J. A12037/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DONNA MARIE WILLIAMSON,                  :    IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS                      :          PENNSYLVANIA
ADMINISTRATRIX OF THE ESTATE OF          :
JOHN P. WILLIAMSON, JR.,                 :
                                         :
                        Appellant        :
                                         :
                   v.                    :
                                         :
LIBERTY MUTUAL FIRE INSURANCE            :
COMPANY AND LIBERTY MUTUAL               :         No. 2629 EDA 2017
INSURANCE, T/D/B/A LIBERTY               :
MUTUAL GROUP                             :

          Appeal from the Judgment Entered September 21, 2017,
             in the Court of Common Pleas of Delaware County
                      Civil Division at No. 13-000742


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 10, 2018

      Donna Marie Williamson, individually and as Administratrix of the Estate

of John P. Williamson, Jr. (hereinafter, “decedent”), appeals from the

September 21, 2017 judgment entered in favor of appellees, Liberty Mutual

Fire Insurance Company and Liberty Mutual Insurance, t/d/b/a Liberty Mutual

Group (collectively, “Liberty Mutual”), following the denial of appellant’s

post-trial motions.1 After careful review, we affirm.


1 Appellant purports to appeal from the trial court’s July 24, 2017 order
denying her post-trial motions; however, “an appeal properly lies from the
entry of judgment, not from the denial of post-trial motions.”
Commonwealth Fin. Sys., Inc. v. Smith, 15 A.3d 492, 493 n.1 (Pa.Super.
2011) (citations omitted). We have amended the caption accordingly.
J. A12037/18

      The trial court summarized the relevant facts and procedural history of

this case as follows:

            This action was commenced by summons on
            January 24, 2013. [Appellant] filed [her] complaint
            on February 25, 2015.         It was averred that on
            January 25, 2009, [decedent] was a passenger in a
            motor vehicle owned by John P. Williamson, Sr. and
            operated by Andrew Cardamone[,] which was
            involved in a single vehicle accident in Williamsport,
            Pennsylvania that resulted in the death of [decedent]
            and fellow passenger Ian Alexander. The accident
            caused personal injury to three other passengers in
            the vehicle. It is averred that the accident was caused
            solely by the carelessness and negligence of
            Andrew Cardamone.           [Appellant] was insured
            continuously under an automobile policy of Liberty
            Mutual since 1982. At the time of the accident, Liberty
            Mutual had an automobile policy [that] provided
            John P. Williamson, Sr. $500,000.00 in single limit
            coverage and $1,000,000.00 in umbrella coverage.
            Andrew Cardamone had a separate policy issued by
            Liberty Mutual with a $300,000 limit. Total available
            coverages amounted to total $1,800,000.00.
            [Appellant] further averred that the automobile policy
            also provided uninsured and underinsured coverage in
            the amount of two million dollars. [Appellant] claimed
            that, based upon alleged misrepresentations by
            Liberty Mutual, [appellant] agreed to a settlement of
            $1,800,000.00 . . . , which was distributed
            $600,000.00 to the estate of Ian Alexander,
            $600,000.00 to the [decedent’s] estate, with the
            remaining $600,000.00 divided among the three
            surviving passengers. [Appellant] averred that they
            had submitted an underinsured claim to Liberty
            Mutual but that the matter was unresolved.
            [Appellant] offered Liberty Mutual a $600,000.00
            offset against the underinsured policy limits of
            $2,000,000.00. The complaint contained counts for
            loss of consortium (Count 1), wrongful death action
            (Count II) and survival action (Count III). Liberty
            Mutual responded with an answer and new matter
            filed on April 17, 2015. On December 29, 2015, the


