J-A18044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TARA S. BRICKER                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

                            Appellee                 No. 102 MDA 2014


                   Appeal from the Decree December 19, 2013
                In the Court of Common Pleas of Franklin County
                        Civil Division at No(s): 2010-2798


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 22, 2014

        Tara S. Bricker appeals from an order granting summary judgment in



                                                                     1
                                                                         After
____________________________________________


1
    Our standard of review in cases of summary judgment is well settled. This

there was an abuse of discretion or an error of law. Karoly v. Mancuso, 65
A.3d 301, 309 (Pa. 2013).        Summary judgment is proper when the
pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits demonstrate that there exists no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Pa.R.C.P.
1035.2. In determining whether to grant summary judgment, a trial court
must resolve all doubts against the moving party and examine the record in
a light most favorable to the non-moving party. Karoly, 65 A.3d at 309.
Summary judgment may only be granted in cases where it is clear and free
from doubt that the moving party is entitled to judgment as a matter of law.
Merriweather v. Phila. Newspapers, Inc., 684 A.2d 137, 140 (Pa. Super.
1996).
J-A18044-14



careful review, we affirm in part, reverse in part, and remand for further

proceedings.

FACTS

       In 2000, Bricker purchased an automobile insurance policy from State



016-4416.       Bricker rejected her right to underinsured motorist (UIM)

protection around the time she purchased that policy. On August 18, 2004,

Bricker signed a rejection of UIM benefits form, as well as several other

forms setting forth and acknowledging the limits of her policy.        Some of

these forms referred to a policy that became effective on September 1,

2004, but all referred to the original policy under number 016-4416.         On

September 1, 2004, policy number 016-4416 expired. On that date, State

Farm Mutual issued a new policy, under number 0730-575-38.             Fire and

Casualty and State Farm Mutual are separate entities.2

       The trial court set forth the subsequent factual and procedural

background as follows:

       [Bricker filed a] declaratory judgment action . . . on July 6, 2010
       stem[ming] from a January 3, 2005 auto accident in which




____________________________________________


2
  In fact, State Farm Fire and Casualty Company is a wholly owned
subsidiary of State Farm Mutual Automobile Insurance Company. See
Disclosures,     State     Farm,       https://www.statefarm.com/customer-
care/disclosures/terms-of-use (last visited July 30, 2014).



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J-A18044-14


        was insured by [State Farm Mutual] under policy number 0730-
        575-38.

        What [was] in dispute and . . . at the center of [the] declaratory
        judgment action [was] whether or not Bricker had [UIM]
        coverage under her State Farm [Mutual] policy effective
        September 1, 2004.

        Bricker and her husband, Todd Bricker, asserted a claim against
        Geiman for injuries that were sustained in the auto accident.

        person/ $100,000 per accident and settled for $58,945.50. Of
        that $58,945.50, $13,945.50 was for medical expenses of
                                $45,000 was for the claims of Bricker
        and her husband.

        As a result of alleged losses and damages from the auto accident
        that exceeded the $50,000 limit of liability insurance coverage

        Farm [Mutual] for underinsured motorist coverage. [State Farm
        Mutual asserted] in the Answer and New Matter filed August 16,
        2010, that the Rejection of [UIM] Protection form that Bricker
        signed on August 18, 2004 [applied] to the policy issued by
        them effective September 1, 2004.

Trial Court Opinion, 12/19/13, at 1-3. Bricker and State Farm Mutual filed

cross motions for summary judgment. The trial court determined that the

UIM rejection form complied with section 1731(c)3 of the Vehicle Code,

____________________________________________


3
    Section 1731 of the Vehicle Code states:

        (c) Underinsured motorist coverage. --Underinsured motorist
        coverage shall provide protection for persons who suffer injury
        arising out of the maintenance or use of a motor vehicle and are
        legally entitled to recover damages therefor from owners or
        operators of underinsured motor vehicles. The named insured
        shall be informed that he may reject underinsured motorist
        coverage by signing the following written rejection form:

            REJECTION OF UNDERINSURED MOTORIST PROTECTION
(Footnote Continued Next Page)


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noting that Bricker did not provide an explanation as to why she signed the



rejection of UIM coverage was valid, denied her motion for summary

                                                                 mary judgment.

The instant appeal followed.


