J-S17004-18

                                  2018 PA Super 146



    STATE FARM MUTUAL AUTOMOBILE                  IN THE SUPERIOR COURT OF
    INSURANCE COMPANY                                   PENNSYLVANIA

                        v.

    ERIN C. DOONER, JEAN A. FONTE,
    JEFFREY J. KOWALSKI, GARY J.
    FEDORCZYK, AND PROGRESSIVE
    ADVANCED INSURANCE COMPANY

    APPEAL OF: JEAN A. FONTE                           No. 2821 EDA 2017


                  Appeal from the Order Entered August 2, 2017
                 In the Court of Common Pleas of Monroe County
                      Civil Division at No(s): 3140 CIVIL 2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.:                              FILED JUNE 04, 2018

        Appellant, Jean A. Fonte, appeals from the August 2, 2017 order

granting summary judgment in favor of Appellee, State Farm Mutual

Automobile Insurance Company (“State Farm”).           After careful review, we

affirm.

        The trial court summarized the following undisputed facts and

procedural background of this case in its August 2, 2017 opinion:1

               Prior to the evening of May 15, 2014, Erin C. Dooner [(“Ms.
        Dooner”)] and [Appellant] [] were involved in a romantic
        relationship. While traveling in [Ms.] Dooner’s vehicle, the couple
        was involved in a one[-]car accident. [Ms.] Dooner had a motor
        vehicle insurance policy number 173-0212-A08 through [State
____________________________________________


1 On September 20, 2017, the trial court filed a statement pursuant to
Pa.R.A.P. 1925(a), incorporating by reference its August 2, 2017 opinion, in
which the court previously addressed the issues raised by Appellant on appeal.
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      Farm’s] company. Because of this accident, [Ms.] Dooner was
      arrested and taken to the Monroe County DUI Center. [Appellant]
      then retrieved her own vehicle, a 2004 Dodge Stratus, in order to
      pick up [Ms.] Dooner from the DUI Center sometime after
      midnight on May 16, 2014. [Appellant’s] vehicle was insured by
      an automobile policy through Progressive Advanced Insurance
      [Company] (hereinafter “[Progressive]”). As [Appellant] was
      driving the couple home, they began to fight. [Appellant] claims
      [Ms.] Dooner struck her in the face. As the fight continued, [Ms.]
      Dooner grabbed the bottom of the steering wheel and jerked it.
      This caused the Dodge Stratus to swerve into oncoming traffic and
      collide head-on with a police cruiser. The police cruiser was
      operated by Jeffrey J. Kowalski (hereinafter “[Officer] Kowalski”).
      Gary J. Fedorczyk (hereinafter “[Officer] Fedorczyk”) was a front
      seat passenger in the police vehicle at the time of the accident.

             [Appellant] and [Officer] Kowalski, along with his wife, have
      filed lawsuits in this [c]ourt against [Ms.] Dooner relating to the
      accident. These suits are respectively filed at 3416 CV 2014 and
      1859 CV 2016. On April 27, 2016, [State Farm] filed a Complaint
      for Declaratory Judgment stating that it has no duty to defend,
      indemnify, or otherwise provide liability coverage to [Ms.] Dooner
      under [its] insurance policy. On May 30, 2017, [State Farm] filed
      a Motion for Summary Judgment. There is also a Motion for
      Summary Judgment filed by [] Progressive currently pending
      before the [c]ourt in 3140 CV 2016. Oral argument was not held
      in this matter and a decision [was] rendered based upon the
      submissions of the parties.

Trial Court Opinion (“TCO”), 8/2/17, at 1-2.

      On August 2, 2017, the trial court entered an order granting State

Farm’s motion for summary judgment and finding that State Farm does not

owe a duty of coverage in this case. Appellant filed a timely notice of appeal

on August 25, 2017, followed by a timely, court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Herein, Appellant raises

the following issue for our review:

      Did the trial court abuse its discretion and commit error by
      granting [s]ummary [j]udgment on behalf of [State Farm],

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      improperly determining that State Farm did not owe a duty of
      coverage to [its] insured[,] [Ms.] Dooner, and all parties who
      suffered injuries through [Ms.] Dooner’s negligence, thus
      misapplying case law and relevant precedent?

Appellant’s Brief at 5.

