J-A15026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HILDA CID,                                      IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

ERIE INSURANCE GROUP A/K/A
ERIE INSURANCE EXCHANGE A/K/A
ERIE INSURANCE COMPANY,

                         Appellee                   No. 3041 EDA 2015


                Appeal from the Order Entered August 21, 2015
             In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): No. 1874 – June Term, 2015

BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

DISSENTING MEMORANDUM BY JENKINS, J.:            FILED OCTOBER 20, 2016

      I respectfully dissent.   The insurance agreement between Hilda Cid

and Erie Insurance Exchange (“Erie”) provides that the parties must

arbitrate disputes over “whether or not anyone we protect is legally entitled

to recover damages from the owner or operator of an uninsured motor

vehicle or underinsured motor vehicle.” Cid’s contract and tort actions in her

Philadelphia County action fall within this provision, because they turn upon

whether Cid is entitled uninsured (“UM”) or underinsured (“UIM”) motorist

coverage.    In other words, in my view, the arbitration clause not only

encompasses UM/UIM claims but also contract and tort claims that, as in this

case, are actually UM/UIM claims in disguise.




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         We held several years ago that Cid was required to arbitrate her UIM

claim against Erie Insurance Exchange (“Erie”) in Montgomery County,

despite her attempt to compel arbitration in Philadelphia County.               Cid v.

Erie Insurance Exchange, 63 A.3d 787 (Pa.Super.2013).                    In 2015, Cid

filed the present action against Erie in the Court of Common Pleas of

Philadelphia County alleging claims for breach of contract, fraud, bad faith,

abuse of process and civil conspiracy.            The Philadelphia court sustained

Erie’s    preliminary   objections   and    ordered     her    action   transferred    to

Montgomery County, reasoning that all issues in Cid’s complaint depended

“on a finding of whether she is entitled to UM/UIM benefits under the Policy.”

         I agree with the trial court’s conclusion. Cid alleges in her breach of

contract action that Erie breached the insurance agreement by denying her

UIM claim.      Cid alleges in her tort claims for fraud, bad faith, abuse of

process and civil conspiracy by Erie acted tortiously by denying her UIM

claim.     All of these claims rise or fall on whether she is entitled to UIM

coverage under her policy. Given this direct relationship between Cid’s UIM

claim and her contract and tort claims, she should litigate her tort and

contract claims in the same forum and same proceeding as her UIM claim –

an arbitration proceeding in Montgomery County.

         The analysis in IDT Corp. v. Clariti Carrier Servs., Inc., 772 A.2d

1019 (Pa.Super.2001), provides analogous support for this result. There, a

commercial      agreement    provided      that   (1)   “the    Agreement     and     the

relationship between the Parties hereto will be governed by the laws of

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England”; (2) any dispute that the parties could not resolve by mediation

“shall be referred to and finally resolved by arbitration under the LCIA

(London Court of International Arbitration)”; and (3) “the seat of the

arbitration shall be London, England.”      IDT Corporation filed an action

against Clariti Carrier Services for, inter alia, alter ego and unjust

enrichment. In accordance with the arbitration and forum selection clauses,

the trial court sustained Clariti’s preliminary objections and held that IDT

Corporation was required to pursue arbitration in London.

      On appeal, this Court affirmed, reasoning:

      the forum selection clause is written in broad terms. It states
      that both ‘this Agreement and the relationship between the
      Parties hereto will be governed by the laws of England.’ …
      Counts II, IV and V each make reference to the Agreement and
      seek recovery either under the terms of the agreement or for
      services rendered as a result of the agreement. Thus, we
      conclude that these counts relate to the alleged contractual
      relationship between the parties. As such we conclude that they
      are subject to the terms of the forum selection clause included in
      the Agreement.

Id., 772 A.2d at 1023.

      The alter ego and unjust enrichment claims in IDT Corp. “relate[d] to

the alleged contractual relationship between the parties.”       Id. at 1023.

Here, Cid’s contract and tort claims do not merely “relate” to her claim for

UIM coverage; they depend upon her UIM claim. Thus, I view the policy as

requiring arbitration of Cid’s contract and tort claims with her UIM claim.

      For these reasons, I respectfully dissent.



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