J-A30014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DANIEL AND CATHLEEN GRIX,                  :   IN THE SUPERIOR COURT OF
    INDIVIDUALLY AND AS                        :        PENNSYLVANIA
    ADMINISTRATORS OF THE ESTATE               :
    OF NAOMI GRIX, DECEASED                    :
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :   No. 312 MDA 2019
                                               :
                                               :
    PROGRESSIVE SPECIALTY                      :
    INSURANCE COMPANY                          :

               Appeal from the Order Entered December 26, 2018
     In the Court of Common Pleas of Juniata County Civil Division at No(s):
                                 2016-00346


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                            FILED FEBRUARY 10, 2020

        Appellants, Daniel and Cathleen Grix, appeal from the December 26,

2018 Order granting the Motion for Summary Judgment filed by Appellee,

Progressive Specialty Insurance Company, in this declaratory judgment

action. After careful review, we affirm.

        The facts and procedural history are as follows. On December 13, 2015,

Appellants’ daughter, Naomi, died in a motor vehicle accident. At the time of

the accident, Naomi was a passenger in a vehicle owned by Appellants and

insured by a policy issued by Appellee (the “Policy”). Appellee insured five

vehicles owned by Appellants and Appellants’ Policy carried stacked limits of

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A30014-19



underinsured motorist (“UIM”) coverage of $250,000 each person/$500,000

each accident. Appellants sought stacked UIM benefits from Appellee arising

from the accident.

       Appellee denied Appellants’ claim for stacked benefits asserting that

Naomi, who had signed a lease at another address approximately six weeks

prior to her death, was not a “resident” of Appellants’ household.1

       On January 19, 2017, Appellants filed a Complaint in Declaratory

Judgment against Appellee.2 Appellants alleged in the Complaint, inter alia,

that, at the time of the accident, Naomi resided with Appellants at 779 Texas

Hollow Road, Mifflintown, Pennsylvania.3 They further alleged that they had
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1 Appellee paid $250,000 in UIM benefits, but refused Appellants’ stacked
benefits claim.

2 Appellants also named as defendants Sausman Insurance Agency, Inc. On
February 27, 2017, the parties stipulated to Sausman Insurance Agency,
Inc.’s dismissal, and on March 8, 2017, the court dismissed it as a party.

3 By way of support for the claim that Naomi was a resident of Appellants’
address, Appellants averred that: (1) Naomi’s driver’s license listed the Texas
Hollow Road address as her home address; (2) she gave her employer the
Texas Hollow Road address as her home address; (2) she had napped at the
Texas Hollow Road address at times leading up to the accident; (4) she had
visited the Texas Hollow Road address in the days leading up to the accident;
(5) she ate meals at the Texas Hollow Road address in the days leading up to
the accident; (6) Appellants registered the vehicle involved in the fatal
accident to the Texas Hollow Road address; (7) Appellants provided financial
support to Naomi in the period leading up to the accident; (8) educational
institutions had the Texas Hollow Road address as Naomi’s home address; (9)
Naomi had clothes, a toothbrush, art supplies, a guitar, a bed, and a room,
and received mail at Appellants’ Texas Hollow Road address; (10) Appellants
declared Naomi as a dependent on their tax returns at all times prior to the
accident; (11) Naomi listed the Texas Hollow Road address as her home



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listed Naomi as a “household resident” on their insurance policy declaration

sheet.4 Appellants asserted that Naomi was “residing in the same household”

as her parents and was an “insured person” under the Policy.5              They

concluded, therefore, that, as a “resident relative” 6 Naomi was entitled to

stacked benefits under the policy.



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address on all tax returns at all times prior to the accident; (12) the police
report of the accident lists the Texas Hollow Road address as Naomi’s address
at the time of her death; (13) Naomi’s death certificate lists the Texas Hollow
Road address as her residence at the time of her death; and (14) Naomi did
laundry and cooked food at the Texas Hollow Road address.