      Our standard of review with respect to a trial court’s decision to grant

or deny a motion for summary judgment is as follows:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law or
      abused its discretion. As with all questions of law, our review is
      plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      nonmoving party to adduce sufficient evidence on an issue
      essential to his case and on which it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will 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.

Byoung Suk An v. Victoria Fire & Cas. Co., 113 A.3d 1283, 1287-88 (Pa.

Super. 2015) (citation omitted). Additionally, we note that the interpretation

of an insurance policy is a question of law that we will review de novo. See

Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 91 (Pa.

Super. 2015).

      Here, Appellant avers that Ms. Dooner’s policy with State Farm “provides

coverage for a ‘non-owned car’ if the car is in lawful possession of you or any


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resident relative.” Appellant’s Brief at 12 (emphasis in original). Appellant

further notes that the policy is silent with respect to the definition of the terms

“possession” and “lawful.” Thus, she concludes that the policy is ambiguous

and must, therefore, be construed in her favor.            Id. (citing Madison

Construction Company v. Harleysville Mutual Insurance Company, 735

A.2d 100, 106 (Pa. 1999) (stating that where a provision of an insurance policy

is ambiguous, the policy provision is to be construed in favor of the insured

and against the insurer)).      After careful review of the record, we deem

Appellant’s claim to be wholly without merit.

      We begin our analysis by setting forth well-established rules of

insurance contract interpretation.    “The task of interpreting [an insurance]

contract is generally performed by a court rather than by a jury.” Madison

Construction, 735 A.2d at 106 (Pa. 1999).

      The goal in construing and applying the language of an insurance
      contract is to effectuate the intent of the parties as manifested by
      the language of the specific policy. When the language of an
      insurance policy is plain and unambiguous, a court is bound by
      that language. Alternatively, if an insurance policy contains an
      ambiguous term, the policy is to be construed in favor of the
      insured to further the contract’s prime purpose of indemnification
      and against the insurer, as the insurer drafts the policy, and
      controls coverage.      Contract language is ambiguous if it is
      reasonably susceptible to more than one construction and
      meaning. Finally, the language of the policy must be construed in
      its plain and ordinary sense, and the policy must be read in its
      entirety.

Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1, 14 (Pa.

2014) (internal citations and quotation marks omitted). See also Wagner v.



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Erie Ins. Co., 801 A.2d 1226, 1231 (Pa. Super. 2002) (adding that when

construing a policy, we may inform our understanding of words of common

usage by considering their dictionary definitions). Moreover, a court “will not

find a particular provision ambiguous simply because the parties disagree on

the proper construction; if possible, it will read the provision to avoid an

ambiguity.”   Brown v. Everett Cash Mutual Insurance Company, 157

A.3d 958, 962 (Pa. Super. 2017).

      Mindful of the foregoing legal principles, it is clear that the focal point of

our inquiry is the language of the insurance policy. Under the terms of the

policy, State Farm will provide coverage for “damages an insured becomes

legally liable to pay because of … bodily injury to others … and damage to

property[,] caused by an accident that involves a vehicle for which that

insured is provided Liability Coverage by this policy.” Policy, Exhibit “E” to

Complaint for Declaratory Judgment, at 7 (emphasis in original). The term

“insured” is defined under the policy as:

      1. you and resident relatives for:

         a. the ownership, maintenance, or use of:
            (1) your car;
            (2) a newly acquired car; or
            (3) a trailer; and

         b. The maintenance or use of:
            (1) a non-owned car; or
            (2) a temporary substitute car.

Id. (emphasis in original).




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      After applying the policy’s definition of “insured” to the instant facts, we

deem Ms. Dooner’s use of a “non-owned car” to be the only possible qualifying

scenario for coverage by State Farm in this case. A “non-owned car” is defined

under the policy as,

      a car that is in the lawful possession of you or any resident relative
      and that neither:

      1. Is owned by:

               a. you;

               b. any resident relative;

               c. any other person who resides primarily in your
                  household; or

               d. an employer of any person described in a., b., or c.
                  above; nor

      2. Has been operated by, rented by or in the possession of:

            a. you; or

            b. any resident relative

            during any part of each of the 31 or more consecutive days
            immediately prior to the date of the accident or loss.

Id. at 4-5 (emphasis in original).

