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Angela Glazer and Michael Glazer v. Nationwide Mutual Insurance Company and Nationwide Insurance Company

May 17, 2012


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are two motions for summary judgment by Defendant Nationwide Insurance Company of America ("NICOA"). (Docs. 31 & 34.) The Plaintiffs in this lawsuit, husband and wife, are seeking underinsured motorist ("UIM") benefits from the Defendants for injuries sustained by Plaintiff Angela Glazer when she was hit by an underinsured motorist while driving a car belonging to her son, Jason Woelkers. NICOA has filed a separate motion for summary judgment as to each of its two policies at issue, and seeks declarations that the Plaintiffs cannot recover under either Michael Glazer or Jason Woelkers's policy. Since Michael Glazer's auto insurance policy was not in force at the time of the accident, and because Jason Woelkers declined underinsured motorist benefits under his policy, NICOA's motions for summary judgment will be granted.


On October 12, 2005, Plaintiff Angela Glazer sustained injuries while driving a 2003 Jaguar which was struck by a vehicle being operated by Osbert J. Patton, Jr. (Defs.' Stmt. at ¶¶ 1, 4, Doc. 33.) The Jaguar belonged to Glazer's son, Jason Woelkers, who insured it with Defendant Nationwide Insurance Company of America ("NICOA"). (Id. at ¶ 4.) Plaintiffs made a claim against Patton for recovery, which Patton settled for $100,000, the limit of his liability coverage under his auto policy insurance. (Id. at ¶ 11.) Plaintiffs then sought to recover underinsured motorist benefits from NICOA under both Jason Woelkers's Personal Auto Policy (Id. at ¶ 12), as well as Michael Glazer's personal auto policy. (Defs.' Stmt. at ¶¶ 1,4, 13, Doc. 36.) The Defendants declined to pay UIM benefits under either policy, and the Plaintiffs filed suit seeking a declaration that the Defendants were obligated to pay UIM benefits under both policies.

This matter was initially filed in the Court of Common Pleas of Lackawanna County and was removed to the Middle District of Pennsylvania pursuant to diversity jurisdiction on July 1, 2010. On February 22, 2011, the Defendants filed their Answer to the Complaint, asserting separate counterclaims each seeking declaratory and injunctive relief as well as attorneys' fees and costs. On December 28, 2012, Defendant NICOA filed two separate motions for summary judgment on each one of the insurance policies. (Docs. 31 & 34.) These motions, similar to the counterclaims, request judgment in favor of NICOA, as well as a declaration that the Plaintiffs may not maintain a claim for recovery against NICOA under either policy in connection with the October 12, 2005 accident. These two motions have been fully briefed and are now ripe for the Court's review.

1. Jason Woelkers' Policy with NICOA (# 58 37 C 862214)

NICOA issued an auto insurance policy to Jason Woelkers on January 6, 1995. (Pls.' Ex. at 2, Doc. 37-1.) This policy remained in full force and effect through all relevant events to this suit. (Defs.' Stmt. at ¶ 13, Doc. 33.) At the inception of his policy, on December 20, 1994, Woelkers signed a Rejection of Underinsured Motorist Protection form. (Id. at ¶ 15; Defs.' Ex. D.) Woelkers's policy initially insured only a 1988 Buick, but as the policy progressed, cars were added, exchanged, and subtracted. (Pls.' Ex. A.) The evidence shows that, at the time of the accident, Woelkers's policy covered a 2002 Ford Explorer, a 1990 Chevy Pickup, and a 2003 Jaguar X-Type. (Id. at 57-58.) There is no evidence in the record that any other rejection form was ever obtained from Woelkers by NICOA beyond the initial 1994 form. (Pls.' Stmt. at ¶ 15, Doc. 37; Pls. Counter Stmt. at ¶ 9, Doc. 37.) In particular, when Woelkers added the 2003 Jaguar to his policy in April of 2005, there is no evidence that he affirmatively waived UIM coverage as to that vehicle. (Pls. Counter Stmt. at ¶ 5, Doc. 37.) As such, the Plaintiffs argue they are entitled to UIM benefits as insurance companies in Pennsylvania are "required to obtain a signed UIM rejection form for each newly acquired vehicle in excess of the original vehicle on the policy." (Pls.' Br. at 2, Doc. 39.)

2. Michael Glazer's Policy with NICOA (# 58 37 D 68977)

Michael Glazer also maintained an auto insurance policy which neither party disputes extended to his wife, Angela Glazer. The Defendants further admit that this policy would ordinarily provide UIM benefits. (Defs.' Br. at 4, Doc. 35.) However, they argue that the policy was not in effect as of the time of the accident as it was cancelled for non-payment on October 4, 2005 and reinstated after the accident, on November 1, 2005. (Id.)

Prior to the accident, this policy was last renewed on August 20, 2005. (Defs.' Ex. D-2 at 7, Doc. 34-7.) It appears that no payment was made at the time of this renewal and no payment was subsequently received. (Id.) As such, in a Notice of Cancellation dated September 17, 2005, NICOA informed policyholder Michael Glazer that his "Automobile Insurance Policy is CANCELLED for NON-PAYMENT of the premium due at 12:01 A.M. on October 04, 2005," but that his "policy will not cancel if a valid payment of the premium due is received before the cancellation date." (Id.; Defs.' Ex. D-1 at 2, Doc. 34-6.)

Angela Glazer, who was dealing at the time with her husband's recent heart attack, testified that she did not even open the aforementioned notice until after the alleged cancellation date of October 4, 2005. (Glazer Dep. 10:22-11:14, Sept. 30, 2011, Defs.' Ex. F.) Yet, when she finally presented her insurance agent with a check for the amount requested in the Notice of Cancellation, she was told it would not be enough to make the policy current. (Id. at 15:15-18, 19:4-9.) Thus, she voided the check for $487.36 and handed over a new one for $597. (Id. at 15:15-21; Defs.' Ex. D-2 at 7.) Although it was not discussed, Glazer presumed that because the amount was higher it covered the entire period and that there would be no lapse in coverage. (Id. at 16:12-21, 19:21-20:8.) While the full details of this factual dispute will be set out in the relevant section below, the Plaintiffs continue to argue that they are entitled to full UIM benefits as Angela Glazer "nonetheless paid the full premium due to reinstate the policy retroactive to October 4, 2005." (Pls.' Br. at 2, Doc. 42.)


Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2).

A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. ...

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