Werntz v. General Accident Insurance

1 Pa. D. & C.4th 386, 1988 Pa. Dist. & Cnty. Dec. LEXIS 77
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedOctober 19, 1988
Docketno. 3218 of 1986
StatusPublished

This text of 1 Pa. D. & C.4th 386 (Werntz v. General Accident Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Werntz v. General Accident Insurance, 1 Pa. D. & C.4th 386, 1988 Pa. Dist. & Cnty. Dec. LEXIS 77 (Pa. Super. Ct. 1988).

Opinion

PEREZOUS, J.,

This case arises out of an accident involving three vehicles. Robert Wemtz, in one vehicle, was proceeding northbound on Route 441, a two-lane blacktop highway. Margaret Shank, in another vehicle, was proceeding southbound and crossed the center lane into the northbound lane where her vehicle was struck on the passenger side by Mr. Wemtz’s vehicle. Margaret Shank died instantly. At the same time thereafter, perhaps only a few seconds, Daniel Good, who was traveling northbound in his van, collided with the Wemtz vehicle which was stopped in his lane because of the accident with the Shank vehicle.

Initially Robert and Susan Wemtz brought an automobile negligence action against the Margaret Shank estate and Daniel Good filed at no. 1986-851, in the Court of Common Pleas of Lancaster County. The action against the Shank estate has been settled for Shank’s policy limits in the amount of $50,000. Since the Wemtzes’ damages were in excess of the settlement amount, they then made a claim for underinsured motorist benefits form their insurance carrier, General Accident Insurance Company. General Accident did not honor the claim, contending that it was premature since peti[388]*388tioners had not yet exhausted their claim against co-defendant Daniel Good and his insurance carrier.

When General Accident Insurance Company refused to proceed to arbitration pursuant to the terms of their insurance policy, on petition of Robert and Susan Wemtz, the court of common pleas ordered it to proceed to arbitration.

Thereafter, General Accident filed a complaint for declaratory judgment requesting the court find that Robert and Susan Wemtz were not entitled to underinsurance benefits until they had exhausted their remedies against Daniel Good. The Wemtzes answered, referring the court to its determination on the petiton to appoint an arbitrator, and the court, per Judge Michael J. Perezous, dismissed the complaint with prejudice by order dated November 18, 1987. This order was affirmed by the Pennsylvania Superior Court on October 12, 1988, in General Accident’s appeal to that court.

The underinsured motorists claim then proceeded to arbitration. In their decision the arbitrators reasoned that language in the Wemtzes’ insurance policy required the Wemtzes, as a condition precedent to the recovery of benefits, to exhaust any claim they had against Good. Therefore, since the claim against Good had not been exhausted the Wemtzes may not recover benefits from their un-derinsurance coverage. The arbitrators relied on Rocca v. Pennsylvania General Insurance Company, 358 Pa. Super. 67, 516 A. 2d 772 (1986). The Wemtzes appealed the decision of the board of arbitrators to this court.

The insurance contract is subject to the Uniform Arbitration Act of 1980 (42 Pa.C.S. §7301 et seq.) and under section 7302(d)(2) a court may modify or correct an arbitration if the decision of the arbitra[389]*389tors is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment. Selected Risks Insurance Company v. Thompson, 363 Pa. Super. 34, 36, 525 A.2d 411, 412 (1987).

The applicable language of the subject policy is as follows:

“Insuring Agreement”
“We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury:
“(1) Sustained by a covered person; and
“(2) Caused by an accident.
“The owners’ or operators’ liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle or underin-sured motor vehicle. We will pay damages under this coverage arising out of an accident with an underinsured motor vehicle only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgment or settlement.”

The area of contention focuses on the last sentence of the quoted paragraph. This court must decide whether the panel of arbitrators misconstrued that sentence.

General Accident advances two arguments to defeat the petition for review. The first argument focuses on the plain meaning of the sentence in question. That sentence has two clauses. The first clause, “We will pay damages under this coverage arising out of an accident with an underinsured motor vehicle . . .,” describes the Wemtzes’ situation since the Wemtzes were involved in one acci[390]*390dent with an underinsured motor vehicle. General Accident also contends that the second clause, “[o]nly after the limits of liability under any applicable bodily injury liability bond or policies have been exhausted by payment of judgments or settlements,” means that any bond or policies applicable to all parties to the incident, Wemtz, Shank, and Good, must be exhausted before the Wemtzes can recover under General Accident’s underinsured motorists coverage.

This court does not agree with either of General Accident’s positions.

The language of the clause in question is clear. The insured must exhaust any applicable bodily injury liability bonds or policies arising from an accident with an1 underinsured motor vehicle. Stated another way, if an insured has exhausted all of one uninsured motor vehicle’s coverage, the insured may recover benefits form the insured’s own underinsurance policy.

The clause does not state that an insured may recover “[o]nly after the limits of liability under any applicable bodily injury bonds or policies which insure any and all parties to an accident have been exhausted by payment of judgments or settlements.” If General Accident had wanted an insured to exhaust any and all policies of parties to an accident, General Accident would or should have included the italicized phrase or a similar phrase in its policy language. Since it did not, this court assumes it intended to be bound by the existing policy language.

[391]*391However, even if the sentence in question is not clear in its meaning, the rules of insurance policy construction of ambiguous terms and phrases are firmly established:

“When we undertake to interpret a policy of insurance, as is true in interpreting other contracts as well, our goal is to ‘ascertain the intent of the parties as mainifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.’” Votedian v. General Accident Fire and Life Insurance Co., 330 Pa. Super. 13, 16-7, 478 A.2d 1324, 1326 (1984), quoting from Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A. 2d 563 (1983). Therefore, by following the rules of insurance policy construction, the sentence in question as a matter of law must be construed against General Accident.

Genearal Accident cites

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Related

Snyder v. Nationwide Mutual Insurance
541 A.2d 19 (Supreme Court of Pennsylvania, 1988)
Johnson v. American Family Mutual Insurance Co.
413 N.W.2d 172 (Court of Appeals of Minnesota, 1987)
Rocca v. Pennsylvania General Insurance
516 A.2d 772 (Supreme Court of Pennsylvania, 1986)
Standard Venetian Blind Co. v. American Empire Insurance
469 A.2d 563 (Supreme Court of Pennsylvania, 1983)
Selected Risks Insurance v. Thompson
525 A.2d 411 (Supreme Court of Pennsylvania, 1987)
West American Insurance v. Oberding
451 A.2d 239 (Superior Court of Pennsylvania, 1982)
Votedian v. General Accident Fire & Life Assurance Corp.
478 A.2d 1324 (Supreme Court of Pennsylvania, 1984)
Harleysville Mutual Casualty Co. v. Blumling
241 A.2d 112 (Supreme Court of Pennsylvania, 1968)
Tallman v. Aetna Casualty & Surety Co.
539 A.2d 1354 (Supreme Court of Pennsylvania, 1988)
Stewart v. Tomis Development Co.
461 A.2d 636 (Supreme Court of Pennsylvania, 1983)

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1 Pa. D. & C.4th 386, 1988 Pa. Dist. & Cnty. Dec. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/werntz-v-general-accident-insurance-pactcompllancas-1988.