NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P : : : : : : : : : : : :

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1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P JOSEPH LAYNE CIMINEL and GINA M. VOLPE, v. Appellants ERIE INSURANCE EXCHANGE, ERIE INSURANCE GROUP, T.W. BUTTS AGENCY, KELLY A. HORAK, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA No. 578 WDA 2013 Appeal from the Order Entered January 3, 2013 in the Court of Common Pleas of Allegheny County Civil Division at No(s) G.D BEFORE PANELLA, ALLEN, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J. FILED January 9, 2014 Joseph Layne Ciminel (Ciminel) appeals from an order that, inter alia, denied his motion for summary judgment and granted in part the motion for summary judgment filed by Erie Insurance Exchange (Erie). We affirm. On August 23, 2007, Ciminel and Gina Volpe (collectively referred to as Plaintiffs) filed a complaint against Erie, Erie Insurance Group, T.W. Butts Agency, and Kelly A. Horak, CIC. Volpe, T.W. Butts Agency, and Horak eventually were removed or dismissed from the action. We further note that, according to Erie, Erie Insurance Group is a fictitious name registered with the Pennsylvania Corporation Bureau, and the proper Defendant in this matter is Erie Insurance Exchange. Erie s Brief at 2 n.2 (citation omitted). Thus, the only parties to this appeal are Ciminel and Erie. * Retired Senior Judge assigned to the Superior Court.

2 In their complaint, Plaintiffs stated that Ciminel is employed as a police officer by the City of Pittsburgh and that, on May 24, 2005, Ciminel was injured during the course and scope of his employment... and while operating a police cruiser owned by the City of Pittsburgh. Complaint, 8/23/2007, at 24. Plaintiffs maintained that the accident was caused by the negligent operation of a vehicle by William Fischerkeller (Fischerkeller) and by the negligence of Fischerkeller s employer, AAA Service Company (AAA). Plaintiffs claimed that, as a result of the accident, Ciminel sustained several injuries, is permanently disabled, and has suffered wage losses and a loss in earning capacity. According to the complaint, [o]n April 13, 2007, Ohio Casualty Group offered $294, in order to resolve [Ciminel s] claims against [] Fischerkeller and AAA[.] Id. at 27. Plaintiffs stated that [t]he remaining third party liability limits of the Ohio Casualty Group policy are inadequate to compensate Plaintiff [sic] for the injuries [Ciminel] sustained on May 24, Id. at 30. Plaintiffs further averred that Ciminel purchased an automobile insurance policy from Erie. The policy provided to Ciminel $100, in Underinsured Motorists (UIM) coverage. Ciminel s counsel notified Erie that Ciminel was making a claim for UIM coverage under the policy. Erie informed [] counsel that a coverage issue exists because [Ciminel] was - 2 -

3 operating a non-owned motor vehicle at the time of the May 24, 2005 motor vehicle incident... Id. at 32. Plaintiffs complaint acknowledged that the policy has the following UIM coverage exclusion What We Do Not Cover Exclusions This insurance does not apply to 10. bodily injury to you or a resident using a non-owned motor vehicle or a non-owned miscellaneous vehicle which is regularly used by you or a resident, but not insured for Uninsured or Underinsured Motorists Coverage under this policy. Id. at 14 (citation omitted) (emphasis in original). 1 Plaintiffs, however, took the position that the regular use exclusion does not apply to this case for various reasons. Ciminel brought several counts against Erie, namely fraud, bad faith, violation of the Unfair Trade Practice and Consumers Protection Law, 73 P.S to (UTPCPL), declaratory judgment, negligence, liability of an employer of an independent contractor, and breach of contract. 2 As to Ciminel s declaratory judgment count, he sought a declaration that he is entitled to the UIM coverage outlined in his policy with Erie. Erie responded to the complaint by filing an answer, new matter, and a counterclaim 1 We will refer to this exclusion as the regular use exclusion. 2 Plaintiffs later struck from the complaint the count of liability of an employer of an independent contractor