4 Appellants added Naomi to the Policy in June 2015, listing her as one of the
“Drivers and household residents” on the Policy’s Declarations Page, and paid
a $391 premium to do so. Although the Policy required Appellants to notify
Appellee of any change in status of residence within 30 days, Appellants did
not notify Appellee of Naomi’s change in residence when Naomi moved out of
their house or remove Naomi from the Policy until after her death.

5 With respect to UIM coverage, the Policy provides that an “insured person”
is:
      a. you, a relative, or a rated resident;

        b. any person while operating a covered auto with the permission
           of you, a resident, or a related resident;

        c. any person occupying, but not operating, a covered auto; and

        d. any person who is entitled to recover damages covered by this
           Part III because of bodily injury sustained by a person
           described in a., b. or c. above.

Policy, 2/26/15, at 12.

6   The Policy defines “relative” as:




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        On February 6, 2017, Appellee filed an Answer to the Complaint and

New Matter denying that Appellants were entitled to stacked benefits because

Naomi was not a “resident relative” of Appellants at the time of her death.7

Rather, Appellee claimed that, on October 30, 2015, Naomi had signed a one-

year lease agreement to rent the premises at 78 East Main Street,

Thompsontown, PA with roommates, Seth Whitesel and Taryn Stouffer.8

Appellee further claimed that: (1) Naomi moved into the East Main Street

address on November 1, 2015; (2) had made rental payments on the East

Main Street address prior to her death; (3) had kept clothing, jewelry, a

toothbrush, art supplies, and a laptop computer at the premises; (4) had

shared in the cost of furniture she had purchased with Whitesel; (5) had

shared a bed and bedroom with Whitesel; (6) Naomi had not slept anywhere
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        a. a person residing in the same household as you, and
           related to you by blood, marriage or adoption, and includes
           a ward, stepchild, or foster child;

        b. a minor child in the custody of:

           (i) you; or

           (ii) a person residing in your household who is related to
           you; or

        c. your unmarried dependent child temporarily away from home
           will qualify as a relative if they intend to continue to reside in
           your household.

Policy, 12/26/15, at 2 (emphasis added).

7   On March 15, 2017, Appellants filed a Response to Appellee’s New Matter.

8The roommates agreed to divide the rent evenly among the three of them
and Naomi did, in fact, pay her one-third share prior to the accident.

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at night, other than at the East Main Street premises after she moved into it;

(7) Naomi was in the process of moving more of her belongings out of the

Texas Hollow Road address and into the East Main Street premises at the time

of the accident; (8) Naomi considered the East Main Street premises her

residence after she moved into it on November 1, 2015; and (9) Naomi was

trying to become independent of her parents and expressed no interest in

moving back into the Texas Hollow Road address.           Appellee sought a

declaration that, given these facts, Naomi was not a “resident relative” under

the Policy at the time of her death and that, consequently, Appellants were

not entitled to recover stacked UIM benefits in connection with the accident.

      On October 2, 2018, Appellee filed a Motion for Summary Judgment in

which it argued that there were no genuine issues of material fact concerning

Naomi’s residence at the East Main Street premises, and not at the Texas

Hollow Road address, at the time of the accident, and that they were entitled

to judgment as a matter of law. In addition to the averments in its Answer,

Appellee also noted the stipulated facts and deposition testimony indicating

that: (1) the lease agreement for the East Main Street residence precluded

residents from having mail delivered to that address and there was post office

box available for that address; (2) the roommates of the East Main Street

residence shared the utility bills; (3) Naomi did her own laundry at the East

Main Street residence and participated in the cleaning and upkeep of the

residence; (4) Naomi never expressed any interest or intention to move back

to the Texas Hollow Road address with Appellants; (5) Naomi, Whitesel, and

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Stouffer planned to move to Oregon at the end of their one-year lease term

for the East Main Street residence; and (6) on December 21, 2015, Appellant

Cathleen Grix informed Cathy Barnes, an employee of Appellants’ insurance

broker, that Naomi did not live Appellants at the time of the accident. In sum,

Appellee asserted that Naomi ceased being a “resident relative” of Appellants’

