                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2005

Prime Ins Syndicate v. Phila Mtr World Auto
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4186




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                                                 NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 03-4186
                    ____________

         PRIME INSURANCE SYNDICATE

                           v.

 PHILADELPHIA MOTOR WORLD AUTO SERVICE;
       DAISY JENKINS; DAVID JENKINS;
   LASTARZA JEFFERSON; YVONNE MACKAY


       Daisy Jenkins, David Jenkins and Lastarza Jefferson,

                                    Appellants
                    ____________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
                (D.C. No. 02-cv-07890)
     District Judge: Honorable Harvey Bartle, III
                    ____________

      Submitted Under Third Circuit LAR 34.1(a)
                   June 30, 2005

Before: NYGAARD, SMITH and FISHER, Circuit Judges.

                  (Filed July 7, 2005)
                    ____________

              OPINION OF THE COURT
                   ____________
FISHER, Circuit Judge.

       Plaintiff Prime Insurance Syndicate (“Prime Insurance”) instituted the underlying

declaratory judgment action, seeking a declaration that it had no contractual obligation to

defend its insured or to provide its insured, Philadelphia Motor World Service (“PMW”),

an automobile repair business, with coverage related to an accident in which a PMW

employee test-driving a customer’s car allegedly injured two women. The United States

District Court for the Eastern District of Pennsylvania granted summary judgment to

Prime Insurance. The two women – Daisy Jenkins and Lastarza Jefferson – and Ms.

Jenkins’ husband, David Jenkins, as named defendants below (“Appellants”), have

appealed.1 We will affirm. As the facts and proceedings below are known to the parties,

we focus here on the rationale for our decision.

                                             I.

       We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and conduct

plenary review. Summary judgment is appropriate where the record shows no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.

Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004). Pennsylvania law

applies in this diversity action.




       1
        Appellants have not appealed from that portion of the District Court’s order
dismissing the PMW customer/vehicle owner as a defendant. PMW is not a party to this
appeal.

                                             2
                                              II.

       Appellants advance three arguments why this Court should reverse the order

below. First, they contend that a genuine issue of material fact remains in dispute. The

record discloses that, after fleeing the scene of the accident, the PMW employee returned

briefly to PMW’s premises, collected his belongings and fled again, never to be found.

PMW’s owner testified during deposition that PMW was unable to provide Prime

Insurance with the employee’s date of birth or driver’s license number as required by the

insurance policy because it could not locate the file thought to contain such information.

He also explained that, around the time of the accident, PMW had a larger service counter

built, an activity that caused much disruption and movement of papers as the new counter

was organized. PMW’s owner speculated that “the only reason we can figure [for not

being able to locate the file] is that [it] was there and got thrown in the trash” during the

reorganization activity. A. 18. From this evidence, the District Court concluded that

“[a]pparently, [the employment file] was discarded in a recent reorganization in PMW’s

offices.” Mem. Op. at 3.

       Appellants, however, contend that this evidence gives rise to a factual dispute over

the fate of the missing file. They suggest a myriad of possible inferences, including that

the file may have been stolen by the fleeing employee or another on his behalf, and argue

that such inferences are in turn relevant to whether PMW’s failure to provide the requisite

information was due to its own lack of diligence or circumstances beyond its control. In



                                               3
our view, however, this is an illusive factual dispute, unsupported by anything in the

record other than an overly creative reading of the deposition testimony of PMW’s owner.

We will not deem summary judgment inappropriate on this basis.

       Second, Appellants argue that the record shows PMW substantially complied, or

complied to the best of its ability under the circumstances, with the conditions precedent

to coverage such that insurance for this accident should exist. On a related note,

Appellants argue that Prime Insurance was not prejudiced by PMW’s failure to provide

the employee’s date of birth and drivers’ license number. We agree with the District

Court, however, that while PMW provided what little information it had, it did not meet

the conditions precedent to coverage. And on this record, that failure is attributable to

PMW, not to an intervening act of a third party which may have rendered the employer’s

compliance with the conditions precedent to coverage impossible. Additionally, we

believe that prejudice is apparent, as the information requested obviously aids the insurer

in assessing coverage and in investigating and defending a claim. That insurers generally

are adept at conducting investigations does not preclude a finding of prejudice where

otherwise appropriate.

       Finally, Appellants argue that the public policy of Pennsylvania mandates that

Prime Insurance be forced to provide coverage to them, as innocent injured third parties,

under the circumstances of this case. The District Court did not explicitly address this

argument, which is the one we find most troubling.



                                             4
       Pennsylvania’s Act 78 provides that an insurance policy cannot be cancelled

except under certain enumerated circumstances. As recognized in Erie Insurance

Exchange v. Lake, 671 A.2d 681 (Pa. 1996), one of those instances is when an insurer

discovers, within 60 days of issuing the policy, that the insured has concealed or

misrepresented a fact material to the insurer’s acceptance of the risk. The Supreme Court

also held in Erie, however, that an insurance policy procured by fraud, while able to be

cancelled as to the insured who perpetrated the fraud, may not, by reason of public policy,

be cancelled or rescinded as to third parties “innocent of trickery, and injured through no

fault of their own.” Id. at 375. See also State Farm Mut. Auto Ins. Co. v. Armstrong, 949

F.2d 99 (3d Cir. 1991) (anticipating the holding in Erie).

       We are constrained to interpret Erie’s statement of public policy as derived from

the legislative intent that the Supreme Court was able to discern from Act 78, and

accordingly conclude that, until the Pennsylvania legislature sees fit to address the present

situation, Pennsylvania courts would not mandate coverage for reasons of public policy

where coverage does not otherwise exist. See Czarnecki v. Delco Cab, Inc., 419 A.2d

139 (Pa. Super. 1980) (refusing in the absence of a clear legislative intent to impose

absolute liability on insurer for injury to innocent third parties where taxi company failed

to list the injuring vehicle as required by the policy).

       Accordingly, we will affirm the order entering summary judgment for Prime

Insurance Syndicate.



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