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10/30/97 RITA SALAZAR AND CELITIA SALAZAR v.

October 30, 1997

RITA SALAZAR AND CELITIA SALAZAR, APPELLANTS
v.
ALLSTATE INSURANCE COMPANY, APPELLEE



Appeal from the Order of the Superior Court entered April 2, 1996, Affirming the Order of the Court of Common Pleas of Philadelphia County entered May 12, 1995, March Term 1994, at No. 4044. JUDGE(S) BELOW: CCP - Hon. Albert F. Sabo / Superior - CAVANAUGH, MCEWEN, HOFFMAN, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Madame Justice Newman files a Dissenting opinion in which Mr. Justice Nigro joins.

The opinion of the court was delivered by: Cappy

OPINION OF THE COURT

JUSTICE CAPPY

DECIDED: October 30, 1997

The issue presented in this appeal is whether an insurer may be granted summary judgment, as a matter of law, in an action to recover uninsured motorist (UM) benefits brought by resident relatives of the named insured, where the insurance policy renewal forms supplied to the policy's named insured failed to contain the notice required by section 1791.1 of the Motor Vehicle Financial Responsibility Law (MVFRL), *fn1 75 Pa.C.S. § 1791.1. *fn2 For the reasons which follow, we conclude that sections 1731, 1791, and 1791.1 of the MVFRL, 75 Pa.C.S. §§ 1731, 1791, and 1791.1, must be read in pari materia, and that an insurer must provide the notice required by section 1791.1 in policy renewal forms to inform the named insured of his or her options regarding coverage at the time of renewal. We hold, however, that because there is no remedy provided in the MVFRL for an insurer's failure to comply with the requirements of section 1791.1, the Superior Court's order in this matter, affirming summary judgment in favor of the insurer, must be affirmed.

Appellants, Rita Salazar and Celitia Salazar, are resident relatives of Ruby Brown. Ms. Brown's motor vehicle insurance is provided by Appellee Allstate Insurance Company through the Assigned Risk Plan (Plan). *fn3 Ms. Brown completed her original application for coverage on February 13, 1991, signing forms rejecting UM coverage. Ms. Brown subsequently renewed her policy without any alteration to her original coverage.

Appellants were involved in a hit-and-run collision on November 21, 1992 while in a vehicle owned by Ms. Brown and insured by Appellee. Appellants brought a civil action against Appellee in March of 1994 seeking UM benefits under Ms. Brown's policy. *fn4 Appellee subsequently filed a motion for summary judgment asserting Ms. Brown's waiver of UM coverage for her resident relatives in her policy. In response, Appellants asserted, inter alia, that Appellee's failure to comply with the requirements of section 1791.1 results in their entitlement to UM benefits under Ms. Brown's policy. Appellee did not dispute Appellants' allegation that it failed to comply with the notice provision of section 1791.1.

The trial court granted summary judgment in favor of Appellee, finding that Ms. Brown had waived UM coverage for her resident relatives in her application for original coverage and in her policy renewals pursuant to sections 1731 and 1791. Upon an appeal by Appellants, the Superior Court affirmed, reasoning that, pursuant to sections 1731 and 1791, Ms. Brown is presumed to have knowingly and intelligently opted to waive UM coverage for her resident relatives in her application for original coverage, and further emphasizing that Ms. Brown continued to reject UM coverage upon her two subsequent policy renewals. *fn5

We granted allowance of appeal limited to the issue of whether Appellee may be granted summary judgment, as a matter of law, in Appellants' action to recover UM benefits, where Appellee's policy renewal forms supplied to the policy's named insured failed to contain the notice required by section 1791.1 of the MVFRL.

