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ESTATE OF JOHN B. FRANKS v. ALLSTATE INS. CO.

July 17, 1995

ESTATE OF JOHN B. FRANKS, Plaintiff
v.
ALLSTATE INSURANCE COMPANY, Defendant


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

July 17, 1995

 BACKGROUND:

 On July 12, 1994, plaintiff Estate of John B. Franks initiated this action with the filing of a complaint in the Court of Common Pleas of Tioga County, Pennsylvania. The case was removed to this court by defendant Allstate Insurance Company with the filing of a notice of removal on August 2, 1994. Plaintiff alleges that it is due sums under a contract of insurance issued by defendant in June of 1990. The claim is based upon the death of John B. Franks in an automobile accident which occurred on March 10, 1994.

 Before the court is defendant's motion for summary judgment. (Hereinafter, John B. Franks will be referred to as "Franks"; the Estate of John B. Franks will be referred to as "plaintiff.")

 DISCUSSION:

 I. STANDARD OF REVIEW

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. " Fed.R.Civ.P. 56(c) (emphasis added).

 Celotex v. Catrett, 477 U.S. 317, 323-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 323, 325.

 Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).

 II. STATEMENT OF FACTS

 A. Undisputed Facts

 1. For the period from December 29, 1989, to June 29, 1990, Franks was insured under a Personal Auto Policy issued by Aetna Casualty and Surety Company. The Aetna policy provided liability limits of $ 500,000.00 and uninsured motorist limits of $ 35,000.00. The Aetna policy provided underinsured motorist benefits as part of its uninsured motorist coverage.

 2. Franks obtained the Aetna policy through the Saunders Insurance Agency of Mansfield, Pennsylvania.

 3. In 1990, Gannon Associates Insurance Company purchased Saunders.

 4. Gannon was not authorized to write Aetna policies. As a result, Gannon contacted customers of Saunders and offered them the opportunity to obtain coverage through defendant or to find a new agent.

 5. In June of 1990, Franks made arrangements to obtain an automobile policy from defendant. The Aetna Policy was "rolled" into an Allstate policy.

 6. Effective June 29, 1990, defendant issued to Franks an automobile insurance policy, Policy #0 08 096492. The Allstate policy initially provided bodily injury liability limits of $ 250,000.00 for each person and $ 500,000.00 for each occurrence, and uninsured/underinsured limits of $ 15,000.00 for each person and $ 30,000.00 for each accident.

 7. In connection with obtaining the Allstate policy, Franks signed an "Important Notice."

 8. Shortly after obtaining his Allstate Policy, Franks requested that certain changes be made. Effective June 29, 1990, Franks requested that the rental reimbursement coverage and the extraordinary medical coverage be deleted.

 9. For the first renewal period, December 29, 1990, to June 29, 1991, the Allstate policy again had bodily injury liability limits of $ 250,000.00/$ 500,000.00. However, the uninsured/underinsured motorist limits had been increased from $ 15,000.00/$ 30,000.00 to $ 250,000.00/$ 500,000.00.

 10. On July 1, 1991, Franks executed documents which dropped collision and comprehensive ...


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