4 seeking a declaration that it is not required to provide UIM coverage to Ciminel. The parties eventually filed competing motions for summary judgment. Erie s primary argument was that Ciminel is not entitled to UIM coverage as a matter of law due to the regular use exclusion. Accordingly, Erie sought such a declaration from the trial court. Erie, however, also argued that the court should dismiss all of Ciminel s claims. In his motion, Ciminel contended that he is entitled to UIM coverage as a matter of law. The trial court issued an order granting Ciminel s motion for summary judgment and declaring that Erie must provide UIM coverage to Ciminel. That order was dated October 29, 2009, but entered on October 30, On April 18, 2012, Erie filed a motion for reconsideration of the order dated October 29, According to this motion, [o]n October 19, 2011, the Supreme Court filed an opinion affirming the Superior Court s ruling that the regular use exclusion, as applied to a state trooper, did not violate public policy and was enforceable. Motion for Reconsideration, 10/10/2009, at 10 (citing Williams v. Geico Government Employees Insurance Co., 32 A.3d 1195 (Pa. 2011)) (emphasis in original). Relying on the Supreme Court s decision in Williams, Erie asked the trial court to grant reconsideration of the order granting summary judgment in favor of Ciminel, to vacate its order dated October 29, 2009, and to enter summary judgment in favor of Erie and against Plaintiffs

5 On January 3, 2013, the trial court entered the order that follows. AND NOW, to wit, this 3d day of January, 2013, upon consideration of [Erie s] Motion for Reconsideration and Brief in Support, it is hereby ORDERED, ADJUDICATED AND DECREED that the Motion is GRANTED. The [c]ourt s October 29, 2009 order granting summary judgment in favor of Plaintiffs is vacated. Summary judgment is hereby entered in favor of [Erie] and against Plaintiffs on the declaratory judgment claim, as the regular use exclusion contained in the Erie policy effectively precludes Plaintiffs recovery of UIM benefits. After analysis and in depth research, [the court] can find nothing that would take this case outside the ambit of [Williams]. Hence, summary judgment is granted. Trial Court Order, 1/3/2013. On April 2, 2013, Ciminel filed a praecipe to discontinue with prejudice the remaining counts he brought against Erie in the complaint. On April 5, 2013, Ciminel filed a notice of appeal from the order of January 3, The trial court did not direct Ciminel to comply with Pa.R.A.P The court did issue an opinion wherein it stated that its January 3 rd order would serve as its opinion with respect to Ciminel s appeal. The court also asserted, I do believe the appeal is untimely. Trial Court Opinion, 4/12/2013. questions. In his brief to this Court, Ciminel asks us to consider the following I. Is the Erie [] regular use exclusion subject to more than one reasonable interpretation and thus ambiguous and unenforceable? II. Did Ciminel reasonably expect that the Erie [] policy would cover him while operating his police car? - 5 -

6 III. Does the Erie [] regular use exclusion violate the legislative intent of the MVFRL [3] because the insertion of the regular use exclusion into the Erie [] policy involuntarily waives UIM coverage without containing costs? Ciminel s Brief at 4 (trial court s answers omitted). Before we turn to Ciminel s issues, we will address the concerns of both Erie and the trial court regarding the timeliness of Ciminel s appeal. Erie argues, in pertinent part, as follows. It is clear that under Pennsylvania law, a party must file a notice of appeal within thirty days (30) after the entry of the Order that is being appealed. [Ciminel s] appeal in this case was filed more than thirty (30) days after the trial court s January 3, 2013 Order granting summary judgment in favor of [Erie]. While [Ciminel] argue[s] that the appeal period should run from the April 2, 2013 Praecipe to Discontinue, the appeal period should be deemed to begin on January 3, 2013, after summary judgment was granted in favor of [Erie]. Importantly, all of [Ciminel s] claims in this case were premised on [Erie s] alleged failure to pay UIM benefits under the insurance policy. Once it was determined by the trial court that [Erie] had no contractual duty to pay UIM benefits, [Ciminel s] additional claims were extinguished. This is implicit in the trial court s January 3, 2013 Order, and consistent with the court s opinion that the appeal is untimely. Based on the foregoing, the January 3, 2013 entry of summary judgment in favor of [Erie] eliminated all of [Ciminel s] claims in this case. Accordingly, [Ciminel s] appeal, over three (3) months after the entry of summary judgment in favor of [Erie], is untimely and should be quashed. Erie s Brief at 7. We disagree with Erie and the trial court as to the timeliness of Ciminel s appeal. 3 Motor Vehicle Financial Responsibility Law, 75 Pa.C.S

