J. A10007/17
                            2017 PA Super 297

SAFE AUTO INSURANCE COMPANY         :         IN THE SUPERIOR COURT OF
                                    :              PENNSYLVANIA
                                    :
                v.                  :
                                    :
RENE ORIENTAL-GUILLERMO, RACHEL     :
DIXON, PRISCILA JIMENEZ, LUIS       :
JIMENEZ, ALLI LICONA AVILA AND IRIS :
VELAZQUEZ                           :
                                    :
APPEAL OF: PRISCILA JIMENEZ & LUIS :
JIMENEZ                             :
                                    :         No. 3226 EDA 2016

            Appeal from the Order Entered September 13, 2016
              In the Court of Common Pleas of Lehigh County
                    Civil Division at No(s): 2015-C-1547

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                        FILED SEPTEMBER 18, 2017

     This appeal arises from the Declaratory Judgment Action that Appellee,

Safe Auto Insurance Company ("Safe Auto"), filed in Lehigh County.      The

trial court granted Safe Auto's Motion for Summary Judgment, finding that

Safe Auto was not obligated to provide insurance coverage to Rachel Dixon

(“Dixon") because Dixon was driving the policyholder’s car and the

policyholder did not list her as a driver on his automobile insurance policy

("Safe Auto Policy").    Appellants, Priscila Jimenez and Luis Jimenez,

appealed. After careful review, we affirm.

     The undisputed facts and procedural history, as gleaned from the

Certified Record, are as follows.   On April 29, 2013, Dixon and another
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driver were involved in a two-car motor vehicle accident in Allentown,

Pennsylvania.

        Appellant Priscila Jimenez, the passenger in the other vehicle, filed a

separate personal injury lawsuit seeking damages against three individuals:

Dixon, the owner of the car that Dixon was driving, and the driver of the

other car involved in the accident.1

        Dixon was driving a car that her boyfriend, Rene Oriental-Guillermo,

(the "Policyholder") owned. He insured his car through Safe Auto. The Safe

Auto Policy had an Unlisted Resident Driver Exclusion, which specifically

excluded from coverage those individuals who lived with the Policyholder,

but were not related to the policyholder and whom the Policyholder did not

specifically list on the Policy ("Unlisted Resident Driver Exclusion"). In this

case, Dixon lived with the Policyholder, but was not related to him and was

not specifically listed as a driver of the Policyholder's car on his Policy.

        On May 13, 2015, Safe Auto filed the instant Complaint, seeking a

declaration regarding the enforceability of the Unlisted Resident Driver

Exclusion. On March 4, 2016, Appellants filed an Answer with New Matter

and Counterclaim to the Complaint.2




1
    See Lehigh County Case No. 2015-C-1078.
2
    The remaining defendants did not file Answers to Safe Auto’s Complaint.




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      On May 24, 2016, Safe Auto filed a Motion for Summary Judgment, to

which Appellants filed a Response on June 27, 2016.3 Following a hearing

on the motion, on September 13, 2016, the trial court granted Safe Auto’s

motion. The trial court found that because Dixon lived with the Policyholder,

Dixon was not related to the Policyholder, and the Policyholder did not list

Dixon as a member of his household on the Safe Auto Policy, the Unlisted

Resident Driver Exclusion applied and Safe Auto had no duty to defend or

indemnify Dixon in Appellant's personal injury lawsuit.

      Appellants timely appealed.      Both Appellants and the trial court

complied with Pa.R.A.P. 1925.

      Appellants raise the following four issues on appeal:

         1. Did the [t]rial [c]ourt err as a matter of law in finding
         that [Safe Auto] had no duty to defend and indemnify
         under the Personal Auto Policy in question?

         2. Did the [t]rial [c]ourt err as a matter of law in finding
         that the provisions of the Personal Auto Policy limiting
         coverage to named drivers only was valid and enforceable?

         3. Did the [t]rial [c]ourt err as a matter of law in finding
         that the provisions of the Personal Auto Policy limiting
         coverage to listed drivers was not violative of the
         Pennsylvania Motor Vehicle Financial Responsibility Law
         [(“MVFRL”)], 75 Pa.C.S.[] § 1701 et seq.?

