NSURANCE-FINANCIAL RESPONSIBILITY LAW-WAIVER-UIM REJECTION

August 15th, 2022 by Rieders Travis in Insurance

Koch v. Progressive Direct Ins. Co., 2022 Pa. Super. LEXIS 327 (August 4, 2022) (Stevens, P.J.E.)  Progressive Direct Insurance Company (“Progressive Direct”) appeals the order entered by the Court of * Former Justice specially assigned to the Superior Court. Common Pleas of Berks County denying its motion for summary judgment and granting the cross motion for summary judgment filed by Appellee Bryan D. Koch, in his capacity as Executor of the Estate of Rhea Lynn Koch and in his own right. After careful review, we reverse the trial court’s order. On June 7, 2015, Bryan Koch (“Koch”) was driving his 2013 Harley Davidson motorcycle while his wife, Rhea Lynn Koch (“Mrs. Koch”) was riding with him as a passenger. Their motorcycle was struck by a 1997 Ford Explorer driven by Sean Eyrick, who was later determined to be driving under the influence of alcohol when the accident occurred. Mrs. Koch was killed in the accident and Koch suffered injuries that required the amputation of his left leg above his knee. The parties do not dispute that Eyrick was solely at fault for causing the accident. Ultimately, Koch decided to settle the claims against Eyrich for his available policy limits of $15,000.00 for each plaintiff. The damages that Koch sustained from the accident in relation to the fatal injuries of his wife, Rhea Koch, and the injuries he sustained in his own right exceeded the liability coverage of Eyrich, who was an underinsured motorist (UIM). At the time of the accident, Koch’s motorcycle had been insured by Progressive Direct under a policy which provided bodily injury coverage of $100,000 each person and $300,000 each accident. Koch presented a demand to Progressive Direct for bodily injury and UIM benefits. Progressive Direct refused to pay the requested UIM benefits based on its allegation that Koch had signed a waiver form rejecting UIM coverage. On September 9, 2019, Koch filed this breach of contract action, individually and as executor of the Estate, asserting that Progressive Direct had breached the insurance policy by failing to properly and timely evaluate the claim and pay the insured’s UIM policy limits. Koch claimed that he as an individual and the Estate were each entitled to available UIM benefits in the amount of $100,000.00. While the complaint sounded in breach of contract, Koch specifically requested that the trial court make “a determination of the availability of UIM coverage to [the Kochs] under the Progressive Direct Insurance Company policy covering the motorcycle [Koch] was operating” at the time of the June 7, 2015 accident. On February 25, 2021, Progressive Direct filed a motion for summary judgment, alleging Koch had originally rejected UIM coverage in the inception of a policy held by Progressive Halcyon Insurance Co. that was issued in February 2004 for Koch’s 2002 Honda motorcycle. While Progressive Halcyon changed its name to Progressive Direct on June 9, 2006, Koch maintained a policy with this company for various motorcycles. Progressive Direct argued that Koch’s rejection of UIM coverage in 2004 was still effective and carried forward through the addition and deletion of different motorcycles to the policy as Koch never affirmatively changed this designation rejecting UIM coverage. On March 29, 2021, Koch filed a cross motion for summary judgment, seeking an order declaring that UIM coverage is available under Koch’s Progressive Direct policy in the amount of $200,000.00. The issue before this Court is whether the trial court erred in finding that the conversation on August 20, 2014 between Koch and the Progressive Direct representative created a duty or a legal obligation for the representative to offer Koch UIM coverage, notify him about UIM coverage, or to obtain a new UIM rejection form where this coverage had been previously waived in a valid rejection form. The trial court found that when Koch had contacted Progressive Direct and sought more information about obtaining additional coverage, Koch made it “obvious” that he no longer wanted to reject the coverage that he had previously declined. Similarly, in this case, Koch executed a valid waiver of UI and UIM benefits upon the delivery of the original policy in February 2004. Pursuant to Section 1791, there is a presumption that Koch was advised of the benefits and limits available under his policy at the time of his application for coverage. Thus, when Koch contacted Progressive Direct on August 20, 2014 and indicated that he wished to obtain more coverage on the existing policy, the Progressive Direct representative was not required to give Koch additional notice of a particular benefit or to obtain another UIM rejection form. We find the trial court’s citation to Barnard v. Travelers Home and Marine Insurance Co., 654 Pa. 604, 216 A.3d 1045 (2019) is not applicable to the instant case. In Barnard, our Supreme Court determined that, pursuant to a different statutory provision (Section 1738 of the MVFRL), the insured’s decision to increase the UIM coverage limits on her two vehicles covered in her policy was a “purchase” that entitled the insured to an opportunity to waive stacking of the new sum of UIM coverage. The Supreme Court held that where an insured increases the UIM coverage limit for multiple vehicles under an existing policy, the insured must execute a new rejection form to knowingly and voluntarily waive stacking of the new, aggregate amount of UIM coverage. However, the result in Barnard was required by the plain language of Section 1738, which specifically provides that “[e]ach named insured purchasing uninsured or underinsured motorist coverage … shall be provided the opportunity to waive the stacked limits of coverage.” 75 Pa.C.S.A. § 1738 (emphasis added). Notably, the issue in this case does not pertain to stacking of UI or UIM coverage, but the insured’s complete waiver of UI and UIM coverage. The relevant statutory provision in this case (Section 1731), which applies to circumstances in which UIM coverage has been wholly waived, does not contain the same “purchase” requirement as set forth in Section 1738 or contain any language entitling the insured to another opportunity to waive UI or UIM coverage. Thus, there is no statutory basis for the trial court’s speculation that Koch’s “purchase” of UI coverage at the recommendation of the Progressive Direct representative entitled Koch to an opportunity to affirmatively reject the purchase of UIM coverage. We conclude that the UIM rejection form signed by Koch at the delivery of the policy in 2004 remained valid such that Koch was not entitled to UIM coverage at the time of the accident. Accordingly, we reverse the trial court’s decision to grant Koch’s motion for summary judgment and deny Progressive Direct’s motion for summary judgment. Order reversed. Case remanded for judgment to be entered in favor of Progressive Direct on all issues. Jurisdiction relinquished.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

RECENT ARTICLES

 

Article Categories