7 Generally speaking, this Court has jurisdiction over appeals from final orders. 42 Pa.C.S Pennsylvania Rule of Appellate Procedure defines final order as, inter alia, any order that disposes of all claims and of all parties[.] Pa.R.A.P. 341(a)(1). A party that wishes to appeal a final order has thirty days from the entry of such an order to file a notice of appeal. Pa.R.A.P. 903(a). Here, the trial court s January 3, 2013 order specifically stated that the court was granting summary judgment in favor of Erie and against Ciminel on the declaratory judgment claim[.] Trial Court Order, 1/3/2013. Thus, the order did not dispose of Ciminel s claims of fraud, bad faith, violation of the UTPCL, negligence, or breach of contract. Because the order did not dispose of all claims or of all parties, it was not a final, appealable order. Instead, the event that triggered the running of the appeal period was Ciminel s voluntary dismissal of his remaining claims with prejudice, as that event effectively disposed of all claims and of all parties. Ciminel filed his notice of appeal within thirty days of dismissing his remaining claims against Erie; consequently, we conclude that he timely filed his notice of appeal. We now will focus on the issues and arguments Ciminel raises in his appellate brief. Under his first issue, Ciminel highlights the fact that the policy does not define the term regularly used. Ciminel then asserts that the policy uses the term regular use in a section of the policy outside of the provisions regarding UIM coverage

8 The Autos We Insure portion of the policy states, in pertinent part 3. For Comprehensive and Collision coverages, if purchased on owned private passenger autos or trailers, we insure a. Non-Owned Autos while you or a relative are operating or have possession or custody of a private passenger auto, moving van or trailer (including a temporary substitute) not furnished or available for the regular use of you or a relative. A private passenger auto, moving van or trailer rented to you for a period of more than 45 consecutive days shall be considered as furnished or available for the regular use of you or a relative. Complaint, 8/23/2007, Exhibit 1, at 5 (boldface type omitted) (emphasis added). Ciminel argues The provision means that Erie insures non-owned autos so long as they are not available for regular use by you or a relative. Regular use means a vehicle that is rented for 45 consecutive days. If the term regular as used in the above provision is applied to the facts presented in this case, the regular use exclusion contained within the Erie policy does not apply. First, Ciminel has never worked for more than 45 consecutive days as a police officer with the City of Pittsburgh. Second, and more importantly, Ciminel has never operated and/or rode [sic] in a police vehicle for more than 45 consecutive days. Therefore, applying the language of the Erie policy as used in the Erie policy to Ciminel, the regular use exclusion does not preclude Ciminel from recovering UIM benefits under the Erie policy. Ciminel s Brief at 12 (citations omitted). In the alternative, Ciminel contends that the term regularly used is ambiguous and, therefore, should be interpreted against Erie as the drafter of the policy

