Lowry v. State Farm Ins. Companies , 392 Pa. Super. 77 ( 1990 )

MONTGOMERY, Judge:

This appeal arises from an Order of the trial court which granted a motion for judgment non obstante veredicto in favor of the Defendant-Appellee, State Farm Insurance Companies (hereinafter “State Farm”). Further, the trial court’s Order denied a motion for a new trial which was submitted by Plaintiff-Appellant Richard E. Lowry. After careful review, we have concluded that the trial court’s grant of judgment n.o.v. must be reversed, and the verdict of the jury reinstated.

The procedural background of this case shows that the Plaintiff instituted this action seeking two types of recoveries from the Defendant, based upon Defendant’s insurance coverage of a vehicle owned by the Plaintiff. In the first Count of his Amended Complaint, Mr. Lowry sought to recover under the so-called comprehensive coverage of the policy, for damages to the vehicle which occurred during an incident which will be more fully described later in this Opinion. Count Two of the Amended Complaint sought a recovery of triple damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Act of December 17, 1968, P.L. 1224 No. 387, § 1 et seq., as amended, 73 P.S. 201-1 et seq.) The case was tried before a jury, which rendered a verdict in favor of the Plaintiff for $21,-100.00, the stipulated amount of damages which had occurred to the vehicle. Prior to the submission of the case to the jury, the trial judge had granted a defense motion for compulsory nonsuit as to Count Two of the Amended Complaint. After the verdict, the court granted the State Farm motion for judgment n.o.v. The Plaintiff’s request for new trial was submitted in connection with the trial court’s rejection of the triple damages claim set forth in Count Two of the Complaint. As noted above, the trial court rejected the motion for a new trial.

In the review of the record in an appeal from an order of a trial court which has granted judgment n.o.v., we are required to consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Northwest Savings Association v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986). We shall apply that principle in the analysis of this case.

The record shows that the Plaintiff was semi-retired and spent the winter months in Florida. He owned several vehicles which he used in Pennsylvania only during the warmer weather months of the year. Among these seasonal vehicles was a 1985 Chevrolet Corvette.

In the winter of 1986-1987, the Plaintiff had the Corvette parked at the residence of his son, Richard E. Lowry, Jr. The license plate was removed from the vehicle while it was stored there. On March 29, 1987, Richard E. Lowry, Jr. was away from home on a business trip and had an acquaintance, Steven M. Bell, staying at his residence as a “house sitter”.

Without authorization to do so, Bell took a license plate from a truck that was parked on the property, and put it on the Corvette. He also located the keys for the Corvette, and took the Corvette for a drive. He wrecked the vehicle, causing the stipulated damages of $21,100.00. It was agreed that while Bell had no permission to drive the vehicle, he took it with an intent to return it to the Lowry residence.

At the time of the loss, the vehicle was not covered by so-called “collision” coverage, but only by comprehensive coverage. The latter provided protection for a loss resulting from a “theft” of the vehicle, but did not cover loss from the “unauthorized use” of the automobile. It was on this basis that State Farm eventually refused to pay the claim of Lowry, leading to the filing of this action. State Farm maintained that the conduct of Bell amounted to an “unauthorized use” of the Corvette, and not a “theft”.

The Plaintiff testified regarding the circumstances which resulted in his lack of collision coverage on the Corvette at the time of the loss. He related that he had relied completely upon the advice of State Farm’s selling agent in providing for his coverages. Because of his habit of storing the Corvette and other vehicles in Pennsylvania while he lived in Florida each winter, and the fact that neither he nor any other person was expected to or authorized to drive them on the roads during this time, it was arranged by the State Farm agent that the collision coverage on such vehicles would be cancelled during the winter, and automatically reinstated on April 1 of each year. Although he never read his policy, the Plaintiff recalled that the insurance agent had assured him that the comprehensive coverage that remained in effect during these winter months would provide protection against losses arising from theft, larceny, malicious mischief and vandalism. The winter cancellation of the collision protection policy provisions was designed to save Mr. Lowry some premium charges when the stored vehicles, including the Corvette, were not expected to be used.

At the conclusion of the Plaintiff’s case, the Defendant sought a compulsory non-suit on both Counts of the Amended Complaint. In denying the motion for non-suit as to Count One, the trial judge remarked that the comprehensive provisions of the policy regarding “theft” were ambiguous, and that he thought that a layperson purchasing comprehensive insurance would believe he had coverage for the loss which resulted in the circumstances of this case. After initially denying the defense motion as to Count Two, the court subsequently granted non-suit as to the Plaintiff’s claim for triple damages under the Unfair Trade Practices and Consumer Protection Law.

