Opinion
No. 1129 EDA 2004.
Filed: September 21, 2005.
Appeal from the ORDER Entered April 6, 2004, in the Court of Common Pleas of DELAWARE County, CIVIL at No. 03-01680.
BEFORE: GANTMAN, PANELLA, and OLSZEWSKI, JJ.
¶ 1 Appellant, Paul P. Schneider, challenges the order of April 6, 2004, denying his motion for summary judgment and granting the motion for summary judgment of appellee, Nationwide Insurance Company. On appeal, appellant claims that the trial court erred with regard to the application of the Motor Vehicle Financial Responsibility Law, the consent to settle clause of his insurance contract, and the exhaustion clause of the contract. We affirm.
¶ 2 The relevant factual and procedural histories are as follows. On October 4, 1996, appellant, an Upper Darby Township police officer, was on duty driving a police cruiser. Trial Court Opinion, 10/7/2004, at 2. While stopped at a light on MacDade Boulevard in Ridley Township, appellant's vehicle was struck from behind by a vehicle driven by Ayanna Lee Cooper, causing appellant to suffer injuries. Id. On May 21, 1999, appellant settled his claim against Cooper for $15,000.00, the limit of Cooper's policy with her insurance carrier, American Independent Insurance Company. Id.
¶ 3 Appellant then pursued a claim for underinsured motorist ("UIM") benefits through Granite State Insurance Company, the insurance carrier that provided coverage for the police vehicle he was driving at the time of the accident. Id. The Granite State policy limit for UIM benefits was one million dollars. Id. On December 21, 2001, appellant settled his claim with Granite State on the basis of a structured settlement with a present value of $750,000.00. Id.
¶ 4 On February 4, 2002, appellant notified appellee Nationwide that he was seeking UIM benefits under his personal automobile policy as well. Id. at 3. The policy with appellee contained a stacked coverage limit of $200,000.00. Id. In his claim, appellant offered appellee a "credit" in the total amount of $1,015,000.00, reflecting the $15,000.00 settlement he received from American and the full policy limits available under the Granite State policy. Id. at 5. Appellee issued a denial of appellant's claim and appellant gave notice of demand for arbitration, as specified in his policy. Id.
¶ 5 Appellee then filed the instant declaratory judgment, and thereafter, the parties agreed to allow the trial court to resolve the matter by way of cross-motions for summary judgment. Id. at 3. After hearing argument and receiving exhibits and briefs, on March 31, 2004, the trial court issued an order granting appellee's motion and denying appellant's cross-motion. Id. at 7. This appeal follows.
¶ 6 Appellant raises the following issues for our review:
A. Did the trial court commit an error of law, by interpreting Section 1733 of the Motor Vehicle Financial Responsibility Law to mandate only the priority of payment of underinsured motorist benefits under multiple policies of auto insurance?
. . .
B. Did the trial court commit an error of law, by concluding that a second priority underinsurer could deny liability for payment of underinsured motorist benefits, where the insured had not obtained the insurer's consent to settle with the tortfeasor, but had obtained consent to settle from the first priority underinsurer?
. . .
C. Did the trial court commit an error of law, in concluding that an insured's claim for second priority underinsured motorist benefits was barred, where the insured did not exhaust by payment the limits of first priority underinsured motorist benefits, but extended a "credit" for the limits of first priority coverage?
Appellant's Brief at 3.
¶ 7 The scope of review of a trial court's order granting a motion for summary judgment is plenary, meaning that "we are not bound by the trial court's conclusions of law, but may reach our own conclusions." Grandelli v. Methodist Hospital, 777 A.2d 1138, 1144 (Pa.Super. 2001). Summary judgment is properly granted as a matter of law if, after the completion of discovery relevant to the motion, "an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action which in a jury trial would require the issues to be submitted to a jury." Pa.R.C.P. 1035.2. The adverse party who bears the burden of proof at trial must come forward with evidence essential to preserve his cause of action. See Pa.R.C.P. 1035.2, note. If such a party fails to produce such essential evidence, "the moving party is entitled to judgment as a matter of law." Grandelli, 777 A.2d at 1143-1144.
¶ 8 Additionally, we must review the record "in the light most favorable to the non-moving party and resolve all doubts against the moving party." Id. at 1144. We may only disturb the trial court's grant or denial of summary judgment "upon an error of law or an abuse of discretion." Id. An abuse of discretion exists "when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will." Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000). Where the record "adequately supports the trial court's reasons and factual basis, the court did not abuse its discretion." Id.