      Accordingly, in order for State Farm to owe liability coverage in the

instant case, Appellant’s Dodge Stratus must qualify as a “non-owned car” of

the insured, Ms. Dooner. Based on the foregoing definition, it is evident that




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J-S17004-18



coverage hinges on whether Ms. Dooner was in “lawful possession” of the

Dodge Stratus at the time of the accident.2

       Unfortunately, Pennsylvania has little caselaw [sic] explaining the
       meaning of “lawful possession” in terms of a passenger interfering
       with a driver. As the policy does not explicitly define the term
       “possession,” [State Farm] relies on the Black’s Law Dictionary
       definition. Possession is defined therein as:

          (1) The fact of having or holding property in one’s power;
          the exercise of dominion over the property; (2) the right
          under which one may exercise control over something to the
          exclusion of all others; the continuing exercise of a claim to
          the exclusive use of a material object; (3) the detention or
          use of a physical thing with the intent to hold it as one’s
          own; (4) something that a person owns or controls.

       Black’s Law Dictionary (10th ed. 2014). Additionally, [State Farm]
       includes the Merriam-Webster definition of “possession” as “1. (a)
       the act of having or taking into control; (b) control or occupancy
       of property without regard to ownership; (c) ownership; … 2.
       Something owned, occupied, or controlled.”

TCO at 5-6.

       Appellant argues that all of the foregoing definitions of “possession”

involve an aspect of control; thus, the court should determine whether Ms.


____________________________________________


2  We note that the trial court applied the term “temporary substitute car”
rather than “non-owned car” to its analysis. See TCO at 4. A “temporary
substitute car” is defined under the policy as “a car that is in the lawful
possession of the person operating it and that: (1) replaces your car for a
short time while your car is out of use due to its: a. breakdown; b. repair; c.
servicing; d. damage; or e. theft; and (2) neither you nor the person operating
it own or have registered.” Policy at 6. We conclude that “non-owned car” is
the more appropriate term here. Regardless, whether the policy would
provide coverage for the insured’s use of either a “non-owned car” or a
“temporary substitute car” hinges on whether there was lawful possession;
hence, this discrepancy is inconsequential. We are in agreement with the
remainder of the trial court’s analysis regarding lawful possession.

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J-S17004-18



Dooner had control of the Dodge Stratus at the time of the accident. See

Appellant’s Brief at 14. In response to Appellant’s claim, the trial court opined:

      We do not believe that possession and control are synonymous
      and can be used interchangeably. However, as control appears to
      be a consideration in determining possession, we will examine
      [Appellant’s] argument further. In support of her argument,
      [Appellant] cites a number of DUI related cases.           See
      Commonwealth v. Wolen, … [685 A.2d 1384] ([Pa. Super.]
      1996); Commonwealth v. Woodruff, … [668] A.2d 1158 ([Pa.
      Super.] 1995); Commonwealth v. Trial, … 652 A.2d 338 ([Pa.
      Super.] 1994); Commonwealth v. Wilson, … 660 A.2d 105
      ([Pa. Super.] 1995).

      The cases cited by [Appellant] are immediately distinguishable
      from the current matter as all of the fact patterns involve the
      defendant being found in control, in part, because they were the
      only person in or around the car, leaving them the only person
      likely to have been driving it. The Wolen court noted, “whether
      a person is in actual physical control of the motor vehicle is
      determined based upon a totality of the circumstances.” []
      Wolen, … 685 A.2d [at] 1385…. In Wolen, the [Pennsylvania]
      Supreme Court found that a jury instruction stating “an individual
      may be in actual physical control of his vehicle … so long as that
      individual is keeping that car in restraint or is in a position to
      regulate its movement” was not inappropriate. Id. at 1387
      (emphasis added)….

      As the matter at hand involves a motor vehicle insurance policy,
      it is necessary to consider control in terms of the entire vehicle,
      not just the steering wheel. [Appellant] remained seated in the
      driver’s seat during the entire altercation. She never relinquished
      control of any other mechanism of the car’s movement, such as
      the gas or brake pedals, to [Ms.] Dooner….            [Appellant’s]
      deposition testimony in which she states her hands may have
      been off the wheel at the time of the accident … does not change
      the fact that she was in the driver’s seat. Even if her hands were
      briefly removed from the wheel, she was in the position of control
      of the vehicle. A driver operating a vehicle does not relinquish
      control simply because they remove their hands from the steering
      wheel for a moment. Nor does a driver relinquish possession or
      control of an automobile by allowing an alleged inebriated and
      belligerent individual into it as a passenger. Nor does she

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      relinquish control when that alleged inebriated and belligerent
      individual irrationally attempts to grab the steering wheel while a
      passenger in the vehicle.        Based upon the totality of the
      circumstances, we do not find that [Ms.] Dooner[’s] briefly
      grabbing the steering wheel amounted to her taking lawful
      possession or control of the vehicle.

