Petrosky v. Allstate Fire & Cas. Ins. Co.

• Decision Date: 30 October 2015
• Docket Number: CIVIL ACTION No. 14–3970
• Citation: 141 F.Supp.3d 376
• Parties: Alan Petrosky v. Allstate Fire and Casualty Insurance Company
• Court: U.S. District Court — Eastern District of Pennsylvania

141 F.Supp.3d 376

Alan Petrosky

v.Allstate Fire and Casualty Insurance Company

CIVIL ACTION No. 14–3970

United States District Court, E.D. Pennsylvania.

Signed October 30, 2015

Gardenia L. Brooman, Verlin Law Offices, Bala Cynwyd, PA, for Alan Petrosky.

John R. Brown, Philadelphia, PA, for Allstate Fire and Casualty Insurance Company.

MEMORANDUM

Legrome D. Davis

, District Judge

Plaintiff Alan Petrosky was injured in a motor vehicle accident on March 19, 2012, while on duty as a police officer employed by the City of Philadelphia. Petrosky commenced suit in state court against his automobile insurance carrier, Defendant Allstate Fire and Casualty Insurance Company ("Allstate"), to recover underinsured motorist benefits (UIM). Allstate removed the lawsuit to this District Court based on diversity jurisdiction, 28 U.S.C. § 1332

.

Allstate moves for summary judgment, maintaining that under a "regular use" exclusion contained in the automobile insurance policy that it sold to Petrosky, it is not liable for UIM benefits. Defendant's Motion ("Def. Mot.") & Ex. F, "the Policy" (Doc. Nos. 15, 15–6). This is so, the motion asserts, because Petrosky was injured while "occupying" a police patrol car that was made available for his regular use. Petrosky opposes the motion, challenging the proffered interpretation of the exclusion. He maintains that the exclusion does not apply to his case. Plaintiff's Response ("Pl. Resp.") (Doc. No. 16 at 2-13) and Brief ("Pl. Br.") (Doc. No. 16 at 14-31). Petrosky requests that summary judgment be granted in his favor, awarding him UIM benefits.

The Policy's regular use exclusion precludes UIM benefits for bodily injury "while in, on, getting into or out of" a motor vehicle that is available for the insured's regular use, but is not owned by the insured and is not insured for UIM coverage under the Policy. Policy at 20 (Doc. No. 15-6 at 37). The patrol car was owned by the City and was not insured under the Policy. The parties also agree that the regular use exclusion does not contain the term, "occupying," and the Policy does not define the phrase, "while in, on, getting into or out of." They disagree about the meaning of that phrase and its application to the facts presented here.

Allstate's motion is based principally on the liberal rule of Utica Mutual Insurance Co. v. Contrisciane , 504 Pa. 328, 473 A.2d 1005 (1984)

for determining under an insurance coverage provision whether an insured is "occupying" a vehicle. Under that rule, the motion asserts, Petrosky occupied a regularly used patrol car when he was struck and injured by an underinsured motor vehicle, and the regular use exclusion eliminates UIM benefits for him. Defendant's Brief ("Def. Br.") at 2 (Doc. No. 15 at 19, 18-40). On the other hand, Petrosky's position is that under Pennsylvania's well-settled rules governing insurance contracts, the regular use exclusion must be interpreted strictly and narrowly according to the plain and ordinary meaning of its terms. So read, he maintains that the exclusion may not be judicially rewritten to add the unstated term, "occupying," and he was not in fact injured "while in, on, getting into or out of" the patrol car. Pls. Resp. at 2. In his view, whether he "occupied" the patrol car within the meaning of Utica

Mutual is irrelevant and immaterial given the policy provisions and circumstances at issue here.

The primary question presented is whether the insuring agreement for the Policy's UIM Coverage compensates Petrosky for his bodily injuries arising from an underinsured car striking him while he walked along the side of the roadway, or instead, whether the UIM Coverage's exclusion of damages for bodily injuries sustained "while in, on, getting into or out of" a regularly used, non-owned motor vehicle—here, the patrol car—precludes his recovery of UIM benefits for bodily injuries arising from that accident. As follows, Petrosky's position prevails.

I. FACTUAL AND PROCEDURAL HISTORY

On March 19, 2012, Alan Petrosky was working as a police officer for the City of Philadelphia. At about 6:45 p.m. that day, he investigated a minor collision between two cars on Cottman Avenue in Philadelphia, Pennsylvania. Defendant's Statement of Undisputed Facts ("Def. Stmt.") ¶¶ 1, 2 (Doc. No. 15-5 at 3, 3-6). One car was driven by Evelyn Rosa and the other by Anthony Rosenberg. Id. ¶ 2. Rosa had called the police requesting that an officer be dispatched. Deposition Testimony of Alan Petrosky, dated Jan. 21, 2015 ("Petrosky Dep."), 78-79, Pl. Resp., Ex. A (Doc. No. 16 at 33-74) and Def. Mot., Ex. E (Doc. No. 15-5).

