Summary Judgment Secured in Declaratory Judgment Action On Proper Cancellation of Auto Policy for Non-Payment of Premium

I am hoping you won't mind me tooting my own horn a little on this blog of mine.

I recently secured a summary judgment decision in favor of my insurance company client in a declaratory judgment action on the issue of coverage in the case of Safe Auto Ins. Co. v. Soto, No. S-1361-2009 (Schuylkill Co., Jan. 26, 2010, Stine, J.).

This matter arose out of a motor vehicle accident that occurred on December 23, 2006 in Schuylkill County, Pennsylvania after which the Plaintiff filed a lawsuit against the Safe Auto insureds. The carrier denied coverage in light of the fact that, seven (7) months before the accident, the insurance company had cancelled the policy due to the insured’s failure to pay the premium.

The declaratory judgment action was filed against the insured defendants and the plaintiffs from the underlying action. This declaratory judgment action was opposed by the injured party plaintiff. However, when the tortfeasor defendants from the underlying matter, i.e. the named insured on the policy who failed to pay the premium and her permissive user of the vehicle, failed to respond to the Complaint, a default judgment was secured against those underlying defendants in this companion declaratory judgment action.

Thereafter, the motion for summary judgment was filed, which was opposed by the injured party plaintiff. Documentation required to satisfy the requirement of Pennsylvania law of showing that the proper notices had been mailed to the insured prior to the cancellation of the policy was gathered and presented as part of the motion. It was also established that there were no attempts by the insured to reinstate the policy at any time prior to the accident.

The injured party plaintiff attempted to argue that there were issues of fact and additional discovery that had to be completed before the court should address the motion for summary judgment. In granting the summary judgment the Schuylkill County Court of Common Pleas rejected the injured party’s arguments that there remained issues as to whether the carrier complied with Pennsylvania law in cancelling the policy, whether payments were made, and whether the insured had made any efforts to reinstate the policy.

The court accepted the defense argument that, under Pennsylvania law, the carrier was not required to show that the insured actually received the cancellation notices. Rather, all that was required here, as shown, was that the cancellation notices were issued to the address provided by the insured, which raised a presumption that the notices were received. The court also found the insureds’ failures to respond to the Complaint and the motion for summary judgment to constitute judicial admissions of the claims made by the carrier that proper notices had been provided. As such, it followed that no other party could dispute these claims.

Accordingly, a judicial declaration was secured for the carrier that it need not defend or indemnify the insureds in the underlying motor vehicle accident lawsuit brought by the injured party.

Anyone desiring a copy of this Opinion and Order may contact me at dancummins@comcast.net.


The facts of each case are different. No specific results are implied for future cases. Descriptions of awards in previous cases are no guarantee of future results and should not create any expectations that my firm or I can achieve similar results in another case.

Thanks to the Creator of Holden Caulfield

J.D. Salinger, the author of The Catcher in the Rye, along with a great compilation of short stories called Nine Stories, as well as a few other published works, passed away on January 27, 2010. As a fan and a former English major I wanted to make mention of it. Not sure why. He probably would think I was a big ol' phony for doing so.

Anyway, here's some great qoutes from The Catcher in the Rye to remember him by:

If you really want to hear about it, the first thing you'll probably want to know is where I was born and what my lousy childhood was like, and how my parents were occupied and all before they had me, and all that David Copperfield kind of crap, but I don't feel like going into it, if you want to know the truth.
The Catcher in the Rye
Holden Caulfield in Chapter 1, opening words of book

I live in New York, and I was thinking about the lagoon in Central Park, down near Central Park South. I was wondering if it would be frozen over when I got home, and if it was, where did the ducks go? I was wondering where the ducks went when the lagoon got all icy and frozen over. I wondered if some guy came in a truck and took them away to a zoo or something. Or if they just flew away.
The Catcher in the Rye
Holden Caulfield in Chapter 1

What really knocks me out is a book, when you're all done reading it, you wished the author that wrote it was a terrific friend of yours and you could call him up on the phone whenever you felt like it.
The Catcher in the Rye
Holden Caulfield in Chapter 3

