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MICHAEL AND ELLEN MCDONNELL v. COMMONWEALTH PENNSYLVANIA (01/28/86)

decided: January 28, 1986.

MICHAEL AND ELLEN MCDONNELL, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, RESPONDENT



Appeal from the Order of the Insurance Commissioner of the Commonwealth of Pennsylvania, in case of In Re: Appeal of Michael & Ellen McDonnell, File No. 83-260-05269, Aetna Casualty and Surety Company Policy No. 204 SY 5153854 PCA, Docket No. PH 83-8-3, dated August 1, 1984.

COUNSEL

Michael T. McDonnell, Jr., McDonnell & McDonnell, P.A., for petitioners.

Reginia Grayson Jamerson, Assistant Counsel, with her, Hannah Levitt and Paul Laskow, Chief Counsel, for respondent.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 94 Pa. Commw. Page 382]

Michael and Ellen McDonnell (petitioners) were given notice by Aetna Casualty and Surety Company (Aetna) that their automobile insurance policy would not be renewed because there had been two (2) accidents within thirty-six (36) months of the policy's anniversary date. Both accidents involved petitioners' sixteen year old son.

Petitioners filed a request for review with the Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner) pursuant to Section 1008.8

[ 94 Pa. Commw. Page 383]

    of The Insurance Department Act of 1921 (Act), Act of June 5, 1968, P.L. 140, as amended, 40 P.S. § 1008.8 The matter was reviewed by the Insurance Department and on July 25, 1983, the Department upheld the decision of non-renewal. Based on this determination, the petitioners requested a formal administrative hearing as provided for by Section 1008.9 of the Act, 40 P.S. § 1008.9. A hearing was held and on August 1, 1984, the Commissioner ordered that the non-renewal decision be upheld. This appeal followed.

The decision of the Commissioner was based on his conclusion that Aetna did not violate Section 1008.3 of the Act, 40 P.S. § 1008.3, which provides that "[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." He additionally concluded that petitioners did not meet their burden of proof in showing that the actual reason for non-renewal of the policy was an impermissible one under Section 1008.3(a) of the Act, 40 P.S. § 1008.3(a), which provides that "[n]o insurer shall cancel or refuse to write or renew a policy of automobile insurance for one or more of the following reasons: (1) age . . . (9) sex." Concluding that the existence of a minor male driver in the petitioners' household was not the real reason for the non-renewal, the Commissioner affirmed the non-renewal.

Initially, we note that our review is limited to determining whether or not constitutional rights were violated, errors of law were committed or findings of fact were not supported by substantial evidence. Appeal of Tabas, 81 Pa. Commonwealth Ct. 527, 473 A.2d 1143 (1984); Travelers Indemnity Co. of America v. Insurance Department, 63 Pa. Commonwealth Ct. 542, 440 A.2d 645 (1981); Fioravanti v. Insurance Department, 63 Pa. Commonwealth Ct. 525, 439 A.2d

[ 94 Pa. Commw. Page 3841272]

(1981). It therefore follows that substantial evidence must support the Commissioner's finding of fact that there was more than one accident within the thirty-six month period prior to the upcoming anniversary date of the petitioners' insurance policy. Petitioners here allege that while there were indeed two accidents (more than one accident under the Act), these two accidents occurred on two different insurance policies. The first accident occurred on November 26, 1982, and involved the petitioners' sixteen year old son, who was driving the family automobile, insured on policy number 204845153854PCA. The second accident occurred on April 16, 1983, and also involved the petitioners' son; however, in this accident he was driving an automobile owned by the petitioners' professional association of McDonnell & McDonnell, insured under policy number 04FD357938CCA. Section 1008.3 of the Act discusses accidents occurring under "the policy," rather than "an individual's policies," thus clearly indicating the legislative intent that each policy is to be examined for the number of accidents occurring under that policy, rather than an examination of the number of accidents attributable to any individual. ...


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