Fay v. Erie Ins. Group

CourtSuperior Court of Pennsylvania
Citation1999 PA Super. 7,723 A.2d 712
PartiesGloria FAY, Individually and as Administratrix of the Estate of Daniel P. Fay, Sr., Deceased, Appellant, v. ERIE INSURANCE GROUP, a Corporation, Appellee.
Decision Date12 January 1999

723 A.2d 712
1999 PA Super.

Gloria FAY, Individually and as Administratrix of the Estate of Daniel P. Fay, Sr., Deceased, Appellant,
ERIE INSURANCE GROUP, a Corporation, Appellee

Superior Court of Pennsylvania.

Argued October 28, 1998.

Filed January 12, 1999.

723 A.2d 713
William M. Radcliffe, Uniontown, for appellant

Susan H. Malone, Pittsburgh, for appellee.



¶ 1 This is an appeal from the final order of the trial court which sustained the preliminary objections in the nature of a demurrer filed by Appellee, Erie Insurance Group (Erie) and dismissed the complaint filed by Appellant, Gloria Fay. For the reasons set forth below, we affirm. Before addressing the merits of Appellant's claims, we will recount the pertinent facts giving rise to this appeal.

¶ 2 Appellee issued two automobile insurance policies to Gloria Fay and her husband, Daniel Fay, Senior.1 Each policy provided the Fays with first party benefits including accidental death benefits. The accidental death benefits were available for each of the Fays' vehicles except the trailer. Thus, the Fays were charged for and paid premiums for three accidental death benefits. As mandated by the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1717, the policies further expressly precluded the stacking of first party benefits.

¶ 3 On January 23, 1996, Daniel Fay died as a result of injuries he sustained in an automobile accident. Gloria Fay was appointed as the administratrix of her husband's estate. Acting in both her individual and fiduciary capacities, Appellant filed the instant complaint against Appellee in September of 1997.

723 A.2d 714
¶ 4 The complaint averred a class action suit under the Unfair Trade Practices Consumer Protection Law (UTPCPL), 73 P.S. §§ 201-1 - 201-9.3. Appellee filed preliminary objections. The trial court sustained the objections but permitted Appellant to file an amended complaint. Appellant complied and filed an amended complaint on January 20, 1998. Appellee again filed preliminary objections. Because the amended complaint was substantially similar to the first, the trial court again sustained the objections and dismissed the complaint with prejudice

¶ 5 Appellant timely appealed and presents the following issues for our review: (1) whether the UTPCPL requires an express misrepresentation or fraudulent concealment in order to be actionable; and (2) whether Appellee implicitly misrepresented that the coverage had value by charging and collecting a premium for duplicative accidental death benefits. As Appellant's claims are inextricably intertwined, they will be addressed together.

Where a preliminary objection in the nature of a demurrer is sustained, an appellate court's review is limited. All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Moser v. Heistand, 545 Pa. 554, 559, 681 A.2d 1322, 1325 (1996) (citation omitted). We need not accept a party's allegations as true to the extent they constitute conclusions of law. Scarpitti v. Weborg, 530 Pa. 366, 368, 609 A.2d 147, 148 (1992). We will examine the trial court's decision and appellant's arguments mindful of these principles.

¶ 6 As previously noted, Appellant seeks relief under the UTPCPL. We observe, however, that unfair or deceptive insurance practices are generally subject to...

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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
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    ...412 (citing DiLucido v. Terminix Int'l, Inc. , 450 Pa. Super. 393, 401, 676 A.2d 1237, 1240–41 (1996) ); see also Fay v. Erie Ins. Group , 723 A.2d 712, 714 (Pa. Super. Ct. 1999). Moreover, a plaintiff has the burden of establishing justifiable reliance, the same level of reliance required ......
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    ...a tendency to deceive’; and (3) ‘the representation is likely to make a difference in the purchasing decision.’ Fay v. Erie Ins. Gr [p. ], 723 A.2d 712, 714 (Pa. Super. 1999) (listing elements for violation of [Section] 2(4)(v) [ of the UTPCPL] ); see Weinberg , 740 A.2d at 1167 (stating sa......
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