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          Honorable Charles Burr, Senior Judge, entered an
          order denying [Liberty Mutual’s] Motion for Summary
          Judgment without prejudice to resubmit after the
          close of discovery. The case was assigned to this
          Court in February, 2016 and was listed for trial for its
          June 13, 2016 through July 8, 2016 trial term. Oral
          argument on [Liberty Mutual’s] Second Motion for
          Summary Judgment was conducted in court on
          July 21, 2016. That motion was denied on July 22,
          2016 and trial was continued to February, 2017. This
          Court, on November 2, 2016, granted [Liberty
          Mutual’s] Motion for Leave to Re-open Discovery and
          granted the parties an extension to complete any
          discovery including depositions in this proceeding.
          Trial remained scheduled for the Court’s February 13,
          2017 through March 10, 2017 term. On February 16,
          2017, this Court denied [Liberty Mutual’s] Third
          Motion for Summary Judgment. On that date, this
          Court also entered an Order that the motion of
          [Liberty Mutual] to compel the deposition of Donna
          Marie Williamson and Elizabeth Williamson was moot.
          Finally, this Court reviewed [Liberty Mutual’s] Motion
          in Limine to Preclude [appellant’s] Expert Testimony.
          The Court examined the motion with [appellant’s]
          counsel and granted the motion to preclude expert
          testimony due to the representation of [appellant’s]
          counsel that no expert would be produced at trial and
          due to the fact that [appellant] had missed the
          deadline for naming an expert in this Court’s
          scheduling order, had ample opportunity to conduct
          discovery relative to an expert and did not produce an
          expert report. Trial was to commence February 21,
          2017. [Appellant] was required to identify all expert
          trial witnesses at least eight weeks prior to the trial
          date, in accordance with this Court’s Scheduling Order
          dated February 18, 2016. The parties appeared on
          February 21, 2017 but trial was continued due to
          [appellant’s] request for a continuance for personal
          reasons. The parties were then given a new date
          certain for trial of March 7, 2017.

          ....




                                   -3-
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          At the commencement of trial on March 7, 2017, this
          Court approved [appellant’s] request to file an
          Amended       Complaint.    Trial   commenced      with
          [appellant] seeking recovery for loss of consortium
          (Count I), wrongful death (Count II), survival
          (Count III), breach of contract (Count IV), bad faith
          (Count V) and deceit (Count VI).          The parties
          stipulated that Count V and Count VI were withdrawn
          from [appellant’s] Amended Complaint. Donna Marie
          Williamson and John P. Williamson, Sr. testified
          poignantly on behalf of [decedent]. The Williamsons
          were married for thirty-five years at the time of this
          Court’s hearing. Together, they had three children:
          Elizabeth, age thirty-four, and son Daniel, age
          thirty-two at the time of trial. [Decedent], in January
          2009, was age twenty-one and in his last semester at
          Drexel University pursuing a Bachelor of Science in
          Biology degree. Upon graduation, he planned to
          attend an eleven-month program at Hahnemann to
          pursue a bachelor’s degree in nursing. Mrs. Williamson
          recounted her son’s achievements in cross-country
          and track, in education and in extracurricular
          activities. [Decedent] was also a person of strong
          faith and organized and participated in many
          charitable endeavors.       He was a member of a
          fraternity at Drexel University. On January 19, 2009,
          [decedent] called his mother and requested to borrow
          the family SUV (2002 Chevrolet Trailblazer) for
          visiting brother fraternities at other universities.
          Mrs. Williamson instructed [decedent] that neither he
          nor any of the boys could go near alcohol if they were
          going to use her car for that weekend. On Friday,
          January 23, 2009, [decedent] said goodbye, picked up
          the car and drove to Drexel and picked up five
          fraternity brothers. On January 25, 2009, two state
          troopers appeared at the Williamson household and
          informed the Williamsons that [decedent] had died in
          a one vehicle car accident in Jackson Township,
          Lycoming County.

          Andrew Cardamone testified that he was a freshman
          in the Alpha Chi Rho fraternity at Drexel University in
          January of 2009. Andrew joined in the weekend trip
          with the decedent.      Before leaving Philadelphia,


