J-A33022-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

TANESHA CARTER,                                 :      IN THE SUPERIOR COURT OF
                                                :            PENNSYLVANIA
                          Appellant             :
                                                :
                     v.                         :
                                                :
PEERLESS INDEMNITY INSURANCE                    :
COMPANY,                                        :
                                                :
                          Appellee              :          No. 684 EDA 2014

               Appeal from the Order Entered February 4, 2014,
             in the Court of Common Pleas of Philadelphia County,
            Civil Division at No(s): February Term 2013 No. 03271

BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                             FILED FEBRUARY 13, 2015

     Tanesha Carter (Carter) appeals from an order which granted the

motion for summary judgment filed by Peerless Indemnity Insurance

Company (Peerless). We affirm.

     The background underlying this matter can be summarized as follows.

Carter filed a complaint against Peerless. Therein, Carter averred that, on

September 16, 2011, she was operating a vehicle she owned when a vehicle

driven by Marvin Edmonds (Edmonds) collided with her vehicle.                         Carter

further averred that Edmonds’ negligence caused the accident and that she

suffered serious injuries as a result of the accident.                     According to the

complaint, Edmonds’ motor vehicle insurance policy was insufficient to cover

the damages Carter suffered. Carter contended that she had an automobile

insurance   policy    with     Peerless   and       that    the   policy   entitled   her   to


* Retired Senior Judge assigned to the Superior Court.
J-A33022-14


underinsured motorist (UIM) coverage. She, therefore, asserted a UIM claim

against Peerless.

      Carter later was deposed, and her testimony reveals that she did not

own the vehicle involved in the accident; rather, she was a passenger in a

third-party’s vehicle at the time of the accident.    Furthermore, it was not

Carter, but her mother, Daphne Cox, and Mrs. Cox’s husband, Bruce Cox,

who had an automobile insurance policy with Peerless (policy or Cox policy).

Carter sought UIM coverage under that policy.

      Peerless eventually filed a motion for summary judgment.         Therein,

Peerless conceded that Carter was listed as a “driver” in the Cox policy.

However, according to Peerless, the policy, in relevant part, only provides

coverage to resident family members.       Peerless maintained that, because

Carter could not prove that she lived with her mother when the accident

occurred, Carter is not entitled to UIM coverage under the policy.

      Carter presented one issue in response to the motion for summary

judgment. Carter claimed that she “is entitled to [UIM] benefits under [the

Cox] policy because there was a reasonable belief that coverage would be

extended to her as a listed ‘driver’ on [the] policy.” Memorandum of Law in

Support of Response to Mother for Summary Judgment, 6/27/2014, at

unnumbered page 3.

      The trial court granted the motion for summary judgment.           Carter

timely filed a notice of appeal. The trial court did not direct Carter to comply



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with Pa.R.A.P. 1925(b). However, the court did issue an opinion in support

of its decision to grant the motion for summary judgment.

      In that opinion, the trial court addressed Carter’s “reasonable-

expectation-of-coverage” issue. According to the court, Carter failed to cite

to any Pennsylvania case law in support of this issue.      After discussing

federal case law cited by Carter in support of her argument, the court

determined that the “reasonable expectation” doctrine does not apply in this

case. Ultimately, the court essentially held that Carter could not prove that

she qualified as an “insured” as that term is utilized in the clear and

unambiguous language of the policy.

      In her brief to this Court, Carter asks us to consider one question,

namely, “Whether the trial court abused its discretion and otherwise

committed an error of law when it improperly granted [Peerless’] motion for

summary judgment when [Carter] is entitled to UIM[] benefits?”       Carter’s

Brief at 5 (unnecessary capitalization omitted).

      We review orders granting summary judgment as follows.

             The standards which govern summary judgment are well
      settled. When a party seeks summary judgment, a court shall
      enter judgment whenever there is no genuine issue of any
      material fact as to a necessary element of the cause of action or
      defense that could be established by additional discovery. A
      motion for summary judgment is based on an evidentiary record
      that entitles the moving party to a judgment as a matter of law.
      In considering the merits of a motion for summary judgment, a
      court views the record in the light most favorable to the non-
      moving party, and all doubts as to the existence of a genuine
      issue of material fact must be resolved against the moving party.
      Finally, the court may grant summary judgment only when the


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      right to such a judgment is clear and free from doubt. An
      appellate court may reverse the granting of a motion for
      summary judgment if there has been an error of law or an abuse
      of discretion.…

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa.

2005) (citations omitted).

      First, Carter arguably claims that she, in fact, lived with her mother at

the time of the accident and, thus, qualifies as an insured “family member”

under the policy. Carter’s Brief at 8-9. Carter failed to raise any such issue

in response to the motion for summary judgment.             Thus, the claim is

waived. See Harber Philadelphia Center City Office Ltd. v. LPCI Ltd.

Partnership, 764 A.2d 1100, 1105 (Pa. Super. 2000) (“Because, under

[Pa.R.C.P.] 1035.3, the non-moving party must respond to a motion for

summary judgment, he or she bears the same responsibility as in any

proceeding, to raise all defenses or grounds for relief at the first opportunity.

