Bielec, J. v. American International Group, Inc. ( 2017 )

J-A23026-17 & J-A23027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. BIELEC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMERICAN INTERNATIONAL GROUP, :
INC., NATIONAL UNION FIRE :
INSURANCE COMPANY OF :
PITTSBURGH, P.A., VERIZON :
COMMUNICATIONS INC. AND :
VERIZON PENNSYLVANIA :
:
:
APPEAL OF: VERIZON :
PENNSYLVANIA LLC AND VERIZON : No. 336 EDA 2017
COMMUNICATIONS INC. :
Appeal from the Order Entered December 5, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 1440 September Term, 2014
JOHN J. BIELEC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMERICAN INTERNATIONAL GROUP, :
INC. NATIONAL UNION FIRE :
INSURANCE COMPANY OF : No. 418 EDA 2017
PITTSBURGH, PA, VERIZON :
COMMUNICATIONS, INC. AND :
VERIZON PENNSYLVANIA, INC. :
:
:
APPEAL OF: NATIONAL UNION FIRE :
INSURANCE COMPANY :
OF PITTSBURGH, PA :
Appeal from the Order Entered December 5, 2016
-1-
J-A23026-17 & J-A23027-17
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 001440 September Term, 2014
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD*, J.
DISSENTING STATEMENT BY FITZGERALD, J.: FILED DECEMBER 26, 2017
I respectfully dissent from the majority’s conclusion that the UIM
rejection form in question was invalid under the MVFRL. The crux of the
matter lies in the question of whether an insured’s “tick box” designation of a
rejection of UIM coverage coupled with an insured’s signature and date at the
bottom of the document, as opposed to directly after the statutorily required
UIM rejection language, is sufficient to constitute “specific compliance” with
75 Pa.C.S. § 1731(c.1). In my view, it is.
As noted by the majority, our Supreme Court has recently addressed
specific compliance and Section 1731:
The focus of this appeal is on determining what the General
Assembly intended when it stated, “Any rejection form that
does not specifically comply with this section is void.” Id. at
§ 1731(c). We acknowledge that there is surface appeal to
[the insured’s] argument that insurers’ UIM rejection forms
must exactly reflect the statutory rejection form to comply
with Section 1731 of the MVFRL. See e.g. id. § 1731(c.1)
(providing that “[i]nsurers shall print the rejection forms
required by subsections (b) and (c) on separate sheets in
prominent type and location”). However, contrary to [the
insurer’s] position, the General Assembly simply did not
mandate that UIM coverage rejection forms must be
verbatim reproductions of the statutory rejection form found
in Subsection 1731(c) of the MVFRL. Rather, the General
Assembly adopted language which requires UIM rejection
forms to “specifically comply” with “this section,” i.e.,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
-2-
J-A23026-17 & J-A23027-17
Section 1731 of the MVFRL, as juxtaposed to mandating that
the form verbatim follow the statutory rejection form. Id.
at § 1731(c.1). In other words, an insurer’s UIM coverage
rejection form is valid so long as the form specifically
complies with Section 1731 of the MVFRL.
Ford v. American States Insurance Company, 154 A.3d 237, 245 (Pa.
2017).
In Ford, the UIM rejection form in question deviated from the statutorily
prescribed form in that instead of “motorist” the form refers to “motorists” in
two locations and the word “motorists” is added in one location. Id. at 240.
Our Court concluded “such a form does not modify coverage or inject
ambiguity into the statutory form, and an insured’s signature on the slightly
altered form demonstrates that the insurer offered UIM coverage to the
insured and that the insured understood what she was doing when she
declined coverage.” Id. at 245.
Likewise, in the instant case, the UIM form in question mirrors the
language set forth in Section 1731(c) almost exactly, with the slight variation
of the “tick box” used to designate the desire to reject UIM coverage. Thus,
the “tick box” alone is a de minimis variation which did not “modify coverage
or interject ambiguity into the standard form” such that the form at issue
should be considered void for lack of specific compliance. See Ford 154 A.3d
at 245.
As emphasized by the majority, the fact that the signature and date line,
directly after the requisite language, went unsigned by Appellee represents a
more significant deviation from the statutory form set forth under Section
-3-
J-A23026-17 & J-A23027-17
1731(c). As the majority notes, this Court concluded in Jones v. Unitrin
Auto and Home Ins. Co., 40 A.3d 125, 129-130 (Pa. Super. 2012), that the
“proximal relationship” between the UIM rejection language and the signature
of the insured was a critical component of specific compliance. In Jones, the
addition of language stating “[b]y rejecting this coverage, I am also signing
the waiver on p. 13 rejecting stacked limits of underinsured motorist
coverage” prior to the signature and date line, caused this Court to conclude
that the UIM rejection form was void for lack of specific compliance.
However, as noted by the dissent in Jones, the Pennsylvania Supreme
Court held in Winslow-Quattlebaum v. Maryland Ins. Group, 752 A.2d
878 (Pa. 2000), that specific compliance with Section 1731(c) is not defeated
by having the rejection of UIM benefits and the rejection of UIM stacking
benefits appear on the same form. Winslow-Quattlebaum, 752 A.2d at
882. Further, our Supreme Court noted that the plain language of Section
1731(c.1) does not require that a UIM rejection must stand alone on a page
with no additional writing. Id. Moreover, although the form provided by the
legislature in Section 1731(c) does show the required language as appearing
directly above the signature and date lines, neither Section 1731(c) nor
1731(c.1), otherwise defines the “proximal relationship” required between
these elements. Indeed, our Court has held that a UM waiver form which
otherwise complied with the requirements of § 1731(b), was not “any less
valid” even though it was placed on the reverse side of a rental car contract
-4-
J-A23026-17 & J-A23027-17
and the insured’s signature only appeared on the front side. Smith v.
Enterprise Leasing Co., 833 A.2d 751, 755 (Pa. Super. 2003).
In the instant case, the authorized signature of Verizon’s agent was
separated from the required statutory text by two paragraphs, which Appellant
did not affirmatively select by “ticking the box” provided next to either
paragraph.1 Instead, the Verizon representative signed at the bottom of the
document, which is certainly not counter-intuitive, after a paragraph
indicating that she understood the protections afforded by the UIM section of
the document and that she understood that her selections would apply to her
policy. Therefore, I would conclude that declaring the UIM waiver at issue
void would elevate hyper-technical discrepancies over a specifically compliant
waiver which offered the insured UIM benefits via the statutorily required
language reproduced verbatim and demonstrated that the insured understood
that she was declining coverage. See Ford 154 A.3d at 245; Petty v.
Federated Mutual Insurance Company, 152 A.3d 1020, 1025-26 (Pa.
Super. 2016)(holding minor deviations from Section 1731(c) waiver form did
not require waiver to be declared void).
____________________________________________
1
As noted by the majority, the paragraphs that went unselected by Appellee
were entitled “Selection of Limits” and “Underinsured Coverage Limits.”
-5-