The trial court, in its charge, provided the jurors with a dictionary definition of theft, discussed the Crimes Code definition of theft, and informed the jury that the taking of the vehicle by Steven Bell without permission was an unlawful taking, without regard to whether or not he intended to return it. After the jury rendered its verdict for the Plaintiff in the stipulated amount of the damage to the vehicle, both parties filed their post-trial motions.

In his Opinion, the trial judge explained his rationale for granting judgment n.o.v. for State Farm. He noted that the insurance policy provided coverage for theft, larceny, malicious mischief and vandalism under its comprehensive coverages. He said that the basic issue in the case was the meaning of “theft”. Further, he stated that almost any insured would believe that Steven Bell was a “thief” the moment he removed the vehicle from the premises, and that the insured would conclude he had coverage under the comprehensive policy provision covering theft, whether or not the taking of the auto was intended to be temporary or permanent. However, the trial court concluded that under Pennsylvania law, a common-law definition of theft had to be applied in the construction of an insurance policy theft provision in cases such as the instant one. Thus, the court ruled that in our Commonwealth, the insured must prove that the taker had the criminal intent to permanently deprive the owner of his property in order to recover under a policy providing for theft coverage. In that regard, the trial court relied upon Penn-Air, Inc. v. Indemnity Insurance Co. of North America, 439 Pa. 511, 269 A.2d 19 (1970); Hilliard Lumber Company v. Harleysville Mutual, 175 Pa.Super. 94, 103 A.2d 436 (1954); Gillespie v. Export Insurance Company, 114 Pa.Super. 398, 174 A. 602 (1934); and Seither v. Pennsylvania Manufacturers Association, 104 Pa.Super. 260, 159 A. 53 (1932).

While it is not difficult to see why the trial court felt itself bound by these precedents, we do not find that these decisions provide current support for the trial court’s rejection of the jury’s verdict in favor of the Plaintiff. All of those old cases relied upon the then-current criminal common-law definition of theft in the civil analysis of insurance policy references to that term. Under such an analysis, the theft coverage of a policy was found to be applicable only in the circumstances where the taker intended to permanently deprive the insured of the covered vehicle or other asset.

Such an approach is illogical under the current law of our Commonwealth, in which the common-law definition of “theft” is no longer applied, even in our criminal courts. The codification of “theft” and related offenses in our 1972 Crimes Code changed the common-law definitions of the same terms. See the Act of December 6, 1972, P.L. 1482, No. 334, § 1 et seq., 18 Pa.C.S.A. § 101 et seq., effective June 6, 1973. The Crimes Code includes separate definitions of theft offenses, including theft by unlawful taking or disposition [18 Pa.C.S.A. § 3921(a)], and unauthorized use of automobiles and other vehicles [18 Pa.C.S.A. § 3928(a)]. In 18 Pa.C.S.A. § 3902, the Code provides: “Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter____” The Supreme Court has held that § 3902 was specifically made a part of the Crimes Code section dealing with theft and related offenses to avoid the types of technicalities which previously distinguished different varieties of that general category of offense. See Commonwealth v. Rosenzweig, 514 Pa. 111, 121, 522 A.2d 1088, 1094 (1987). Thus, if the trial court felt compelled to apply a criminal law analysis to the resolution of what the terms of the insurance policy meant in this case, it should have applied the criminal law which was effective when the subject insurance contract was entered into, rather than common-law definitions which have not been a part of the law in our Commonwealth for almost twenty years.

The jurors were supplied with an adequate instruction as to the meaning of the term “theft”, and applied their reasoning and broad discretion to conclude that the insurance policy comprehensive theft provision afforded coverage to the Plaintiff in the circumstances presented in this case. The verdict could only be overturned by applying an outdated common-law definition of theft, in reliance upon precedents which pre-dated the enactment of the Crimes Code in our Commonwealth. We find no justification for such a strained and overly-technical analysis of the insurance contract in this case. Accordingly, we will reverse the grant of judgment n.o.v., and reinstate the jury’s verdict for the Plaintiff.

We do not find fault with the trial court’s rejection of the Plaintiff’s claims under Count Two of the Amended Complaint. In short, we agree with the trial court’s determination that admissable evidence was not presented to establish the type of misrepresentation the Plaintiff alleged in his Amended Complaint, to prove deceptive or unfair practices which would entitle him to a recovery under the Unfair Trade Practices and Consumer Protection Law. We can discern no error in the trial court’s rulings regarding the evidence on that issue, and regarding the Plaintiff’s effort to amend his Amended Complaint at trial. Therefore, we reject the Plaintiff’s contentions that a new trial should have been granted as to his claims under Count Two of the Amended Complaint.

The trial court’s Order granting judgment non obstante veredicto is reversed and the jury’s verdict in favor of the Plaintiff-Appellant is reinstated. In all other regards, the Order of the trial court is hereby affirmed.

POPOVICH, J. files a dissenting Opinion.