                                   -4-
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          Andrew was aware of one certain stop, which would
          be at the founding chapter at Trinity College in
          Connecticut. Andrew did not know the owner of the
          automobile when the trip commenced, but noticed
          that [decedent] had picked everyone up at the
          fraternity house. The first stop was at the College of
          New Jersey in Princeton, New Jersey. After visiting
          campus for a couple of hours, the fraternity brothers
          continued on to Rutgers University in East Brunswick.
          The brothers then travelled to Trinity College in
          Connecticut, then Rensselaer Polytechnic Institute,
          then Worcester Polytechnic Institute and arrived at
          the State University of New York at Geneseo late
          Saturday afternoon or early Saturday evening. The
          companions decided to leave at one or two a.m. on
          Sunday morning for the Pennsylvania State University
          at State College, Pennsylvania. The companions had
          dinner and attended a social event at the local chapter
          before embarking at one a.m. Andrew Cardamone
          testified that all of the fraternity brothers discussed
          who would drive from Geneseo to Penn State and
          Andrew volunteered. He testified that he was sober
          and of sound mind when he was ready to depart.
          Andrew Cardamone testified that he had one or two
          beers at 10:00 p.m. and that they left around
          1:00 a.m. During the trip to Penn State, the boys
          stopped and after the stop [decedent] occupied the
          front passenger seat and slept during the trip from
          Geneseo to State College. Prior to the accident,
          Andrew Cardamone had his window cracked slightly
          to help keep cold air on his face while all other
          passengers were asleep. Andrew testified that he
          remembered hitting rumble strips and waking up
          upside down and contacting 911. The state police
          accident report provides that the vehicle had drifted
          to the left and swerved across the roadway before
          coming into contact with a large rock facing.
          [Decedent] and a second passenger died in the
          accident.

          John P. Williamson, Sr. started practicing law in May
          1997. He has a general practice [that] specifically
          includes personal injury/auto accident cases. After
          the memorial services were completed for his son,


                                   -5-
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            John P. Williamson, Sr. became involved in
            communications with Liberty Mutual involving
            personal injury claims for the three surviving
            passengers of the vehicle and for the two estates. The
            driver, Andrew Cardamone, had a $300,000.00
            automobile policy through his parents for liability
            purposes. John P. Williamson, Sr. testified that he had
            1.5 million dollars in coverage, consisting of
            $500,000.00 from his automobile policy and
            $1,000,000.00 from an umbrella policy.           Liberty
            Mutual agreed to tender $1,800,000.00 for the loss
            and it was distributed $600,000.00 to [decedent’s]
            estate, $600,000.00 to the estate of the other
            decedent passenger, and $600,000.00 among the
            three surviving passengers injured. A release was
            signed by all parties. The joint tortfeasor release
            signed by Donna Marie Williamson provided
            specifically: “By entering into this release, I am not
            relinquishing any claim that the estate may have for
            underinsured motorist benefits.”

            At the conclusion of the [appellant’s] case, this Court
            granted [Liberty Mutual’s] Motion for Non-Suit as to
            the count for loss of consortium and the counts for
            wrongful death and survival. Trial continued on the
            count     for    breach      of     contract/negligent
            misrepresentation claim.

            Trooper Douglas Hoffman testified by video and the
            Pennsylvania State Police Crash Report was admitted
            into evidence.       [Liberty Mutual] admitted into
            evidence the Williamson automobile and umbrella
            insurance policies. Liberty Mutual determined in its
            investigation that Andrew Cardamone was an
            authorized driver of the Williamson vehicle and
            provided the automobile liability and the umbrella
            liability coverage to the Williamson family.

Trial court opinion, 10/13/17 at 1-8 (citations omitted).

      Following a two-day non-jury trial, the trial court entered a verdict on

March 24, 2017, in favor of Liberty Mutual. On April 3, 2017, appellant filed



                                     -6-
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timely post-trial motions that were denied by the trial court on July 24, 2017.

Appellant filed a notice of appeal on August 14, 2017. On August 17, 2017,

the trial court ordered appellant to file a concise statement of errors

complained of on appeal, in accordance with Pa.R.A.P. 1925(b).         Appellant

filed a timely Pa.R.A.P. 1925(b) statement on September 5, 2017, raising

17 claims of error. (See Rule 1925(b) statement, 9/5/17 at ¶¶ 7-23.) On

September 7, 2017, this court ordered appellant to praecipe the Delaware

County Prothonotary to enter judgment in this matter.            Judgment was

ultimately entered in favor of Liberty Mutual on September 21, 2017.2

Thereafter, on October 13, 2017, trial court filed a comprehensive 26-page

Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            1.    Whether the Court erred in finding that the
                  driver, Andrew Cardamone, had a reasonable
                  belief that he had permission to operate the
                  Williamson vehicle when he never met, nor had
                  any conversations with, Donna Marie Williamson
                  or John P. Williamson, Sr., prior to the trip, and
                  as such did not know or abide by the pre-trip
                  conditions for permission to operate the vehicle
                  imposed by Donna Marie Williamson[?]