A party who fails to raise such defenses or grounds for relief may not assert

that the trial court erred in failing to address them.”); see also Devine v.

Hutt, 863 A.2d 1160, 1169 (Pa. Super. 2004) (“[A]rguments not raised

initially before the trial court in opposition to summary judgment cannot be

raised for the first time on appeal.”); Pa.R.A.P. 302(a).

      The remainder of Carter’s brief is devoted to renewing the claim that

she presented in response to the motion for summary judgment: Whether

Carter is entitled to UIM coverage because her designation as a “driver” in

the Cox policy created a reasonable expectation that she was entitled to


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coverage under the policy.   Carter again fails to cite to any Pennsylvania

case law in support of her issue. Nonetheless, we observe the following.

          This matter primarily presents the Court with an issue
     which requires that we interpret an insurance contract. As to
     the manner in which we are to accomplish such a charge, our
     Supreme Court has stated:

        The task of interpreting [an insurance] contract is
        generally performed by a court rather than by a jury. The
        purpose of that task is to ascertain the intent of the parties
        as manifested by the terms used in the written insurance
        policy. When the language of the policy is clear and
        unambiguous, a court is required to give effect to that
        language. When a provision in a policy is ambiguous,
        however, the policy is to be construed in favor of the
        insured to further the contract’s prime purpose of
        indemnification and against the insurer, as the insurer
        drafts the policy, and controls coverage.         Contractual
        language is ambiguous if it is reasonably susceptible of
        different constructions and capable of being understood in
        more than one sense. Finally, [i]n determining what the
        parties intended by their contract, the law must look to
        what they clearly expressed. Courts in interpreting a
        contract, do not assume that its language was chosen
        carelessly. Thus, we will not consider merely individual
        terms utilized in the insurance contract, but the entire
        insurance provision to ascertain the intent of the parties.

     401 Fourth St., Inc. v. Investors Insurance Group, 583 Pa.
     445, 879 A.2d 166, 171 (2005) (citations and quotation marks
     omitted). In other words, “[g]enerally, courts must give plain
     meaning to a clear and unambiguous contract provision unless to
     do so would be contrary to a clearly expressed public policy.”
     Prudential Property and Casualty Insurance Company v.
     Colbert, 572 Pa. 82, 813 A.2d 747, 750 (2002)[].

Government Employees Ins. Co. v. Ayers, 955 A.2d 1025, 1028-29 (Pa.

Super. 2008).   We further note that “the interpretation of an insurance

contract is a question of law, [and] our standard of review is de novo; thus,



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we need not defer to the findings of the lower tribunals. Our scope of review

… is plenary.” 401 Fourth St., Inc., 879 A.2d at 170 (citations omitted).

      The Cox policy endorsement regarding UIM coverage provides, in

relevant part:

      A. We will pay compensatory damages which an “insured” is
      legally entitled to recover from the owner or operator of an
      “underinsured motor vehicle” because of “bodily injury”:

         1. Sustained by an “insured”; and

         2. Caused by an accident.

                                     ***

      B. “Insured” as used in this endorsement means:

         1. You or any “family member”.

         2. Any other person “occupying” “your covered auto”.

         3. Any person for damages that person is entitled to
         recover because of “bodily injury” to which this coverage
         applies sustained by a person described in 1. or 2. above.

Motion for Summary Judgment, 11/27/2013, Exhibit E, at UNDERINSURED

MOTORISTS        COVERAGE   -   PENNSYLVANIA   (STACKED).       The   general

provisions of the policy define “family member” as “a person related to you

by blood, marriage or adoption who is a resident of your household. That

includes a ward or foster child.”      Id. at PERSONAL AUTO POLICY -

DEFINITIONS.

      In a document related to the Cox policy which describes the coverage

therein, Carter is listed under “DRIVER INFORMATION.” The parties do not



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dispute that this policy document designates Carter as a “driver.” However,

Carter fails to cite to any language in the policy which suggests that such a

designation automatically qualifies her as an “insured” under the policy.

      In fact, the policy clearly and unambiguously states that Peerless will

pay compensatory damages which an “insured” is entitled to recover from

the owner or operator of an underinsured vehicle.      The policy then clearly

spells out what “insured” means in this context.      Carter’s claim that she

qualifies as an “insured” under this policy simply because she was

designated as a “driver” does not comport with the plain language of the

policy. Moreover, as Peerless points out in its brief, “[a]n insured may not

complain that his or her reasonable expectations were frustrated by policy

provisions and limitations which are clear and unambiguous.” Pempkowski

v. State Farm Mut. Auto. Ins. Co., 678 A.2d 398, 401 (Pa. Super. 1996)

(citations omitted).

      Carter’s response to the motion for summary judgment failed to

highlight a genuine issue of material fact as to whether she is entitled to UIM

coverage under the Cox policy.     Consequently, we can discern no error in

the trial court’s decision to grant the motion. For these reasons, we affirm

the trial court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2015




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