      the existence of a genuine issue of a material fact must be
      resolved against the moving party.

Criswell v. Atl. Richfield Co., 115 A.3d 906, 908–909 (Pa. Super. 2015)

(citation omitted).

      In order to dispose of Appellant’s claims, we must interpret GTS’

commercial automobile policy. As this Court explained:

      When interpreting an insurance policy, we first look to the terms
      of the policy. When the language of the policy is clear and
      unambiguous, we must give effect to that language. However,
      when a provision in the policy is ambiguous, the policy is to be
      construed in favor of the insured. Also, we do not treat the
      words in the policy as mere surplusage and, if at all possible, we
      construe the policy in a manner that gives effect to all of the
      policy’s language.




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Indalex Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 83 A.3d

418, 420–421 (Pa. Super. 2013) (internal quotation marks, citations, and

ellipses omitted).

      Although Appellant enumerates two questions, he essentially only

presents one question – whether he is a named insured under GTS’

commercial automobile policy. He makes four arguments as to why he is a

named insured: (1) the policy definition of “named insured” is ambiguous;

(2) the declarations found in the Erie commercial automobile policy are

ambiguous; (3) he meets the criteria for named insured status under the

reasonable expectations doctrine; and (4) the policy was amended by the

underwriter after the application was submitted. He contends that because

ambiguities in an insurance policy must be construed in favor of the insured,

the policy should be construed so as to include Appellant as a named

insured.   Erie, on the other hand, contends that the language of GTS’

commercial automobile policy is clear and unambiguous as to who qualified

as a named insured.       According to Erie, this clear and unambiguous

language excludes Appellant.

      First, Appellant argues that the definition of “named insured” is

ambiguous.       The trial court, quoting verbatim from GTS’ commercial

automobile policy, held that “‘named insured’ means the subscriber named

in item 1 on the declarations and others named in item 1 on the

declarations.”   Trial Court Opinion, 12/17/14, at 5, quoting Policy Change



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Endorsement, at 2 (extraneous capitalization and punctuation omitted;

emphasis removed).2     Appellant argues that this is erroneous because the

policy defines “subscriber” as “the person who signed, or the organization

that authorized the signing of the [s]ubscriber’s [a]greement.” Policy, at 5.

He reasons that the use of the term “subscriber” in the definition of “named

insured” expands the scope of that term; and, the definition of “named

insured” is broader than the definition used by the trial court.

      This argument fails. In this case, GTS authorized Appellant to sign the

subscriber’s agreement on its behalf. Appellant did not sign the subscriber’s

agreement in his individual capacity. Thus, the definition of “named insured”

used by the trial court is the correct definition and the definition of

“subscriber” does not expand that definition.     Applying that definition, the

subscriber listed in item 1 on the declarations is “Griffin Technologies

Solutions LLC.” Declarations, at 1. Thus, under the plain language of the

insurance policy, Appellant is not a named insured under GTS’ commercial

automobile policy.

      Appellant next argues that the declarations page is ambiguous

because it states that “unless otherwise indicated below, the named insured

is the sole owner of each auto we insure.”       Declarations, at 1 (complete

capitalization removed).     This argument fails for two reasons.        First,

immediately after that statement the policy states that the owner of the

2
 Item 1 on the declarations lists “Griffin Technologies Solutions LLC” as the
named insured. Declarations, at 1.


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vehicle insured by the policy is “Patrick Griffin.” Id. at 2. Thus, the policy

“indicates below” that the vehicle insured by the policy is not owned by a

named insured. Instead, it is owned by an individual that is not a named

insured, i.e., Appellant.   This buttresses support for reading the policy as

including GTS as the sole named insured.       Second, the provision of the

declarations page Appellant references here is item 9. As noted above, the

policy defines “named insured” by referencing only item 1 on the

declarations, not item 9.

      Appellant next argues that the trial court should have considered his

reasonable expectations as it relates to the policy. The trial court held that

the reasonable expectations doctrine does not cover commercial policies.

We need not reach that issue, however, because this Court has held that

“[a]n insured, however, may not complain that [his] reasonable expectations

have been frustrated when the applicable policy limitations are clear and

unambiguous.” Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941

A.2d 706, 717 (Pa. Super. 2007), appeal denied, 963 A.2d 471 (Pa. 2008)

(citation omitted).   As noted above, the terms of the insurance policy are

clear and unambiguous and, therefore, the reasonable expectations doctrine

is inapplicable. Furthermore, even if we considered Appellant’s reasonable

expectations, we would reach the same result.        When a limited liability

company purchases commercial automobile insurance, the only reasonable




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expectation is that the company, and not its members, is the named insured

of the policy.

      Finally, Appellant argues that the underwriter changed the policy after

he submitted his application. Specifically, he argues that he listed himself

individually as the named insured on the insurance application.                      This

argument fails for two reasons. First, at the heart of Appellant’s argument is

the premise that GTS was not a legal entity capable of entering into

contracts.   See Appellant’s Brief at 14 (“[T]here was no legal distinction

between [Appellant] and [GTS].”). Appellant ignores the fact that “a limited

liability company shall have the legal capacity of natural persons to act.” 15

Pa.C.S.A. § 8921(a); see also Fletcher-Harlee Corp. v. Szymanski, 936

A.2d 87, 96 (Pa. Super. 2007), appeal denied, 956 A.2d 435 (Pa. 2008) (a

corporate entity is legally distinct from its owners or members). Thus, there

was a clear legal distinction between Appellant and GTS. Even if Appellant

did not understand this basic distinction, Erie cannot be held responsible for

Appellant’s mistake of law.

      Second, there is no evidence that the underwriter changed the policy

after GTS submitted its application.           Appellant contends that because the

named    insured    on     the   application     was    “Patrick   Griffin   dba   Griffin

Technologies     Patrick   Griffin   dba   Griffin     Technologies    Solutions   LLC,”

Application, at 1, the underwriter must have changed the policy after the

application. We are not persuaded that the wording used on the insurance



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application raised a genuine issue of fact regarding the accusation that the

underwriter must have changed the policy.       Viewed as a whole, the only

reasonable interpretation of the application is that Appellant was seeking

legal coverage for GTS and not himself.

      First, it is clear on the application that it is for commercial automobile

insurance – not personal automobile insurance.         By its very nature, a

commercial policy covers a company - it does not cover an individual.

Second, Appellant did not list two named insureds. Instead, he listed only a

single named insured.       Erie was aware that Appellant had personal

automobile coverage and that GTS was seeking commercial coverage. The

application states, in at least two places, that the automobile covered by the

policy is not owned by the applicant. See id. at 1, 2. Appellant was well

aware that he owned the automobile listed in the application. Therefore, it

is clear that the applicant, GTS, is a legal entity other than Appellant. The

application also lists Appellant as the driver of the insured vehicle; however,

the code for “insured” is not selected as to Appellant.     Id. at 1. Instead,

“other” is selected. Id.   Although Appellant listed GTS’ name incorrectly on

the application, it is clear from the application that GTS was seeking

coverage – not Appellant.      Thus, the cases cited by Appellant for the

proposition that an insurance company cannot change a policy after the

application is submitted are inapposite. Therefore, we agree with the trial

court that Appellant is not a named insured of GTS’ commercial automobile



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policy.   As only the named insured is entitled to coverage, the trial court

properly granted Erie’s motion for summary judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015




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