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Posted by on Feb 23, 2017 in Civil, Insurance, MVFRL | 0 comments

Ford v. American States Ins. Co – UIM Waiver is Close Enough

Sometimes, a few words can be very expensive; sometimes, they don’t matter. 75 Pa.C.S.A. § 1731 of the Motor Vehicle Financial Responsibility Law (“MVFRL”) prescribes a form to be used verbatim by insurance companies when offering an insured the right to waive Underinsured Motorist coverage (“UIM coverage”) on their car insurance policy. For those unfamiliar, UIM coverage is what your insurance company pays out when your injuries exceed the policy limits of the responsible driver, and while insurance companies are required to offer UIM to their Pennsylvania customers, the insured may waive UIM protection in exchange for lower premiums. After explicitly mandating the wording of the form to be used, (“The named insured shall be informed that he may reject uninsured motorist coverage by signing the following written rejection form:”), the statute goes on to emphasize that any company that does not “specifically comply with this section” will have to pay the insured’s UIM claim up to the policy’s bodily injury limits, even though the insured paid the lower, non-UIM premium leading up to the accident.

So what really happens when an insurance company does not “specifically comply” with the form in the statute? Or perhaps the better way to frame the argument—and the framing the Court appears to have accepted—is what it means to “specifically comply” with a statute that provides explicit language for insurers to use. Is it the precise wording of the statute the legislature was requiring, or the underlying meaning of the words?

In the case at hand, Audrey Ford purchased insurance on her 2000 Chevrolet Cavalier and waived the UIM offering from American States Insurance Company. (Note that on this site, we strive not to judge anyone’s lifestyle choices, and so we’ll allow both Ms. Ford’s waiver of UIM and her choice of the Chevy Cavalier to pass without comment). She waived UIM and paid the resultant lower premiums until one fateful day in 2013, when her Chevy Cavalier was struck in Union Township (birthplace of Mr. Radio Baseball). Ms. Ford’s injuries exceeded the limits of the other party’s insurance (the Court helpfully identifies the other driver only as “Tortfeasor”), and she subsequently made a claim against her own insurance company for UIM.

American Insurance’s UIM waiver form contained two minor additions to the statutory language, underlined as follows:

By signing this waiver I am rejecting underinsured motorists coverage under this policy, for myself and all relatives residing in my household. Underinsured motorists coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.

The Court, speaking by Justice Baer, preferred function over form, in this case. The majority’s reasoning relied on two points: first, it was “important” that Ms. Ford had paid lower premiums in exchange for the understanding that she was waiving UIM. Presumably, the Justices did not like the idea that someone could reap the benefit of a bargain for lower coverage, and then still cash in on the higher coverage she had declined. More centrally, however, while acknowledging a long line of cases requiring strict compliance with the statutory waiver form, the majority points out that the statute requires only “specific compliance” with the statute, not “verbatim reproduction” of the form within the statute. Calling any insurer’s decision to deviate, even slightly, from the form in the statute “ill-advised,” the majority goes on to hold that, “when a UIM rejection form differs from the statutory form in an inconsequential manner, the form will be construed to specifically comply with Section 1731 of the MVFRL.” Because the Insurance Company’s addition of a letter and a word injected no ambiguity into the meaning of the form, the General Assembly’s intention that an insured be put on notice of the rights she was waiving was still accomplished.

If you’re wondering how we’ll know when a UIM-waiver form’s deviation is “inconsequential” in the future, you’re not alone. Justice Donohue, joined by Justice Todd, offers a dissent rebuking the Majority’s approach as “contrary” to the statute, and to the General Assembly’s express intent, and predicting that insurance companies are now invited to “tinker, ad nauseam, with the statutorily required language.” The courts will be called on to “oversee case after case” regarding an infinite variety of ways to express the underlying ideas into the statute. Justice Dougherty concludes, “I am at a loss to understand why this Court would inject uncertainty into this abundantly clear expression of legislative direction.”

This case reflects another interesting deviation in that Justice Baer is normally the Court’s most textualist writer. His opinion attempts to reconcile that textualism with a fairly-clear statute, and the Justice seems comfortable with his view that the term “specifically comply” does not mean “strictly verbatim.” The big takeaway for insurance defense is to check your clients’ UIM waivers; there’s just no reason to risk tinkering with the statute’s language. But the takeaway for the plaintiff finding verbal discrepancies in the form is this: don’t get your hopes up.

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Posted by on Feb 22, 2017 in Criminal, Direct Capital Review | 0 comments

Com v. Smyrnes: Capital Appeal

The facts in this case are a repeat of those in Com v. Knight, and they are horrific enough not to bear repeating. Smyrnes appears to have been the ringleader of the conspirators described in the previous appeal. As a matter of both practice and public interest, this case hardly warrants a review, as the Court reviewed and affirmed all matters of the trial. Indeed, most of the points of review were deemed to have been waived by the Defendant, whose failure to object, and indeed, his endorsement of the trial court’s rulings led the Court to refuse further discussion of most of his objections.

Two points stand out, however: first, the Court takes a moment to caution prosecutors on “the value of restraint in scenarios involving potential prejudice connected with . . . non-essential evidence” such as photographs of victims. Here, the Commonwealth made limited use of a pre-injury photograph of the mentally disabled victim to demonstrate what she looked like before her hair was cut by the defendant.

This portion of the opinion represents a possible refinement on prior caselaw, which held that photographs of a victim may not be entered to prove an uncontested element of a crime, or to demonstrate a “victim’s character or physical abilit[y].” Com v. Rivers, 537 Pa. 394, 406-07 (1994). This is in keeping with Pennsylvania Rule of Evidence 403, which requires a balancing of the unfair prejudice created by a piece of evidence with its probative value.

It is plain that the Court did not approve of the use of the photograph in this case, as it “was by no means essential to the prosecution to place this photograph before the jury.” The Court goes on to argue that it “had some relevance,” and to rest its decision on the Commonwealth’s “limited use” of the photo. Of course, “relevance” is only a baseline of admissibility under Pa.R.E. 402, and Rule 403’s balancing test is left unaddressed by the Court. It is hard to see how a photograph was necessary to prove that the victim’s hair was cut during the torture sequence preceding her murder, and a photograph proving that she once had long hair could hardly be argued to be probative. The Court more properly should have ruled this an error, but ruled it harmless and unprejudicial to the defense; however, the Court appears to be squeamish about admitting even a minor fault in a death penalty case that it has no intention of remanding for a new trial.

Second, the Defendant raised a novel argument that the aggravating factor of a murder “committed by means of torture” in 42 Pa.C.S. § 9711(d)(8) could not be imputed to a conspirator who was not the “instrumentality of death.” The Defendant was found vicariously responsible for murder by virtue of his encouragement of the others, his leadership in the conspiracy to murder, and his malicious state of mind. But while the Defendant participated in the acts of torture, he did give the final blows of the knife that killed the victim, and argued he could not properly be attributed with the aggravating circumstance of torture for the purpose of reaching a death penalty verdict. The Court notes that, although the active voice is required elsewhere in the aggravating factors statute, the passive voice referring to an offense “committed by means of torture” clearly demonstrates the propriety of the torture aggravator even when the Defendant was not the physical murderer.

Capital Appeals are statutorily-required of the Commonwealth’s High Court, to ensure that a sentence is not “the product of passion, prejudice, or any other arbitrary factor,” and to ensure that the aggravating factors were properly found by the jury. 42. Pa.C.S. § 9711(h)(3). The resulting opinions rarely make for interesting reading or for novel caselaw, but they serve an important role in ensuring the justice of executions.

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