         4. Did the [t]rial [c]ourt err as a matter of law in finding
         that the provisions of the Personal Auto Policy limiting


3
  The remaining defendants did not file Responses to Safe Auto’s Motion.
Accordingly, the trial court entered Summary Judgment against them on
June 30, 2016.



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         coverage to listed drivers was not violative of the public
         policy of the Commonwealth of Pennsylvania?

Appellants’ Brief at 4-5.

      Appellants’ issues are interrelated; therefore, we first address whether

the trial court properly found that the Unlisted Resident Driver Exclusion

applied to the facts of this case.      We then address Appellants’ other

argument that the exclusion is unenforceable because it violates the Motor

Vehicle Financial Responsibility Law, 75 Pa.C.S. 7501 et seq. (“MVFRL”) and

public policy of the Commonwealth of Pennsylvania.4

      Standard of Review

      We review orders granting summary judgment under a familiar

standard.

         Summary judgment is proper only when the pleadings,
         depositions, answers to interrogatories, admissions and
         affidavits and other materials demonstrate that there is no
         genuine issue of material fact and that the moving party is
         entitled to judgment as a matter of law. The reviewing
         court must view the record in the light most favorable to
         the nonmoving party and resolve all doubts as to the
         existence of a genuine issue of material fact against the
         moving party. Only when the facts are so clear that
         reasonable minds could not differ can a trial court properly
         enter summary judgment.

Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007)

(citations omitted).

4
  We note that Appellants’ Brief is more in the nature of a response to a
motion for summary judgment than an appellate brief, and in many places is
a verbatim reproduction of the arguments they put forth to the trial court in
opposition to Appellee’s Motion for Summary Judgment.



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      When considering an order granting summary judgment in the context

of a declaratory judgment action, our scope of review is plenary. Kvaerner

Metals Division of Kvaerner U.S., Inc. v. Commercial Union Ins. Co.,

908 A.2d 888, 895 (Pa. 2006). We will reverse the order of the trial court

only if we find that an error of law or an abuse of discretion has occurred.

Id. “The test is not whether we would have reached the same result on the

evidence presented, but whether the trial court's conclusion can reasonably

be drawn from the evidence.” Nationwide Mut. Ins. Co. v. Cummings,

652 A.2d 1338, 1341 (Pa. Super. 1994).

      Unlisted Resident Driver Exclusion in Safe Auto Policy

      We must first address whether the trial court properly found that the

Unlisted Resident Driver Exclusion in the Safe Auto Policy was unambiguous

and did not require Safe Auto to provide coverage in this case.

      The interpretation of an insurance policy raises a question of law for

the court. Id. “[W]here the language of an insurance contract is clear and

unambiguous, a court is required to give effect to that language[,]” except if

it violates public policy. Id. (citations omitted). Whether a provision of an

insurance policy is void as against public policy presents this Court with a

purely legal question; thus “our scope of review is plenary and our standard

of review is de novo.”   Generette v. Donegal Mut. Ins. Co., 957 A.2d

1180, 1189 (Pa. 2008).




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      In this case, the Unlisted Resident Driver Exclusion excludes from

coverage non-relatives of the policyholder who drive the policyholder’s car,

live in the policyholder’s household, and who the policyholder does not list as

an additional driver:

         PART 1 – LIABILITY COVERAGE, EXCLUSIONS, LIABILITY
         COVERAGE AND OUR DUTY TO DEFENDANT DO NOT APPLY
         TO BODILY INJURY OR PROPERTY DAMAGES:

            1.    That occurs while your covered auto is being
                  operated by a resident of your household or by
                  a regular user of your covered auto, unless
                  that person is listed as an additional driver on
                  the Declarations page . . . .

Safe Auto Policy, 1/5/13.

      The trial court noted that “the exclusionary language in the insurance

policy between [Safe Auto] and [the Policyholder] is unambiguous, and [ ]

Defendant Dixon is not a listed driver of the subject vehicle under the

policy[.]” Id. at 9. The trial court further found that no issue of material

fact existed as to the terms and scope of coverage provided in the

Policyholder’s policy and concluded that Safe Auto did not have a duty to

indemnify or defend Dixon. Id.

