Progressive Direct Insurance Company (“Progressive Direct”) appealed the trial court’s decision denying its motion for summary judgment and granting the Judge’s grant of summary judgment. In Bryan D. Koch, Executor Of Estate Of Rhea Lynn Koch, Deceased, And Bryan D. Koch, In His Own Right v. Progressive Direct Insurance Company2022 PA Super 131, No. 1302 MDA 2021, No. J-A14036-22 Superior Court of Pennsylvania (August 4, 2022)
On June 7, 2015, Bryan Koch (“Koch”) was driving a 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 after the crash. Koch’s wife died in the crash and Koch suffered injuries that required amputation of his left leg above the knee.
The groups do not deny that Eyrick was responsible for the accident. In the end, Koch decided to settle Eyrich’s claims because of its $15,000.00 per claimant limit. Mr. Koch’s damages in the accident related to the fatal injuries to his wife, Rhea Koch, and the injuries he sustained to himself exceeded those of Eyrich, who was an uninsured motorist (UIM).
At the time of the accident, Koch’s motorcycle was insured by Progressive Direct under a policy that offered $100,000 per person and $300,000 per accident. Koch filed claims against Progressive Direct for personal injury and UIM benefits. Progressive Direct refused to pay the requested UIM benefits based on its claim that Mr. Koch had signed a waiver of UIM.
On September 9, 2019, Koch filed a breach of contract lawsuit against Progressive Direct for failing to properly and timely assess and pay the UIM policy limits of the insurance. Koch claimed that he and each Estate were entitled to UIM benefits in the amount of $100,000.00.
On February 25, 2021, Progressive Direct filed a motion for summary judgment, alleging that Koch had initially denied the UIM provision by initiating the Progressive Halcyon Insurance Co. policy. which was issued in February 2004 for Koch’s 2002 Honda motorcycle. Progressive Direct stated that Koch’s denial of UIM in 2004 was effective and continued to add and remove various motorcycles from the policy since Koch did not change the name to deny UIM exposure.
Koch moved for summary judgment and, in support of the motion, Koch presented evidence of a telephone conversation he had with a representative of Progressive Direct, on August 20, 2014, nine months before the accident, at which he requested. to buy accessories for his 2013 Harley Davidson motorcycle. After discussion, Koch added coverage of motorists (UM) to his plan. A representative of Progressive Direct did not discuss the availability of insured vehicles (UIM) and was not available.
The trial court granted summary judgment in favor of Koch. As a result, the trial court concluded that the Plaintiff did not make a “knowing waiver” of the UIM and found the Denial of UIM form that Koch signed in 2004 at the time of initiating the policy was invalid under the Motor Vehicle Financial Responsibility Law. MVFRL). Further, the trial court determined that there was $200,000.00 in UIM coverage under Koch’s policy that occurred at the time of the accident.
- Any denial of coverage to uninsured motorists that occurs in the issuance of this policy remains valid until it is replaced by insurance.
- Whether a telephone conversation between a Progressive representative and [Koch]to discuss various issues, he made a position on behalf of the Progressive to advise [Koch] about coverage for uninsured motorists.
- Whether the trial court erred in finding that Progressive’s representative failed to provide uninsured motorist coverage. [Koch] Need to reform the policy to allow uninsured motorists?
As a preliminary matter to the extent that the trial court found that a representative of Progressive Direct “misled” Koch when he advised him of the availability of uninsured vehicles but did not discuss the safety precautions, Koch’s complaint does not seek to find Progressive. Liability is limited to the wrongful intent of the misrepresentation, but is instead based on the breach of contract.
Although the purchase of uninsured motorist and underinsured motorist coverage is optional, Pennsylvania law provides that insureds must be provided with detailed information to explain the purposes of UI/UIM and must sign waivers written in plain language. place for willful and willful denial of any form of Learning.
The insured must sign and fill out separate forms to deny UI and UIM.
This record is consistent with the trial court’s finding that Mr. Koch signed a UI/UIM denial on February 14, 2004, after submitting the first Progressive Halcyon policy for the 2002 Honda motorcycle.
Progressive Direct testified that it continuously sent Koch legal updates that said Koch refused to be served with UIM. After Mr. Koch contacted Progressive Direct on August 20, 2014, increased his coverage, and purchased UI insurance, Progressive Direct sent Mr. Koch a policy update on January 3, 2015, which stated that the policy included coverage for uninsured motorists in the amount of $100,000 each. a person is $300,000 each accident and mentions the corresponding premium for Learning this. The revisions to the policy listed “bodily injury to uninsured motorists” as “denied.”
These decisions were made during the disaster that occurred on June 7, 2015.
The language of Section 1731 expressly provides that any person who files a formal application denying UI and/or UIM protection under Section 1731(b)-(c) is precluded from asserting liability to any person based on insufficient information. Further, Section 1791 of the MVFRL states “[i]t shall be deemed that the insured has been advised of the benefits and limitations available under this chapter provided that the following notice in writing in the form of ten points is given to the applicant at the time of applying for the original cover, and no further notice or refusal shall be required.”
Koch issued a formal authorization of UI and UIM benefits after issuing the original order in February 2004. When Koch contacted Progressive Direct on August 20, 2014 and indicated that he wanted to publish more information on the existing policy, a Progressive Direct representative was present. not required to provide Koch with additional notice of a particular benefit or obtain a separate UIM denial form.
These statutory provisions apply to situations where the provision of UIM has been waived, does not contain the “purchase” requirement set forth in Section 1738 or contains any language giving the insured an opportunity to waive UI or UIM.
The UIM denial form signed by Mr. Koch when filing the lawsuit in 2004 remained valid so Mr. Koch was not entitled to UIM benefits at the time of the accident. The Pennsylvania appeals court therefore reversed the trial court’s decision to grant Koch’s motion and denied Progressive Direct’s motion for summary judgment.
The case was remanded for judgment in favor of Progressive Direct on all counts.
Some insurers believe that their insurers know what insurance they need and can choose or not choose what is required. Mr. Koch knew he needed coverage for uninsured motorists but he didn’t know he needed uninsured businesses. The court had no choice but to follow Pennsylvania law and refuse to allow him to provide the services he did not command, did not pay the costs, and waived the right to be served. As much as we wish 20/20 hindsight doesn’t make up for what isn’t there.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to working as an insurance consultant specializing in insurance coverage, insurance litigation, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He has practiced law in California for over 44 years as an insurance and claims attorney and over 54 years in the insurance business. He can be reached at firstname.lastname@example.org.
Subscribe to and receive the subscription-only Excellence in Claims Handling videos on locals.com https://zalmaoninsurance.locals.com/subscribe.
Write to Mr. Zalma at email@example.com; ; daily news is published on Go to the podcast Zalma Pa Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Visit Barry Zalma’s videos on Rumble.com at https://rumble.com/c/c-262921; Visit Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Visit the Insurance Claims Library –