2Pursuant to Pennsylvania Rule of Appellate Procedure 905, appellant’s notice
of appeal shall be treated as filed after the entry of judgment. See
Pa.R.A.P. 905(a)(5) (stating, “[a] notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof[]”). This court
has long recognized that “even though [an] appeal was filed prior to the entry
of judgment, it is clear that jurisdiction in appellate courts may be perfected
after an appeal notice has been filed upon the docketing of a final judgment.”
Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,
3 (Pa.Super. 2013).


                                      -7-
J. A12037/18



            2.     Whether the Court erred in finding that the
                   driver, Andrew Cardamone, had a continuing
                   reasonable belief that he had permission to
                   operate the Williamson vehicle even as the
                   driving conditions on the road trip changed and
                   deteriorated dramatically[?]

            3.     Whether the Court erred in finding that it was
                   proper for [Liberty Mutual] to extend insurance
                   coverage to the driver, Andrew Cardamone,
                   through [a]ppellant’s policy of insurance,
                   against the will and desire of [a]ppellant[?]

Appellant’s brief at 5.3

      Our standard of review of a non-jury trial is well settled:

            Our review in a nonjury case is limited to whether the
            findings of the trial court are supported by competent
            evidence and whether the trial court committed error
            in the application of law. We must grant the court’s
            findings of fact the same weight and effect as the
            verdict of a jury and, accordingly, may disturb the
            nonjury verdict only if the court’s findings are
            unsupported by competent evidence or the court
            committed legal error that affected the outcome of the
            trial. It is not the role of an appellate court to pass on
            the credibility of witnesses; hence we will not
            substitute our judgment for that of the factfinder.
            Thus, the test we apply is not whether we would have
            reached the same result on the evidence presented,
            but rather, after due consideration of the evidence
            which the trial court found credible, whether the trial
            court could have reasonably reached its conclusion.

Berg v. Nationwide Mut. Ins. Co., Inc.,           A.3d      , 2018 WL 2682196,

at *3 (Pa.Super. 2018) (citation omitted).




3 For the purposes of our review, we have elected to address appellant’s first
two claims simultaneously.


                                      -8-
J. A12037/18

      Appellant first argues that the trial court erred in concluding that

Cardamone had a reasonable belief that he had permission to operate

appellant’s vehicle on the evening in question. (Appellant’s brief at 5.) In

support of this contention, appellant avers that the trial court disregarded the

fact that Cardamore “never met nor spoke with [appellant] nor her husband,

John P. Williamson, Sr., until after the accident, nor did he know of or abide

by the pre-trip conditions for permission to operate the vehicle imposed by

appellant.” (Id. at 10.) Appellant further argues that, given the fact that the

driving conditions had deteriorated dramatically on the evening in question,

Cardamone could not have had “a continuing reasonable belief that he had

permission to operate [appellant’s] vehicle[.]”     (Id. at 5, 10.)      For the

following reasons, we disagree.

      “Part A” of appellant’s automobile policy with Liberty Mutual extended

liability coverage to any person using the insured’s automobile, provided an

exclusion did not apply. Specifically, the policy provided as follows:

            INSURING AGREEMENT

            A.    We will pay damages for “bodily injury” or
                  “property damage” for which any “insured”
                  becomes legally responsible because of an auto
                  accident . . . .

            B.    “Insured” as used in this Part means:

                  ....

                  2.     Any person using “your covered
                         auto[.]”



                                     -9-
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            EXCLUSIONS

            A.    We do not provide Liability Coverage for any
                  person:

                  ....

