Zak v. Prudential Property & Casualty Insurance

713 A.2d 681, 1998 Pa. Super. LEXIS 860
CourtSuperior Court of Pennsylvania
DecidedJune 8, 1998
Docket3678
StatusPublished
Cited by17 cases

This text of 713 A.2d 681 (Zak v. Prudential Property & Casualty Insurance) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zak v. Prudential Property & Casualty Insurance, 713 A.2d 681, 1998 Pa. Super. LEXIS 860 (Pa. Ct. App. 1998).

Opinions

HESTER, Judge:

Kimberly A. Zak appeals from the judgment entered against her after the trial court denied her petition to vacate an arbitration award entered in favor of appellee, Prudential Property & Casualty Insurance Company, and granted appellee’s petition to confirm the award. We agree with appellant’s contention that a clause in the relevant insurance policy is void. That clause grants the insurer the right to a trial when any type of substantial arbitration award is made in favor of the claimant while, at the same time, it provides that if the arbitration award is between zero and $15,000, the award is binding on the claimant. We also conclude that the arbitrators’ failure to consider the testimony of an expert witness deprived appellant of a hearing and entitles her to have the award vacated under the relevant standard of review. Since we have awarded appellant another hearing, we need not consider the merits of appellant’s third issue, which is that the arbitrators erred in failing to consider evidence of medical bills incurred by appellant. Finally, we do not agree with appellant’s contention that she is entitled to a trial on her claims. Rather, we remand for another arbitration hearing.

On May 21, 1992, appellant was a passenger in a car being driven by William Tonkin. Mr. Tonkin’s car was struck from the rear by a vehicle that was propelled into it when struck in the rear by a second car, which, in turn, had been struck by another car. In the collision, appellant sustained shoulder injuries. Appellant instituted an action against the operator of the vehicle responsible for the accident, and that action was settled for less than the tortfeasor’s applicable insurance limits, $100,000. Appellant then made a claim against appellee, Mr. Tonkin’s underin-sured motorist carrier, claiming that damages from her injuries exceeded $100,000. Appellee was given credit for the tortfeasor’s policy limits, and the parties proceeded to arbitrate whether damages from appellant’s injuries sustained in the automobile accident exceeded the policy limits of the tortfeasor’s policy, entitling her to underinsured motorist benefits under Mr. Tonkin’s policy.

Liability was not questioned; however, damages were contested. After the accident, appellant had surgery on and continuing pain associated with her right shoulder. These problems affected her ability to work and enjoy life. Appellant maintained that injuries she sustained in the accident necessitated the surgery and caused her continuing shoulder pain. Appellee countered that the surgery and pain stem from a pre-existing condition unrelated to the accident.

[683]*683After taking testimony and considering the parties’ briefs, two of the three arbitrators issued an award in favor of appellee, concluding that the value of appellant’s claim did not exceed the $100,000 credit appellee received from the action against the tortfeasor. In the award, the arbitrators expressly state that “in arriving at the ... award, a majority of the arbitrators sustained the Defendant’s objections and did not consider evidence of the Plaintiffs economic damages, specifically, any medical bills or vocational testimony offered by the Plaintiff.” Reproduced record (“R.R.”) at 22a-2Sa. Appellant filed a petition to vacate the award, which was denied. Appellee then filed a petition to confirm the award, which was granted. This appeal followed entry of judgment against appellant.

Appellant raises three contentions for our review. First, she alleges that one of the clauses in the insurance policy is void as a matter of public policy and that as a result, she is entitled to proceed to trial on her claim. Next, she argues that the arbitrators erred in failing to consider both her medical bills and the testimony of her vocational expert. As to these latter two errors, appellant argues that the panel’s failure to consider those items of damages denied her a hearing. We conclude that we can review two of three of appellant’s claims. We also agree that the arbitrators’ refusal to consider the testimony of the vocational expert, which was competent and proper, denied her a hearing and warrants reversal. However, we do not agree that appellant is entitled to a trial on the issues. Rather, we conclude that parties must proceed to another arbitration. We do not consider the issue of whether the arbitrators erred in failing to consider appellant’s medical bills due to 75 Pa.C.S. § 1722 since that issue is rendered moot by our decision to award another arbitration hearing.

We first examine our standard of review with respect to the first issue. The parties both acknowledge that we have the right to review that issue, which is whether a clause in the policy is void as a matter of public policy. See Hall v. Amica Mutual Insurance Co., 538 Pa. 337, 648 A.2d 755 (1994); see also Caron v. Reliance Insurance Co., 703 A.2d 63 (Pa.Super.1997). Appellant contends that she is entitled to a trial on her underinsured motorist claim due to that fact that the following clause in the applicable insurance policy is void as a matter of public policy.

A decision agreed to by two arbitrators will be binding if the award does not exceed the limits required under the Financial Responsibility Law of Pennsylvania.
If an arbitration award exceeds these limits, either party has a right to trial on all issues in a court of competent jurisdiction. This right must be exercised within thirty days of the award. Each party will pay their own expenses.

The effect of this clause is clear.1 An arbitration award is binding if it is less than $15,000. However, if the award exceeds $15,000, either party may appeal and obtain a trial on all issues. Herein, the award was zero so appellant did not have the right to a trial even though appellee would havé been entitled to a trial if appellant would have received a substantial award, viz., one over $15,000.

Our Supreme Court has explained the circumstances under which we may determine whether public policy is violated by a particular insurance clause:

[684]*684Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy ...
It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interests of the public weal ... Only in the clearest cases, therefore, may a court make an alleged public policy the basis of judicial decision.

Hall v. Amica Mutual Insurance Co., supra, 648 A.2d at 760, see also Eichelman v. Nationwide Insurance Co., 711 A.2d 1006 (1998); Caron v. Reliance Insurance Co., supra.

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Zak v. Prudential Property & Casualty Insurance
713 A.2d 681 (Superior Court of Pennsylvania, 1998)

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Bluebook (online)
713 A.2d 681, 1998 Pa. Super. LEXIS 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zak-v-prudential-property-casualty-insurance-pasuperct-1998.