J-A19041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW JOHN VENSKO,                          IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

ENCOMPASS HOME AND AUTO
INSURANCE COMPANY,

                        Appellee                  No. 1316 WDA 2014


                Appeal from the Order Entered July 15, 2014
              In the Court of Common Pleas of Fayette County
                Civil Division at No(s): No. 2243 of 2009 GD


BEFORE: BENDER, P.J., JENKINS, J., and MUSMANNO, J.

DISSENTING STATEMENT BY JENKINS, J.:         FILED SEPTEMBER 11, 2015

     I respectfully dissent from the learned majority. I believe Generette

v. Donegal Mutual Insurance Company, 957 A.2d 1180 (Pa.2008),

applied retroactively, because it interpreted a statute and did not create a

new rule of law. I would find the trial court erred when it found Appellant

Matthew John Vensko failed to prove the typicality requirement for class

certification based solely on its finding that Vensko purchased insurance

before the Supreme Court of Pennsylvania issued its decision in Generette.

     As noted by the Majority, Vensko’s August 6, 2009, complaint alleged:

        Encompass had deceptively charged [Vensko], and other
        similarly situated single-vehicle policyholders who chose
        stacked    [uninsured    motorist/under-insured   motorist
        (“UM/UIM”)]     insurance   coverage     with   Encompass
        (hereinafter “the proposed class members”), higher
        premiums, but provided them coverage identical to those
J-A19041-15


          single-vehicle policyholders who chose less expensive,
          non-stacked UM/UIM insurance coverage.

Majority at 2.

       Vensko filed a class certification motion. The majority agrees with the

trial court that Venkso failed to satisfy the typicality prong of class

certification because he purchased his car insurance in 2007, before the

Supreme Court decided Generette in October of 2008.               The majority

maintains it is not required to determine whether Generette applies

retroactively because the trial court properly concluded that Vensko failed to

establish the typicality prerequisite for class certification, as Encompass

could not have deceived Vensko before the issuance of the Generette

decision. I do not believe we can determine whether the typicality prong is

satisfied, or whether Encompass could have deceived Vensko, without

addressing whether Generette applies retroactively.

       The Supreme Court in Generette interpreted, for the first time, the

term “insured” as applied to section 1738 of the Pennsylvania Motor Vehicle

Financial Responsibility Law (“MVFRL”).1         The plaintiff in Generette was
____________________________________________


1
 The Motor Vehicle Code contains the following stacking of uninsured and
underinsured motorists provision:

          § 1738. Stacking of uninsured and underinsured benefits
          and option to waive

           (a) Limit for each vehicle.--When more than one
          vehicle is insured under one or more policies providing
          uninsured or underinsured motorist coverage, the stated
          limit for uninsured or underinsured coverage shall apply
(Footnote Continued Next Page)


                                           -2-
J-A19041-15



injured while a guest passenger in a third-party’s vehicle.         The plaintiff

recovered from the tortfeasor’s insurance policy and from the third-party’s

insurance policy that covered the car in which she was passenger.            The

damages, however, exceeded the amount recovered from the third-party’s

insurance, and the plaintiff sought coverage from her insurance policy. Her

insurance carrier denied coverage, claiming she was unable to recover

because she waived stacking in her insurance policy, and the other insurance

clause of her policy barred recovery.2            The Generette court found the
                       _______________________
(Footnote Continued)

          separately to each vehicle so insured. The limits of
          coverages available under this subchapter for an insured
          shall be the sum of the limits for each motor vehicle as to
          which the injured person is an insured.

          (b) Waiver.--Notwithstanding the provisions of subsection
          (a), a named insured may waive coverage providing
          stacking of uninsured or underinsured coverages in which
          case the limits of coverage available under the policy for
          an insured shall be the stated limits for the motor vehicle
          as to which the injured person is an insured.

          (c) More than one vehicle.--Each named insured
          purchasing uninsured or underinsured motorist coverage
          for more than one vehicle under a policy shall be provided
          the opportunity to waive the stacked limits of coverage
          and instead purchase coverage as described in subsection
          (b). The premiums for an insured who exercises such
          waiver shall be reduced to reflect the different cost of such
          coverage.

75 Pa.C.S. § 1738.
2
 The Supreme Court noted that the insurance carrier also denied coverage
based on:

(Footnote Continued Next Page)


                                            -3-
J-A19041-15



plaintiff’s waiver of stacking of the UIM coverage was inapplicable because

she was a guest in a third-party’s vehicle when injured. The Supreme Court

reasoned the definition of “insured” provided in section 1702 applied to

UIM/UM provision of section 1738. Section 1702 defines “insured” as:

          Any of the following:

          (1) An individual identified by name as an insured in a
          policy of motor vehicle liability insurance.

          (2) If residing in the household of the named insured:

          (i) a spouse or other relative of the named insured; or

          (ii) a minor in the custody of either the named insured or
          relative of the named insured.

75 Pa.C.S. § 1702. The Supreme Court found that, because the plaintiff was

a guest passenger in third-party’s vehicle when she was injured, she was not

an insured for purposes of the waiver of UIM/UM section at the time of the


                       _______________________
(Footnote Continued)

          [A] provision in the policy entitled ‘Other Insurance.’ The
          ‘Other Insurance’ clause was included in her policy to
          implement the waiver of stacked UIM benefits. It limited
          recovery of UIM coverage under the [plaintiff’s] policy to
          the amount by which the [plaintiff’s] policy’s coverage limit
          exceeded the coverage of the UIM policy at the first
          priority level. Accordingly, [the insurance carrier] denied
          coverage claiming that her $35,000 coverage limit on [the
          plaintiff’s] policy did not exceed the $50,000 of coverage
          provided by the Nationwide–UIM policy, the first priority
          policy.

Generette, 957 A.2d at 1183. In Generette, the Supreme Court found the
“other insurance” provision void as against public policy. Id. at 1192.




                                            -4-
J-A19041-15



accident and her waiver of stacking in her insurance policy did not bar

recovery.

       Because the Supreme Court in Generette was interpreting a statute,

and did not overrule prior precedent, its holding is not a new rule of law and

it applies retroactively.3 See Fiore v. White, 757 A.2d 842, 847 (Pa.2000)

(“Therefore, when we have not yet answered a specific question about the

meaning of a statute, our initial interpretation does not announce a new rule

of law. Our first pronouncement on the substance of a statutory provision is

purely a clarification of an existing law.”); Kendrick v. District Attorney of

Phila. Cnty., 916 A.2d 529 (Pa.2005) (“Once this Court interpreted the

legislative language contained in the applicable act, our interpretation

became a part of the legislation from the date of its enactment.”)

       As the Supreme Court interpreted a statute, and there was no change

in law, Vensko may be able to establish a claim based on deception for a

policy he purchased prior to Generette.          Therefore, based only on the

timing of the Generette decision, Vensko’s claim would not fail the typicality

prong.    I would remand to the trial court to address all class certification

prongs, including the typicality prong, without taking into consideration that




____________________________________________


3
  Neither party has directed this Court to any pre-Generette law or case
interpreting the term “insured” as it applies to section 1738.



                                           -5-
J-A19041-15



Vensko purchased his insurance policy prior to the issuance of the

Generette decision.4

       I, therefore, respectfully dissent.




____________________________________________


4
 I agree with the majority that the trial court should not have relied on the
unpublished memorandum in LaCaffinie v. The Standard Fire insurance
Company, 55 A.3d 132 (Pa.Super.2012) (unpublished memorandum).



                                           -6-
