The opinion of the court was delivered by: Bernard L. McGINLEY, Judge
AND NOW, this 11th day of September, 2009, it is ORDERED that the above captioned opinion filed June 17, 2009 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Tyrone Phillips (Phillips) and Barbara Phillips (collectively, the Phillips) petition for review of the order of the Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner) which affirmed the determination of the Insurance Department of Pennsylvania (Department) that Erie Insurance Exchange's (Erie) non-renewal of automobile insurance policy No. Q052508964 issued to the Phillips did not violate the act popularly known as Act 68.*fn1
The Phillips had an automobile insurance policy with Erie. On February 7, 2007, Phillips was involved in a motor vehicle accident in a McDonald's parking lot when his vehicle made contact with an Abington Township Police Department vehicle. Abington Township (Abington) paid the Phillips's $500 collision deductible. Erie paid $1,879.74 under collision coverage for damage to the Phillips's vehicle and $200 for a lease replacement vehicle. On November 26, 2007, Phillips was involved in an intersection collision. Erie paid $33,669.53 for the resulting damage.
On March 19, 2008, Erie issued a notice that it refused to renew the Phillips's automobile insurance policy. The Phillips requested that the Pennsylvania Insurance Department's Bureau of Consumer Services review this policy termination. The Bureau of Consumer Services issued an investigative report on April 28, 2008, which held that Erie's actions complied with Act 68. The Phillips appealed and requested an administrative hearing.
On June 18, 2008, the hearing officer heard the matter. Craig Burns (Burns), property claims adjuster for Erie, identified the print from the claim stream for the February 7, 2007, accident which indicated that Phillips backed out in a parking lot and collided with the police vehicle. Notes of Testimony, June 18, 2008, (N.T.) at 11; Reproduced Record (R.R.) at R11. Burns testified that Erie paid $2,079.74 as a result of the February 7, 2007, accident. Robert Land (Attorney Land), attorney for the Phillips, stipulated that Erie was not reimbursed. Attorney Land explained that Abington had immunity and didn't have to pay for the damage because the Phillips had collision coverage. N.T. at 13; R.R. at R11. The parties stipulated that Phillips was involved in the November 26, 2007, accident which resulted in a payout by Erie of $33,669.53. N.T. at 14-16; R.R. at R12.
Phillips testified with respect to the February 7, 2007, accident, "Exited McDonald's, got back in my car, backed completely out of my parking space, the Abington Township police officer also backed -- he backed right into the side of my car." N.T. at 26; R.R. at R15. Phillips stated his car was stopped when the collision occurred. N.T. at 26; R.R. at R15.
On October 1, 2008, the Commissioner issued the adjudication and order which affirmed the Department's decision:
Act 68 prohibits an insurer from refusing to renew an automobile insurance policy under certain specified circumstances. . . . However, an insurer may non-renew a policy for two accidents ...