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Tammy Hopkins and Joseph Hopkins, H/W v. Erie Insurance Company

April 19, 2013


Appeal from the Order entered December 7, 2011, in the Court of Common Pleas of Montgomery County, Civil Division, at No(s): 2010-35352

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




Tammy Hopkins, ("Mrs. Hopkins"), and her husband Joseph Hopkins, (collectively "Appellants"), appeal from the trial court's order denying their petition to appoint arbitrators and to compel Erie Insurance Company ("Erie") to arbitration. We affirm.

The trial court recounted the facts and procedural history of this case as follows:

On January 11, 1999, [Mrs. Hopkins], [a] resident of 6 Hellberg Avenue, Chalfont, PA 18914, was involved in a motor vehicle accident and sustained personal injuries. [Mrs. Hopkins'] vehicle was struck by an underinsured motorist and her personal injuries were the result of the negligence of the underinsured tortfeasor. At the time of this accident, [Erie] was the insurer of [Mrs. Hopkins,] whose coverage included underinsured motorist accidents.

The matter before this court arises out of Appellants' Petition For Appointment of Arbitrators and Request to Compel Arbitration. On January 5, 2001, a complaint was filed in the Court of Common Pleas of Montgomery County. The underlying claim against the tortfeasor in the aforementioned accident was settled, and Appellants submitted correspondence to Erie, on June 11, 2004. At the time of that submission, Appellants advised Erie that they wished to pursue underinsured motorist arbitration. Appellants allege that they spoke directly with Megan Rooney, the claims adjuster for Erie, regarding issues related to the impending arbitration. On January 8, 2008, Appellants sent a Demand letter to Erie along with [Mrs. Hopkins'] medical records. On February 6, 2008, Appellants were asked by Erie to send medical records and authorizations. Thereafter, Megan Rooney forwarded authorizations to both State Farm Insurance Co. and Dr. William Truscott, while keeping the third authorization in Erie's Personal Injury Protection (PIP) file.

On March 9, 2009, prior counsel for Erie sent a letter to Appellants' counsel indicating that the statute of limitations had run on their underinsured motorist claim, and that Erie was going to close its file.

On December 2, 2010, Appellants filed a Petition for Appointment of Arbitrators and to Compel Arbitration. The Honorable Kent H. Albright, now retired, entered an order on December 7, 2011, which denied Appellants' Petition and dismissed Appellants' claim.

On December 22, 2011, Appellants filed their Notice of Appeal from the December 7, 2011, ruling. The Honorable Kent H. Albright ordered the Appellants to file a Concise Statement of Matters Complained of on Appeal on December 30, 2011.

Appellants did so on January 18, 2012.

The undersigned authors this Opinion in support of the ruling of the since retired, Honorable Kent H. Albright, who presently serves as a Montgomery County Court of Common Pleas Senior Judge.

Trial Court Opinion, 8/16/12, at 1-2.

Our review of the record further reveals that Appellants averred:

Erie submitted requests for medical records to [Appellants]. On January 8, 2008, [Appellants] sent a Demand Letter, along with medical records of [Mrs. Hopkins] to Erie. On February 6, 2008, Erie sent correspondence to [Appellants] asking for additional medical records and authorizations. On March 8, 2008, as requested, [Appellants] mailed Erie three (3) medical authorizations to obtain medical, insurance, and/or employment information.

Appellants' Memorandum of Law in Support of Petition for Appointment of Arbitrators and to Compel Arbitration, 11/30/11, at 2.

Appellants appended to their memorandum a June 11, 2004 letter to Erie asking for permission to settle with the tortfeasor, Elizabeth Gradel, demanding underinsured motorist arbitration, and naming their choice of arbitrator. Id. at Exhibit A. In the letter, Appellants asked Erie to assign counsel "so that the matter may be scheduled accordingly." Id. Appellants further appended Erie's June 28, 2004 response granting permission for Appellants to settle with Gradel, and noting Erie's "understanding that

[Appellants] are presenting an Underinsured Motorist claim in reference to this matter." Id. at Exhibit B. Erie's June 28, 2004 letter asked Appellants to "forward any and all medical records and any and all wage loss records you have in reference to this loss." Id. Appellants additionally included an Erie claims file entry dated September 5, 2006, quoting Appellants' counsel as saying "we've gotta get moving on this--why don't we name the arbitrators?" Id. at Exhibit C. The September 5, 2006 claims entry contains the following notation by Erie adjuster Megan Rooney:

I reminded [Appellant's counsel] that he has not sent me meds (demand package) yet...He asked me to send request for meds again. He does not have any prior meds. I advised I'll need them too- so if he could get me the name(s) & info on [treating] Physician(s) prior to [motor vehicle accident] that would be great. Also I req. meds for the subsequent loss.


Appellants' memorandum also contained their January 8, 2008

submission ("demand package") to Erie of a list of 21 medical providers for Mrs. Hopkins, along with "medical records, reports, and bills." Id. at Exhibit E. The bill for three of the medical providers was noted "to be determined." Id. As Exhibit F, Appellants included Erie's February 6, 2008 response to Appellants' demand package, in which Erie stated it "would like to obtain additional records and information in reference to the UIM claim of [Mrs. Hopkins]. I have enclosed three Authorization forms." Id. at Exhibit F. Erie's February 6, 2008 correspondence further expressed Erie's interest in securing records regarding a subsequent motor vehicle accident Mrs. Hopkins had on December 18, 2002. Id. Appellants executed the three authorizations and returned them to Erie on March 8, 2008. Id. at Exhibit G.

As Exhibit H, Appellants appended a March 21, 2008 Erie claims file entry noting Erie's review of Mrs. Hopkins' claims of injuries regarding her December 18, 2002 accident, which included complaints of "[headaches], depression, neck/back pain & spasm, TMJ & Abnorm. Fatigue. Meds paid total $24,541." Id. at Exhibit H. At Exhibit J, Appellants showed Erie's assignment of Forry Ullman as Erie's counsel in relation to Appellants' underinsured motorist claim.

Erie filed a Supplemental Memorandum of Law opposing Appellants' petition and appended excerpts from the deposition of their UIM claims adjuster Megan Rooney. Erie's Memorandum of Law in Opposition to Appellants' Petition for Appointment of Arbitrators and to Compel Arbitration, Exhibit B. A review of Ms. Rooney's deposition excerpts reveals that following the three authorizations which Erie forwarded to Appellants, and which Appellants executed, Erie sent six additional authorizations for Appellants to sign. Id. Those six supplemental authorizations were never returned by Appellants. Id. Ms. Rooney further testified that within the January 8, 2008 demand package from Appellants were the only medical records she ever received directly from Appellants. Id. Ms. Rooney indicated she sent "around a dozen" letters to Appellants' counsel seeking additional medical records, and received no response. Id. Ms. Rooney testified that after notifying Appellants' counsel in a March 9, 2009 letter that the statute of limitations had expired, Erie kept their file open until May 2009 to see if "there was a reaction from [Appellant's counsel]." Id.

Appellants did not file their petition to appoint arbitrators and to compel arbitration until December 2, 2011, the denial of ...

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