Schneider v. Lindenmuth-Cline Agency, Inc.

• Decision Date: 07 June 1993
• Docket Number: LINDENMUTH-CLINE
• Citation: 620 A.2d 505,423 Pa.Super. 73
• Parties: Lawrence SCHNEIDER and Sandra Schneider, his wife, and Lawrence Schneider and Sandra Schneider as Parents and Natural Guardians of Bruce Schneider and William Schneider, Appellants, v.AGENCY, INC., Pat Cline and Aetna Insurance Company.
• Court: Pennsylvania Superior Court

Page 505

620 A.2d 505

423 Pa.Super. 73

Lawrence SCHNEIDER and Sandra Schneider, his wife, and Lawrence Schneider and Sandra Schneider as Parents and Natural Guardians of Bruce Schneider and William Schneider, Appellants, v. LINDENMUTH-CLINE AGENCY, INC., Pat Cline and Aetna Insurance Company.

Superior Court of Pennsylvania.

Argued March 3, 1992.

Filed Feb. 11, 1993.

Petition For Allowance of Appeal Denied June 7, 1993.

William F. Goodrich, Pittsburgh, for appellants.

Templeton Smith, Jr., Pittsburgh, for Lindenmuth-Cline, appellee.

Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.

JOHNSON, Judge.

On this appeal, Lawrence and Sandra Schneider raise only two claims for relief: 1) The trial court should have entered judgment notwithstanding the verdict in their favor, and 2) The trial court erred in refusing certain requested points for charge of the Schneiders and granting certain points for charge of the defendants. We find both claims to be without merit. Accordingly, we affirm.

The distinguished trial court set forth the material facts in its Opinion denying post-trial motions as follows:

The Plaintiff, Lawrence Schneider, is a longtime client of the Defendant Lindenmuth-Cline Insurance Agency. Originally Mr. Schneider held a No-Fault automobile insurance policy from Motorists Mutual Insurance Company (hereinafter Motorists), under which Mr. Schneider received primary coverage for Medical benefits.

In 1983 Mr. Cline became an agent for Aetna Insurance Company (hereinafter Aetna) in addition to Motorists. At that time Aetna was engaged in a campaign to woo clients away from Motorists, and to that end offered a one time incentive commission to Mr. Cline for every policy he could change over. Additionally, due to Motorists' deteriorating financial condition, Mr. Cline felt that the switch to Aetna would be beneficial to his clients. Mr. Schneider was one of the people he contacted about the change.

A form letter was sent out in December of 1983 to the targeted clients together with a request for information. Mr. Schneider returned his letter with a handwritten inquiry about possibly omitting his deductible. Mr. Cline recalled a telephone conversation with Mr. Schneider when Mr. Cline advanced the alternatives of eradicating the deductible or switching to excess coverage as a means of saving money on premiums. Thinking that Mr. Schneider desired to switch to excess coverage Mr. Cline obtained his Blue Cross/Blue Shield policy numbers in anticipation of the change.

Mr. Schneider had no recollection of this conversation with Mr. Cline. On the contrary he stated that in several conversations with a Lindenmuth-Cline employee named Linda in 1983 and 1984, he specifically requested the continuation of primary coverage. The only Linda employed by the agency did not begin work until 1988.

In 1984 Mr. Cline arranged for the transfer of Mr. Schneider's auto insurance from Motorists to Aetna, and also arranged the switch from primary to excess coverage. A copy of the policy, which included language concerning the coordination of benefits, was mailed to Mr. Schneider who was billed for the lesser, excess coverage, premium. In 1985, while the Aetna policy was in effect, Mr. Schneider, his wife and son were injured in an automobile accident.

Believing that they were entitled to primary, or double dip coverage, Mr. Schneider instituted this action sounding in breach of contract and negligence against the Lindenmuth-Cline Agency, Pat Cline and Aetna Insurance. The parties stipulated Plaintiff's damages to be $18,478.93. The case went to trial before a jury, who on January 15, 1991, returned a verdict for the defendants. Plaintiff filed timely post trial motions.

Turning to the first issue, our standard of review of an order denying judgment n.o.v. is limited. We must determine whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984). In so doing, we must grant the verdict winner the benefit of every inference which reasonably may be drawn from the evidence. We also must reject all unfavorable testimony and inferences. Ingrassia, supra. See also Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978). Judgment n.o.v. may be granted only in clear cases, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978). Judgment n.o.v. may not be employed to invade the province of the factfinder. Thus, where there is a question of fact to be resolved, this is the fact-finder's function. Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 363 A.2d 1265 (1976).

