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HARRY J. PERRY v. LIBERTY MUTUAL INSURANCE COMPANY AND COMMONWEALTH PENNSYLVANIA (12/12/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 12, 1984.

HARRY J. PERRY, PETITIONER
v.
LIBERTY MUTUAL INSURANCE COMPANY AND COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, ANTHONY A. GEYELIN, ACTING INSURANCE COMMISSIONER, RESPONDENTS

Appeal from the Order of the Insurance Commissioner of the Commonwealth of Pennsylvania in case of In Re: Appeal of Harry J. Perry v. Liberty Mutual Insurance Company, Docket No. PH82-4-2.

COUNSEL

John A. Eichman, III, for petitioner.

Daniel J. Gallagher, with him, Joseph R. Thompson, for respondent, Liberty Mutual Insurance Company.

Samuel R. Marshall, Assistant Counsel, with him, Beth Sheligo, for respondent, Insurance Department of the Commonwealth of Pennsylvania.

Judges Williams, Jr., and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 86 Pa. Commw. Page 401]

Harry J. Perry (Petitioner) appeals an order of the Acting Insurance Commissioner of Pennsylvania (Commissioner) upholding the non-renewal of Petitioner's automobile insurance by Liberty Mutual Insurance Company (Liberty Mutual). Liberty Mutual determined not to renew Petitioner's policy because Alice Perry, Petitioner's wife, was involved in two accidents during a 36-month period of time while operating automobiles owned by Petitioner.

[ 86 Pa. Commw. Page 402]

Our scope of review of an order of the Insurance Commission is limited to a determination of whether constitutional rights have been violated, an error of law was committed or the findings of fact were not supported by substantial evidence. Travelers Indemnity Company of America v. Commonwealth of Pennsylvania, Insurance Department, 63 Pa. Commonwealth Ct. 542, 545, 440 A.2d 645, 646 (1981).

Petitioner initially contends that his wife was not at fault in the first accident. Under Section 3(b) of the Automobile Insurance Act (Act),*fn1 "[n]o insurer shall cancel or refuse to renew a policy of automobile insurance on the basis of one accident within the thirty-six month period prior to the upcoming anniversary date of the policy." By implication, two accidents justify an insurer's cancellation or refusal to renew. Tabas Appeal, 81 Pa. Commonwealth Ct. 527, 473 A.2d 1143, 1144 (1984).

Section 3(a)(13) of the Act*fn2 provides that an insurer cannot cancel or refuse to write or renew a policy based on an accident which occurs under any of nine different enumerated circumstances.*fn3 If the first accident involved any of these enumerated circumstances, then Liberty Mutual could not refuse to renew Petitioner's policy solely on the basis of Petitioner's

[ 86 Pa. Commw. Page 403]

    second accident. Tabas Appeal, 81 Pa. Commonwealth Ct. at 427, 473 A.2d at 1144. Petitioner, however, contends only that his wife was not at fault in the first accident. Since the Act nowhere states that an insurer must renew a policy merely because the insured was not at fault, Liberty Mutual was justified in refusing to renew Petitioner's policy.*fn4

Petitioner next contends that Liberty Mutual forfeited any right to refuse renewal of his policy when

[ 86 Pa. Commw. Page 404]

    the company billed him for another year of automobile insurance. Liberty Mutual, however, was required to bill Petitioner for another year of insurance under Section 9(e) of the Act,*fn5 which mandates that an insurer keep in effect an insured's policy until the Commissioner has completed his review of the insurer's decision to refuse renewal. Since Liberty Mutual was merely complying with Section 9(e) by billing Petitioner for another year of insurance, Liberty Mutual did not forfeit its right to refuse renewal.

Petitioner also contends that the notice of non-renewal mailed by Liberty Mutual was defective under Section 5(3) of the Law*fn6 because it failed to identify two at-fault accidents as the reason for non-renewal. Section 5(3) requires an insurer to state in its notice of cancellation or non-renewal "the specific reason or reasons of the insurer for cancellation or refusal to renew." The notice sent by Liberty Mutual was valid under Section 5(3), since the notice cited Petitioner's wife's two accidents as the reason for non-renewal and, as noted previously, two accidents with or without fault, unless excluded under Section 3(a) of the Act,*fn7 constitute valid justification for cancellation or refusal to renew.

Finally, Petitioner contends that Liberty Mutual violated Section 3(a)(1) of the Act*fn8 by refusing to renew his policy because of age.*fn9 Our review of the record reveals only suggestion and suspicion*fn10 but no

[ 86 Pa. Commw. Page 405]

    actual evidence of age discrimination. We can find no error in the Commissioner's determination that Petitioner did not present sufficient competent evidence to prove his allegation that the insurer refused to renew his policy because of age discrimination.

Affirmed.

Order

Now, December 12, 1984, the order of the Insurance Commissioner of Pennsylvania, at Docket No. PH82-4-2, is hereby affirmed.

Disposition

Affirmed.


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