household on November 1, 2015, when she moved to the East Main Street

residence.    Accordingly, Appellee concluded that Naomi was a “class two

insured” under the Policy, which precluded Appellants from stacking UIM

coverage.9

       Appellants also filed a Motion for Summary Judgment on October 2,

2018, in which they asserted that they were entitled to judgment as a matter

of law because: (1) the undisputed facts established that Naomi was “merely

temporarily living outside of her parents’ home at the time of [the] accident,”

therefore, she was a resident of their household at the time of her death; (2)

that the Policy terms were ambiguous as to when a family member had to be

a resident of the named insured’s home; (3) Naomi was a designated “class

one” insured because Appellants listed her on the “drivers and household
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9 Our Supreme court explained that a “class one” insured includes “the named
insured and any designated insured and, while residents of the same
household, the spouse and relatives of either. Utica Mutual Ins. Co. v.
Contrisciane, 473 A.2d 1005, 1010 (Pa. 1984). A “class two” insured
includes “any other person while occupying an insured highway vehicle[.]” Id.
The Utica Court concluded that a “class two” claimant is not a specifically
intended beneficiary of an insurance policy, and cannot reasonably expect
stacked coverage and, therefore, that his claim is limited to the limits of
underinsurance coverage applicable to the vehicle he was operating. Id. at
1010-11.

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J-A30014-19



residents” portion of the policy; (4) Appellants had paid a premium for stacked

benefits and were entitled to the coverage for which they paid; and (5)

denying    Appellants’     stacked benefits      would unjustly   enrich Appellee.

Appellants’ MSJ, 10/2/18, at 9-18.

       Following a hearing, on December 26, 2018, the trial court concluded

that, as a matter of “physical fact and presence,” Naomi was not a resident of

Appellants’ household at the time of her death.          Opinion, 12/26/18, at 3

(unpaginated). It also found the policy unambigious as to the relevant time

of residency, that Appellants were not entitled to stacking as a matter of law

or public policy, and that Appellee had not been unjustly enriched. Id. at 8

(unpaginated).       It, therefore, denied Appellants’ Motion for Summary

Judgment, granted Appellee’s Motion for Summary Judgment, and entered

Judgment in Appellee’s favor.

       This appeal followed.10 Appellants raise the following four issues for our

review:

       1. Whether the trial court erred when it held that [Naomi] was not
          a resident of her parents’ household at the time of her tragic
          death even though the facts overwhelmingly establish she was
          a resident and she was listed as a “household driver” on her
          parents’ policy[?]

       2. Whether the trial court erred when it held that a person listed
          on a policy as a “driver and household resident” (and for which
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10 Appellants complied with the trial court’s Order to file a Pa.R.A.P. 1925(b)
Statement. The trial court did not file a Rule 1925(a) Opinion, and instead
relied on its Memorandum Opinion filed on December 26, 2018, addressing
the parties’ competing Motions for Summary Judgment.


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J-A30014-19


         premiums are being charged) is not a designated insured and
         not entitled to stacking[?]

      3. Whether the trial court erred when it held that [] Appellants did
         not have a reasonable expectation to receive stacking when
         they were paying premiums for their daughter being listed on
         the policy, they did not receive any premiums reimbursed
         covering any of the time period before death, the company
         initially considered her still residing at her parents’ home at the
         time of her death, and when she was listed on the policy and
         her parents claimed her as a household dependent on income
         taxes[?]

      4. Whether the trial court erred when it held that the [Policy] was
         not ambiguous despite failing to define when in time a person
         must be a “resident relative” to be given resident status under
         the policy[?]

Appellants’ Brief at 4.

      Each of Appellants’ issues challenges the trial court’s entry of summary

judgment in Appellee’s favor. Accordingly, our standard of review is for an

abuse of discretion or error of law, and our scope of review is plenary.

Sokolsky v. Eidelman, 93 A.3d 858, 861 (Pa. Super. 2014).

      We also note that:

      Generally, the proper construction of a policy of insurance is a
      matter of law which may properly be resolved by a court pursuant
      to a motion for summary judgment. Nationwide Mut. Ins. Co.
      v. Nixon, [ ] 682 A.2d 1310, 1313 ([Pa. Super.] 1996). Thus,
      the issue of whether a claim is within a policy’s coverage or barred
      by an exclusion is properly determined[,] provided that the
      policy’s terms are clear and unambiguous so as to preclude any
      issue of material fact. See Butterfield v. Giuntoli, [ ] 670 A.2d
      646, 651 ([Pa. Super.] 1995).

