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Kropa v. Ford

May 15, 2009

CLAIRE L. KROPA APPELLANT
v.
GATEWAY FORD, RICHARD F. ADAMS, DISCOVER PROPERTY & CASUALTY INSURANCE COMPANY, AND SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. APPELLEES



Appeal from the Order Entered on July 21, 2008, In the Court of Common Pleas of Wyoming County, Civil at No(s): 2007-00990.

The opinion of the court was delivered by: Freedberg, J.

BEFORE: BOWES, DONOHUE, and FREEDBERG, JJ.

OPINION

¶ 1 Appellant, Claire Kropa, appeals from the order entered on July 21, 2008, granting summary judgment in favor of Gateway Ford ("Gateway") and Appellee, Discover Property & Casualty Insurance Company ("Discover"). We affirm.

¶ 2 Appellant's vehicle was struck from behind by a vehicle driven by Richard F. Adams ("Adams"). Adams was intoxicated. Adams was driving a 2006 Ford Focus, a "service loaner" provided to him by Gateway. When Adams acquired the vehicle from Gateway, he was required to sign a rental/loaner agreement ("Agreement"). The Agreement provides, in part:

Where state law requires [Gateway] to provide auto liability insurance . [Gateway] provide[s] auto liability insurance (the "Policy") that is secondary to any other valid and collectible insurance . The Policy provides bodily injury and property damage liability coverage with limits no higher than the minimum levels prescribed by the financial responsibility laws of the state where the damage or loss occurs.

Motion for Summary Judgment filed on behalf of Gateway and Discover, Exhibit B (Agreement), p. 2 ¶ 7. Gateway provided the vehicle with state-mandated, primary insurance coverage ("Primary Policy") through Discover.

¶ 3 Appellant filed suit against Adams. Discover determined that Adams was entitled to coverage under the Primary Policy which includes as insured, "[a]ny 'authorized driver' while operating a covered 'auto' in accordance with the terms and conditions of an auto rental agreement with [Ford Motor Company]." Motion for Summary Judgment filed on behalf of Gateway and Discover, Exhibit C (Primary Policy), p. 19 ("authorized driver clause"). Thereafter, Discover responded to Appellant with an offer of $15,000.00, the coverage limit of the Primary Policy in Pennsylvania.*fn1 Primary Policy, at 27. This offer was tendered through third party administrator Sedgwick Claims Management Services, Inc. ("Sedgwick").

¶ 4 Gateway maintained an excess insurance policy on the vehicle ("Excess Policy"), also obtained through Discover. This policy provided an additional $10 million in comprehensive auto liability coverage. Motion for Summary Judgment filed on behalf of Gateway and Discover, Exhibit D (Excess Policy), p. 2. The Excess Policy insured all those covered under the Primary Policy, with the following exclusion:

Item G. WHO IS AN INSURED is changed by adding the following: The following are not an insured under this policy: Any "authorized driver" while operating a covered "auto" in accordance with the terms and conditions of an "auto" rental agreement with [Ford Motor Company].

Excess Policy, at 7.

¶ 5 Appellant demanded that Discover extend coverage to Adams under the Excess Policy. Discover refused, contending that the Excess Policy does not cover Gateway customers.

¶ 6 Appellant filed a complaint on August 31, 2007, seeking declaratory judgment that Gateway's Excess Policy provides coverage to Adams. On September 20, 2007, Gateway, Sedgwick and Discover filed a joint answer with new matter. Adams did not file an answer to the complaint. Appellant replied to the new matter on September 28, 2007. After the close of discovery, Gateway and Discover filed a joint motion for summary judgment on May 19, 2008. On May 29, 2008, Appellant filed a cross-motion for summary judgment. On July 15, 2008, the trial judge heard oral argument on the cross-motions for summary judgment. On July 21, 2008, the trial judge issued an opinion and order granting the joint motion for summary judgment filed by Gateway and Discover.

ΒΆ 7 Appellant filed a notice of appeal on August 13, 2008. The trial court did not order a Pa.R.A.P. 1925(b) statement, and no such statement was filed. Appellant raises four issues on appeal: (1) whether the Excess Policy is a separate policy from the Primary Policy, (2) whether the trial court should have construed policy provisions found in both the Primary Policy and the Excess Policy in the same manner, (3) whether the authorized driver clause found in both ...


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