In our review of a grant of summary judgment, we must determine whether there was an error of law or a clear or manifest abuse of discretion. Panichelli v. Liberty Mutual Ins. Group, 543 Pa. 114, 669 A.2d 930 (1996). Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. The moving party has the burden of proving the nonexistence of any genuine issue of material fact. The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1990). *fn6

Appellants argue that the Superior Court inappropriately granted summary judgment on the basis of Ms. Brown's waiver of UM coverage in her application for original coverage without regard to Appellee's non-compliance with the notice requirement of section 1791.1. While Appellee acknowledges in its brief that it did not "technically comply" with the notice requirement of section 1791.1, it urges that Superior Court's decision is proper because the renewal notices it provided to Ms. Brown contained sufficient information for her to make a knowing and intelligent waiver of UM coverage at policy renewal[O>Estate of John B. Franks v. Allstate Insurance Company, 895 F. Supp. 77 (M.D. Pa. 1995), and Maksymiuk v. Maryland Casualty Insurance Company, 946 F. Supp. 379 (E.D. Pa. 1996), Appellee argues that, to provide Appellants UM coverage here in the amount of bodily injury liability limits for Appellee's failure to provide a proper renewal form would be to improperly reform the insurance contract and provide Appellants with a remedy to which they are not statutorily entitled.

This court presumes that the legislature intended for the entire MVFRL, including section 1791.1, to be applicable to Ms. Brown's decision on whether to purchase UM benefits coverage for her resident relatives. 1 Pa.C.S. § 1922(2). We agree with Appellants that sections 1731, 1791, and 1791.1 must be read in pari materia. See Lucas v. Progressive Casualty Ins. Co., 451 Pa. Super. 492, 680 A.2d 873 (1996)(sections 1731 and 1791 must be read in pari materia). "Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things." 1 Pa.C.S. § 1932(a). Sections 1731, 1791, and 1791.1 each relate to an insured who is facing the decision of whether to purchase UM coverage and, if so, the amount of UM benefits coverage to purchase, both at the time of the insured's application for original coverage and, later, at the time of policy renewal. Construing sections 1731, 1791, and 1791.1 in pari materia, it is apparent that the legislature intended that, before Ms. Brown made her decision, she would have all of the information regarding the scope and amount of coverage to purchase that the MVFRL requires Appellee to provide her.

At the time of Ms. Brown's application for original coverage, Appellee had to provide Ms. Brown with the notice required by section 1731(b), regarding the purpose for UM coverage and Ms. Brown's option to reject UM coverage, in order for Ms. Brown's waiver of UM coverage to be valid. Additionally, at the time of Ms. Brown's application for original coverage, since she opted not to purchase UM coverage, Appellee had to provide a rejection form which complied with the requirements of section 1731(c.1), specifically notifying Ms. Brown that her policy does not provide protection against damages caused by uninsured motorists. Further, section 1731(c.1) required that the policy renewal form Appellee provided Ms. Brown contain a notice, in prominent type, that the policy does not provide protection against damages caused by uninsured motorists. See section 1731. *fn7

Moreover, at the time of her application for original coverage, section 1791 required Appellee to provide notice to Ms. Brown of the benefits and limits available under the MVFRL in the type set required in section 1791. If Appellee complied with the notice requirement of section 1791, Ms. Brown is presumed to have been advised of the benefits and limits available under the MVFRL. See section 1791. *fn8

Importantly, section 1791.1 required Appellee to provide Ms. Brown with an invoice listing the minimum motor vehicle insurance coverage levels mandated by the Commonwealth and the premium charge for Ms. Brown to purchase the minimum mandated coverages, both at the time of Ms. Brown's application for original coverage and at policy renewal. Further, section 1791.1 required Appellee to give Ms. Brown notice that she was required by Pennsylvania law to purchase only liability and first-party medical benefit coverages, and that any additional coverages or coverages in excess of the limits required by law are provided only if she requests such coverage as enhancements to her basic coverage. See section 1791.1. *fn9 Appellee admittedly did not technically comply with the requirements of section 1791.1.

Agreeing with the trial court's finding that Ms. Brown waived UM coverage pursuant to sections 1731 and 1791 at the time of her application for original coverage, the Superior Court concluded that the presumption of section 1791 was applicable to Ms. Brown without regard to Appellants' argument that the MVFRL provides a remedy for Appellee's failure to comply with the requirements of section 1791.1 at the time of policy renewal.

We find that the Superior Court erred in ruling that the presumption of section 1791 applied in this matter. The presumption of section 1791 is not a "catch-all" waiver which supersedes other waiver requirements of the MVFRL. See Lucas. The requirements of section 1791.1 are clear and unambiguous, and should not have been disregarded by the Superior Court. See 1 Pa.C.S. § 1921(b).