         As with all questions of law, our scope of review of a trial
         court’s order granting summary judgment is plenary. Our
         standard of review is the same as that of the trial court; we
         must review the record in the light most favorable to the
         nonmoving party granting [it] the benefit of all reasonable
         inferences and resolving all doubts in [its] favor. We will

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J-A30014-19


         reverse the court’s order only where the appellant [ ]
         demonstrates that the court abused its discretion or
         committed legal error.

      Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185, 190
      (Pa. Super. 2003) (internal citations omitted).

      When interpreting a policy of insurance, we employ an analysis
      which, while derived from the law of contracts, recognizes that
      most insurance transactions are not freely bargained between
      equals but are largely adhesive in nature. See Betz. v. Erie Ins.
      Exchange, 957 A.2d 1244, 1252-53 (Pa. Super. 2008).

         Insurance policies, like all contracts, are enforceable in
         accordance with the language used[,] and the scope of their
         coverage may be determined by the court as a matter of
         law. See Pappas v. UNUM Life Ins. Co. of Am., 856 A.2d
         183, 187 (Pa. Super. 2004). “In construing a contract, the
         intention of the parties is paramount and the court will adopt
         an interpretation which under all circumstances ascribes the
         most reasonable, probable, and natural conduct of the
         parties, bearing in mind the objects manifestly to be
         accomplished.” Charles D. Stein Revocable Trust v.
         Gen. Felt Indus., Inc., 749 A.2d 978, 980 (Pa. Super.
         2000). [ ]

      Id. at 1252-53 (Pa. Super. 2008).

Safe Auto Ins. Co. v. Berlin, 991 A.2d 327, 331 (Pa. Super. 2010) (quoting

Bishops, Inc. v. Penn Nat. Ins., 984 A.2d 982, 989-90 (Pa. Super. 2009)

(footnotes omitted)).     Moreover, “[w]hen construing a policy, words of

common usage [ ] are to be construed in their natural, plain and ordinary

sense [ ] and we may inform our understanding of these terms by considering

their dictionary definitions.” Wagner v. Erie Ins. Co., 801 A.2d 1226, 1231

(Pa. Super. 2002) (internal citations and quotation marks omitted).

      In Appellant’s first issue, they claim that the trial court erred as a matter

of law in holding that the undisputed facts indicated that Naomi did not reside



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in the same household as Appellants. They assert that the facts show that

Naomi had “some consistent personal contact with her parents’ home at the

time of her death” sufficient to establish her residency in their home.

Appellant’s Brief at 9.

      The Courts of this Commonwealth have historically recognized a

distinction between a person’s domicile and her residence.         Krager v.

Foremost Ins. Co., 450 A.2d 736, 737-38 (Pa. Super. 1982) (). A person’s

“domicile” is where he or she has a “true, fixed and permanent home and

principal establishment,” whereas a person’s “residence” is his or her “factual

place of abode,” which requires only his or her physical presence. Id. at 738

(citation omitted).

      “[T]he term ‘resident’ or ‘residency’ requires, at the minimum, some

measure of permanency or habitual repetition.” Wall Rose Mutual Ins. Co.

v. Manross, 939 A.2d 958, 965 (Pa. Super. 2007) (citation and quotation

marks omitted). See also Erie Ins. Exchange v. Weryha, 931 A.2d 739,

744 (Pa. Super. 2007) (explaining that “the terms ‘residence’ and ‘living’

require, at the minimum, some measure of permanency or habitual

repetition.”).

      The majority of insurance coverage cases interpreting the term

“resident” analyze the issue with regard to the quantity of contacts an

individual has with an insured’s household.     Cf. Manross, supra at 968

(deposition testimony of family members and friends supported determination

that grandson was not resident of insured’s home, where he was a drifter

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whose visits did not occur with any regularity, but were random at best);

Krager, supra at 737-38 (where insured’s son spent six months of each year

living in his New York mobile home, he was still considered resident of his

mother’s Pennsylvania home, for coverage under homeowner’s policy, when

he was living with her when accident occurred).

