Clarke, T. v. MMG Insurance Co. ( 2014 )

J-A15045-14
2014 Pa. Super. 192
TIMOTHY AND DEBRA CLARKE, H/W IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
MMG INSURANCE COMPANY AND F.
FREDERICK BREUNINGER & SON,
INSURANCE, INC.
Appellees No. 2937 EDA 2013
Appeal from the Order Entered August 1, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03407
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
DISSENTING OPINION BY PANELLA, J.: FILED SEPTEMBER 04, 2014
of summary judgment, concluding that the clear and unambiguous policy
language of the contract between the Appellants and MMG grants the
Appellants UIM coverage. I disagree and respectfully dissent.
The Majority sets forth the appropriate standard and scope of review.
Where I differ is the application of the standard of review to the record
before us. In particular, I disagree that the language in the UIM Exclusions
section of the policy unambiguously supports an interpretation that MMG
was providing coverage for vehicles not otherwise referenced by the policy.
the
UIM Exclusions and contrasts its use in the UM Exclusions section of the
J-A15045-14
-Liability Cove
-
t
1
The Majority ignores these uses of the
is added to justify the application of the construction aid expressio unius est
exclusio alterious
rule of
construction, and not a rule of substantive law; it is not to be invoked
arbitrarily to bar reasonable inferences to the contrary, or when an
examination of the entire transaction reveals a different or more inclusive
Ress v. Barent, 548 A.2d 1259, 1262 (Pa. Super. 1988) (emphasis
added).
____________________________________________
1
This phrase appears in the contract in the additional following clauses: Part
B Medical Payment Coverage, Limit of Liability Clause at 5; Part C UM
Coverage Exclusions Clause, at 6; Part-C UM Coverage, Limit of Liability
Clause, at 7; UIM Endorsement, Limit of Liability Clause, at 7.
-2-
J-A15045-14
The inappropriateness of the construction aid becomes apparent if we
ort, we would be
extended beyond the declared limits by policies the Clarkes had with other
the policy to an unlimited amount. Our Supreme Court has concluded that
such interpretations of policy exclusions are generally unreasonable and
against public policy:
In light of the primary public policy concern for the increasing
costs of automobile insurance, it is arduous to invalidate an
otherwise valid insurance contract exclusion on account of that
public policy. This public concern, however, will not validate any
and every coverage exclusion; rather, it functions to protect
insurers against forced underwriting of unknown risks that
insureds have neither disclosed nor paid to insure. Thus,
operationally, insureds are prevented from receiving gratis
coverage, and insurers are not compelled to subsidize unknown
and uncompensated risks by increasing insurance rates
comprehensively.
Burstein v. Prudential Property & Cas. Ins. Co., 809 A.2d 204, 208 (Pa.
underwriting unknown risks, and providing gratis coverage depending only
upon whether the Clarkes contracted with other insurers, I conclude that the
policy.
-3-
J-A15045-14
A natural, reasonable interpretation following the plain language and
sections of the policy. Simply put, the very act of analogizing to similar, but
not equivalent, language elsewhere in the document is an implicit finding
that the term in question is ambiguous. There is no need to refer to different
terms if the term under review is unambiguous. As noted, I find no
ambiguity, but even if I did, I would reach the opposite conclusion: the only
reasonable construction of the UIM clause is that reached by the trial court.
Furthermore, the Majority is correct to note that public policy concerns
See Eichelman v. Nationwide Ins. Co., 711 A.2d 1006, 1008 (Pa. 1998).
They have also appropriately noted that this Court must give effect to clear
contractual terms and only examine public policy when enforcement of those
Prudential
Prop. & Cas. Ins. Co. v. Colbert, 813 A.2d 747, 752 (Pa. 2002). Since I
find that the term at issue unambiguously excludes the coverage sought by
the Clarkes, there is no opportunity to address the public policy implications
involved.
For all the aforementioned reasons, I respectfully dissent and would
-4-