You could also hear old Ackley snoring. Right through the goddam shower curtains you could hear him. he has sinus trouble and he couldn't breathe too hot when he was asleep. That guy had just about everything. Sinus trouble, pimples, lousy teeth, halitosis, crumby fingernails. You had to feel a little sorry for that crazy sonuvabitch.
The Catcher in the Rye
Holden Caulfield in Chapter 5

"Would you care for a cigarette?" I asked her.
She looked all around. "I don't believe this is a smoker, Rudolf," she said. Rudolf. That killed me.
The Catcher in the Rye
Holden Caulfield in Chapter 8

She was terrific to hold hands with. Most girls, if you hold hands with them, their goddam hand dies on you, or else they think they have to keep moving their hands all the time, as if they were afraid they'd bore you or something. Jane was different. We'd get into a goddam movie or something, and right away we'd start holding hands, and we won't quite till the movie was over. And without changing the position or making a deal out of it. You never even worried, with Jane, whether your hand was sweaty or not. All you knew was, you were happy. You really were.
The Catcher in the Rye
Holden Caulfield in Chapter 11

'You know that song, "If a body catch a body comin' through the rye"?...'
'It's "If a body meet a body coming through the rye"!' old Phoebe said. "It's a poem. By Robert Burns."
The Catcher in the Rye
Holden Caulfield and Phoebe in Chapter 22

Anyway, I keep picturing all these little kids playing some game in this big field of rye and all. Thousands of little kids, and nobody's around - nobody big, I mean - except me. And I'm standing on the edge of some crazy cliff. What I have to do, I have to catch everybody if they start to go over the cliff - I mean if they're running and they don't look where they're going I have to come out from somewhere and catch them. That's all I do all day. I'd just be the catcher in the rye and all. I know it's crazy, but that's the only thing I'd really like to be.
The Catcher in the Rye
Holden Caulfield in Chapter 22

That's the nice thing about carrousels, they always play the same songs.
The Catcher in the Rye
Holden Caulfield in Chapter 25

All the kids kept trying to grab for the gold ring, and so was old Phoebe, and I was sort of afraid she'd fall off the goddam horse, but I didn't say anything or do anything. The thing with kids is, if they want to grab for the gold ring, you have to let them do it, and not say anything. If they fall off, they fall off, but it's bad if you say anything to them.
The Catcher in the Rye
Holden Caulfield in Chapter 25

Don't ever tell anybody anything. If you do, you start missing everybody.
The Catcher in the Rye
Holden Caulfield in Chapter 26, closing words of book

Third Circuit Court of Appeals Addresses Invasion of Privacy Suit Against Google Maps

On January 28, 2010, the Third Circuit Court of Appeals issued an Opinion that allowed a Pittsburgh couple's lawsuit to proceed against Google under allegations that agents of the internet company trespassed upon the couple's private property and posted photographs thereby secured of their home and swimming pool on the "street view" portion of Google Maps.

In Boring v. Google Inc., No. 09-2350 (3rd Cir. Jan. 28, 2010)(marked "Not Precedential" by the Court), the plaintiffs claimed that their 1,000-foot private driveway was clearly marked with a "No Trespassing" sign. Nevertheless, a Google driver allegedly disregarded the sign and entered their property in a vehicle equipped with a panoramic camera to take the photos that were uploaded onto Google Maps.

The suit was originally filed in the Allegheny County Court of Common Pleas but was removed to federal court by Google. There, a Western District Court Judge granted Google's motion to dismiss the case in which invasion of privacy, negligence, unjust enrichment, and trespass claims were asserted.

On appeal, the Third Circuit upheld most of the District Judge's dismissal but reversed the dismissal of the trespass claim. The trespass claim was remanded to the District Court for further proceedings.

A copy of the Third Circuit's Opinion can be viewed at http://www.ca3.uscourts.gov/opinarch/092350np.pdf.



Source: Shannon P. Duffy. Article: "Third Circuit Oks Homeowners' Trespass Suit Against Google," The Legal Intelligencer, http://www.law.com/jsp/article.jsp?id=1202439617714 (Jan. 29, 2010).

