J-A33025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOANNE PUSEY, NATURAL GUARDIAN OF                IN THE SUPERIOR COURT OF
THE MINOR, BRIAN PUSEY                                 PENNSYLVANIA

                            Appellant

                       v.

ALLSTATE INSURANCE COMPANY

                            Appellee                  No. 888 EDA 2015


               Appeal from the Judgment Entered March 16, 2015
               In the Court of Common Pleas of Delaware County
                        Civil Division at No: 2013-01936


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 20, 2016

        Appellant, Joanne Pusey, natural guardian of the minor, Brian Pusey,

appeals from the March 16, 2015 judgment entered in the Court of Common

Pleas of Delaware County in favor of Appellant in the amount of $9,574.00.1

Upon review, we affirm.

        The trial court summarized the relevant background in its Pa.R.A.P.

1925(a) opinion as follows.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Appellant purports to appeal from the trial court’s February 11, 2015 order
granting Appellee’s motion to mold the verdict. As the caption reflects,
Appellant properly appeals from the trial court’s judgment entered March 16,
2015.
J-A33025-15


              This action arises from an accident that occurred on
        December 24, 2011 at or near the intersection of Union Avenue
        and Baltimore Pike, in Upper Darby Township, Delaware County,
        Pennsylvania.     At that time Brian Pusey, a minor, was
        attempting to cross Baltimore Pike on his bicycle when a vehicle
        being driven by Monique Rollerson collided with Brian Pusey’s
        bicycle. Prior to trial, Ms. Rollerson’s insurance carrier tendered
        the policy limits of $25,000.00 to Appellant. Appellant initiated
        this action against Allstate Insurance Company[, Appellee,]
        through an underinsured motorist coverage provision of her
        motor vehicle insurance policy.

              Trial commenced on December 8, 2014 and the jury
        returned a verdict on December 10, 2014.[2] The jury awarded
        Appellant $10,000.00 for pain and suffering, $1,400.00 for
        embarrassment and humiliation, $26,200.00 for loss of
        enjoyment of life, and awarded a stipulated medical lien amount
        of $21,000.00 for a total award of $58,600.00. The jury also
        attributed forty one percent (41%) of the negligence that was a
        factual ca[u]se of any harm to Brian Pusey himself.

               Appellee filed a Motion to Mold the verdict on December
        18, 2015. Therein, Appellee argued that the jury’s award should
        be reduced by the percentage of Brian Pusey’s own negligence,
        resulting in a damage award of $35,574.00. Appellee reasoned
        that [it] would then receive a credit for the policy limits of the
        tortfeasor’s $25,000.00 liability limits that were previously
        received by the Appellant. Appellee referenced the relevant
        portions of the Allstate policy at issue relating to underinsured
        motorist benefits:

                     We are not obligated to make payment
                     for bodily injury under this coverage
                     which arises out of the use of an
                     underinsured auto until after the limits
                     of liability for all motor vehicle liability
                     protection in effect and applicable at the
                     time of the accident have been
                     exhausted by payment of judgment or
                     settlements.
____________________________________________


2
    The December 10, 2014 verdict was docketed December 11, 2014.



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J-A33025-15



                     Subject to the above limits of liability,
                     damages but not limits payable will be
                     reduced by:

                     a) All amounts paid by the owner or
                     operator of the underinsured auto or
                     anyone else responsible. This includes
                     all sums paid under the bodily injury
                     liability coverage of this or any other
                     policy.

              The policy further provides that damages in an
              underinsured motorist claim are that which an
              insured person is “legally entitled to recover from the
              operator of an underinsured auto.”

              (12/18/15 Motion to Mold Verdict)

               Neither party disputes that Appellee should receive a credit
        for the $25,000.00 liability limits that were previously tendered.
        Appellant contends that the deduction for comparative
        negligence should have been applied after the credit for the third
        party recovery. Following oral argument in January 22, 2015,
        this [c]ourt entered an Order on February 11, 2015,[3] and found
        as follows:

           1. On December 10, 2014, the jury returned a verdict in the
              total amount of $58,600.00.

           2. The jury attributed forty one percent (41%) of the
              negligence that was a factual ca[u]se of any harm to the
              plaintiff to Brian Pusey himself;

           3. Plaintiff’s total award must be reduced by forty one
              percent or $24,026.00;

           4. Prior to trial, Plaintiff received $25,000.00 from a third
              party and/or third party insurance carrier for damages
              related to the accident at issue herein;
____________________________________________


3
    The February 11, 2015 order was docketed February 13, 2015.



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J-A33025-15



         5. Plaintiff’s total award must therefore be reduced by an
            additional $25,000.00.

      The jury verdict of December 10, 2014, was then molded and a
      verdict in favor of Appellant, Joanne Pusey, natural guardian of
      the minor, Brian Pusey, and against Appellee, Allstate Insurance
      Company, in the total amount of $9,574.00 was entered of
      record.

Trial Court Opinion (T.C.O.), 5/22/15, at 2-4 (internal citations omitted)

(emphasis in original).

      On appeal, Appellant raises one issue, “[w]hether the lower court

erred when it granted defendant’s Motion to Mold the Verdict.” Appellant’s

Brief at 7.

             It is well settled that a trial court in this Commonwealth
      has the power to mold a jury’s verdict to conform to the clear
      intent of the jury. The power of a trial judge to exercise his
      discretion in molding a verdict to fit the expressed desires of the
      jury is a corner-stone of the jury system.