Moreover, the Superior Court's Conclusion that Ms. Brown's waiver was knowingly and intelligently given at the time of her policy renewals, pursuant to the reasoning in Botsko v. Donegal Mutual Ins. Co., 423 Pa. Super. 41, 620 A.2d 30 (1993), and Tukovits v. Prudential Ins. Co. of America, 448 Pa. Super. 540, 672 A.2d 786 (1996), was inappropriate.

Botsko and Tukovits are decisions in which the Superior Court ruled that the insurers involved therein had failed to comply with the notice requirements of section 1791, and then proceeded to consider whether the insured's waiver of benefits coverage was knowingly and intelligently given pursuant to Johnson v. Concord Mut. Ins. Co., 450 Pa. 614, 300 A.2d 61 (1973). *fn10 In conducting this analysis, the Botsko and Tukovits courts adopted the analysis employed by the federal courts anticipating how this court would approach this issue. See Botsko and cases cited therein.

In Johnson, this court addressed the validity of an insured's waiver of UM benefits coverage under 40 P.S. § 2000, *fn11 as it existed at the time of the policy in that matter. We stressed in Johnson that the insurer has the burden of proving that the insured intelligently and knowingly waived UM coverage. *fn12 This court concluded in Johnson that the insurer's printed form, in itself, was insufficient to constitute a valid rejection by the insured therein. We further held in Johnson that, because the testimony did not reveal that the insured had knowingly and affirmatively rejected UM coverage, the insured's signature was insufficient to establish an effective rejection of his statutory right to UM coverage.

The MVFRL was enacted subsequent to Johnson. Sections 1731, 1791, and 1791.1 set forth the information which an insurer is required to provide in order that the insured may make a knowing and intelligent decision on whether to waive UM benefits coverage. There was no need for a Johnson analysis under the section of the MVFRL at issue here; the question was whether the Appellants have a remedy pursuant to the MVFRL for Appellee's failure to comply with section 1791.1. [O><>

We agree with the Superior Court's decision, however, but for a different reason. We find persuasive the argument raised by Appellee that under the reasoning employed by the federal district court in Franks and Maksymiuk, there is no remedy provided by the MVFRL for the Appellants here.

The issue in these federal district court cases[O>Franks was killed in an automobile accident, and his estate subsequently sought to recover UIM benefits under his policy. The insured in Franks had executed waivers of underinsured motorist (UIM) protection in his original policy application, but the insurer failed to comply with the requirements of section 1731(c.1) when it failed to provide the insured with a notice at the time of renewal that there was no UIM coverage under his policy. The federal district court for the Middle District of Pennsylvania concluded in Franks that the insurer had unquestionably violated the requirements of section 1731(c.1); in so concluding, the Franks court did not discuss the insured's knowledge at the time of renewal, but only that the insurer failed to comply with the mandates of the MVFRL. The federal district court then turned to the remedy, if any, which was provided by the MVFRL to the insured's estate for the insurer's failure to comply with the requirements of section 1731(c.1) at the time of renewal. The Franks court concluded that there was no remedy for the insured's estate provided under the MVFRL, and that to provide UIM benefits under the policy would be to create a remedy by improperly reforming the contract.

The federal district court for the Eastern District of Pennsylvania in Maksymiuk addressed the question of whether an insured who had signed a valid waiver of UM benefits at the time of application for original coverage, and whose insurer failed to provide notice of the absence of UM coverage in the policy renewal forms in compliance with section 1731(c.1), could receive UM benefits coverage by operation of law because of the insurer's failure to comply with section 1731(c.1). Relying upon Franks, the Maksymiuk court concluded that the insured could not recover UM benefits, as the MVFRL provides no remedy for insureds in such a situation.

We find the analysis of whether there exists a remedy for an insurer's failure to comply with the requirements of section 1731(c.1) regarding renewal of insurance policies in Franks and Maksymiuk is equally persuasive as to an insurer's failure to comply with the requirements of section 1791.1 regarding the renewal of such policies. While we recognize that section 1791.1 requires that an insurer must provide specific information to the insured at the ...


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