J-S08012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BONNIE J. RAPP F/K/A/ BONNIE J.                    IN THE SUPERIOR COURT OF
SCHMADER                                                 PENNSYLVANIA



                      v.

PENN NATIONAL MUTUAL CASUALTY
INSURANCE COMPANY

APPEAL OF: BONNIE J. RAPP

                                                        No. 995 WDA 2015


                Appeal from the Order Entered May 27, 2015
              In the Court of Common Pleas of Clarion County
                     Civil Division at No: 1061 CD 2004


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED APRIL 13, 2016

       Appellant, Bonnie J. Rapp, appeals from the May 27, 2015 order

granting the summary judgment motion of Penn National Mutual Casualty

Insurance Company (“Penn”). We affirm.

       The record reveals that Appellant sustained serious injuries in a

September 1, 2000 motorcycle accident.            Phillip Rapp, then Appellant’s

boyfriend and currently her husband, was driving the motorcycle, and

Appellant was a passenger. Appellant sought to recover damages through

the other driver’s insurance policy, but he had only $25,000.00 in liability

coverage. Appellant therefore filed an underinsured motorist (“UIM”) claim

with   Penn   (“the    Penn   Policy”),   which    insured   Russell   Schmader
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(“Schmader”), Appellant’s husband at the time of the accident. Schmader

was the only named insured on the Penn Policy.         The Penn Policy also

provides coverage to the named insured’s spouse if the spouse is a resident

of the named insured’s household:

      A. Throughout this policy, “you” and “your” refer to:

         1. The “named insured” shown in the Declarations; and

         2. The spouse if a resident of the same household.

      If the spouse ceases to be a resident of the same household
      during the policy period or prior to the inception of this policy,
      the spouse will be considered “you” and “your” under this policy
      but only until the earlier of:

         1. The end of 90 days following the spouse’s change of
            residency;

         2. The effective date of another policy listing the spouse as a
            named insured; or

         3. The end of the policy period.

Penn Policy, Definitions, ¶ A.

      Appellant was listed as an insured driver on the Penn Policy because

she was Schmader’s wife and resided with him when Penn issued the policy.

As of the accident date, Appellant and Schmader still jointly owned their

marital home but Appellant had not been living there for more than a year.

Trial Court Opinion, 5/27/15, at 7. In addition, Appellant procured a new

automobile insurance policy on which she was the named insured. Id. at 3.

For these reasons, Penn denied coverage under the Penn Policy.




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     On August 30, 2004, Appellant filed a praecipe for writ of summons.

After a substantial and unexplained delay, during which Appellant filed

several statements of intention to proceed, Appellant filed a declaratory

judgment complaint on August 4, 2014.        Penn filed an answer and new

matter on September 23, 2014, alleging Appellant failed to state a claim

upon which relief can be granted. Appellant answered Penn’s new matter on

November 3, 2014. Penn filed a motion for summary judgment and brief in

support on April 2, 2015. Appellant responded on April 27, 2015. On May

27, 2015, the trial court entered an order granting Penn’s motion for

summary judgment. This timely appeal followed.

     Appellant frames the issue as follows: “Whether an insurance policy’s

failure to designate a ‘named insured’ as required by its own definitions,

renders the term ‘you’ in the policy ambiguous, thereby precluding entry of

summary judgment?” Appellant’s Brief at 4.

     Rule 1035.2 of the Rules of Civil Procedure governs entry of summary

judgment.     Summary judgment is appropriate “whenever there is no

genuine issue of any material fact as to a necessary element of the cause of

action or defense [. . .].” Pa.R.C.P. No. 1035.2(1). The following standard

governs our review:

           As has been oft declared by this Court, summary judgment
     is appropriate only in those cases where the record clearly
     demonstrates that there is no genuine issue of material fact and
     that the moving party is entitled to judgment as a matter of law.
     When considering a motion for summary judgment, the trial
     court must take all facts of record and reasonable inferences

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     therefrom in a light most favorable to the non-moving party. In
     so doing, the trial court must resolve all doubts as to the
     existence of a genuine issue of material fact against the moving
     party, and, thus, may only grant summary judgment where the
     right to such judgment is clear and free from all doubt.

           On appellate review, then, an appellate court may reverse
     a grant of summary judgment if there has been an error of law
     or an abuse of discretion. But the issue as to whether there are
     no genuine issues as to any material fact presents a question of
     law, and therefore, on that question our standard of review is de
     novo. This means we need not defer to the determinations
     made by the lower tribunals. To the extent that this Court must
     resolve a question of law, we shall review the grant of summary
     judgment in the context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal

citations and quotation marks omitted).

     “The interpretation of an insurance policy is a question of law that we

will review de novo.”   Kvaerner Metals Div. of Kvaerner U.S., Inc. v.

Commercial Union Ins. Co., 908 A.2d 888, 897 (Pa. 2006).

           Our primary goal in interpreting a policy, as with
     interpreting any contract, is to ascertain the parties’ intentions
     as manifested by the policy’s terms. When the language of the
     policy is clear and unambiguous, [we must] give effect to that
     language.     Alternatively, when a provision in the policy is
     ambiguous, 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.

Id. (internal citations and quotation marks omitted).

     Appellant argues the Penn Policy is ambiguous because of a box on the

declarations page titled “insured.”       The box titled “insured” names

Schmader.   According to Appellant’s argument, the box should have been



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titled “named insured” rather than “insured.” Penn’s failure to title the box

“named insured” renders the definition of “you” and “your” ambiguous,

according to Appellant, because that definition refers to “named insured”

rather than “insured.” Appellant believes we must construe this ambiguity

against Penn, as the drafter of the policy, and include Appellant within the

definition of “you” and “your” because she was named elsewhere on the

declarations page as an additional insured driver. Appellant believes she is

entitled to UIM coverage under the Penn Policy because she meets its

definition of “you” and “your.”

      First, we observe Appellant has not challenged the trial court’s finding

that she was no longer residing with Schmader on the date of the accident.

Trial Court Opinion, 5/27/15, at 6-8. Appellant also admitted that she had

procured a new automobile policy on which she was the named insured. Id.

at 3. These facts are fatal to her argument that she falls within the Penn

Policy’s definition of “you” and “your.”

      In any event, Appellant’s assertion of an ambiguity in the Penn Policy

is plainly wrong. The Penn Policy’s definition of “you” and “your” refers to a

“named insured” on the declarations page.       Penn Policy, Definitions, ¶ A

(emphasis added).     The declarations page contains Schmader’s name in

several boxes titled “insured.” Penn Policy, Declarations (emphasis added).

Therefore, the declarations page unambiguously identifies Schmader as the

named insured, and Schmader unambiguously is the “named insured”


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described in the definition of “you” and “your.” Pursuant to Kvaerner, we

must give effect to the Penn Policy’s clear terms.

      We discern no error in the trial court’s decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2016




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