                       _______________________
(Footnote Continued)

         By signing this waiver I am rejecting underinsured motorist
      coverage under this policy, for myself and all relatives residing in
      my household. Underinsured coverage protects me and relatives
      living in my household for losses and damages suffered if injury
      is caused by the negligence of a driver who does not have
      enough insurance to pay for all losses and damages.                I
      knowingly and voluntarily reject this coverage.

                                     Signature of First Named Insured

                                     Date

      (c.1) Form of waiver. --Insurers shall print the rejection forms
      required by subsections (b) and (c) on separate sheets in
      prominent type and location. The forms must be signed by the
      first named insured and dated to be valid. The signatures on the
      forms may be witnessed by an insurance agent or broker. Any
      rejection form that does not specifically comply with this section
      is void. If the insurer fails to produce a valid rejection form,
      uninsured or underinsured coverage, or both, as the case may
      be, under that policy shall be equal to the bodily injury liability
      limits. On policies in which either uninsured or underinsured
      coverage has been rejected, the policy renewals must contain
      notice in prominent type that the policy does not provide
      protection against       damages    caused by      uninsured or
      underinsured motorists. Any person who executes a waiver
      under subsection (b) or (c) shall be precluded from claiming
      liability of any person based upon inadequate information.

75 Pa.C.S. § 1731(c) & (c)(1).




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ISSUES

      On appeal, Bricker raises the following issues for our review:

      (1)   Did the lower court commit an error of law in its conclusion
            and interpretation of documents and language other than
            the statutorily mandated language of the Rejection of
            Underinsured Motorist Protection in reaching its decision?

      (2)
            signed by Bricker on August 18, 2004, which expressly
            noted her rejection of underinsured motorist coverage
            under "this policy" and identified the policy by the policy
            number for insurance coverage under which Bricker was
            then insured with [Fire and Casualty] is not a valid
            rejection form pertaining to the policy subsequently issued
            by [State Farm Mutual], effective September 1, 2004,
            where the only identification of coverage to which the form
            pertains is policy number [016-4416], the policy number of

            insurance company entity with which [Bricker] had
            insurance coverage on the date that she signed the form?

      (3)   Is the Rejection of Underinsured Motorist Protection form
            signed by [Bricker] on August 18, 2004, ambiguous with
            regard to the insurance coverage to which it pertains

            motorist coverage under this policy
            space for indica
            number [016-4416], the policy number for the coverage
            under which [Bricker] was then insured with [Fire and
            Casualty], requiring, as a matter of law, that the form be
            interpreted in favor of the insured with the result that it
            does not constitute a valid rejection of underinsured

            provided by . . . State Farm Mutual . . . ?

Brief of Appellant, at 5-6 (order modified).

DISCUSSION



constituted extraneous evidence which should not have been considered by


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the trial court to determine the ultimate issue in the case       to which policy

the UIM rejection form pertains.



number 016-4416, the date September 1, 2004, and directly below these

items, the following statement:

          I understand that this acknowledgment of coverage selection
          shall be applicable, as of the date specified above, to the
          policy of insurance identified above, on all replacement
          policies and on all renewals of either this policy or any
          replacement policy, unless I request in writing a different
          selection for such coverage.

State Farm Insurance Policy No. 016-4416, Important Notice, 8/18/04

(emphasis added).4        Because the UIM rejection form was not a discrete

contract, but was part of the larger insurance policy, which included the



                                 rgument fails.   See Storti v. Minn. Mut. Life

Ins. Co., 479 A.2d 1061, 1062 (Pa. Super. 1984) (multiple separate

documents composing insurance contract).           In fact, the trial court would

have acted in error had it not read the form in the context of the full

contract.      See Halpin

contract is ambiguous, a court must view the contract as a whole and not in




____________________________________________


4
    See



                                           -6-
J-A18044-14



        Bricker next argues the trial court erred, as a matter of law, by

granting State Farm Mutual

incorrectly determined the UIM rejection form she signed on August 18,

2004, pertained to the policy with State Farm Mutual effective September 1,

2004.      Bricker also argues, in the alternative, that the policy was

ambiguous, and should, therefore, be construed in her favor as the insured.

After a close review of the entire insurance policy, which includes the

relevant UIM rejection form, we agree.

        In Pennsylvania, automobile insurance companies are required to offer

UIM protection with every insurance policy sold.      75 Pa.C.S. § 1731(a).

Insured individuals are not required to purchase this coverage, but, to opt

out, they must sign and date a rejection form, which must be on its own

sheet of paper, and which must contain the exact language prescribed in

section 1731(c). Id. Deviations from the specific statutory requirements in

the wording or procedures surrounding the UIM rejection will render it void.