9 Erie takes the position that, because the policy does not define the term regularly used, that term must be given its ordinary meaning. Erie maintains that this Court has determined that the ordinary meaning of regularly used is habitually used, as opposed to occasionally or incidentally used. Erie s Brief at 11 (quoting Brink v. Erie Insurance Group, 940 A.2d 528, 533 (Pa. Super. 2008)). Regarding the Autos We Insure portion of the policy relied upon by Ciminel in defining the term regularly used, Erie argues as follows. The language relied upon by [Ciminel] is applicable only to claims (1) made for comprehensive and collision coverage; and (2) involving the long-term use of a rental vehicle (in excess of 45 consecutive days). It is undisputed that comprehensive and collision coverage and long term rentals are not at issue in this case, and are not applicable to [Ciminel s] UIM claim. Instead, the UIM endorsement of the insurance policy is at issue. Notably, these are distinct and separate coverages addressed in distinct and separate parts of the insurance policy. Erie s Brief at 9 (citation omitted). The general principles governing our review of orders granting summary judgment can be summarized in the following manner. The standards which govern summary judgment are well settled. When a party seeks summary judgment, a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only when the - 9 -

10 right to such a judgment is clear and free from doubt. Id. An appellate court may reverse the granting of a motion for summary judgment if there has been an error of law or an abuse of discretion. Swords v. Harleysville Ins. Companies, 883 A.2d 562, (Pa. 2005) (citations omitted). To the extent that our resolution of this appeal requires that we interpret the insurance policy, we note that the interpretation of an insurance contract is a question of law, our standard of review is de novo; thus, we need not defer to the findings of the lower tribunals. Our scope of review is plenary. 401 Fourth St., Inc. v. Investors Insurance Group, 879 A.2d 166, 170 (Pa. 2005) (citations omitted). With respect to the manner in which we are to interpret an insurance contract, our Supreme Court has stated The task of interpreting [an insurance] contract is generally performed by a court rather than by a jury. The purpose of that task is to ascertain the intent of the parties as manifested by the terms used in the written insurance policy. When the language of the policy is clear and unambiguous, a court is required to give effect to that language. When a provision in a policy is ambiguous, however, the policy is to be construed in favor of the insured to further the contract's prime purpose of indemnification and against the insurer, as the insurer drafts the policy, and controls coverage. Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Finally, [i]n determining what the parties intended by their contract, the law must look to what they clearly expressed. Courts in interpreting a contract, do not assume that its language was chosen carelessly. Thus, we will not consider merely individual terms utilized in the insurance contract, but the entire insurance provision to ascertain the intent of the parties

11 Id. at 171 (citations and quotation marks omitted). Furthermore, [w]hen terms in a contract are not defined, we must construe the words in accordance with their natural, plain, and ordinary meaning. State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 928 (Pa. Super. 2012) (citations and quotation marks omitted. As Erie points out, this Court already has interpreted the regular use exclusion at issue in this case. In Brink, supra, this Court ultimately concluded that the ordinary meaning of the exclusion is that the vehicle had to be regularly used or habitually used, as opposed to occasionally or incidentally used. Thus, the exclusion is not ambiguous. Brink, 940 A.2d at 533. We are bound by this precedent. Moreover, we are not persuaded by Ciminel s attempt to distinguish this case from Brink by arguing that the Autos We Insure portion of the policy somehow alters the ordinary meaning of the regular use exclusion. The policy provision cited by Ciminel is found in the body of the insurance policy, not the Uninsured/Underinsured Motorists Coverage Endorsement, and the provision clearly and unambiguously addresses the availability of comprehensive and collision coverage under specific circumstances. It in no way addresses the availability of UIM coverage. Stated simply, the policy provision cited by Ciminel has no impact on the ordinary meaning of the regular use exclusion. Ciminel s first issue warrants no relief

