Opinion
CIVIL ACTION NO. 02-8409
November 13, 2003
MEMORANDUM
Plaintiff Fire Casualty Company of Connecticut filed a complaint seeking a declaratory judgment that would cap its obligation to defendant, Mason Cook, for uninsured motorist benefits at $35,000. Now before me are the parties' cross-motions for summary judgment under Federal Rule of Civil Procedure 56(c).
Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." An issue is "material" only if the dispute over facts "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Williams v. Borough of W. Chester. 891 F.2d 458, 460 (3d Cir. 1989).
On May 1, 2001, while operating a vehicle insured under a policy issued by plaintiff to Atlantic Express Transportation Group, Cook was involved in a motor vehicle accident allegedly caused by an uninsured motorist. Cook claims he is entitled to up to $1 million in uninsured motorist (UM) benefits under the plaintiff's policy. Plaintiff contends that Atlantic Express elected to cap both its UM and underinsured motorist (UIM) coverage at $35,000.
Cook and plaintiff have entered into a partial release agreement whereby Cook has received $35,000, the undisputed amount of UM coverage under the policy.
Policy number AUTO01884, issued by plaintiff to Atlantic Express, provides liability coverage in the amount of $1 million. Nathan Schlenker, C.F.O. of Atlantic Express, signed a form dated December 31, 1999 requesting UIM coverage with limits of $35,000. The corresponding box on the form to reduce UM coverage was, however, left blank. Defendant asserts that because this box was blank, Atlantic Express never made a written request for reduced limits of UM coverage and that the liability limits for UM coverage under the policy are thus equivalent to the $1 million bodily injury liability limits under the policy. See 75 Pa. C.S. § 1734 ("A named insured may request in writing the issuance of coverages . . . in amounts equal to or less than the limits of liability for bodily injury" (emphasis added)). See also, Motorists Ins. Co. v. Emig, 664 A.2d 559, 561 (Pa.Super. 1995) (holding Section 1734 writing requirement was not met where neither of the blank boxes applicable to UM/UIM coverage on insured's policy change request form were checked).
Section 1734 does not specify a type of form or particular wording necessary to effect a reduction in UM/UIM coverage. See, e.g., Allstate Ins. Co. v. Fitch. No. 00-00125, 2002 U.S. Dist. LEXIS 26579 at * 11 (M.D. Pa. May 6, 2002) (holding the technical requirements of 75 Pa. C.S. § 1731 do not apply where an insured requests reduced UM/UIM coverage). Plaintiff asserts it has introduced sufficient written evidence of the insured's intent to limit UM coverage to $35,000 to withstand a motion for summary judgment. The policy itself directs readers to endorsement IL 1201 B for the amount of UM coverage. The policy does not note this cross-reference to the endorsement in the corresponding box for UIM coverage limits. Policy endorsement IL 1201 B (11/85) then furnishes both UM and UIM coverage limits of $35,000 for the Commonwealth of Pennsylvania. Plaintiff argues that it was the insured's intention that the $35,000 coverage limit apply both to UM and UIM coverage. It supports its argument with the verifications of Schlenker and Bob Lull, who was responsible for selling the policy at issue to Atlantic Express. Both Schlenker and Lull stated in their verifications that they believed the "statutory limits" meant coverage in the amount of $35,000. The documents Lull prepared on behalf of Atlantic Express in connection with the issuance of the policy at issue indicate that it was the insured's intention to provide only the "statutory" or "basic" level of both UIM and UM coverage. At issue then is whether these writings, rather than the policy change form cited by defendant, are sufficient to meet the Section 1734 writing requirement and therefore effectively reduce the amount of UM coverage owed to Cook.
At present there is no evidence in the record to show the amount of the insured's policy premium and what the premium would have been for a policy carrying $35,000 in UM coverage and a policy carrying $l million in UM coverage.
Viewing the evidence in the light most favorable to defendant, I will deny summary judgment to both plaintiff and defendant because a genuine issue of material fact remains as to whether there is sufficient evidence in writing of the insured's intention to reduce the amount of UM coverage to $35,000 for me to grant judgment as a matter of law. C.f. Fire Casualty Insurance Company of Connecticut v. Ligon, No. 03-1283, 2004 U.S. App. LEXIS 1424 (Jan. 30, 2004) (holding a genuine issue of fact remained as to the correct amount of underinsured motorist coverage to award defendant under the same insurance policy).