Joseph Cosgrove Sworn in as New Judge in Luzerne County

Attorney Joseph Cosgrove, 52, was sworn in as a new Judge on the Luzerne County Court of Common Pleas on January 28, 2009. He was in private practice since 1982 and appears to have focused his practice on the defense of criminal matters.

Judge Cosgrove is filling out former Judge Mark Ciavarella's term and is allowed to remain on the bench until that term ends in January of 2012. As such, Judge Cosgrove will essentially hold his position in all of 2010 and 2011.

The Luzerne County Court of Common Pleas still remains three (3) judges shy of its full complement of jurists. The seats of former judges Michael Toole (resigned after fraud charges filed), Peter Paul Olszewski (lost bid for retention in recent elections), and Ann Lokuta (removed by Judicial Conduct Board) remain open.

New Westlaw Citation for Recent Post-Koken Case: Mergert v. Stambaugh

I recently reported on the January 15, 2010 Opinion and Order in the post-Koken case of Megert v. Stambaugh, Erie Ins. Co., and The Hartford, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.), in which President Judge John D. Kuhn of the Adams County Court of Common Pleas ruled in favor of the severance of the third party claims against the tortfeasor from the UIM claims asserted against the two separate levels of UIM carriers.

The new Westlaw citation for that case is 2010 WL 231525.

Thanks to Attorney James Beck of the Dechert Law Firm in Philaldelphia for securing this citation from Westlaw. I invite you to check out his blog, entitled Drug and Device Law, at http://druganddevicelaw.blogspot.com/.

Household Exclusion Upheld in Lackawanna County

Lackawanna County Court of Common Pleas Judge Carmen Minora recently issued a decision upholding the validity of a family vehicle/household exclusion in an automobile policy in the case of Steinetz v. Allstate Property & Casualty Ins. Co., PICS Case No. 09-2121 (Lacka. Co. Dec. 23, 2009, Minora, J.). A copy of this case can be secured for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and giving the above PICS Case Number.

The household exclusion generally applies to the situation where an injured party resides in a household where there are multiple vehicles that are covered by different insurance companies. The exclusion basically states that, if the injured party is hurt while in one of the vehicles of the household, while the injured party can recover UIM benefits under the policy of that vehicle, the injured party is generally not entitled to also go after the coverage that may be available from the different carriers covering the other vehicles in the household.

In the Steinetz case, the plaintiff lived with his father as was injured while in his father's vehicle. As a resident relative under the father's policy, the plaintiff was entitled to, and did, recover benefits under the automobile insurance coverage for that vehicle.

At the time of the accident, the plaintiff also owned his own vehicle that had his own separate insurance coverage under a different insurance policy. The plaintiff turned to the carrier that sold him that separate policy in an effort to recover more UIM benefits. That carrier denied the claim under the family vehicle/household exclusion.

After the denial, the plaintiff then filed a lawsuit against that carrier for breach of contract and other claims. Faced with the plaintiff's motion for judgment on the pleadings and the defendant's motion for summary judgment, Judge Minora followed the recent line of appellate cases and upheld the exclusion and ruled in favor of the defense on each of the motions filed. Similar to the repeated rejection of the argument by the appellate courts, Judge Minora likewise rejected the plaintiff's argument that the exclusion was against public policy.

Source: Pennsylvania Law Weekly--Case Digests--January 25, 2010.

Post-Koken Update: Adams County Court of Common Pleas Rules in Favor of Severance of Claims

In a January 15, 2010 Opinion and Order in the post-Koken case of Megert v. Stambaugh, Erie Ins. Co., and The Hartford, No. 2009-S-1416 (Adams Co., Jan. 15, 2010, Kuhn, P.J.), President Judge John D. Kuhn of the Adams County Court of Common Pleas ruled in favor of the severance of the third party claims against the tortfeasor from the UIM claims asserted against the two separate levels of UIM carriers.