Upon arrival, Officer Petrosky parked his marked patrol car along the curb behind Rosenberg's car, which was parked behind Rosa's car. Def. Stmt. ¶ 7. All of the vehicles were parked safely off the roadway, and Petrosky turned off the patrol car's engine and lights. He got out of his patrol car and approached Rosa and Rosenberg, who were standing together in an area between the bumpers of their cars, arguing. Id. ¶ 9. Petrosky separated them and asked each to retrieve their license, registration, and insurance information. Id. ¶ 10. After they complied, he returned to his patrol car, processed their information using the police computer system, ran a background check, and prepared an accident report. Id. ¶ 11. After completing those tasks, he walked to the driver's window of Rosenberg's car, gave him a citation for not producing proof of insurance, and informed him that he was free to leave. Id. ¶ 12; Petrosky Dep., 92. Petrosky then walked to the driver's window of Rosa's car and returned her paperwork. Id.

As Petrosky moved away from Rosa's car intending to return to his patrol car, Rosa asked for his name and badge number. Petrosky Dep., 93-95, 98-99. He said, "okay," and then "walked sideways facing her car," "as close as possible," "trying to get around to the trunk area" in order to use it as support for his writing. Id. , 93–95. As he so moved near the trunk of Rosa's car, Rosenberg began to drive away. Rosenberg's car struck Petrosky. Id. , 95.

Rosenberg stopped, and Petrosky pulled him out of his car and placed him under arrest in the back of the patrol car. Petrosky Dep., 95. Petrosky called his supervisors and a number of officers responded to the scene. Id. , 95–100. Shortly after their arrival, Petrosky's "shock, anger, adrenaline" subsided, and he began to feel pain in his leg and side. Id. , 102. One of the officers took him to Jeannes Hospital. Id. , 102, 105. Petrosky presently reports chronic pain from his bodily injuries as well as anxiety and depression. Id. , 133–148.

Petrosky submitted a claim for compensation from Rosenberg's automobile liability insurance carrier, GEICO. Def. Stmt. ¶ 19. GEICO paid Petrosky the $15,000 policy limits for bodily injury. Id. Petrosky also submitted an insurance claim under Allstate's Policy, which provides $500,000 in stacked policy limits for UIM coverage. Id. ¶ 21; Def. Br. at 4-5. Allstate denied Petrosky's insurance claim based on the Policy's regular use exclusion. Pl. Resp. at 18.

Petrosky sued Allstate in the Philadelphia Court of Common Pleas to compel Allstate to pay UIM benefits. Notice of Removal, Ex. A, Complaint (Doc. No. 1). On June 26, 2014, Allstate removed the lawsuit to this District Court. Id. On March 9, 2015, Allstate filed the present motion for summary judgment. At the Court's request, the parties submitted supplementary briefs as to whether Petrosky was "occupying" the patrol car at the time he was struck by Rosenberg's car. Order, dated May 6, 2015, (Doc. No. 18); the parties' respective Supplemental Briefs (Doc. Nos. 19, 20).

II. DISCUSSION

A. Standards for Review and Rules for Decision

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(2)

. A fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Importantly, "summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Mere allegations or denials of a party's pleadings, or "a scintilla of evidence" in support of a party's position, are insufficient to defeat a properly supported motion for summary judgment. Id. at 248, 252, 106 S.Ct. 2505.

Here, no genuine dispute as to any material fact is presented. Instead, the parties present questions of law concerning the meaning and application of the Policy's regular use exclusion. They agree that Pennsylvania law governs interpretation of the Policy and the extent of coverage that it provides. Accordingly, Pennsylvania law will be applied here.

Under Pennsylvania law, the interpretation of a contract of insurance is a matter of law for the courts to decide. Babcock & Wilcox Co. v. Am. Nuclear Insurers , ––– Pa. ––––, 131 A.3d 445, 456–57, No. 2 WAP 2014, 2015 WL 4430352, at *10 (Pa. July 21, 2015)

; Donegal Mut. Ins. Co. v. Baumhammers , 595 Pa. 147, 938 A.2d 286, 290 (2007). Accord

Allstate Prop erty & Cas. Ins. Co. v. Squires , 667 F.3d 388, 391 (3d Cir.2012)

. "Whether a claim for insurance benefits is covered by a policy is a matter of law which may be decided on a summary judgment motion." Nordi v. Keystone Health Plan W. Inc. , 989 A.2d 376, 379–80 (Pa.Super.Ct.2010) (citing Tenos v. State Farm Ins. Co. , 716 A.2d 626, 628 (Pa.Super.Ct.1998) ).

Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)

. Pennsylvania "courts have established a general rule that it is a necessary prerequisite for the...