      We agree.    The policy language is unambiguous. Also, there is no

dispute that Dixon lived with Policyholder, but is unrelated to him, and he

did not list her as an additional driver on his policy.   Therefore, the trial

court properly found that the exclusion applied and Safe Auto was not

obligated to defend Dixon.



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      The Unlisted Resident Driver Exclusion Does Not Contravene
      the Specific Language of the MVFRL or Violate Public Policy.

      The Appellant argues next that the Unlisted Resident Driver Exclusion

violates the language of the MVFRL and public policy and is, therefore,

unenforceable.

      Only when it is clear that a contract is contrary to public policy should

the courts refuse to enforce it.

         It is only when a given policy is so obviously for or against
         the public health, safety, morals or welfare that there is a
         virtual unanimity of opinion in regard to it, that a court
         may constitute itself the voice of the community in so
         declaring that the contract is against public policy.

Eichelman v. Nationwide Ins. Co., 711 A.2d 1006, 1008 (Pa. 1998)

(citation omitted).

      As our Supreme Court explained, the courts should hesitate to find

contracts contrary to public policy. Rather,

         [p]ublic policy is to be ascertained by reference to the laws
         and legal precedents and not from general considerations
         of supposed public interest. As the term “public policy” is
         vague, there must be found definite indications in the law
         of the sovereignty to justify the invalidation of a contract
         as contrary to that policy.... Only dominant public policy
         would justify such action. In the absence of a plain
         indication of that policy through long governmental
         practice or statutory enactments, or of violations of
         obvious ethical or moral standards, the Court should
         not assume to declare contracts . . . contrary to
         public policy.       The courts must be content to await
         legislative action.




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Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994) (quoting

Muschany v. United States, 324 U.S. 49, 66-67 (1945) (emphasis

added)).

      With these principles in mind, we consider Appellants’ argument that

the Unlisted Resident Driver Exclusion violates the public policy expressed in

the MVFRL.      In their first argument, Appellants argue that the Unlisted

Resident Driver Exclusion contravenes the MVFRL’s mandate that an owner

of a motor vehicle ensure that all drivers of his vehicle are covered by

insurance. Appellants’ Brief at 18. This argument actually supports the trial

court’s interpretation of the Unlisted Resident Driver Exclusion.

      The provision upon which the Appellants rely places the obligation on

the owner of a vehicle, and not the insurance company, to ensure that

anyone who drives the owner’s car has insurance. In other words, an owner

of a car should only permit another person to drive his car if that driver has

insurance:

           Operation of a motor vehicle          without    required
           financial responsibility.—

           Any owner of a motor vehicle for which the existence of
           financial responsibility is a requirement for its legal
           operation shall not operate the motor vehicle or permit it
           to   be    operated      upon   a   highway      of  this
           Commonwealth without the financial responsibility
           required by this chapter.

75 P.S. § 1786(f) (emphasis added).




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      This provision does not provide, as Appellants argue, that if the owner

of a car allows someone to drive his car who does not have insurance and

the   driver   is   in   accident,   then    the   owner’s   insurance   company   is

automatically responsible for providing insurance to the otherwise uninsured

driver.   Such an interpretation would shift to the insurance company

unidentified risks and there is no provision in the MVFRL that indicates that

the legislature, when it enacted the MVFRL, intended to shift the risk to

insurance companies to insure unidentified individuals who live with the

insured, but are not related to the insured.

      In this case, the Policyholder failed to identify Dixon as a non-relative

resident living in his household who was driving his car. Thus, he failed to

meet the obligation of section 75 P.S. § 1786(f) that requires him to ensure

that a driver of his car had insurance. We, therefore, reject the argument

that the Unlisted Resident Driver Exclusion is contrary to the policy set forth

in the MVFRL.

      Appellants next argue that the Unlisted Resident Driver Exclusion is

contrary to the MVFRL by analogizing it to a “Named Driver Only Exclusion.”