12 Under his second issue, Ciminel argues that he reasonably expected that if he were involved in an accident while operating his police vehicle, then his policy would provide him with UIM coverage. Ciminel s argument is based upon his belief that the regular use exclusion is ambiguous. See, e.g., Ciminel s Brief at 14 ( The Erie policy is ambiguous[,] and therefore, it is appropriate to examine the reasonable expectations of Ciminel. ). We, however, already have concluded that the regular use exclusion is unambiguous. Consequently, Ciminel s reasonable expectations are irrelevant. See Millers Capital Ins. Co. v. Gambone Bros. Development Co., Inc., 941 A.2d 706, 717 (Pa. Super. 2007) ( An insured, however, may not complain that its reasonable expectations have been frustrated when the applicable policy limitations are clear and unambiguous. ); Brink, 940 A.2d at 536 ( [W]here the language of the regular use exclusion is clear and unambiguous, the reasonable expectations of a party are not controlling. ). Ciminel s second issue, therefore, fails. Lastly, Ciminel argues that the regular use exclusion violates public policy. In so doing, Ciminel first attempts to distinguish this case from our Supreme Court s decision in Burstein v. Prudential Property and Casualty Insurance Company, 809 A.2d 204 (Pa. 2002), wherein the Court concluded that a regularly used, non-owned car exclusion does not violate public policy

13 Ciminel also claims that the exclusion is contrary to public policy because it violates the MVFRL. In this regard, Ciminel contends as follows. The plain and unambiguous language of 75 Pa.C.S.A imposes a mandatory requirement on insurance companies to obtain an insured's signature if opting-out of UM/UIM coverage. The impact of Erie Insurance's insertion of the regular use exclusion into the policy enables Erie Insurance to seemingly comply with the statute, yet simultaneously circumvent the statutory duty to provide UM/UIM coverage to the insured who chooses to elect such coverage. Ciminel s Brief at 21. Ciminel s arguments ignore our Supreme Court s decision in Williams, supra. 4 Williams, a Pennsylvania State Trooper, was seriously injured while operating his police vehicle. Williams had an automobile insurance policy with GEICO, and that policy included stacked UIM coverage. Williams attempted to recover UIM benefits from GEICO; however, GEICO denied coverage on the basis of a regular-use exclusion. Williams filed a petition to compel GEICO to provide UIM coverage. GEICO answered the petition and filed a declaratory judgment action seeking a judicial declaration that the regular-use exclusion precluded coverage. GEICO filed a motion for summary judgment, which the trial court granted. Williams appealed to this Court. This Court affirmed the trial court s order, finding that it was bound by Brink, supra. 4 Despite the fact that the trial court s January 3, 2013, order granted summary judgment in favor of Erie expressly due to the Williams decision, Ciminel s brief to this Court fails to offer any meaningful analysis or discussion of Williams

14 Williams filed a petition for allowance of appeal in the Supreme Court. According to that Court, it granted review to address whether the regularuse exclusion contained in a personal automobile insurance policy is valid to preclude payment of [UIM] benefits to a police officer injured in the course of employment while operating a police vehicle for which the officer did not have the ability to obtain UIM coverage. Williams, 32 A.3d at Williams presented similar arguments to the Supreme Court as Ciminel presents to this Court. Specifically, Williams submit[ted] that the factual distinctions between himself and the insured in Burstein [were] sufficient to require a different outcome. Williams further argue[d] that the exclusion violates the plain language of the MVFRL because it excludes UIM coverage without a written rejection as required by 75 Pa.C.S Id. at 1199 (footnote omitted). Stated succinctly, the Supreme Court rejected Williams arguments and ultimately affirmed this Court s order. As we stated above, the trial court granted summary judgment in favor of Erie by concluding that it could find nothing that would take this case outside the ambit of [Williams]. Trial Court Order, 1/3/2013. Ciminel fails to assign error to this conclusion. Moreover, after a review of the certified record and the Williams decision, we can discern no error in the trial court s decision to reject Ciminel s public policy arguments by relying on Williams

15 Ciminel has failed to present this Court with an issue worthy of relief. We, therefore, affirm the trial court s January 3, 2013 order. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 1/9/