J-A15045-14


                             2014 PA Super 192

TIMOTHY AND DEBRA CLARKE, H/W                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellants

                   v.

MMG INSURANCE COMPANY AND F.
FREDERICK BREUNINGER & SON,
INSURANCE, INC.

                        Appellees                  No. 2937 EDA 2013


              Appeal from the Order Entered August 1, 2013
           In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 03407


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

DISSENTING OPINION BY PANELLA, J.:            FILED SEPTEMBER 04, 2014




of summary judgment, concluding that the clear and unambiguous policy

language of the contract between the Appellants and MMG grants the

Appellants UIM coverage. I disagree and respectfully dissent.

     The Majority sets forth the appropriate standard and scope of review.

Where I differ is the application of the standard of review to the record

before us. In particular, I disagree that the language in the UIM Exclusions

section of the policy unambiguously supports an interpretation that MMG

was providing coverage for vehicles not otherwise referenced by the policy.

                                                                        the

UIM Exclusions and contrasts its use in the UM Exclusions section of the
J-A15045-14




                                        -Liability Cove




        -

t
                                        1
                                               The Majority ignores these uses of the



is added to justify the application of the construction aid expressio unius est

exclusio alterious



                                                                             rule   of

construction, and not a rule of substantive law; it is not to be invoked

arbitrarily to bar reasonable inferences to the contrary, or when an

examination of the entire transaction reveals a different or more inclusive

            Ress v. Barent, 548 A.2d 1259, 1262 (Pa. Super. 1988) (emphasis

added).


____________________________________________


1
 This phrase appears in the contract in the additional following clauses: Part
B Medical Payment Coverage, Limit of Liability Clause at 5; Part C UM
Coverage Exclusions Clause, at 6; Part-C UM Coverage, Limit of Liability
Clause, at 7; UIM Endorsement, Limit of Liability Clause, at 7.



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J-A15045-14


      The inappropriateness of the construction aid becomes apparent if we



                                                           ort, we would be



extended beyond the declared limits by policies the Clarkes had with other



the policy to an unlimited amount. Our Supreme Court has concluded that

such interpretations of policy exclusions are generally unreasonable and

against public policy:

      In light of the primary public policy concern for the increasing
      costs of automobile insurance, it is arduous to invalidate an
      otherwise valid insurance contract exclusion on account of that
      public policy. This public concern, however, will not validate any
      and every coverage exclusion; rather, it functions to protect
      insurers against forced underwriting of unknown risks that
      insureds have neither disclosed nor paid to insure. Thus,
      operationally, insureds are prevented from receiving gratis
      coverage, and insurers are not compelled to subsidize unknown
      and uncompensated risks by increasing insurance rates
      comprehensively.

Burstein v. Prudential Property & Cas. Ins. Co., 809 A.2d 204, 208 (Pa.



underwriting unknown risks, and providing gratis coverage depending only

upon whether the Clarkes contracted with other insurers, I conclude that the



policy.




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      A natural, reasonable interpretation following the plain language and



sections of the policy. Simply put, the very act of analogizing to similar, but

not equivalent, language elsewhere in the document is an implicit finding

that the term in question is ambiguous. There is no need to refer to different

terms if the term under review is unambiguous.           As noted, I find no

ambiguity, but even if I did, I would reach the opposite conclusion: the only

reasonable construction of the UIM clause is that reached by the trial court.

      Furthermore, the Majority is correct to note that public policy concerns



See Eichelman v. Nationwide Ins. Co., 711 A.2d 1006, 1008 (Pa. 1998).

They have also appropriately noted that this Court must give effect to clear

contractual terms and only examine public policy when enforcement of those

                                                                   Prudential

Prop. & Cas. Ins. Co. v. Colbert, 813 A.2d 747, 752 (Pa. 2002). Since I

find that the term at issue unambiguously excludes the coverage sought by

the Clarkes, there is no opportunity to address the public policy implications

involved.

      For all the aforementioned reasons, I respectfully dissent and would




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