Appellants’ Brief at 15. The “Named Driver Exclusion” provision, however,

permits a policyholder, in certain instances, to exclude from his policy

certain individuals for whom the policyholder does not want to provide

coverage:




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         (c) Named Driver Exclusion.- An insurer or the first
         named insured may exclude any person or his personal
         representative from benefits under a policy enumerated in
         section 1711 or 1712 when any of the following apply:

            (1) The person is excluded from coverage while
            operating a motor vehicle in accordance with the act
            of June 5, 1968 (P.L. 140, No. 78), relating to the
            writing, cancellation of[,] or refusal to renew policies
            of automobile insurance.

75 P.S. § 1718(c).

      More specifically, Appellants argue that the public policy behind the

Named Party Exclusion provision is that the insurance company must insure

every individual who uses an insured’s vehicle unless the insured specifically

asks the insurance company not to provide coverage for that driver.

Appellants’ Brief at 15-16, 19-27.       Appellants rely on Byong Suk An v.

Victoria Fire & Cas. Co., 113 A.3d 1283 (Pa. Super. 2015) in which this

court upheld the enforceability of a Named Driver Exclusion, concluding that

permitting an insured to determine which members of his household the

insured must insure did not violate the public policy benefits of encouraging

the   provision   of   low-cost,   affordable   policies   to   insureds,   and   the

concomitant reduction of risk to insurers. An, 113 A.3d at 1292.

      We disagree with Appellant’s interpretation of the policy implications

supporting the Named Driver Exclusion. Rather, we conclude that the policy

implications of the Named Driver Exclusion are actually consistent with the

policy implications of Unlisted Resident Driver Exclusion. In both cases, the

insured, in certain instances, determines those drivers of the insured’s car


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for which the insured will purchase insurance. If the insured chooses not to

purchase insurance for those drivers of his car, the insurance company is not

required to provide insurance.

      This principle is consistent with the MVFRL in which the legislature

chose to put the burden on the insured to make sure that individuals who

drive the insured’s vehicle have insurance.   See 75 Pa.C.S. 1786(f).    This

makes sense because the insured is in a much better position than the

insurance company to identify the persons who will drive his car.

      Last, Appellants argue that the Unlisted Resident Driver Exclusion is

void against public policy because it undermines “the goal of maximum

feasible restoration to accident victims[.]”      Appellants’ Brief at 11.

Appellants base this argument only on the concurrences issued in Williams

v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195 (Pa. 2011), which

proposed that this goal is an equally important purpose of the law.

Appellant’s Brief at 11-14.

      We note first that Appellants’ reliance upon concurrences, rather than

the majority decision in Williams, limits its precedential value and

persuasiveness.   Moreover, the goal of maximum feasible restoration to

accident victims is just one of many goals of the MVFRL.

      We agree with the trial court’s analysis in this case.   The trial court

observed that the settled public policy goal of the MVFRL is to encourage

vehicle owners to obtain proper insurance coverage for themselves and the



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people they anticipate will be operating the insured vehicle. Trial Ct. Op.,

9/13/16, at 8-9.     The court further noted that the duty to obtain and

maintain insurance lies with insureds, not with insurers.      Id. (citing 75

Pa.C.S. §§ 1547(a), 1786(f)).         The court concluded that Appellants’

“argument is inconsistent with that policy rationale because it shifts the

burden from the insured to the insurer.” Id.

       We agree. The MVFRL does not anticipate always shifting the burden

on insurance companies to discover the identities of resident, non-family

member insureds, who have access to an insured’s vehicle; that is a burden

more appropriately placed in the hands of the insured.     For the foregoing

reasons, Appellants’ public policy arguments fail.

       Having concluded that Appellants’ public policy arguments lack merit,

and noting that there are no issues of material fact with respect to Safe

Auto’s coverage obligation under the Policyholder’s policy, we agree with the

trial court’s conclusion that Safe Auto is entitled to judgment as a matter of

law.

       Order affirmed.

Judge Solano joins the Opinion.

PJE Ford Elliott files a Dissenting Opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2017




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