Selective Ins. Co. of Am. v. Novitsky
| Decision Date | 01 March 2019 |
| Docket Number | 3:17-CV-2376 |
| Citation | 366 F.Supp.3d 638 |
| Parties | SELECTIVE INSURANCE COMPANY OF AMERICA, Plaintiff, v. Robyn NOVITSKY, individually and as Executrix of the Estate of Kevin C. Novitsky, deceased, Village Auto Sales, Inc., and Patricia Novitsky, individually and as the Executrix of the Estate of Clement Novitsky, deceased, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
James A. Doherty, Jr., Scanlon, Howley & Doherty, P.C., Scranton, PA, Michael T. McDonnell, III, Kutak Rock, LLP, Philadelphia, PA, Robert A. Jaffe, Kutak Rock LLP, Washington, DC, for Plaintiff.
Michael H. Roth, Michael H. Roth, P.C., Timothy G. Lenahan, Lenahan & Dempsey, Scranton, PA, Julia A. Farrugia, Stoll, Nussbaum & Polakov, Los Angeles, CA, for Defendants.
Plaintiff filed this declaratory judgment action seeking a judicial determination of the amount of underinsured motorist coverage available to any Defendant in the action. (Doc. 1.) Four motions are pending before the Court: a motion for summary judgment filed by Defendants Robyn Novitsky and Village Auto Sales (Doc. 9); a motion for summary judgment filed by Defendant Patricia Novitsky (Doc. 44); and cross-motions for summary judgment (Docs. 17, 47) filed by Plaintiff in response to Defendants' filings. With their motions, Defendants request a declaration that the amount of underinsured motorist coverage under their policy with Selective Insurance Company of America at the time of the accident which occurred on May 24, 2017, is $ 1,000,000 combined single limit. (Doc. 9 at 11; Doc. 44 at 10.) In the Complaint and cross-motions (Docs. 1, 17, 47), Plaintiff seeks a declaration that the available underinsured motorist coverage is $ 35,000. For the reasons discussed below, the Court concludes that Plaintiff's cross-motions are properly granted.
In conjunction with the disposition of the pending motions, the Court issued a Memorandum and Order addressing Defendants' Robyn Novitsky, Individually and as Executrix of the Estate of Kevin C. Novitsky, Deceased, and Village Auto Sales, Inc.'s Motion to Strike Plaintiffs Responses to Defendants' Statement of Undisputed Facts and Deem Facts Admitted (Doc. 29). Defendants' motion was granted in part and denied in part. (Docs. 55, 56.) The following recitation reflects the determinations set out in the previously filed Memorandum and Order.2 (Id. )
Defendant Robyn Novitsky was the wife of Kevin Novitsky, deceased, who was killed in a car accident on May 24, 2017. (Doc. 10 ¶ 1; Doc. 20 ¶ 1.) Defendant Patricia Novitsky was the wife of Clement Novitsky who was killed in the same accident. (Doc. 44-1 ¶ 1; Doc. 50 ¶ 1.) Robyn Novitsky is the executrix of the Estate of Kevin Novitsky. (Doc. 10 ¶ 2; Doc. 20 ¶ 2.) Patricia Novitsky is the executrix of the Estate of Clement Novitsky. (Doc. 44-1 ¶ 2; Doc. 50 ¶ 2.)
On May 17, 2017, decedents Clement and Kevin Novitsky (father and son) purchased a vehicle on behalf of their business, Village Auto Sales, Inc., at the ABC Auction of Lancaster. (Doc. 10 ¶¶ 19-20; Doc. 20 ¶¶ 19-20.) After they purchased the vehicle, a 2008 Nissan Rogue, the dealer tags/license plates for Village Auto Sales, Inc., were placed on it for transport back to Village Auto Sales, Inc., in Scott Township, Pennsylvania. (Doc. 10 ¶ 22; Doc. 40 ¶ 22.)
While traveling north on Interstate 81 in the 2008 Nissan Rogue, driver Kevin Novitsky stopped the car behind several stopped vehicles ahead of him when the car was hit from behind by a tractor-trailer driven by Brian Barrett and owned by Jason J. Barry. (Doc. 10 ¶ 24; Doc. 20 ¶ 24.) The Nissan Rogue was pushed forward into the car in front of it and both the tractor trailer and Nissan Rogue became engulfed in flames. (Id. ) Both Clement and Kevin Novitsky were trapped in the Nissan Rogue and burned alive. (Doc. 10 ¶ 25; Doc. 20 ¶ 25.)
The tractor trailer operated by Brian Barrett and owned by Jason J. Barry ("the Tortfeasors") maintained a combined single limit policy of $ 1,000,000 with Nationwide E & S ("the Tortfeasors' Policy"). (Doc. 10 ¶ 26; Doc. 20 ¶ 26.) The $ 1,000,000 was distributed among a number of claimants including Kevin and Clement Novitsky. (Doc. 10 ¶ 27; Doc. 20 ¶ 27.) Kevin Novitsky received $ 493,485.50. (Doc. 10 ¶ 28; Doc. 20 ¶ 28.) Clement Novitsky received $ 296,091.30. (Doc. 44-1 ¶ 28; Doc. 50 ¶ 28.)
