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JOHNSON v. CONCORD MUTUAL INSURANCE CO. (01/19/73)

decided: January 19, 1973.

JOHNSON
v.
CONCORD MUTUAL INSURANCE CO., APPELLANT



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, No. 1122, in case of Howard Johnson v. Concord Mutual Insurance Co., et al.

COUNSEL

Bancroft D. Haviland, with him David S. Hope, and Schnader, Harrison, Segal & Lewis, for appellant.

David N. Rosen, with him Rosen, Sherwin & Seltzer, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this concurring opinion.

Author: Roberts

[ 450 Pa. Page 615]

Following a collision with an uninsured motorist, appellee, Howard Johnson, instituted a proceeding in equity against Concord Mutual Insurance Company (Concord) and Temple Insurance Agency (Temple) seeking reformation of an insurance policy under which Johnson was the insured, Concord the insurer, and Temple, Concord's agent. Appellee alleged that uninsured motorist coverage, as required by Act of August 14, 1963, P. L. 909, § 1, 40 P.S. § 2000, was not validly rejected and, therefore, was improperly excluded from the policy.

On September 13, 1966, Johnson was advised by Ira Wecksler, an agent for Temple, that his automobile insurance policy would soon expire.*fn1 At Johnson's request, Wecksler met with Johnson to arrange for a renewal of insurance. At that time, a binder-application for an insurance policy with Concord was prepared by the carrier which contained a purported waiver of uninsured motorist coverage. Johnson signed the printed

[ 450 Pa. Page 616]

    form in two places, one below the printed text of the application, the other below the challenged waiver of uninsured motorist coverage. The claimed waiver reads in fine print, "I hereby state that I do not desire uninsured motorist coverage in my auto liability policy."*fn2 The two dollar premium for such coverage was neither charged nor paid.

Johnson testified that he was 69 years old at the time he applied for renewal of insurance and that he had a fourth grade education. He stated that nothing was said about uninsured motorist coverage and neither the terms of such coverage nor the waiver of that protection were explained. Rather, he was merely told to sign on the lines on which Wecksler had placed a check-mark. Wecksler, however, testified that he did discuss the uninsured motorist provision. The relevant portions of that testimony are set forth in the margin.*fn3

[ 450 Pa. Page 617]

On March 3, 1971, the trial court issued a decree nisi which ordered Concord to include uninsured motorist coverage in the policy and which required Johnson to pay two dollars, the cost of such coverage. (The action against Temple was dismissed.) The trial court found that Johnson was "misled" by Wecksler who did not call "Plaintiff's attention to the waiver or rejection of 'uninsured motorist' coverage statement which Plaintiff signed."

On this appeal appellant, Concord, contends that the insurance policy may not be reformed because there was no finding of fraud, accident, or mistake. Furthermore, it asserts that since there was no fraud, the parol evidence rule required the exclusion of certain testimony concerning the discussions between Johnson and Wecksler. We need not decide whether or not fraud was established. Even assuming, ...


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