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O'Hara v. First Liberty Insurance Corp.

November 9, 2009

DIANE C. O'HARA AND JOSEPH O'HARA, H/W APPELLANT
v.
THE FIRST LIBERTY INSURANCE CORP. D/B/A LIBERTY MUTUAL INSURANCE GROUP APPELLEE



Appeal from the Order entered October 6, 2008 In the Court of Common Pleas of Philadelphia County Civil No. August Term 2008, No. 03032.

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

BEFORE: FREEDBERG, CLELAND and KELLY, JJ.

***Petition for Reargument Filed November 13, 2009***

OPINION

¶ 1 Diane C. O'Hara and Joseph P. O'Hara, Appellants, appeal from the order entered in the Philadelphia County Court of Common Pleas sustaining the preliminary objection raised by The First Liberty Insurance Corp., d/b/a/ Liberty Mutual Insurance Group, Appellee, on the basis of venue and transferring the case to the Court of Common Pleas of Delaware County. We affirm, finding that the trial court properly enforced the forum selection clause contained in the couple's insurance policy.

¶ 2 Appellants live in Delaware County. On March 29, 2007, Appellant Diane C. O'Hara was involved in a motor vehicle accident with another motorist in Delaware County. At the time of the accident, Appellants' vehicle was insured by Appellee. The policy included underinsured motorist coverage and provided that if Appellants sued Appellee, the suit "must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident." (See Appellants' Exhibit B, Underinsured Motorist Coverage Policy Declarations).

¶ 3 After receiving the maximum liability amount available to her from the other driver's insurance company, Appellant submitted an underinsured motorist coverage claim to Appellee, which denied the claim. Thereafter, on August 28, 2008, Appellants filed a civil complaint against Appellee in Philadelphia County alleging breach of contract and loss of consortium. Based on the forum selection clause in the policy, on September 11, 2008, Appellee filed a timely preliminary objection on the basis of improper venue. On October 3, 2008, the trial court sustained the preliminary objection and transferred the case to the Court of Common Pleas of Delaware County. Appellant subsequently filed a timely notice of appeal*fn1 and a court-ordered concise statement of errors complained of on appeal. The trial court issued its Pa.R.A.P. 1925(a) opinion on December 17, 2008.

¶ 4 On appeal, Appellants raise one issue for our review: whether the trial court committed an error of law in transferring the case to Delaware County on the basis of the forum selection clause contained in the insurance policy.

Appellants argue that the forum selection clause should be deemed void and unenforceable as it conflicts with Pennsylvania law and is against public policy. They concede that at the time of the accident, their insurance policy contained the forum selection clause and that their legal domicile was in Delaware County. Nevertheless, they argue that the forum selection clause is "in tension with established law" and thus is "invalid and must yield to the [l]aw." (Appellant's Brief, at 8). We disagree.

¶ 5 Our standard of review of the enforceability of an insurance policy provision is well settled:

As the interpretation of an insurance contract is a question of law, our standard of review is de novo; thus, we need not defer to the findings of the lower tribunals. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary.

Erie Ins. Exchange v. E.L. ex rel. Lowry, 941 A.2d 1270, 1273 (Pa. Super. 2008) (citation omitted), appeal denied, 956 A.2d 435 (Pa. 2008).

"[W]hen the language of the [insurance] contract is clear and unambiguous, a court is required to give effect to that language." Mitsock v. Erie Ins. Exchange, 909 A.2d 828, 831 (Pa. Super. 2006) (citation and internal quotation marks omitted).

ΒΆ 6 Pennsylvania Rule of Civil Procedure 2179 provides the proper venue in which to bring a civil action against an ...


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