¶ 9 With these standards in mind, we review the issues raised by appellant on appeal. Appellant first claims that the trial court erred in construing the Motor Vehicle Financial Responsibility Law ("MVFRL"). Specifically, appellant argues that the trial court erred in its application of the section of the MVFRL pertaining to the priority of recovery of UIM benefits. Appellant's Brief at 3, 8-10. We disagree.
75 Pa.C.S.A. § 1733.
¶ 10 Initially, we note that the MVFRL applies to this matter. See 75 Pa.S.C.A. § 1733(a). In a situation in which there are multiple insurance policies providing UIM coverage, § 1733 provides an order of priority for payment under which an insurance company with a policy covering a motor vehicle occupied by the injured person at the time of the accident is to pay first, and an insurance company with a policy covering a motor vehicle not involved in the accident with respect to which the injured person is an insured is to pay second. Id.
¶ 11 In the instant case, appellant was driving his employer's vehicle at the time of the accident. This vehicle was covered under a policy issued by Granite State. Appellant also was provided UIM coverage through his personal automobile insurance policy with appellee. Therefore, Granite State Insurance Company is the primary UIM insurer and appellee is the secondary, or excess, UIM insurer.
¶ 12 Here, the trial court properly concluded that appellant adequately followed the scheme of the MVFRL by first seeking coverage from the primary insurer before seeking coverage from the excess insurer. The trial judge stated: "there is no issue that [appellant] failed to follow the statutory priority . . . there was, on the other hand, no appropriate legal authority cited in support of [appellant's] claim that [appellant] was free to ignore [appellee's] express policy provisions . . ." Trial Court Opinion, 10/7/2004, at 8. The trial court did not err in its application of the section of the MVFRL pertaining to the priority of recovery of UIM benefits and appellant's first claim fails.
While the MVFRL does not expressly include language requiring exhaustion of one category of benefits before pursuit of a second category, as alluded to by the trial judge in his discussion of this point, the judge's reference to "exhaustion" was not the focal point of his analysis.
¶ 13 Appellant's next claim challenges the trial court's determination that appellant was required to obtain appellee's consent to the settlement agreement that he negotiated with Granite State. Specifically, appellant argues that the trial court erroneously distinguished Nationwide Mutual Insurance Company v. Lehman, 743 A.2d 933 (Pa.Super. 1999) (hereinafter " Lehman"), and inappropriately shifted the burden of proving prejudice from appellee to appellant. Appellant contends that the trial court, which found that the consent to settle provision required appellant to obtain appellee's consent prior to his settling with the primary UIM insurer, erred in concluding its analysis at this step. Appellant states that under the Lehman line of cases, even if the primary UIM insurer is a "liable party", when an insured settles in contravention of a policy's consent to settle clause, an insurer must show that its interests were prejudiced. Appellant's Brief at 3, 10-13. We disagree.
¶ 14 This issue requires the interpretation of appellant's insurance policy with appellee. Our Supreme Court set forth the requirements for interpreting an insurance policy in Riccio v. American Republic Insurance Company, 705 A.2d 422, 426 (Pa. 1997), as follows:
In interpreting an insurance policy, a court must ascertain the intent of the parties as manifested by the language of the written agreement. When the policy language is clear and unambiguous, the court must give effect to the language of the contract. However, if the policy provision is ambiguous, the policy provision must be construed in favor of the insured and against the insurer as the drafter of the instrument . . . Also, the words of the insurance policy must be construed in their natural, plain and ordinary sense . . . Moreover, an insurance policy, like every other written contract, must be read in its entirety and the intent of the policy is gathered from consideration of the entire instrument.
¶ 15 In the present case, we must interpret the consent to settle clause in appellee's policy. This clause provides that "[t]he insured must obtain [appellee's] written consent to: a) settle any legal action brought against any liable party; or b) release any party." Appellee's Motion for Summary Judgment, Exhibit A, Nationwide Policy, Endorsement 2358.