      We find the case of Amica Mutual Ins. Co. v. Donegal Mutual Ins.

Co., 545 A.2d 343 (Pa. Super. 1988), to be particularly instructive. In that

case, Donegal denied coverage for 18-year-old Elizabeth Hagerty on the basis

that she was not a resident of her father’s household. Id. at 344. Elizabeth’s

parents were divorced, and she was living with her mother.         Donegal had

issued a liability policy to Elizabeth’s father, Dr. Robert Hagerty. Id. at 344-

45. The trial court found that at the time of the accident, Elizabeth resided

with her mother and Donegal had no duty to provide coverage. Id.

      This Court affirmed, finding that although Elizabeth kept clothes at her

father’s house, 40 pairs of shoes, books, cosmetics, stuffed animals, tennis

equipment, and a pet rabbit, and received mail there, she was not a “resident”

for purposes of the policy. Id. at 345. Elizabeth testified that she stayed

overnight at her father’s house three to five times a month; her father testified

that she only stayed overnight twice during the entire school year prior to the

accident in June 1984. Id. This Court upheld the trial court’s findings that

she made only “sporadic” visits to her father’s house, did not spend any

significant time there, and the personal items she kept at her father’s house

were for convenience and did not evidence that she physically lived there. Id.

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at 346. We found that the evidence supported the conclusion that Elizabeth

had lived at her father’s house and intended to live there again; however,

these considerations were irrelevant. Id. at 349. The policy limited coverage

to those who actually reside in the household of the insured; her

intention was not the litmus test to determine residency status. Id. at 346-

47 (emphasis added).

      Similarly, here, although Naomi received mail at her parents’ house,

kept personal belongings there, and continued to use their address as her

address of record, she could not be considered a “resident” of the household

because, among other things, she slept elsewhere every night. There is no

evidence to suggest that Naomi spent the night at her parents’ home after she

moved to the East Main Street premises on November 1, 2015. We, therefore,

find no error in the trial court’s determination that, as a matter of fact, Naomi

did not reside at her parents’ house at the time of the accident. Accordingly,

Appellants are not entitled to relief on their first claim.

      In their second issue, Appellants claim that the trial court erred in

granting summary judgment in Appellee’s favor because Naomi was a “class

one” insured under the Policy. Appellant’s Brief at 17-20. Without citation to

any authority, Appellants claim that Naomi was a “class one” “designated

insured” simply by virtue of them having named her as a “driver[] and

household resident[].” Id. at 18. They then conclude that because Naomi

was a “class one” insured, she is entitled to stacked benefits. Id. at 18-20.




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      Only a policy’s “named insured and any designated insured and, while

residents of the same household, the spouse and relatives of either” are

entitled to “class one” insured status.           Utica Mutual Ins. Co. v.

Contrisciane, 473 A.2d 1005, 1010 (Pa. 1984). A “class two” beneficiary

includes “any other person while occupying an insured highway vehicle.”

“Class one” insureds are the specifically intended beneficiaries of insurance

contracts, and can reasonably expect stacked coverage, while “class two”

claimants are not specifically intended beneficiaries of an insurance policy, and

cannot reasonably expect stacked coverage. Pennsylvania Nat. Mut. Cas.

Co. v. Black, 916 A.2d 569, 572 n.3 (Pa. 2007) (citing Utica, supra, and

noting that occupants of vehicles, who are not named insureds or resident

relatives of named insureds, are class two insureds who do not have a

contractual relationship with the insurer as they have not paid premiums for

the coverage and are not specifically intended beneficiaries of the policy).

      While Naomi was an insured person under the Policy, it is undisputed

that Appellants did not list her as a named or designated insured on the

declarations page of the Policy. Moreover, as discussed supra, Naomi was not

a resident of the same household. Therefore, the trial court did not err in

concluding that Naomi was not a “class one” insured who would have been

entitled to stacked benefits. This claim, thus, fails.

