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PATRICK SOMERVILLE AND DIANA M. SOMERVILLE v. COMMONWEALTH PENNSYLVANIA (07/15/87)

decided: July 15, 1987.

PATRICK SOMERVILLE AND DIANA M. SOMERVILLE, HIS WIFE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, RESPONDENT



Appeal from the Order of the Pennsylvania Insurance Commissioner, in case of In re: Appeal of Patrick and Diana M. Somerville, File No. 86-302-01530; Erie Insurance Exchange, Policy No. Q05 02 02733 P, Docket No. P186-5-1.

COUNSEL

P. Andrew Diamond, for petitioner.

Victoria A. Reider, Assistant Counsel, with her, Linda J. Wells, Chief of Litigation, M. Hannah Leavitt, Chief Counsel, for respondent, Insurance Department.

G. Thomas Miller, with him, H. Lee Roussel and Diane M. Tokarsky, McNees, Wallace & Nurick, for Erie Insurance Exchange.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 107 Pa. Commw. Page 403]

Patrick and Diana M. Somerville (petitioners) appeal an order of the Insurance Commissioner affirming an Insurance Department determination which upheld Erie Insurance Company's decision not to renew the petitioners' automobile insurance policy.

The petitioners had three automobile accidents within thirty-six months of their insurance policy's anniversary date: an intersection accident in October, 1983; a rear end collision in June, 1984; and an accident in August, 1985, apparently resulting from Mr. Somerville's efforts to avoid hitting another car. In March 1986, prior to the policy's May anniversary date, the insurer sent a notice of non-renewal stating that the basis for non-renewal was the frequency of accidents.

Pursuant to Section 3(b) of the Act of June 5, 1968, P.L. 140, as amended, 40 P.S. § 1008.3(b) (Act), of

[ 107 Pa. Commw. Page 404]

    course, an insurer may not decline to renew an automobile insurance policy on the basis of a single accident within three years preceding a policy's anniversary. Conversely, an insurer may refuse to renew a policy under which two or more accidents occurred during such three year period. Perry v. Liberty Mutual Insurance Co., 86 Pa. Commonwealth Ct. 400, 485 A.2d 516 (1984).

The petitioners concede that the 1984 accident may be considered against them in the insurer's decision not to renew. They contend, however, that they did not incur more than one accident which could properly be charged against them as the basis for non-renewal. They argue that, because the insurer had failed to dispose of the cause of that accident through settlement or litigation, they were denied the opportunity to show that the accident fell within exclusion provisions of Section 3(a)(13)(ii) of the Act, 40 P.S. § 1008.3(a)(13)(ii). This section provides that an insurer may not count against an insured accidents in which the insured, owner or resident operator is reimbursed by or on behalf of a person responsible for an accident. They maintain that the insurer may not rely on the third accident and that it should be excluded because they were purportedly not at fault and because the insurer testified that subrogation was being pursued. It is also argued that the insurer should not be permitted to rely on that accident because it had not acted diligently in pursuing subrogation.

It is well established, however, that a showing of fault is not necessary under Section 3 of the Act. Hallowell v. Insurance Department, 105 Pa. Commonwealth Ct. 143, 523 A.2d 826 (1987); Perry. In addition, this Court has previously stated that an insurer's alleged lack of diligence in ...


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