¶ 16 We agree with appellant that the use by an insurance company of a consent to settle clause in an insurance contract for the purpose of denying benefits to an insured individual, absent a showing of actual prejudice, is contrary to public policy. See Nationwide Mutual Insurance Company v. Lehman. Nevertheless, the trial court did not err in distinguishing Lehman from the present matter. Typically, under the Lehman line of cases, an insured seeks consent from his insurer to settle a matter with the opposing party for the limits of the opposing party's insurance coverage; the insurer denies consent, claiming the need to investigate the effect of the settlement on the insurer's subrogation rights; and benefits to the insured are thereby effectively denied. In such situations, we consistently determined that because the limits of the opposing party's policy were to be paid to the insured in the settlement, there would be no effect on the insurer's subrogation rights, and absent an independent showing of prejudice (of which late notice is not enough), a consent to settle clause cannot be properly invoked in order to deny the insured the benefits of the proposed settlement. Id.
¶ 17 Here, however, the Lehman line of cases are not directly applicable. First, it should be noted that appellant, by independently settling with the opposing party prior to even informing appellee of the incident, failed to adhere to the insurance policy contract of appellee. In this regard, appellee never had the opportunity to invoke the consent to settle clause (and to thereafter grant consent, deny consent with an independent showing of prejudice, or promptly challenge appellant's actions in court). In fact, appellant immediately settled with the opposing party for the limits of the opposing party's policy coverage, and directly received $15,000 under that policy (the very benefits typically denied when a settlement is unjustifiably rejected through the operation of a consent to settle clause, such as in the Lehman line of cases). Second, appellant, by independently settling with the primary insurer prior to informing appellee of the incident, also failed to adhere to the insurance policy contract with appellee. Again, appellee was deprived of its contractual right with regard to the consent to settle clause. In fact, appellant then settled with his employer's insurance company, not for the limits of the policy, but for $250,000 less than the limits (the very scenario against which the consent to settle clause was designed to protect, see Boyle v. Erie Insurance Company, 656 A.2d 941 (Pa.Super. 1995)). Because these facts sufficiently remove the present matter from the strictures and concerns of the Lehman line of cases, and because appellant violated the consent to settle clause at issue, the trial court did not abuse its discretion and appellant's second claim fails.
¶ 18 Appellant's third issue on appeal is that the trial court erred in concluding that the primary UIM limits were not exhausted, even though appellant extended a "credit" to appellee for the full $1,000,000 primary UIM limit. In other words, appellant agrees that appellee does not have to pay any UIM benefits until appellant demonstrates that he has suffered more than $1,015,000.00 in damages. Appellant argues that his claim for payment of UIM benefits under his policy with appellee should not have been barred by the trial court simply because appellant did not exhaust by payment the limits of first priority UIM coverage, but extended a "credit" to appellee for the full limits of that coverage. Appellant's Brief at 3, 13-18. We disagree.
¶ 19 The pertinent clause in the insurance policy provides that "[n]o payment will be made until the limits of all other auto liability insurance and bonds that apply have been exhausted by payments." Appellee's Motion for Summary Judgment, Exhibit A, Nationwide Policy, Endorsement 2358. A similar issue was before this Court in Boyle v. Erie Insurance Company. The Boyle court held that "an exhaustion clause must be interpreted to provide protection to an insurance company against a demand by its insured to fill the `gap' after a weak claim has been settled for an unreasonably small amount." Id. at 943. That same clause must also be interpreted to protect an injured insured against delay in recovery when prompt payment is needed. See Boyle. To address these conflicting interests, the Boyle court held that the exhaustion clause should be construed as a threshold requirement and not a bar to recovery of UIM coverage. Id. As referenced, then, such a structure protects both the insurer from the "gap" created from low settlements and the insured from a delay in the receipt of actual benefits. Id. Typically, once the matter is brought to the attention of the court system, and when an arbitration panel resolves the matter in favor of the insured (allowing for the receipt of benefits despite a settlement below the policy limits), the panel also allows for a credit to the insurer (so as to safeguard its interests against liability for the amount of the gap).
¶ 20 These concerns are not applicable here, however, as the primary-excess insurance company matrix of this issue is different from the situations mentioned above, where there is no excess insurer and direct benefits are unjustifiably withheld. Additionally, the instant matter was not quickly brought to the attention of the court system because appellant never informed his insurer of the matter until well after its rights under the policy had been violated. At that point, appellant, himself, rather than a judicial panel, offered a "credit" for the gap. This "credit" was not officially ordered, was never negotiated between the parties, was not contemplated or agreed to, and certainly was not in the insurance contract, itself.
