J-A32005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AMERICAN INDEPENDENT INSURANCE                    IN THE SUPERIOR COURT OF
COMPANY                                                 PENNSYLVANIA

                            Appellee

                       v.

ESTATE OF KENTA SCOTT, BY SHELLY
CROWDER AS ADMINISTRATRIX AND
SOPHIA DERRELL AND ESTATE OF
MICHAEL WADE, JR., BY JOHN PADOVA,
JR., ESQUIRE AS ADMINISTRATOR AND
ENTERPRISE LEASING COMPANY OF
PHILADELPHIA, L.L.C. D/B/A NATIONAL
AND EAN HOLDINGS, L.L.C.

APPEAL OF: ESTATE OF KENTA SCOTT,
BY SHELLY CROWDER AS
ADMINISTRATRIX AND ESTATE OF
MICHAEL WADE, JR., BY JOHN PADOVA,
JR., ADMINISTRATOR

                            Appellants                No. 1198 EDA 2014


                     Appeal from the Order March 12, 2014
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 130102246


BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                             FILED MARCH 09, 2015

        Appellants, Estate of Kenta Scott, by Shelly Crowder as Administratrix

and Estate of Michael Wade, Jr., by John Padova, Jr., Administrator, appeals

from the order entered March 12, 2014, in the Court of Common Pleas of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Philadelphia County, that entered summary judgment in favor of Appellee,

American Independent Insurance Company (“American Independent”), in

American Independent’s declaratory judgment action against Appellants.

We affirm.

      This action arises out of a one-vehicle accident that occurred on

January 9, 2010, in which decedents, Michael Wade, Jr., and Kenta Scott,

were killed.   In the accident, Wade was the operator of a rental vehicle

owned by Enterprise Rent-A-Car and rented to Sophia Derrell. Scott, who

was Derrell’s friend, was the front-seat passenger of the vehicle. There is no

dispute that Derrell was the only authorized driver of the rental car under

the car rental agreement, and there is no claim that she knew Wade. Derrell

testified in her deposition that she did not know Wade, and that she did not

give permission to either Wade or Scott to use the vehicle.

      At the time of the accident, Wade was insured under an automobile

insurance policy issued by American Independent.      American Independent

commenced the instant action for declaratory judgment, seeking a judgment

that the damages resulting from the accident are not covered because of an

exclusion under the policy for using a vehicle without the permission of the

owner. The pertinent language of the police provides:

      Additional Definition

      When used in this Part I, “insured person” or “insured
      persons” means:

      …



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      4. You [Wade] with respect to an accident arising out of the
      maintenance or use of any vehicle with the express or implied
      permission of the owner of the vehicle

American Independent Pennsylvania Motor Vehicle Policy at 7.          The policy

defines “owner” as an individual who:

      a. Holds legal title to the vehicle
      b. Has legal possession of the vehicle that is subject to a written
         security agreement with an original term of six (6) months.

Id. at 5.

      At the close of discovery, American Independent moved for summary

judgment.     On March 12, 2013, the trial court granted the motion for

summary     judgment,     ordering   that   “Plaintiff,   American   Independent

Insurance Company, does not owe any defense or indemnification to

Defendant Estate of Michael Wade, Jr., by John Padova, Jr., Esquire, as

Administrator, for any claims arising out of the January 9, 2010 accident….”

Order, 3/12/13. The court further determined that “decedent Michael Wade,

Jr. and/or the Estate of Michael Wade, Jr., by John Padova, Jr., Esquire, as

administrator, is not an insured under the policy of insurance, Policy No.

35464330, issued by American Independent Insurance Company in effect as

of January 9, 2010.” Id. This timely appeal followed.

      Our standard in reviewing a challenge to an order granting summary

judgment is as follows.

      We may reverse if there has been an error of law or an abuse of
      discretion. Our standard of review is de novo, and our scope
      plenary. We must view the record in the light most favorable to
      the nonmoving party and all doubts as to the existence of a



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      genuine issue of material fact must also be resolved against the
      moving party.

Executive Risk Indemnity Inc. v. CIGNA Corp., 976 A.2d 1170, 1172

(Pa. Super. 2009). Furthermore,

      [i]n evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See PA.R.C.P. 1035.2. The rule states
      that where there is no genuine issue of material fact and the
      moving party is entitled to relief as a matter of law, summary
      judgment may be entered. Where the nonmoving party bears
      the burden of proof on an issue, he may not merely rely on his
      pleadings or answers in order to survive summary judgment.
      Failure of a non-moving party to adduce sufficient evidence on
      an issue essential to his case and on which he bears the burden
      of proof establishes the entitlement of the moving party to
      judgment as a matter of law.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(citations omitted).

      With the above standard in mind, we turn to the merits of the

Appellants’ appeal.        Appellants contend that the policy provision that

provides coverage to the named insured only if the insured is operating a

non-owned vehicle with the express or implied permission of the title holder

is unconscionable, and therefore unenforceable as against public policy. See

Appellants’ Brief at 14.

      We begin our analysis by noting that “the interpretation of a
      contract of insurance is a matter of law for the courts to decide.
      In interpreting an insurance contract, we must ascertain the
      intent of the parties as manifested by the language of the
      written agreement. When the policy language is clear and
      unambiguous, we will give effect to the language of the
      contract.” Paylor [v. Hartford Ins. Co., 640 A.2d 1234, 1235
      (Pa. 1994)]. We further note that an insured’s failure to read
      carefully the clear and unambiguous terms of his insurance

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      policy has never furnished grounds to invalidate those terms or
      otherwise nullify them. See, e.g., Standard Venetian Blind
      Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563,
      566 (1983) (holding failure to read an insurance contract is an
      unavailing excuse and cannot justify avoidance of its terms).

Erie Insurance Exchange v. Baker, 601 Pa. 355, 362, 972 A.2d 507, 511

(2008).

      We note at the outset that there simply are no facts to suggest that

Wade had either express or implied permission to use the rental vehicle.

See Belas v. Melanovich, 372 A.2d 478 (Pa. Super. 1977) (setting forth

framework for analyzing whether individual had implied consent to use

vehicle).    As noted, it is undisputed that Derrell was the only authorized

driver of the vehicle under the Enterprise rental agreement.              It therefore

follows that Enterprise, as the holder of the legal title to the vehicle, did not

give express or implied permission to either Wade or Scott to use the

vehicle. Derrell expressly denied that she gave Wade or Scott permission to

use the vehicle, and indicated that she did not even know Wade. Moreover,

even if Derrell had given permission to use the vehicle, such permission

would still be invalid to trigger coverage under the American Independent

policy as Derrell’s permission clearly does not constitute “express or implied

permission     of   the   owner     of   the     vehicle.”     American   Independent

Pennsylvania Motor Vehicle Policy at 7.

      We     further   find   no   merit    to   Appellants’    contention   that   the

nonpermissive use exclusion provision at issue is unconscionable and against



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public policy.   In Nationwide Mutual Ins. Co. v. Cummings, 652 A.2d

1338, 1343 (Pa. Super. 1994), this Court expressly held that nonpermissive

use exclusions, such as the provision at issue, do not violate either the

legislative intent or public policy expressed in the motor vehicle financial

responsibility law.

      Based on the foregoing, we affirm the order entering summary

judgment in favor of American Independent.

      Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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