Bruce v. Pennsylvania National Insurance Companies ( 1996 )

OLSZEWSKI, Judge,

dissenting:

Since I believe that a genuine issue of material fact exists in this ease, I am compelled to dissent. Specifically, I find that appellant, Andrea Brack, has succeeded in establishing a prima facie claim for fraudulent misrepresentation. Accordingly, I would remand this case for trial.

In advancing her claim of fraudulent misrepresentation, appellant places significant reliance on the statements she made in her application to appellee, Pennsylvania National Insurance Companies (PNI), through its agent, the Pennsylvania Assigned Risk Plan. In this application, appellant provided notice to PNI that, while she would be living in Pennsylvania during the policy period, she would continue to attend college in New Jersey and that she would, therefore, be travel-ling regularly between the two states to attend classes. Appellant claims that PNI’s knowledge of her desire to so travel is sufficient, in light of the provisions of her policy such as her election of the full tort option, to require disclosure by PNI of any facts material to limitations on her coverage in New Jersey.¹

“The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion.” Anderson v. Moore, 437 Pa.Super. 642, 645, 650 A.2d 1090, 1092 (1994). We note, however, that:

when we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, our scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. The moving party has the burden of proving that there is no genuine issue of material fact. The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party.

Id. (citations omitted) (emphasis added).

Employing this standard, I believe that a genuine issue of material fact exists as to whether appellant’s conduct is indeed tantamount to a finding that she informed PNI of her desire to obtain coverage in New Jersey that is equivalent to that she received for Pennsylvania. Clearly, if appellant requested such coverage, she would be entitled to disclosure by PNI of its licensed status in New Jersey since this fact alone would result in her being unable to obtain the requested coverage. See Moser v. DeSetta, 527 Pa. 157, 163, 589 A.2d 679, 682 (1991) (the concealment of a material fact can amount to culpable misrepresentation no less than does an intentional false statement). The majority fails to understand this argument and, thus, places reliance on the finding that “appellant offers no support for her contention that [the] alleged facts required [PNI] to make disclosure of its registration to do business in [New Jersey].” Majority op. at 1339.

I believe that the majority’s holding places the insurer in an unnecessarily advantageous position. I find that individuals who have provided information to an insurer regarding their New Jersey coverage requirements, should not receive inferior coverage in that state merely because of the operating status of the insurer without the opportunity to receive information from that insurer which would change their decision to purchase the coverage from it.

Based upon the foregoing, I respectfully dissent.

1 . Specifically, appellant claims that PNI should have apprised her of its status as a New Jersey insurer. This fact alone affected appellant’s eligibility to recover for noneconomic damages sustained while she was operating her vehicle in New Jersey.