¶ 21 This Court is required to give effect to the clear and unambiguous language of a contract of insurance, and may disregard express provisions only where they are found to be void as violative of a positive rule of statutory or decisional law. See Hall v. Amica Mutual Insurance Co., 648 A.2d 755 (Pa. 1994). Because the unprecedented and unorthodox "credit" offered by appellant was not a valid method of protecting the interests that the exhaustion clause was specifically designed to effectuate, and because appellant violated the exhaustion clause, the trial court did not abuse its discretion and appellant's third claim fails.
¶ 22 Ultimately, appellant attempted to, and succeeded in, independently negotiating settlements with the opposing party as well as with the primary insurer. Concomitantly, however, he ignored the provisions for recovery under his own insurance policy, violating the consent to settle and exhaustion clauses of his contract. Then, appellant endeavored to bring the matter back within the bounds of validity by offering his insurance company a "credit" for the gap. This offer was as inconsequential as it was invalid, however, as the terms of the contract, itself, which appellant ignored, were specifically designed to address and eschew these very issues. While the clauses at issue can be disregarded or held inoperable as bars to recovery under separate and distinct factual scenarios, given the context of the primary-excess relationship here and the different facts of this matter, the combined violations of the insurance contract by appellant prevent any further recovery.
Appellee's issues related to the statute of limitations and the settlement and release were not properly raised by appellee for our review. Additionally, because these issues do not have an effect on our disposition of this matter, we will not address them.
¶ 23 Order AFFIRMED.
¶ 24 Dissenting Opinion by PANELLA, J.
¶ 1 After a careful and exhaustive review of the record and the briefs of the parties, I conclude that the outcome in this case is controlled by the published precedent of this Court. Accordingly, I would reverse and therefore must respectfully dissent.
¶ 2 Schneider first argues that the trial court erred in construing the Motor Vehicle Financial Responsibility Law ("MVFRL"). Specifically, Schneider claims that the trial court erred in its application of the section of the MVFRL pertaining to the priority of recovery of UIM benefits. Appellant's Brief at 3, 8-10. I agree.
¶ 3 Under the MVFRL, in a situation where there are multiple policies providing UIM coverage, payment must be made first by the policy covering the motor vehicle occupied by the injured person at the time of the accident. Next, payment must be made by any policy covering the injured person with respect to a motor vehicle not involved in the accident. 75 PA. CONS. STAT. ANN. § 1733(a)(1), (2).
¶ 4 In the instant case, Schneider was driving his employer's vehicle at the time of the accident. This vehicle was covered under a policy issued by Granite State. UIM coverage was also provided through Schneider's personal automobile insurance policy with Nationwide. Therefore, Granite State Insurance Company is the primary UIM insurer and Nationwide, the secondary or excess UIM insurer. The trial court, in its opinion pursuant to Pa.R.A.P. 1925, incorrectly states that Section 1733 of the MVFRL requires the "exhaustion of one category of benefits before the next may be pursued." Trial Court Opinion, 10/07/2004, at 8. Section 1733 makes no mention of exhaustion of limits.
¶ 5 Compounding this error, the trial court opines further that Schneider failed to follow the requisite statutory priority in seeking UIM benefits. Trial Court Opinion, 10/07/2004, at 8. The trial court's conclusion is belied by the record which clearly indicates that Schneider first sought UIM coverage from Granite State, the insurer of the vehicle he occupied at the time of the accident. Only after seeking UIM benefits from Granite State did Schneider seek secondary coverage through Nationwide, his personal automobile insurer. Accordingly, to the extent that the trial court relied upon Section 1733 in granting Nationwide's motion for summary judgment and denying Schneider's Motion for summary judgment, such reliance was in error.
¶ 6 Next, Schneider takes issue with the trial court's determination that he was required to obtain Nationwide's consent to the settlement agreement he reached with Granite State. This issue requires the interpretation of Schneider's insurance policy with Nationwide. Our Supreme Court set forth the requirements for interpreting an insurance policy in Riccio v. American Republic Insurance Company, 550 Pa. 254, 263-64, 705 A.2d 422, 426 (1997).
In interpreting an insurance policy, a court must ascertain the intent of the parties as manifested by the language of the written agreement. When the policy language is clear and unambiguous, the court must give effect to the language of the contract. However, if the policy provision is ambiguous, the policy provision must be construed in favor of the insured and against the insurer as the drafter of the instrument. . . . Also, the words of the insurance policy must be construed in their natural, plain and ordinary sense. . . . Moreover, an insurance policy, like every other written contract, must be read in its entirety and the intent of the policy is gathered from consideration of the entire instrument.