As of the date of the accident, May 24, 2017, Village Auto Sales, Inc., had a policy of insurance with Plaintiff, Selective Insurance Company of America, with effective dates July 13, 2016, through July 13, 2017, and policy number S1276407. (Doc. 10 ¶¶ 29, 30; Doc. 20 ¶¶ 29, 30.) The "Garage Coverage Declaration" for the policy indicates the "Covered Auto Symbol" for "Underinsured Motorists" Coverage is 22. (Doc. 10 ¶ 32; Doc. 20 ¶ 32.) The 2008 Nissan Rogue was a "covered auto" under the operative policy for purposes of underinsured motorist coverage. (Doc. 10 ¶ 35; Doc. 20 ¶ 35.)
Defendants made an underinsured motorist ("UIM") claim with Plaintiff based on the value of the wrongful death and survival claims. (Doc. 10 ¶ 37; Doc. 20 ¶ 37.) Under the terms of the policy, Decedent Kevin Novitsky was an "insured" under the policy as was Decedent Clement Novitsky. (Doc. 10 ¶ 39; Doc. 20 ¶ 39; Doc. 44-1 ¶ 39; Doc. 50 ¶ 39.) Robyn Novitsky is an "insured" for purposes of the policy, as is Patricia Novitsky. (Doc. 10 ¶ 40; Doc. 20 ¶ 40; Doc. 44-1 ¶ 40; Doc. 50 ¶ 40.)
As of July 13, 1999, Village Auto Sales, Inc., had a Commercial Automobile Policy with Selective Insurance Company of South Carolina. (Doc. 10 ¶ 41; Doc. 20 ¶ 41.) Village Auto Sales, Inc., remained insured with Selective Insurance Company of South Carolina through and including July 13, 2012. (Doc. 10 ¶¶ 41-42; Doc. 20 ¶¶ 41-42.) The effective dates of the policy, number S1276407, were July 13, 2011, through July 13, 2012. (Doc. 10 ¶ 43; Doc. 20 ¶ 43.)
On or about July 24, 2012, Plaintiff, Selective Insurance Company of America, issued a "Notice of Policy Transfer Into New Selective Affiliate" ("Notice") to Village Auto Sales, Inc., under a form identified as IN 03 56 11. (Doc. 10 ¶ 45; Doc. 20 ¶ 45.) The Notice contains the following statement:
(Doc. 10 ¶ 47; Doc. 20 ¶ 47.) The Notice also states the following:
(Doc. 10 ¶¶ 48-50; Doc. 20 ¶¶ 48-50.3 )
Pursuant to the Notice, effective July 13, 2012, at 12:01 a.m., Village Auto Sales, Inc., was no longer an insured of Selective Insurance Company of South Carolina. (Doc. 10 ¶ 51; Doc. 20 ¶ 51.) Pursuant to the Notice, effective July 13, 2012, at 12:01 a.m., Village Auto Sales, Inc., became an insured of Plaintiff, Selective Insurance Company of America. (Doc. 10 ¶ 52; Doc. 20 ¶ 52.) Pursuant to the Notice, Village Auto Sales, Inc.'s, policy with Selective Insurance Company of South Carolina expired on July 13, 2012, at 12:01 a.m. (Doc. 10 ¶ 53; Doc. 20 ¶ 53.) Pursuant to the Notice, Village Auto Sales, Inc.'s, policy with Plaintiff, Selective Insurance Company of America, became effective on July 13, 2012, at 12:01 a.m. (Doc. 10 ¶ 54; Doc. 20 ¶ 54.) Pursuant to the Notice, Village Auto Sales, Inc.'s, policy was rewritten through Plaintiff, Selective Insurance Company of America, as of July 13, 2012. (Doc. 10 ¶ 55; Doc. 20 ¶ 55.) Pursuant to the Notice, as of July 13, 2012, at 12:01 a.m., Plaintiff Selective Insurance Company of America, delivered a policy of insurance to Village Auto Sales, Inc. (Doc. 10 ¶ 58; Doc. 20 ¶ 58.)
By virtue of the payment of premiums for the policy which became effective on July 13, 2012, at 12:01 a.m., Village Auto Sales, Inc., accepted the policy of insurance offered by Plaintiff. (Doc. 10 ¶ 59; Doc. 20 ¶ 59.) Plaintiff, Selective Insurance Company of America, did not insure Village Auto Sales, Inc., prior to the policy which began as of July 13, 2012, at 12:01 a.m. (Doc. 10 ¶ 62; Doc. 20 ¶ 62.)
Plaintiff, Selective Insurance Company of America, is a corporation organized and existing under the laws of New Jersey with the number assigned by the National Association of Insurance Commissioners ("NAIC") of 12572. (Doc. 10 ¶¶ 4, 6; Doc. 20 ¶¶ 4, 6.) Selective Insurance Company of South Carolina is a corporation organized and existing under the laws of Indiana with the assigned NAIC number of 19259. (Doc. 10 ¶¶ 5, 7; Doc. 20 ¶¶ 5-7.) Selective Insurance Company of America and Selective Insurance Company of South Carolina have separate tax identification numbers and different agents for service of process. (Doc. ¶¶ 12-14; Doc. 20 ¶¶ 12-14.) Selective Insurance Company of America and Selective Insurance Company of South Carolina are separate corporations. (Doc. 10 ¶ 15; Doc. 20 ¶ 15.) Selective Insurance Company of America is a wholly-owned subsidiary of the Selective Insurance Group, Inc. (Doc. 21 ¶ 3; Doc. 27 ¶ 3.) Selective Insurance Group of South Carolina is a wholly-owned subsidiary of the Selective Insurance Group, Inc. (Doc. 21 ¶ 4; Doc. 27 ¶ 4.)
On or about July 30, 2001, Robyn Novitsky...
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