Kurach, K., Aplt. v. Truck Ins. Exchange ( 2020 )

[J-3A-2020 and J-3B-2020] [MO:Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
KONRAD KURACH, : No. 12 EAP 2019
:
Appellant : Appeal from the Order of Superior
: Court entered on August 24, 2018 at
: No. 1726 EDA 2017 (reargument
v. : denied October 10, 2018) reversing
: the Order entered on April 21, 2017
: and remanding to the Court of
TRUCK INSURANCE EXCHANGE, : Common Pleas, Philadelphia
: County, Civil Division at No. 00339
Appellee : July Term, 2015.
:
: ARGUED: March 10, 2020
MARK WINTERSTEEN, INDIVIDUALLY : No. 13 EAP 2019
AND ON BEHALF OF ALL OTHERS :
SIMILARLY SITUATED, : Appeal from the Order of Superior
: Court entered on August 24, 2018 at
Appellant : No. 1730 EDA 2017 (reargument
: denied October 10, 2018) reversing
: the Order entered on April 21, 2017
v. : and remanding to the Court of
: Common Pleas, Philadelphia
: County, Civil Division at No. 03543
TRUCK INSURANCE EXCHANGE, : July Term, 2015.
:
Appellee : ARGUED: March 10, 2020
CONCURRING AND DISSENTING OPINION
JUSTICE MUNDY DECIDED: August 18, 2020
I agree with the majority opinion, except with respect to its implication that the
policy is entirely clear and unambiguous. See Maj. Op. at 16-20. Instead, I believe the
inclusion of the language “unless the law of your state requires [general contractor] fees
and charges be paid with the actual cash value settlement” in Section 5(e) of the
insurance contract creates an ambiguity. Truck Insurance Policy (“Policy”) (Exhibit A to
Wintersteen Amended Class Action Complaint, 10/2/15, at 35). More specifically, as well-
expressed by the trial court,
[o]n its face . . . the provisional language regarding state law
is ambiguous. Does exclusion of [general contractor’s
overhead and profit] apply in Pennsylvania; what about New
Jersey? The idea that a lay purchaser of a homeowner
insurance policy likely needs legal assistance to understand
what he or she is paying for is troublesome.
Trial Ct. Op., 4/21/17, at 12 (emphasis added); see also id. at 15 (concluding Section
5(e)’s state-law language is “contingent and ambiguous on its face”).
As I agree with the trial court’s rationale that Section 5(e) is ambiguous, the law
requires the Policy to be construed in favor of Appellants as the insureds. See Prudential
Property & Casualty Insurance Company v. Sartno, 903 A.2d 1170, 1174 (Pa. 2006)
(requiring ambiguous policy provisions to be construed in favor of the insured and against
the insurer). To this end, my views align with Part II of Justice Wecht’s concurring and
dissenting opinion. Accordingly, I respectfully dissent.
Justice Dougherty joins this concurring and dissenting opinion.
[J-3A-2020 and J-3B-2020] [MO: Todd, J.] - 2