      In their third issue, Appellants claim that the trial court erred in entering

summary judgment in favor of Appellee because Appellants, who had paid

premiums for Naomi’s coverage, had a reasonable expectation that Appellee

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would consider Naomi a resident of their household entitled to stacking at the

time of her death. Appellant’s Brief at 21. Appellants support this claim by

emphasizing that Appellee did not refund Appellants for the premiums they

paid for Naomi’s coverage for the period after which Appellee claims Naomi

was no longer a resident of Appellants’ household.           Id. at 21-22.     They

conclude that Appellee’s refusal to refund those payments results in Appellee’s

unjust enrichment. Id. at 21.

      While courts “must consider the totality of the insurance transaction to

ascertain the insured’s reasonable expectation, an insured may not complain

that his or her reasonable expectations were frustrated by policy provisions

and   limitations   which   are   clear     and    unambiguous.”     Cresswell v.

Pennsylvania Nat. Mut. Cas. Ins. Co., 820 A.2d 172, 178 (Pa. Super. 2003)

(citations omitted).

      Instantly, two unambiguous provisions of the Policy inform our

understanding of Appellants’ reasonable expectations.              First, the Policy

unambiguously states that, for purposes of UIM benefits, an insured person is

a relative, which the policy further defines as a person residing in the same

household and related to the policyholder by blood. Naomi was not such a

person.

      Second, the Policy also unambiguously required Appellants to notify

Appellee within 30 days of changes, including but not limited to, “the residents

in your household.” Appellants failed to notify Appellee within 30 days that

Naomi had moved out of their residence. Appellants now seek to benefit from

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their own failure to comply with the Policy’s notice provision and continued

payment of premiums on Naomi’s behalf by arguing that their failure should

result in a benefit to them—stacked UIM coverage—but to which they are not

entitled owing to Naomi’s “class two” status.

      Given the clarity and unambiguousness of the relevant policy provisions,

we conclude that denying Appellants stacked UIM benefits did not frustrate

Appellants’ reasonable expectations.       The court did not, therefore, err in

entering summary judgment against Appellants for this reason.

      Last, Appellants claim that the trial court erred in granting Appellee’s

Motion for Summary Judgment because the Policy was ambiguous insofar as

it neglected to articulate at what time a person must be a “resident relative”

to be entitled to stacked UIM benefits. Appellants’ Brief at 24-25. In support

of their claim that this aspect of the Policy’s definition of “resident relative” is

reasonably susceptible to different constructions, Appellants offer four

alternative interpretations: (1) the relative must reside in the home of the

named insured at the inception of the policy; (2) the relative must reside in

the home of the named insured at the time the insured adds her as a driver

under the policy; (3) the relative must reside with the named insured at the

time the policy is renewed; or (4) the relative must reside with the named

insured at the time of the accident. Id. at 25. Appellants assert that “[it] is

impossible to tell at what point in time an unmarried dependent child such as

Naomi Grix must be a member of the household of the named insured to

recover stacking, which makes the policy ambiguous.” Id. at 26.

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      When interpreting the terms of an insurance contract, the appellate

court’s goal is to determine the intent of the parties as exhibited by the

contract provisions. Burton v. Republic Ins. Co., 845 A.2d 889, 893 (Pa.

Super. 2004).     To this end, we give the contract’s terms their accepted

meanings and we will not distort the plain meaning to find an ambiguity. Id.

      Here, we conclude that Appellants have done just that—distorted the

plain meaning of the Policy provision to find an ambiguity.    It is axiomatic

that, as demonstrated in the cases discussed supra, the courts construe policy

language concerning residency at the time of the accident, because that is

when the resident issue is material. Appellants have not persuaded us that

there is an ambiguity in the relevant Policy provision. The parties’ intent, as

exhibited by the Policy’s terms regarding stacked benefits, indicate that the

place of Naomi’s residence at the time of the accident is the determining fact

to Appellants’ entitlement to stacked benefits. Appellants are, therefore, not

entitled to relief on this claim.

      Order affirmed.

      Judge Colins joins the memorandum.

      Judge Nichols concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/10/2020


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