J-A23026-17 & J-A23027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


 JOHN J. BIELEC                        :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
 AMERICAN INTERNATIONAL GROUP,         :
 INC., NATIONAL UNION FIRE             :
 INSURANCE COMPANY OF                  :
 PITTSBURGH, P.A., VERIZON             :
 COMMUNICATIONS INC. AND               :
 VERIZON PENNSYLVANIA                  :
                                       :
                                       :
 APPEAL OF: VERIZON                    :
 PENNSYLVANIA LLC AND VERIZON          :   No. 336 EDA 2017
 COMMUNICATIONS INC.                   :

            Appeal from the Order Entered December 5, 2016
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 1440 September Term, 2014

JOHN J. BIELEC                         :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
           v.                          :
                                       :
                                       :
AMERICAN INTERNATIONAL GROUP,          :
INC. NATIONAL UNION FIRE               :
INSURANCE COMPANY OF                   :   No. 418 EDA 2017
PITTSBURGH, PA, VERIZON                :
COMMUNICATIONS, INC. AND               :
VERIZON PENNSYLVANIA, INC.             :
                                       :
                                       :
APPEAL OF: NATIONAL UNION FIRE         :
INSURANCE COMPANY                      :
OF PITTSBURGH, PA                      :

            Appeal from the Order Entered December 5, 2016


                                   -1-
J-A23026-17 & J-A23027-17



      In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): 001440 September Term, 2014


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

DISSENTING STATEMENT BY FITZGERALD, J.: FILED DECEMBER 26, 2017

        I respectfully dissent from the majority’s conclusion that the UIM

rejection form in question was invalid under the MVFRL.           The crux of the

matter lies in the question of whether an insured’s “tick box” designation of a

rejection of UIM coverage coupled with an insured’s signature and date at the

bottom of the document, as opposed to directly after the statutorily required

UIM rejection language, is sufficient to constitute “specific compliance” with

75 Pa.C.S. § 1731(c.1). In my view, it is.

        As noted by the majority, our Supreme Court has recently addressed

specific compliance and Section 1731:

            The focus of this appeal is on determining what the General
           Assembly intended when it stated, “Any rejection form that
           does not specifically comply with this section is void.” Id. at
           § 1731(c). We acknowledge that there is surface appeal to
           [the insured’s] argument that insurers’ UIM rejection forms
           must exactly reflect the statutory rejection form to comply
           with Section 1731 of the MVFRL. See e.g. id. § 1731(c.1)
           (providing that “[i]nsurers shall print the rejection forms
           required by subsections (b) and (c) on separate sheets in
           prominent type and location”). However, contrary to [the
           insurer’s] position, the General Assembly simply did not
           mandate that UIM coverage rejection forms must be
           verbatim reproductions of the statutory rejection form found
           in Subsection 1731(c) of the MVFRL. Rather, the General
           Assembly adopted language which requires UIM rejection
           forms to “specifically comply” with “this section,” i.e.,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.

                                           -2-
J-A23026-17 & J-A23027-17


          Section 1731 of the MVFRL, as juxtaposed to mandating that
          the form verbatim follow the statutory rejection form. Id.
          at § 1731(c.1). In other words, an insurer’s UIM coverage
          rejection form is valid so long as the form specifically
          complies with Section 1731 of the MVFRL.


Ford v. American States Insurance Company, 154 A.3d 237, 245 (Pa.

2017).

      In Ford, the UIM rejection form in question deviated from the statutorily

prescribed form in that instead of “motorist” the form refers to “motorists” in

two locations and the word “motorists” is added in one location. Id. at 240.

Our Court concluded “such a form does not modify coverage or inject

ambiguity into the statutory form, and an insured’s signature on the slightly

altered form demonstrates that the insurer offered UIM coverage to the

insured and that the insured understood what she was doing when she

declined coverage.” Id. at 245.

      Likewise, in the instant case, the UIM form in question mirrors the

language set forth in Section 1731(c) almost exactly, with the slight variation

of the “tick box” used to designate the desire to reject UIM coverage. Thus,

the “tick box” alone is a de minimis variation which did not “modify coverage

or interject ambiguity into the standard form” such that the form at issue

should be considered void for lack of specific compliance. See Ford 154 A.3d

at 245.

      As emphasized by the majority, the fact that the signature and date line,

directly after the requisite language, went unsigned by Appellee represents a

more significant deviation from the statutory form set forth under Section

                                     -3-
J-A23026-17 & J-A23027-17



1731(c). As the majority notes, this Court concluded in Jones v. Unitrin

Auto and Home Ins. Co., 40 A.3d 125, 129-130 (Pa. Super. 2012), that the

“proximal relationship” between the UIM rejection language and the signature

of the insured was a critical component of specific compliance. In Jones, the

addition of language stating “[b]y rejecting this coverage, I am also signing

the waiver on p. 13 rejecting stacked limits of underinsured motorist

coverage” prior to the signature and date line, caused this Court to conclude

that the UIM rejection form was void for lack of specific compliance.

      However, as noted by the dissent in Jones, the Pennsylvania Supreme

Court held in Winslow-Quattlebaum v. Maryland Ins. Group, 752 A.2d

878 (Pa. 2000), that specific compliance with Section 1731(c) is not defeated

by having the rejection of UIM benefits and the rejection of UIM stacking

benefits appear on the same form.     Winslow-Quattlebaum, 752 A.2d at

882. Further, our Supreme Court noted that the plain language of Section

1731(c.1) does not require that a UIM rejection must stand alone on a page

with no additional writing. Id. Moreover, although the form provided by the

legislature in Section 1731(c) does show the required language as appearing

directly above the signature and date lines, neither Section 1731(c) nor

1731(c.1), otherwise defines the “proximal relationship” required between

these elements. Indeed, our Court has held that a UM waiver form which

otherwise complied with the requirements of § 1731(b), was not “any less

valid” even though it was placed on the reverse side of a rental car contract




                                    -4-
J-A23026-17 & J-A23027-17



and the insured’s signature only appeared on the front side. Smith v.

Enterprise Leasing Co., 833 A.2d 751, 755 (Pa. Super. 2003).

       In the instant case, the authorized signature of Verizon’s agent was

separated from the required statutory text by two paragraphs, which Appellant

did not affirmatively select by “ticking the box” provided next to either

paragraph.1 Instead, the Verizon representative signed at the bottom of the

document, which is certainly not counter-intuitive, after a paragraph

indicating that she understood the protections afforded by the UIM section of

the document and that she understood that her selections would apply to her

policy. Therefore, I would conclude that declaring the UIM waiver at issue

void would elevate hyper-technical discrepancies over a specifically compliant

waiver which offered the insured UIM benefits via the statutorily required

language reproduced verbatim and demonstrated that the insured understood

that she was declining coverage.               See Ford 154 A.3d at 245; Petty v.

Federated Mutual Insurance Company, 152 A.3d 1020, 1025-26 (Pa.

Super. 2016)(holding minor deviations from Section 1731(c) waiver form did

not require waiver to be declared void).




____________________________________________


1
 As noted by the majority, the paragraphs that went unselected by Appellee
were entitled “Selection of Limits” and “Underinsured Coverage Limits.”

                                           -5-