See Jones v. Unitrin Auto & Home Ins. Co., 40 A.3d 125, 131 (Pa.

Super. 2012). Without a valid rejection, the insured has not rejected UIM

protection.                                                 , 713 A.2d 1145,

1153 (Pa. Super. 1998).

        Instantly, the UIM form Bricker executed on August 18, 2004, is valid,

as it meets all the statutory requirements of section 1731: it contains the

mandatory statutory language; it is written on a separate sheet of paper;




                                     -7-
J-A18044-14



insurance policy the rejection of benefits pertains.         State Farm Mutual



Bricker emphasizes that these were separate policies issued through distinct

entities.

      An insurance policy is a contract, and is subject to the normal rules of

contract interpretation.

Inc., 2 A.3d 526, 540 (Pa. 2010). As such, our review is de novo. Donegal

Mut. Ins. Co. v. Baumhammers, 938 A.2d 286, 290 (Pa. 2007).                 The

primary goal in interpreting a contract is to determine the intent of the

parties, and the best way to arrive at this intent is to look to the plain

language of the instrument. Standard Venetian Blind Co. v. Am. Empire

Ins. Co., 469 A.2d 563, 566 (Pa. 1983). We do not look at the terms of a

contract in isolation, but in the context of the contract as a whole. Halpin

v. LaSalle Univ., 639 A.2d 37, 39 (Pa. Super. 1994). The language of a

contract should be given its plain meaning, but if ambiguity exists, the

particular ambiguous provision is to be construed in favor of the insured.

Am. & Foreign Ins. Co., 2 A.3d at 540.

      A contract is ambiguous if the following is present:

      [I]t 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. A contract is not ambiguous if the court
      can determine its meaning without any guide other than a
      knowledge of the simple facts on which, from the nature of the
      language in general, its meaning depends; and a contract is not
      rendered ambiguous by the mere fact that the parties do not
      agree on the proper construction.

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J-A18044-14



                                                         , 657 A.2d 17, 21-22

(Pa. Super. 1995) (quoting Z & L Lumber Co. of Atlasburg v. Nordquist,

502 A.2d 697, 700 (Pa. Super. 1985)). Our Supreme Court has stated:

     Contractual language is ambiguous if it is reasonably susceptible
     [to] different constructions and capable of being understood in
     more than one sense. This is not a question to be resolved in a
     vacuum. Rather, contractual terms are ambiguous if they are
     subject to more than one reasonable interpretation when applied
     to a particular set of facts.

Prudential Prop. & Cas. Ins. Co. v. Sartno, 903 A.2d 1170, 1174 (Pa.

2006) (internal citations and quotations omitted).

     The trial court considered the various documents that Bricker signed

on August 18, 2004, and concluded that there was no ambiguity as to which

policy they pertained. The UIM rejection form included two boxes containing



signature, and the date (August 18, 2004).           The lower box contained

                                                                      -4416,

and the following statement:

     I understand that this acknowledgment of coverage rejection
     shall be applicable, as of the date specified above, to the policy
     of insurance identified above or for which application is being
     made, on all replacement policies and on all renewals of either
     this policy or any replacement policy, unless I request in writing
     a different selection for such coverage.




                                    -9-
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State Farm Insurance Policy No. 016-4416, Rejection of Underinsured

Motorist Protection, 8/18/04.5                           sion to grant State Farm



UIM rejection form as referring to the policy beginning on September 1,

2004, bearing policy number 073-0575-38.

          However, Bricker signed the form on August 18, 2004, and it plainly

referred to policy number 016-4416.            Additionally, the UIM form has the




certainty as to which policy or entity the form pertained. Nowhere does the

UIM rejection form refer to policy number 073-0575-38. Reading the UIM

form in conjunction with the Important Notice complicates matters further.