Id. (citations omitted). When policy language is ambiguous, the policy must be construed in favor of the insured and against the insurer. Burton v. Republic Insurance Company, 845 A.2d 889, 893 (Pa.Super. 2004).
¶ 7 In the present case, we must interpret the consent to settle clause in Nationwide's policy. This clause provides that "[t]he insured must obtain [Nationwide's] written consent to: a) settle any legal action brought against any liable party; or b) release any party." See Nationwide's Motion for Summary Judgment, Exhibit A, Nationwide Policy, Endorsement 2358. The trial court found that this provision required Schneider to obtain Nationwide's consent prior to settling with the primary UIM insurer.
¶ 8 However, the trial court erred in concluding its analysis at this juncture. Even if the primary UIM insurer is a "liable party", when an insured settles in contravention of a policy's consent to settle clause, an insurer must show that its interests were prejudiced. Nationwide Mutual Insurance Company v. Lehman, 743 A.2d 933, 940 (Pa.Super. 1999) (" Lehman"). It is the burden of the insurance company, and not the insured, to demonstrate prejudice. Id., citing Brakeman v. Potomac Ins. Co., 472 Pa. 66, 77, 371 A.2d 193, 198 (1977).
¶ 9 The trial court attempts to distinguish Lehman by noting that the insured in Lehman presented evidence that the insurer was not prejudiced by the failure to gain consent. Trial Court Opinion, 10/07/2004, at 11. However, this is not a valid distinguishing feature given the explicit holding of Lehman:
Thus, under the principle of law that we here establish, the trial court did not commit an error of law in placing upon Nationwide the burden of coming forward and proving that the settlement prejudiced its interests in order to deny UIM coverage.
Lehman, 743 A.2d at 941. Use of the consent to settle clause to deny benefits, absent any showing of actual prejudice, "frustrate[s] public policy by depriving [Schneider] of benefits for which [he] had paid." Lehman, 743 A.2d at 938. Accordingly, the Lehman Court explicitly placed the burden upon the insurer to establish prejudice, and it was error for the trial court to place such burden upon Schneider in the present case.
¶ 10 Furthermore, the trial court finds Schneider's claim for further benefits incredible given the fact that Schneider settled for less than the policy limits with Granite State. However, this Court has explicitly acknowledged the acceptable rationale behind such a settlement. An insured may accept a reasonable third party settlement in order to ensure prompt payment and lessen litigation costs, thereby increasing the insured's net recovery. Boyle v. Erie Insurance Company, 656 A.2d 941, 943 (Pa.Super. 1995), appeal denied, 542 Pa. 655, 668 A.2d 1120 (1995). Therefore, the trial court's conclusion that Schneider's claim for excess UIM benefits was incredible was a clear abuse of discretion.
¶ 11 In similar fashion, Nationwide's contention that Schneider is not entitled to coverage because it failed to provide Nationwide with timely notice of the secondary UIM claim also fails. The policy language addressing the notice requirement provides, in relevant part, that "[t]he injured party shall provide notice of an . . . underinsured motorists claim within two years after the date of the accident. If the injured party fails to provide such notice, and this failure precludes our ability to subrogate against liable parties, coverage may be denied. . . ." See Nationwide's Motion for Summary Judgment, Exhibit A, Nationwide Policy, Amendatory Endorsement 2391 (emphasis added). Nationwide thereby amended its notice provision by endorsing the policy to include a requirement that Nationwide must be precluded from subrogating against liable parties before Nationwide may deny coverage based upon lack of notice. Nationwide admits that there is no right of subrogation associated with the settlement of the primary UIM claim. Appellee's Brief at 20. And, once again, Nationwide has failed to present any evidence that it has been prejudiced in any way.
In fact, both Nationwide and amicus Pennsylvania Defense Institute ("PDI") argue in their briefs that there is no issue with regard to Schneider's settlement with the tortfeasor. Nationwide's brief, at 19 ("Here, the crucial settlement at issue is not the tort case, but, rather, the settlement, without consent, of the primary UIM claim); PDI's brief, at 13-14 ("Here, subrogation [against the tortfeasor] is irrelevant.") Accordingly, both Nationwide and its amicus argue that the prejudice involved arose solely from the decision to settle with Granite State.