                  8.     Using     a   vehicle   without    a
                         reasonable belief that the person is
                         entitled to do so[.]

Defense trial exhibit D-1.

      Here, the trial court found that “Cardamone[] did have a reasonable

belief that he had permission to operate the vehicle and the weight of the

evidence supports this conclusion.”     (Trial court opinion, 10/13/17 at 17.)

Viewing the evidence and all reasonable inferences therefrom in a light most

favorable to Liberty Mutual, the verdict winner, we find that the record amply

supports the trial court’s determination. At trial, Cardamone testified that the

group discussed alternating designated drivers during the trip and agreed that

he would be the designated driver from Geneseo College to the Pennsylvania

State University in State College, Pennsylvania. (Notes of testimony, 3/7/17

at 102.) Decedent was present during this conversation and did not object to

Cardamone driving appellant’s vehicle for this leg of the trip. (Id. at 102-103,

107.) The record further reflects that Cardamone explicitly indicated that he

possessed a reasonable belief that he was entitled to operate appellant’s

vehicle on the evening in question:

            Q.    Now do you remember me asking this question
                  at your deposition?



                                      - 10 -
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            ....

            Q.     I asked, “So it was your belief that you had the
                   right to use the vehicle?” And there was an
                   objection. You said, “I don’t know about a
                   right.” [Then I asked,] “But did you have a
                   belief that you were entitled to use the vehicle?”
                   And you said “yes, I was.            It was my
                   understanding that I had the opportunity, if it
                   was needed, to drive the car. That I would be
                   able to. Yes. Okay. So you say that you had a
                   reasonable belief that you were entitled to use
                   the vehicle? Objection. Yes, I believe I was
                   allowed to use the car without getting specific
                   permission from [Decedent] because we all had,
                   in my opinion, my understanding at the time,
                   Blanket approval to use the care because we
                   were changing positions.” Is that accurate?

            A.     Yes.

Id. at 103-104.

      Moreover, our review reveals that Cardamone’s operation of the vehicle

did not deviate from his permitted scope of operation. Cardamone continued

to operate the vehicle from the time the group departed Geneseo College until

the time of the accident, and reiterated on redirect examination that, he

“based [his] assumption of permission [] on the fact that other people had

. . . driven earlier in that day and that it was -- if it was my turn then it was

-- I was allowed to do that.” (Id. at 110). Additionally, Cardamone’s blood

alcohol content was 0.00 when tested by police following the accident, and

State Trooper Douglass Hoffman indicated that he was cooperative, did not

exhibit any signs of intoxication, nor smell of alcohol. (Id. at 103; see also

notes of testimony, 3/1/17 at 13-14.)


                                     - 11 -
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        Here, the trial court found the testimony of Cardamone credible and

elected not to believe appellant’s version of the events. “It is not the role of

an appellate court to pass on the credibility of witnesses or to act as the trier

of fact, and an appellate court will not substitute its judgment for that of the

fact-finder.” Zimmerman v. Harleysville Mut. Ins. Co., 860 A.2d 167, 172

(Pa.Super. 2004) (citation omitted), appeal denied, 881 A.2d 820 (Pa.

2005). Accordingly, we discern no abuse of the trial court’s discretion.

        Appellant next argues that the trial court “erred in finding that it was

proper for [Liberty Mutual] to extend insurance coverage to the driver,

[Cardamone], through [a]ppellant’s policy of insurance, against the will and

desire of [a]ppellant.”    (Appellant’s brief at 5.)   Appellant maintains that

“Cardamone has his own Liberty Mutual insurance policy and all the injured

parties had their own UIM[4] policies,” and that she should have been

permitted to make a claim under her own policy’s UM5/UIM coverage in the

amount of $2,000,000. (Id. at 10, 18.)