Although the Important Notice states the coverage selection is applicable as

of the date specified above (September 1, 2004), it also refers to policy

number 016-4416, which expired on that date.             The inconsistencies that




          An examination of the entire policy, taking into account its factual

context, see Prudential, 903 A.2d at 1174, yields more questions than




____________________________________________


5
    See



                                          - 10 -
J-A18044-14



date specified above, to the policy of insurance identified above or for which

application is being made, on all replacement policies and on all renewals of



No. 016-4416, Rejection of Underinsured Motorist Protection.                      Although

State Farm Mutual characterizes the context of the August 18, 2004, signing




of a new policy. To the contrary, Bricker contests that the forms she signed

related to the State Farm Mutual policy. As such, we lack knowledge of the

facts surrounding the signing of the forms to classify the new policy as a

                                                         o find anything in the record

that explains why Bricker signed the forms on August 18, 2004, other than

                  -serving allegations.6

       The plain language of the policy, taken as a whole, leaves doubt as to

which policy the forms actually refer, and the factual record is not

sufficiently   developed     to   aid   in     the   clarification   of   this   ambiguity.

Accordingly, we conclude, as a matter of law, that the forms are ambiguous

as to which policy they refer.

       When a term in an insurance contract is ambiguous, courts are to

construe it in favor of the insured. Am. & Foreign Ins. Co., 2 A.3d at 540;

____________________________________________


6
  We note that the parties submitted no affidavits nor took any depositions
to support their motions for summary judgment and responses thereto.



                                          - 11 -
J-A18044-14



Wall Rose Mut. Ins. Co. v. Monross, 939 A.2d 958, 963 (Pa. Super.

2005); Standard Venetian, 469 A.2d at 566.           The insurance company,

                                 language in the contract, must be specific in

its use; an exclusion from liability must be clear and exact in order to be

                 Prudential, 903 A.2d at 1178 (quoting U.S. Fid. & Guar.

Co. v. Lightning Rod Mut. Ins. Co., 687 N.E.2d 717, 719 (Ohio 1997)).



the written circumstances from which the written instrument sprang.          If

extrinsic evidence will aid in the resolution of ambiguities, the court must

              DiFabio v. Centaur Ins. Co., 531 A.2d 1141, 1142 (Pa. Super.

1987).

      When an insurance company argues that a policy exclusion absolves it

of the obligation to provide coverage, it has asserted an affirmative defense.

Madison Const. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 106 (Pa.

1999). Accordingly, the insurance company bears the burden of proving its

defense. Id. In Mt. Lebanon v. Reliance Ins. Co., 778 A.2d 1228, 1234

(Pa. Super. 2001), this Court reversed an order granting the insurance

         s motion for judgment on the pleadings where it found that the

insurance company had failed to present any evidence satisfying its burden

to prove that the policy unambiguously excluded coverage. In DiFabio, this

Court held:

      If extrinsic evidence will aid in the resolution of ambiguities, the
      court must look to it. If, moreover, the extrinsic evidence raises
      disputed issues of material fact, the court must refer those

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J-A18044-14


     issues to the fact finder. Only in the absence of useful extrinsic
     evidence will the court construe ambiguous contract language
     against the drafter as a matter of law.

531 A.2d at 1142-43 (citations omitted).

     Here, State Farm Mutual asserted an affirmative defense, and,

therefore, it had the burden to prove that defense.             The ambiguity

surrounding to which policy the UIM form refers precluded State Farm

Mutual from satisfying its burden with the form alone. As a result, the trial

court was required to look to extrinsic evidence to resolve the ambiguity.

Unfortunately, the record is devoid of evidence supporting State Farm




relevant to the salient issue in this appeal, namely, to which policy the



face is unsupported by a reading of the plain language of the document, and

the factual record is too sparse to resolve the confusion. Finally, the trial

court rests its decision on inferences that are unsupported by the record. It

notes that Bricker signed the forms on August 18, 2004, but then accepts

                                                            e new policy, dated

September 1, 2004, without any evidence to support the truth of that

assertion, or even to clarify the circumstances or purpose of the signing.

Trial Court Opinion, 12/19/13, at 9.        Finally, the trial court incorrectly

penalizes Bricker for failing to explain why she signed the forms on August




                                   - 13 -
J-A18044-14



18, 2004, id. at 9 n.4, when that burden should have properly been

assigned to State Farm Mutual. Madison, 735 A.2d at 106.

      Summary judgment is only appropriate where all inferences are

construed in favor of the non-moving party and there exists no issue of

material fact. Karoly, 65 A.3d at 309. Here, the trial court made inferences

in favor of State Farm Mutual, and there existed unresolved issues of

material fact relating to the circumstances of the August 18, 2004, signing,

and to which policy the UIM form referred. As such, the trial court erred in

granting summary judgment in favor of State Farm Mutual.

      Order affirmed in part and reversed in part.        Case remanded for

proceedings not inconsistent with this decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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