Id. at 6-8.   We discern no abuse of discretion in the trial court’s finding that

Ms. Dooner was not in possession of the vehicle at the time of the accident,

or in its conclusion that State Farm, therefore, does not owe any liability

coverage in this case.

      Even if Ms. Dooner had been found to be in “possession” of the vehicle,

we further agree with the trial court’s conclusion that such possession would

not have been “lawful.”

      “Lawful” is defined as “not contrary to law; permitted by law.”
      Black’s Law Dictionary (10th ed. 2014)…. It is beyond belief that
      the action of a passenger striking the driver of a moving vehicle
      and grabbing the wheel in such a manner as to cause the vehicle
      to enter another lane and crash head-on with an approaching
      vehicle could be considered “lawful” for “lawful possession” of a
      vehicle.   [Ms. Dooner] did not have the permission of the
      owner/driver to be driving or in control or possession of the
      vehicle. Likewise[,] it is difficult to imagine this is a scenario that
      either party to the insurance contract would have reasonably
      expected to be covered when agreeing to the policy. Therefore,
      we find that even if [Ms.] Dooner could be found to have had
      possession of the vehicle at the time of the accident, it was not
      lawful. Summary judgment is appropriate at this time.

TCO at 9. After careful review, we discern no abuse of discretion or error of

law by the trial court.

      Finally, while not binding on this Court, we are also persuaded by the

rationale behind the decision in North Carolina Farm Bureau Ins. Co. v.

Nationwide Mut. Ins. Co., 608 S.E.2d 112 (N.C. Ct. App. 2005), where the

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issue was whether the passenger was in lawful possession of a vehicle involved

in a crash under circumstances similar to the instant case. In Farm Bureau,

the passenger “suddenly grabbed the [steering] wheel and attempted to steer

the car into a weigh station the car was passing.” Id. at 112. When the driver

attempted to regain control of the car by steering back to the left, it struck

another car, resulting in the death of the other driver. Id. The sole issue

before the court was whether the passenger was in lawful possession of the

car when he grabbed the steering wheel. The Farm Bureau Court deemed

this issue to be a matter of first impression in North Carolina and, thus,

analyzed decisions in a number of other states which addressed a related

issue, concerning whether a passenger who grabs the steering wheel is

operating a vehicle as referred to in an insurance policy exclusion. The Court

was persuaded by the reasoning of those states which held that “a passenger

who grabs the steering wheel is actually interfering with the vehicle’s

operation.” Id. at 114 (citations omitted). As such, the Court determined

that it could not find the act of grabbing a steering wheel of a moving car from

the passenger seat in the circumstances presented to constitute “possession”

of the car. Id.

      The Farm Bureau Court further held that “even if [the passenger] were

in possession of the car, the possession would not have been lawful.” Id.

      If a driver suffered a medical emergency and lost control of a car,
      perhaps a passenger could have a good faith belief that she could
      take possession of the car by grabbing the steering wheel;
      however, that circumstance is not before us. Here, the evidence
      indicates that [the passenger] grabbed the wheel while joking

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J-S17004-18


     around. Common sense dictates that a reasonable passenger
     cannot in good faith believe that she may lawfully possess a car
     by suddenly grabbing the steering wheel of a moving car in this
     manner.

Id. We believe the same logic applies here. Ms. Dooner’s action of grabbing

the steering wheel did not constitute possession of the car, but rather

interfered with Appellant’s operation of the vehicle. Even if Ms. Dooner was

found in possession of the car at the time of the accident, the possession

would not have been lawful.

     As Appellant failed to establish a genuine issue of material fact, we

conclude that the trial court did not commit an error of law or abuse its

discretion when it granted State Farm’s motion for summary judgment.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/18




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