        Preliminarily, we note that,

              [t]he task of interpreting [an insurance] contract is
              generally performed by a court rather than by a jury.
              The purpose of that task is to ascertain the intent of
              the parties as manifested by the terms used in the
              written insurance policy. When the language of the
              policy is clear and unambiguous, a court is required to
              give effect to that language. When a provision in a
              policy is ambiguous, however, the policy is to be

4   UIM is an abbreviation for “underinsured motorist.”

5   UM is an abbreviation for “uninsured motorist.”


                                       - 12 -
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            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.       Contractual language is
            ambiguous if it is reasonably susceptible of different
            constructions and capable of being understood in
            more than one sense. Finally, [i]n determining what
            the parties intended by their contract, the law must
            look to what they clearly expressed. Courts[,] in
            interpreting a contract, do not assume that its
            language was chosen carelessly. Thus, we will not
            consider merely individual terms utilized in the
            insurance contract, but the entire insurance provision
            to ascertain the intent of the parties.

Erie Ins. Exch. v. E.L., 941 A.2d 1270, 1273 (Pa.Super. 2008), appeal

denied, 956 A.2d 435 (Pa. 2008) (citations omitted).

      Upon review, we find that appellant has waived her UM/UIM claim by

failing to properly develop it in her appellate brief.        Specifically, the

“Argument” section of appellant’s brief is largely comprised of a number of

bullet points and hypothetical questions, and does not contain a separate

subsection that develops her UM/UIM claim with citation to relevant legal

authority and corresponding analysis. Notably, appellant’s entire “Argument”

section contains only two scant references to case law and not a single citation

to the notes of testimony or certified record. (See appellant’s brief at 11-21.)

“[W]here an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”      McEwing v.

Lititz Mut. Ins. Co., 77 A.3d 639, 647 (Pa.Super. 2013) (citation omitted);

see also Pa.R.A.P. 2119(b) (compels a finding of waiver “where an appellate


                                     - 13 -
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brief fails to provide any discussion of a claim with citation to relevant

authority or fails to develop the issue in any other meaningful fashion capable

of review [.]”). Accordingly, we conclude that appellant’s third issue is waived.

      In any event, even if appellant did not waive her UM/UIM claim, it would

still not merit relief. We agree with the trial court’s well-reasoned conclusion

that UM/UIM coverage does not apply. As the trial court properly reasoned in

its opinion, all coverage applicable to the accident had been exhausted and

appellant’s argument fundamentally misconstrues Liberty Mutual’s liability

policy:

            The automobile involved in this proceeding was
            insured and liability coverage was afforded.        In
            addition, the driver, [] Cardamone, also had insurance
            and that policy was provided for damages.           In
            addition, the policy states that “uninsured motor
            vehicle” does not include any vehicle that is owned by
            “you” and that the term “you” refers to the named
            insured as well as the spouse of the named insured, if
            they are residents of the same household. Mr. and
            Mrs. Williamson are residents of the same household.

            The terms of [appellant’s] automobile policy expressly
            precluded underinsurance coverage when liability
            coverage had already been extended. Exhibit D-1. As
            such, underinsured motorist benefits could also not be
            recovered under that policy. The language in the
            policy states that a vehicle covered by liability under
            the policy cannot be an underinsured vehicle.

Trial court opinion, 10/13/17 at 15-16 (case citation omitted).

      Thus, if we were to accept appellant’s contention that Cardamone did

not possess a reasonable belief that he had permission to operate appellant’s

vehicle, appellant would not have been entitled to collect UM/UIM coverage


                                     - 14 -
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under its policies with Liberty Mutual because Cardamone would not qualify

as an “insured” and there would have existed no “underlying coverage.” (See

Liberty Mutual Auto Policy, “Exclusions” at 2, § A.8 and Liberty Mutual Personal

Liability Protection Policy, “Exclusions” at 4, § II.e; defense trial exhibits D-1,

D-2.)    Additionally, an underinsured vehicle under the policy specifically

precludes any vehicle for which liability coverage is provided. Here, because

Cardamone was a permissive user of the vehicle and the Estate received

coverage under the liability provisions of the policy, the vehicle cannot be an

underinsured vehicle. Based on the foregoing, we find that even if appellant

had not waived her claim, she would not be entitled to relief.

        Having determined that the trial court’s findings are supported by

competent evidence and that appellant failed to demonstrate that the trial

court committed error in application of the law, we affirm the September 21,

2017 judgment entered in favor of Liberty Mutual.

        Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/10/18




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