In his Opinion, Judge Kuhn, apparently aware of at least some of the other cases previously handed down across the Commonwealth on this issue, chose to compare and contrast the rationale of the Pike County Court of Common Pleas in the case of Jannone v. McCooey and State Farm,2009 WL 18862 (Pike Co. 2009, Chelak, J.) (in favor of consolidation) and the decision of the Butler County Court of Common Pleas in the case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (Butler Co. Nov. 5, 2009, Horan, J)(in favor of severance).

In doing so, the Adams County President Judge sided with and adopted the minority rule stated in the Baptiste case in favor of severing such claims primarily on the grounds that the claims of negligence against the tortfeasor were misjoined with the contract claims against the UIM carriers in violation of Pa.R.C.P. 2229 and should therefore be severed under Pa.R.C.P. 213.

Judge Kuhn also felt that severing these claims would be consistent with the prior analogous appellate decision of Stokes v. Loyal Order of Moose Lodge #696, 466 A.2d 1341 (Pa. 1983). That case involved a plaintiff who pursued a negligence claim for injuries resulting from a chair collapsing under the plaintiff. The defendant in that matter attempted to join his own insurance carrier as an additional defendant, alleging a breach of contract action for failing to defend and indemnify him. Finding that the negligence claim and the breach of contract claim did not arise out of the same transaction or occurrence, the Supreme Court in Stokes did not allow the joinder.

President Judge Kuhn also noted that his decision to sever was also consistent with his own prior decision in the case of Michaleski v. National Indemnity Co., et al.,2009-SU-1529 (Adams Co., Dec. 22, 2009, Kuhn, P.J.). In Michaleski, Judge Kuhn again relied upon the Stokes decision to find that a plaintiff had improperly joined a motor vehicle negligence claim with the plaintiff's declaratory judgment action against the plaintiff's own insurance company.

As he did in the prior case of Michaleski, Judge Kuhn again rationalized in the Megert case that, although the claims arose out of the same car accident, the facts and the law relevant to the negligence claim and the contract claim against the carrier would be "very different" and can not be said to have arisen out of the same transaction or occurrence.

The Judge further noted that "[a]lthough there is clearly case law from other jurisdictions to support Plaintiffs' arguments [in favor of consolidation of post-Koken cases], this issue has not been conclusively decided by the appellate court in Pennsylvania." As noted, Judge Kuhn believed that "the better reasoned decision is to grant Defendant's preliminary objection" and to sever the cases.

As additional support for his decision, President Judge Kuhn also agreed with the Baptiste reasoning that the claims should be severed so as to avoid the undue prejudice to the tortfeasor defendant that may result from the introduction of insurance issues in a negligence trial. He felt that any probative value of the evidence of insurance in these matters would be outweighed by the unfair prejudice to the tortfeasor defendant in violation of the Rules of Evidence.

Accordingly, the Adams County Court granted the tortfeasor Defendant's preliminary objections to the joinder of the claims and also granted the Defendant's motion to sever.

With this update, there are now at least nineteen (19) cases across the Commonwealth in favor of consolidation of post-Koken claims. Those cases arise out of Lackawanna County, Luzerne County, Pike County, Lehigh County, Dauphin County, Beaver County, Philadelphia County, and Allegheny County.

There are now at least four (4) cases in favor of severance, with those decisions coming out of Adams County, Butler County, and York County.

I invite you to click on the "POST-KOKEN SCORECARD" down on the right-hand column of this blog to review summaries of these court decisions. Note that the review is not meant to be exhaustive; it only contains those cases I have uncovered or have been made aware of to date.

I would appreciate being advised of any other cases you may be aware of in this area so that the cases can be publicized and a consistent common law be created someday.

It also remains my hope that some trial court judge somewhere across the Commonwealth will allow one of these consolidation vs. severance Post-Koken cases to go up on an interlocutory appeal by permission so that the appellate courts can address the split of authority and provide guidance to the bar on how to handle these cases in the future.

Anyone desiring a copy of the Megert v. Stambaugh, Erie, and The Hartford decision, as well as Judge Kuhn's other referenced decision of Michaleski v. National Indemnity Co. may contact me at dancummins@comcast.net.

I thank Attorney Candace N. Edgar of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie, & Skeel, P.C. for bringing this case to my attention.