Mitchell v. Gravely Int'l, Inc., 698 A.2d 618, 623 (Pa. Super. 1997).

Accordingly, we review the trial court’s molding of the verdict for abuse of

discretion.

      Appellant alleges that the trial court improperly molded the verdict

because the Allstate policy language is ambiguous.      Specifically, Appellant

focuses on the phrase “legally entitled to recover” within the policy, arguing

that it is “ambiguous as to how the net verdict is to be determined.”

Appellant’s Brief at 12.   Additionally, Appellant alleges that this Court has

determined the phrase “legally entitled to recover” to be ambiguous, citing

Boyle v. State Farm Mut. Auto. Ins. Co., 456 A.2d 156 (Pa. Super.


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J-A33025-15



1983). Appellant’s Brief at 12-13. Appellant argues that, as the ambiguity

must be interpreted in her favor, Appellee owes her $19,824.00. Appellant

calculates this amount by reducing the verdict amount ($58,600.00) by the

already paid policy limits of the underinsured ($25,000.00) and then

reducing the result ($33,600.00) by Appellant’s comparative negligence

(41%).

      As the trial court stated,

            [t]he interpretation of an insurance contract is a matter of
      law and is generally performed by a court. Kropa v. Gateway
      Ford, 974 A.2d 502 (Pa. Super. 2009). The goal of insurance
      contract interpretation is “to ascertain the intent of the parties as
      manifested by the language of the written instrument.”
      Madison Const. Co. v. Harleysville Mut. Ins. Co., 735 A.2d
      100, 106 (Pa. 1999). “When analyzing an insurance policy, a
      court must construe words of common usage in their natural,
      plain, and ordinary sense.”       Continental Cas. Co. v. Pro
      Machine, 916 A.2d 1111, 1118 (Pa. Super. 2007) (citing
      Mitsock v. Erie Ins. Exchange, 909 A.2d 828, 831 (Pa. Super.
      2006)). If “the language of the [insurance] contract is clear an
      unambiguous, a court is required to give effect to that
      language.” Id. at 831 (quoting Madison Const. Co., supra). A
      court must not “distort the meaning of the language or resort to
      a strained contrivance in order to find an ambiguity.” Mitsock,
      supra at 831).

T.C.O., 3/22/15, at 4-5. Additionally, “[a]n insurance contract is ambiguous

if, and only if, it is reasonably or fairly susceptible of different constructions

and is capable of being understood in more senses than one and is obscure

in meaning through indefiniteness of expression or has a double meaning.”

Erie Ins. Exch. v. Weryha, 931 A.2d 739, 742 (Pa. Super. 2007)

(quotation marks and citation omitted).



                                      -5-
J-A33025-15



        Reviewing the language of the contract, we do not find it ambiguous.

To the contrary, it is clear that the amount Appellant is “legally entitled to

recover” is only reasonably interpreted as the amount she is entitled to

collect according to the jury’s verdict. According to the verdict, Appellant is

entitled to collect $58,600.00 from the underinsured driver less Appellant’s

comparative negligence of 41%, for an award of $34,574.00.                    It is

undisputed     that   Appellant already received the          policy limits of the

underinsured in the amount of $25,000.00. Therefore, Appellee is liable for

the amount that Appellant was unable to collect from the underinsured; that

being, the amount that legally could be collected on the verdict in the

amount of $34,574.00, less the $25,000.00 policy limits already paid, for a

balance due on her underinsured claim of $9,574.00.              Reducing the total

verdict amount by the $25,000.00 policy limits already received before

reducing the total verdict amount by Appellant’s comparative negligence

would allow a recovery in an amount Appellant is not legally entitled to

collect under the jury verdict.4 Appellant’s argument to the contrary ignores

the plain language of the contract.            Furthermore, as the jury found Brian

Pusey 41% responsible for the $58,600.00 in damages, Appellant’s

calculation frustrates the clear intent of the jury in defiance of the applicable

legal standard.


____________________________________________


4
    Calculating the amount this way, Appellant would collect $19,824.00.



                                           -6-
J-A33025-15



     Additionally, to the extent that Appellant relies on Boyle to support

her claim that this Court has decided that the phrase “legally entitled to

recover” is ambiguous, Appellant’s reliance is misplaced.       In Boyle, the

Court considered the issue of whether an uninsured motorist coverage claim

was governed by the two-year tort statute of limitations or by the six-year

statute of limitations applicable to actions in contract. Boyle, 456 A.2d at

157. The appellee, State Farm, argued that the phrase, “legally entitled to

recover as damages,” meant that the insured had to assert the claim within

the two-year period the insured could bring a tort action. Id. at 159. The

Boyle Court determined that the relationship between State Farm and the

insured was established by contract. As such, the Boyle Court determined

that the six-year contract statute of limitations was applicable and,

therefore, given State Farm’s argument, the phrase “legally entitled to

recover as damages” was ambiguous as to the issue under consideration.

Id. at 159-163. The Boyle Court clearly did not establish a blanket rule that

the phrase “legally entitled to recover” is always ambiguous.

     The trial court interpreted the clear language of the contract

appropriately and molded the verdict accordingly.    As such, the trial court

did not abuse its discretion, and Appellant is not entitled to relief.    We

therefore affirm the March 16, 2015 judgment of the trial court.

     Judgment affirmed.




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J-A33025-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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