¶ 12 Schneider's third issue on appeal is that the trial court erred in concluding that the primary UIM limits were not exhausted, even though Schneider extended a credit to Nationwide for the full $1,000,000 primary UIM limit. In other words, Schneider agrees that Nationwide does not have to pay any UIM benefits until Schneider demonstrates that he has suffered more than $1,015,000.00 in damages.
Cooper's policy with American Independence Insurance Company paid out its $15,000.00 policy limit to Schneider.
¶ 13 The pertinent clause in the Nationwide policy provides that "[n]o payment will be made until the limits of all other auto liability insurance and bonds that apply have been exhausted by payments." Id., Endorsement No. 2358. A very similar issue was before this Court in Boyle v. Erie Insurance Company, 656 A.2d, 941, 942-943 (Pa.Super. 1995), appeal denied, 542 Pa. 655, 668 A.2d 1120 (1995). The Boyle court held that "an exhaustion clause must be interpreted to provide protection to an insurance company against a demand by its insured to fill the `gap' after a weak claim has been settled for an unreasonably small amount." Id. at 943. That same clause must also be interpreted to protect an injured insured against delay in recovery when prompt payment is needed. Id. To address these conflicting interests, the Boyle court held that the exhaustion clause should be construed as a threshold requirement and not a bar to recovery of UIM coverage. Id.
¶ 14 In the present case, in finding in favor of Nationwide and against Schneider, the trial court relied on State Farm v. Ridenour, 646 A.2d 1188 (Pa.Super. 1994), appeal denied, 540 Pa. 585, 655 A.2d 516 (1994) (" State Farm"). However, by our reading, State Farm explicitly contradicts the trial court's conclusion.
¶ 15 In State Farm, the policyholder (Ridenour) failed to obtain the primary UIM insurer's (Goodville) consent to settle her claim with the tortfeasor. State Farm, 646 A.2d at 1189. We held that Ridenour's failure to obtain Goodville's written consent prior to settling with and releasing the tortfeasor was a violation of the terms and conditions of Goodville's policy. Id. at 1191.
¶ 16 State Farm, Ridenour's personal automobile liability insurer, then denied UIM coverage based on Section 1733, discussed above. We held that while Ridenour's failure to gain Goodville's consent to settle with the tortfeasor precluded Ridenour from coverage under the Goodville policy, it did "not entitle her to substitute State Farm as the carrier primarily liable for such benefits." Id. at 1191. However, we also held that Ridenour's failure to obtain Goodville's consent to settle with the tortfeasor did "not release State Farm from its secondary liability under the terms of the statute." Id.
¶ 17 The limits of liability for UIM coverage under the Goodville policy were $100,000 per person/$300,000 per occurrence. Id. "It follows that if the Ridenour claim for underinsured motorist benefits is less than $100,000, then there can be no recovery from State Farm." Id. In contrast, if Ridenour could prove a valid claim for UIM benefits in excess of $100,000.00, we held that there was no reason for disallowing a recovery of such excess from State Farm. Id.
¶ 18 Accordingly, in the present case, Schneider is precluded from substituting Nationwide as the primary UIM insurer. However, Schneider may recover damages from Nationwide in excess of the underlying automobile liability and UIM limits, totaling $1,105,000.00, if he can prove damages in excess thereof. Pursuant to the terms of the Nationwide policy, Schneider requested that his claim against Nationwide be submitted to arbitration. At arbitration, Nationwide's liability is limited to that amount of UIM benefits which exceeds $1,015,000.00, up to its policy limit. Id; see also Boyle, 656 A.2d at 943.
¶ 19 Lastly, Nationwide, as appellee, raises the issues that both the statute of limitations and the settlement and release of the primary UIM claim bar recovery of excess UIM coverage. Appellee's Brief at 2, 22, 27. Because Nationwide did not file a cross appeal as to these issues, as it is permitted to do under Pa.R.A.P., Rule 903(b), 42 PA. CONS. STAT. ANN., I decline to address them. Bullman v. Giuntoli, 761 A.2d 566, 580 (Pa.Super. 2000), appeal denied, 565 Pa. 661, 775 A.2d 800 (2001).
¶ 20 Schneider is therefore entitled to proceed with his UIM claim against Nationwide by way of arbitration pursuant to his automobile policy with Nationwide. Accordingly, I would reverse the trial court's grant of summary judgment to Nationwide and remand the matter for arbitration consistent with this opinion in which Schneider must give Nationwide credit for $1,015,000.00, as if the full underlying liability and UIM limits have been paid.