Ford, A., Aplt. v. American States Ins.

[J-108-2016] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
ALISHA L. FORD, : No. 13 WAP 2016
:
Appellant : Appeal from the Order of the Superior
: Court entered December 30, 2015 at
: No. 1800 WDA 2014, affirming the
v. : Order of the Court of Common Pleas of
: Westmoreland County entered October
: 17, 2014 at No. 3733 of 2013
AMERICAN STATES INSURANCE :
COMPANY, : ARGUED: November 2, 2016
:
Appellee :
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: FEBRUARY 22, 2017
In Section 1731 of the Motor Vehicle Financial Responsibility Law (MVFRL), the
General Assembly did not merely instruct insurers to have insureds sign a form rejecting
uninsured and underinsured motorist coverage. Instead, the General Assembly drafted
the precise language to be used in those rejection forms, directed insurers to have
insureds sign those particular forms, and provided that any form that fails to “specifically
comply” with this requirement is void. 75 Pa.C.S. § 1731(c.1). The learned Majority’s
decision to allow insurers to vary the General Assembly’s prescribed language in these
forms ignores, in my view, both the actual instructions in Section 1731 and the rules of
statutory construction this Court must follow. Accordingly, I must respectfully dissent.
The purpose of statutory interpretation is to ascertain and give effect to the
General Assembly's intent. 1 Pa.C.S. § 1921(a). If the language of a statute
unambiguously sets forth the legislative intent, it is the duty of the court to apply that
intent to the case at hand and not look beyond the statutory language to ascertain its
meaning. See Mohamed v. Com., Dep't of Transp., Bureau of Motor Vehicles, 40 A.3d
1186, 1193 (Pa. 2012); 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.”). In giving effect to the words of the legislature, “we should not
interpret statutory words in isolation, but must read them with reference to the context in
which they appear.” Mishoe v. Erie Ins. Co., 824 A.2d 1153, 1155 (Pa. 2003) (citing
O'Rourke v. Department of Corr., 778 A.2d 1194, 1201 (Pa. 2001).
The intent of the General Assembly with respect to the rejection of uninsured and
underinsured motorist coverages under Section 1731 is clear. Subsections (b) and (c)
provide that the named insured may reject the coverages “by signing the following
written rejection form,” and then set forth the form that the insured must sign.
Subsection (c), at issue here, reads as follows:
Underinsured motorist coverage.--Underinsured motorist
coverage shall provide protection for persons who suffer
injury arising out of the maintenance or use of a motor
vehicle and are legally entitled to recover damages therefor
from owners or operators of underinsured motor vehicles.
The named insured shall be informed that he may reject
underinsured motorist coverage by signing the following
written rejection form:
REJECTION OF UNDERINSURED MOTORIST
PROTECTION
By signing this waiver I am rejecting underinsured motorist
coverage under this policy, for myself and all relatives
residing in my household. Underinsured coverage protects
me and relatives living in my household for losses and
damages suffered if injury is caused by the negligence of a
driver who does not have enough insurance to pay for all
[J-108-2016] [MO: Baer, J.] - 2
losses and damages. I knowingly and voluntarily reject this
coverage.
__________________________
Signature of First Named Insured
__________________________
Date
75 Pa.C.S. § 1731(c) (emphasis added). Subsection (c.1) then instructs the insurer to
print these forms (“the rejection forms required by subsections (b) and (c)”) on separate
sheets of paper and have them signed and dated by the named insured. 75 Pa.C.S.A.
§ 1731(c.1).1 To emphasize the absolute need for strict conformity with these
requirements, the General Assembly unambiguously provided that “[a]ny rejection form
that does not specifically comply with this section is void.” Id.
1
Section 1731(c.1) provides:
(c.1) Form of waiver.--Insurers shall print the rejection
forms required by subsections (b) and (c) on separate
sheets in prominent type and location. The forms must be
signed by the first named insured and dated to be valid. The
signatures on the forms may be witnessed by an insurance
agent or broker. Any rejection form that does not
specifically comply with this section is void. If the
insurer fails to produce a valid rejection form, uninsured or
underinsured coverage, or both, as the case may be, under
that policy shall be equal to the bodily injury liability limits.
On policies in which either uninsured or underinsured
coverage has been rejected, the policy renewals must
contain notice in prominent type that the policy does not
provide protection against damages caused by uninsured or
underinsured motorists. Any person who executes a waiver
under subsection (b) or (c) shall be precluded from claiming
liability of any person based upon inadequate information.
75 Pa.C.S.A. § 1731(c) (emphasis added).
[J-108-2016] [MO: Baer, J.] - 3
Rather than require specific compliance with the dictates of Section 1731, as
subsection (c.1) plainly instructs, the Majority opts for a “close is good enough”
approach. According to the Majority, an insurer need not have the insured sign the
precise rejection forms the legislature set forth in subsections (b) and (c), as the insurer
may use any form that adequately conveys the substance of the statutorily prescribed
forms. Instead of demanding specific compliance, as the statute requires, the Majority
is satisfied with substantial compliance. Nowhere in Section 1731 does the General
Assembly give insurers any discretion to modify the language of the rejection forms in
subsections (b) and (c), and this Court cannot, in an effort to capture the “spirit” of
Section 1731, rewrite it to reach a preferred result. Here, the Majority has effectively
rewritten Section 1731 to add language that the legislature did not include, namely that
an insurer may make changes to the statutory language if the changes do not “modify
coverage or inject ambiguity into the statutory form.” Majority Op. at 14. This Court,
however, has no such authority, as we may not add, by interpretation, language to a
statute that the legislature did not see fit to include. See, e.g., Shafer Elec. & Const. v.
