Richards, J. v. Nationwide Property

J-A22022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JACQUELINE M. RICHARDS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NATIONWIDE PROPERTY AND : No. 332 WDA 2022
CASUALTY INSURANCE COMPANY :
Appeal from the Order Dated February 23, 2022
In the Court of Common Pleas of Fayette County Civil Division at No(s):
No. 289 of 2019, G.D.
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 27, 2022
Appellant, Jacqueline M. Richards, appeals from the February 23, 2022
Order entered in the Fayette County Court of Common Pleas granting the
motion for summary judgment filed by Appellee, Nationwide Property and
Casualty Insurance Company (“Nationwide”), denying her motion for partial
summary judgment, and dismissing her complaint in this insurance coverage
dispute. After careful review, we affirm.
The relevant facts and procedural history are as follows. On June 5,
2016, Appellant sustained injuries in an automobile accident while she was a
passenger in a vehicle operated by her husband.1 At the relevant time,
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* Retired Senior Judge assigned to the Superior Court.
1Appellant’s husband lost control of the couple’s vehicle and struck a concrete
highway divider.
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Appellant was a policyholder of two Nationwide policies. Nationwide issued
the first policy (“First Policy”) to Appellant and her husband covering the car
involved in the instant accident. The second policy (“Second Policy”), also
issued to Appellant and her husband, covered other household vehicles.
Because Appellant’s husband was the at-fault driver in the accident,
Appellant made a bodily injury claim under the First Policy. Nationwide paid
the policy limits of $50,000 under the First Policy. On April 12, 2018, Appellant
executed a release (“Release”) of Nationwide as to all claims arising from the
accident in exchange for receiving those funds.
Appellant then filed a claim arising from the same accident seeking
underinsured motorist (“UIM”) benefits under the Second Policy. She asserted
that she and Nationwide mutually understood that the Release would not
affect her UIM claim.
On May 9, 2018, Nationwide denied Appellant’s claim under the Second
Policy, citing the Second Policy’s definition of an “underinsured motor vehicle,”
which excluded UIM benefits for “any motor vehicle furnished for the regular
use of you, a resident, or a relative.”2
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2 Nationwide also denied coverage based on the Second Policy’s regular use
exclusion. Nationwide, however, abandoned this basis for denial in its Answer
and New Matter filed on July 30, 2021. See Answer and New Matter, 7/30/21,
at ¶ 14
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Following Nationwide’s denial of her UIM claim, on July 8, 2021,
Appellant filed an Amended Complaint3 seeking, inter alia, a declaratory
judgment that the policy exclusion invoked by Nationwide as the basis for
denial of her UIM claim—the underinsured motor vehicle exclusion—was
unenforceable because it conflicted with the mandates of the Motor Vehicle
Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. §§ 1701-1799.7.
On July 30, 2021, Nationwide filed an Answer and New Matter in which
it asserted that the Second Policy’s underinsured motor vehicle exclusion was
not in conflict with the relevant provision of the MVFRL and was, therefore,
enforceable to bar Appellant’s UIM claim. Nationwide also raised, for the first
time, the Release as a basis for denying Appellant’s UIM claim.
On August 31, 2021, Appellant filed a response to Nationwide’s new
matter. Appellant asserted that the Release did not bar her claims because,
inter alia, Nationwide waived the effect of the Release and was equitably
estopped from asserting the Release as a defense because Nationwide did not
initially invoke it to deny coverage.
Following the close of discovery, on September 29, 2021, Appellant filed
a Motion for Partial Summary Judgment seeking a judgment as a matter of
law that the Second Policy’s underinsured motor vehicle exclusion was
unenforceable because: (1) it conflicts with the MVFRL; and (2) it is a de facto
waiver of UIM benefits.
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3Appellant filed her initial Complaint in Declaratory Judgment on February 8,
2019.
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On November 5, 2021, Nationwide filed an answer to Appellant’s motion
denying that the underinsured motor vehicle exclusion conflicts with the
MVFRL and that it operates as a de facto waiver of UIM coverage.
On December 7, 2021, Nationwide filed a Motion for Summary Judgment
averring that it was entitled to judgment as a matter of law because both the
Release and the Second Policy’s underinsured motor vehicle exclusion barred
Appellant’s claims. Appellant filed a response in which she argued, inter alia,
that a genuine issue of material fact existed as to whether that the Release
was the product of mutual mistake and was, therefore, unenforceable. She
also restated the arguments she asserted in her motion for summary
judgment, i.e., waiver and estoppel.
On February 23, 2022, the trial court granted summary judgment in
favor of Nationwide after concluding that the Release barred Appellant’s
claims.
This timely appeal followed. Appellant complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) statement. The trial court filed a statement
in lieu of a Rule 1925(a) opinion referring this Court to its February 23, 2022
opinion for discussion of Appellant’s issues.
Appellant raises the following three issues on appeal:
I. Whether the trial court erred in dismissing [] Appellant’s
First Amended Complaint when issues of fact existed as to
whether Nationwide [] waived the effect of the release?