The trial court acted correctly in refusing to grant the Schneiders' motion for judgment n.o.v. None of the testimony adduced at trial showed that the Schneiders requested or paid for insurance coverage other than that which they received. The Schneiders received a copy of their policy shortly after it was issued and had every opportunity to review the plain language of its excess coverage provision.

The Schneiders rely upon the case of Tonkovic v. State Farm Mutual Automobile Insurance Company, 513 Pa. 445, 521 A.2d 920 (1987) for their assertion that judgment n.o.v. was wrongly withheld. We find that case to be inapposite.

In Tonkovic, the insured applied, in July 1979, for an insurance policy providing disability coverage offered by State Farm Mutual Automobile Insurance Company. It was undisputed that Tonkovic applied for coverage that would enable him to make his mortgage payments in the event of injury, without regard to where such injury might occur, or whether he might be eligible for worker's compensation benefits. An application had been filled out covering these specific points. Tonkovic paid for the policy. Three months later, Tonkovic was injured on the job and received worker's compensation benefits. Tonkovic's subsequent application for benefits under his State Farm policy was rejected. Our supreme court found that Tonkovic had applied and paid for certain coverage in advance, and State Farm then unilaterally reduced and excluded the coverage desired. It found that Tonkovic had specifically requested a type of coverage that would have protected him in the very instance before the court, but was issued a policy quite different from that which he requested. Our supreme court recognized that Tonkovic placed testimony before the jury from which the jury could conclude that Tonkovic never received a copy of the policy and had never been advised of a change in the coverage for which he had originally applied. On those facts, our supreme court held that an insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of, and understood, the change, regardless of whether the insured read the policy. Tonkovic at 454, 521 A.2d at 925.

At best, the Tonkovic decision demonstrates the existence of factual disputes calling for jury resolution. There is nothing in that decision to form the basis for a grant of judgment n.o.v. in the Schneiders' favor. Even under the extreme circumstances present in Tonkovic, the issue before our supreme court was whether a jury could find that the policy exclusion was not applicable. The court stated that, on appeal, the evidence and the reasonable inferences must be viewed in the light most favorable to the verdict winner and that conflicts in testimony must be resolved in the verdict winner's favor. Id. at 454, 521 A.2d at 925. At the very most, the Schneiders were entitled to exactly what they received: the submission of their claim to the jury.

Turning to the Schneiders' second contention on appeal, again we find no error. The Schneiders asked for the following points for charge:

6. When an insurer elects to issue a policy different from what the insured requested, there is clearly a duty to advise the insured of the changes so made. The burden is not on the insured to read the policy to discover such changes or not read at his peril. Tonkovic v. State Farm Mutual Automobile Insurance Company, 521 A.2d [at] 925.

7. Where an individual applies for and prepays for specific insurance coverage, the insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of and understood the change regardless of whether the insured read the policy. Tonkovic ....

8. An insurer cannot unilaterally defeat the expressed expectations of the insured when the issued coverage differs materially from the coverage which the insured specifically applied, the insurer must call the difference to the attention of the insured, regardless of whether the policy language by itself is clear. Koval v. Liberty Mutual Insurance Company, , 531 A.2d , 490 (1987).

Plaintiff's Supplemental Additions to the Points for Charge, submitted January 14, 1991, ruled on January 15, 1991, Trial Transcript, January 14 and 15, 1991, pp. 194, 195, R.R.Vol. II, pp. 194, 195, Brief for Appellant, pp. 17-18.

A trial judge is not bound to remold points for charge presented to him. If they are not strictly in accordance with the facts in evidence or the law of the case she may refuse them. Sedlitsky v. Pareso, 400 Pa.Super. 1, 8, 582 A.2d 1314, 1317 (1990), appeal denied 527 Pa. 673, 594 A.2d 659 (1991). It is not error for the court to refuse a requested point for charge which is improperly formulated, and the court is not responsible for adapting the request to make it a correct statement submittable to the jury. Parnell v. Taylor, 266 Pa.Super. 74, 86, 403 A.2d 100, 106 (1979) ...