Mantia, 96 A.3d 989, 994 (Pa. 2014); Commonwealth v. Johnson, 26 A.3d 1078, 1090
(Pa. 2011). Section 1731 straightforwardly instructs the insurer to print the rejection
forms in subsections (b) and (c) on separate sheets of paper and have the insured
sign and date them, with no mention of alterations.
If the General Assembly had intended to permit changes (de minimis or
otherwise) to the statutory language of the rejection forms in subsections (b) and (c), it
was certainly capable of doing so. In fact, it did do so elsewhere in Section 1731.
Subsection 1731(b.1) sets forth rejection language to be used when an insured waives
[J-108-2016] [MO: Baer, J.] - 4
uninsured motorist coverage in rental or lease agreements.2 Subsection 1731(b.2) then
provides:
(b.2) Rejection language change.--The rejection language
of subsection (b.1) may only be changed grammatically to
reflect a difference in tense in the rental agreement or lease
agreement.
75 Pa.C.S.A. § 1731(b.2).
The General Assembly did not include any “rejection language change”
provisions in connection with subsections (b) or (c). The obvious implication is that
while an insurer may, in some circumstances, modify the rejection language of
subsection (b.1), an insurer has no similar discretion with respect to the rejection
language in subsections (b) and (c). See, e.g., Johnson v. Lansdale Borough, 146 A.3d
696, 709 (Pa. 2016) (“[W]hen interpreting a statute we must listen attentively to what the
statute says, but also to what it does not say.“); Kmonk-Sullivan v. State Farm Mut.
2
Subsection 1731(b.1) provides:
(b.1) Limitation of rejection.--Uninsured motorist protection
may be rejected for the driver and passengers for rental or
lease vehicles which are not otherwise common carriers by
motor vehicle, but such coverage may only be rejected if the
rental or lease agreement is signed by the person renting or
leasing the vehicle and contains the following rejection
language:
REJECTION OF UNINSURED MOTORIST PROTECTION
I am rejecting uninsured motorist coverage under this rental
or lease agreement, and any policy of insurance or self-
insurance issued under this agreement, for myself and all
other passengers of this vehicle. Uninsured coverage
protects me and other passengers in this vehicle for losses
and damages suffered if injury is caused by the negligence
of a driver who does not have any insurance to pay for
losses and damages.
75 Pa.C.S.A. § 1731(b.1).
[J-108-2016] [MO: Baer, J.] - 5
Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001) (citing Felix Frankfurter, Some Reflections
on the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947)). The juxtaposition
between the legislative grant of authority to insurers to make de minimis (grammatical)
changes to the rejection language in subsection (b.1), while simultaneously requiring
insurers to “specifically comply” with subsections (b) and (c), plainly demonstrates that
the General Assembly intended for the rejection forms prepared under the latter
subsections to contain the precise waiver language set forth therein.
The Majority’s interpretation also conflicts with other rules of statutory
interpretation. Whenever possible, this Court must construe statutory provisions to give
effect to every word set forth therein. See, e.g., Pantuso Motors, Inc. v. Corestates
Bank, N.A., 798 A.2d 1277, 1282 (Pa. 2002) (citing 1 Pa.C.S. § 1921(a)). By permitting
changes to the statutorily prescribed rejection forms, the Majority ignores the word
“specifically” in the phrase “specifically comply” in subsection (c.1). The Majority has,
essentially, decided that mere “compliance” with the overall spirit of Section 1731 is
sufficient, so long as the lack of specific compliance is not substantial.
The legislature’s use of the phrase “specifically comply” in subsection (c.1) was
intentional. Subsection 1738(d) of the MVFRL, for instance, sets forth rejection forms
for insureds to waive stacked limits on uninsured and underinsured motorist coverage,
and Subsection 1738(e) then provides that any rejection form “that does not comply
with this section is void.” 75 Pa.C.S. § 1738(d)-(e) (emphasis added). As the Superior
Court has rightly concluded, this crucial difference signals the need to apply more
exacting scrutiny of the relevant forms in Section 1731 than to those in Section 1738.
Am. Int’l Ins. Co. v. Vaxmonsky, 916 A.2d 1106, 1109 (Pa. Super. 2006).
[J-108-2016] [MO: Baer, J.] - 6
Finally, while the Majority concedes that “it is ill-advised for an insurer” to make
any changes to the statutorily prescribed forms, I conclude that the express language of
Section 1731 prohibits any changes to the legislatively drafted forms set forth in
subsections (b) and (c). As a practical matter, it is exceedingly easy not to make
changes, as the required language may be copied and pasted, or re-typed and
meticulously reviewed for deviations (inadvertent or otherwise). The Majority’s contrary
approach allows insurers to continue to tinker, ad nauseam, with the statutorily required
language. As the Majority’s review of multiple cases on this very issue demonstrates,
refusal to adhere to the forms mandated by the statute will continue to require courts to
oversee case after case in which parties contest whether particular modifications to the
statutorily prescribed form were merely inconsequential or instead injected ambiguity
into its language. This is the precise tinkering and judicial involvement that the
legislature intended to avoid and I am at a loss to understand why this Court would
inject uncertainty into this abundantly clear expression of legislative direction.
Because, in my view, the General Assembly did not intend this result, I dissent.
Justice Todd joins this dissenting opinion.
[J-108-2016] [MO: Baer, J.] - 7