II. Whether the trial court erred in dismissing Appellant’s First
Amended Complaint when issues of fact existed as to
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whether Nationwide [] was estopped from invoking the
release as a basis to deny coverage?
III. Whether the trial court erred in failing to determine that
Nationwide[’s] [d]efinitional [l]imitation, which is the
operational equivalent of the regular use exclusion, violated
the [MVFRL] and is unenforceable?
Appellant’s Brief at 4.
A.
Appellant challenges the trial court’s order granting summary judgment
in favor of Nationwide. Our Supreme Court has clarified our role as the
appellate court as follows:
On appellate review [ ], an appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo. This
means we need not defer to the determinations made by the lower
tribunals. To the extent that this Court must resolve a question of
law, we shall review the grant of summary judgment in the
context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations
and quotation omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Id.(citation omitted); see also Pa.R.C.P. 1035.2(1). “When considering a motion
for summary judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the non-moving
party.” Summers, 997 A.2d at 1159. “In so doing, the trial court must
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resolve all doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary judgment
where the right to such judgment is clear and free from all doubt.” Id.
(citation and internal quotation marks omitted).
B.
In her first issue, Appellant asserts that the trial court erred as a matter
of law in concluding that Nationwide had preserved the right to assert the
preclusive effect of the Release even though Nationwide did not rely on the
Release as a ground for denying Appellant’s UIM claim in the denial of
coverage letter. Appellant’s Brief at 14-17. She concedes that the language
of the Release is unambiguous and acknowledges that she executed it. Id. at
14. She further concedes that the purpose of the Release was to obtain a
settlement from Nationwide under the First Policy, that she read the Release,
and that she signed it on the advice of counsel. See N.T. Appellant Deposition,
4/22/21, at 36-37. Nevertheless, she concludes that “Nationwide’s failure to
invoke the release when denying [her] UIM claim demonstrates its waiver of
the same against [] Appellant.” Appellant’s Brief at 16. She also avers that
she suffered prejudice by Nationwide’s actions because, had Nationwide
informed her that the Release precluded her UIM claim she would not have
filed the instant lawsuit challenging the Second Policy’s regular use and
underinsured motor vehicle exclusions. Id. at 17.
“Waiver is the voluntary and intentional abandonment or relinquishment
of a known right.” Prime Medica Assoc. v. Valley Forge Ins. Co., 970 A.2d
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1149, 1156 (Pa. Super. 2009). “Waiver may be established by a party’s
express declaration or by a party’s undisputed acts or language so inconsistent
with a purpose to stand on the contract provisions as to leave no opportunity
for a reasonable inference to the contrary.” Id. at 1157 (citation omitted).
In the absence of the express waiver of a right by one party,
Pennsylvania courts will only presume or impute waiver where the person
claiming the waiver can show that he was misled by the conduct of the
opposing party and was prejudiced thereby. Zivari v. Willis, 611 A.2d 293,
295 (Pa. Super. 1992) (citations omitted). Thus, absent a showing of
prejudice to the insured, the failure to raise all possible defenses in a denial
of coverage letter is not a waiver. See Nationwide Mut. Ins. Co. v. Nixon,
682 A.2d 1310, 1314 (Pa. Super. 1996) (where the court rejected a claim that
failing to include a defense in its reservation of rights letter constituted waiver,
where the insured was on notice of the denial of coverage and suffered no
prejudice.).
Appellant does not dispute that Nationwide did not expressly waive its
right to enforce the Release. Thus, as established by the foregoing authority,
Appellant’s claim that Nationwide waived the preclusive effect of the Release
simply by not invoking it in the initial denial of coverage letter fails. To be
entitled to relief, Appellant must, therefore, demonstrate that Nationwide’s
conduct misled her and that she suffered prejudice.
Appellant argues in her Brief that Nationwide’s failure to rely on the
Release when initially denying her claim caused her prejudice by inducing her
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into filing the instant lawsuit. Appellant’s Brief at 16. She asserts that “[h]ad
Nationwide premised its denial of her UIM claim on the [R]elease, [Appellant]
would likely have terminated her claims.” Id. at 17. This Court’s review of
the certified record, including Appellant’s response to Nationwide’s motion for
summary judgment and Appellant’s Rule 1925(b) statement, indicates that
Appellant has raised this prejudice argument for the first time on appeal. It
is, thus, waived.4 See Pa.R.A.P. 302(a) (“Issues not raised in the trial court
are waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.
1925(b)(4) (requiring an appellant to “identify each error that [she] intends
to assert with sufficient detail to identify the issue to be raised for the [trial]
judge.”).
In sum, we conclude that the trial court properly found that no genuine
issue of material fact exists as to the applicability of the Release to bar
Appellant’s UIM claim. Accordingly, we affirm the trial court’s order granting
Nationwide’s motion for summary judgment.5
Order affirmed.
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4Moreover, even if she had not waived this issue, Appellant’s bald claim that
Nationwide’s conduct induced her into filing this lawsuit and that, as a result,
she suffered prejudice, would not entitle her to relief.
5 In light of our disposition, we need not address Appellant’s remaining issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/27/2022
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