Pressley v. Travelers Property Cas. Corp.

817 A.2d 1131

Dannette PRESSLEY, Administratrix of the Estate of Mary Frances Brown, deceased, Dannette Pressley, an individual and Dorothy Harris, an individual Appellee, v. The TRAVELERS PROPERTY CASUALTY CORPORATION, a corporation, Wayne D. Evans Insurance Agency and Glenn Evans, an individual Appellant.

Superior Court of Pennsylvania.

Argued September 19, 2002.

Filed February 12, 2003.

Michael J. Seymour, Pittsburgh, for Evans, appellant.

Avrum Levicoff, Pittsburgh, for Travelers Property Casualty, appellant.

Richard B. Tucker, Pittsburgh, for Harris, appellee.

Before: LALLY-GREEN, BENDER, and GRACI, JJ.

GRACI, J.:

¶ 1 This is an appeal in a declaratory judgment action. Appellants, Wayne D. Evans Insurance Agency (hereinafter "Evans Agency"), Glenn Evans, an individual (hereinafter "Evans"), and Travelers Property Casualty Corporation (hereinafter "Travelers"), appeal the Order entered October 17, 2001, in favor of Appellees, Dannette Pressley, Administratrix of the Estate of Mary Frances Brown, deceased, Dannette Pressley, an individual, and Dorothy Harris, an individual (hereinafter "Pressley"). A verdict was entered in favor of Pressley and jointly and severally against Evans Agency, Evans, and Travelers. The order appealed from designated Pressley's decedent as an insured effective January 26, 1997, and therefore, an eligible claimant for all underinsurance and first party benefits coverage. The order also dismissed, without prejudice, the cross claim for indemnity by Travelers against Evans Agency and Evans as being premature. For the reasons that follow, we affirm the order of the lower court.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 This declaratory judgment action was initiated by Pressley, as noted above, following the death of Brown on March 16, 1997, when she was struck by an automobile. The complaint sought a declaration of whether the decedent had coverage for underinsurance (UIM) and first party benefits under the Travelers policy. In its answer and new matter, Travelers responded that the policy expressly excluded coverage because the decedent was a non-resident relative of the insured, her daughter (Pressley), and she was not operating one of the vehicles covered under the policy at the time of her accident. Travelers denied that the agent who acted on the policy, Evans, had made representations to the decedent's daughter, who was the policyholder, inconsistent with the terms of the policy. Travelers also responded in its new matter that, if Evans had made the representations, he was acting outside the scope of any agency relationship. Travelers demanded judgment on its behalf.

¶ 3 Evans also filed an answer and new matter, seeking a judgment in his favor because he did not provide any agreement to insure Pressley's decedent and because he is not an insurance company which provides coverage. Pressley responded to Evans' new matter by asserting that she reasonably relied on the representations that the decedent would have the same coverage that she had, so that Evans should be held responsible for providing benefits coverage if Travelers is not. Travelers then amended its new matter to provide that, if it is found liable for coverage, Evans should be found solely liable or, alternatively, jointly and severally liable for any damages that Pressley is entitled to recover. In the alternative, Travelers requested that Evans be found responsible for indemnifying Travelers in any amount that Pressley is adjudged to recover from Travelers.

¶ 4 At the conclusion of a non-jury trial, the trial judge made detailed findings of fact and conclusions of law and rendered a verdict in favor of Pressley and against Travelers, Evans Agency, and Evans. This appeal followed.

¶ 5 We adopt the learned trial court's findings of fact.

Evans is the owner of Evans Agency. As part of its ordinary course of business, Evans Agency submitted applications for homeowners, automobile and other policies of insurance for Aetna Property and Casualty Insurance ("Aetna"). N.T., 10/11/01, Vol. I, at 15. Aetna recently merged with or into Travelers. Id. at 11. Evans Agency was an agent of Travelers during the time period from January 1, 1997 through May 30, 1997. Id. at 15.

Pressley only personally met Evans one time in 1994 when he was called by a Harrisburg auto dealer to provide insurance coverage for a Ford Escort automobile she purchased in February 1994. Through the years, Pressley purchased automobile and homeowners policies through Evans both when Pressley lived in Harrisburg and thereafter when she lived in Pittsburgh. Id. at 15-16. Whenever Pressley wished to modify or question her insurance coverage, she would simply telephone Evans and he would confirm all changes via telephone. Id. at 61-62.

On August 22, 1995, Evans placed Pressley's automobile coverage with Aetna. On May 29, 1996, Pressley, by telephone, informed Evans that she became title owner of a 1986 Mercury Cougar which Evans added to Pressley's automobile insurance policy. N.T., 10/11/01, Vol. I, at 16.

On January 26, 1997, Pressley had a telephone call with Evans, during which she informed him that her mother, Mary Brown, was a driver of a vehicle listed on the policy. Id. at 16. Evans advised that since Brown was the primary driver of the vehicle, she should be added to Pressley's insurance policy so that she would be covered by Pressley's insurance. Pressley agreed with Evans' advice and instructed Evans to add her mother to her policy. Pressley asked that her mother have the precise coverage that she had on the policy. Evans said that he would add Brown to Pressley's insurance policy with the same exact coverage that Pressley had. Id. at 63-64. In 1997 Pressley's automobile insurance policy provided full tort automobile coverage with underinsured, nonstacking coverage for $305,000.00 for each accident and first-party benefits including medical expenses up to $25,000.00, income loss limited to $25,000.00, and funeral expense and accidental death limits of $2,500.00 and $10,000.00 respectively. Id. at 62. Evans assured Pressley that this addition would be made effective immediate [sic] that same day. Id. at 64.

Evans never asked Pressley where Brown lived or if Brown lived with Pressley. Brown did not live with Pressley. N.T., 10/11/01, Vol. I, at 63. Pressley reasonably relied on the assurances of Evans that her mother had the same coverage as her, effective on January 26, 1997, irrespective of Brown's residence. N.T., 10/11/01, Vol. II, at 32-33.

At the conclusion of the phone call, Evans requested that when Pressley mailed in her next renter's insurance premium that she also forward her mother's Social Security number and Pennsylvania driver's license number for his file. N.T., 10/11/01, Vol. I, at 69. At no time did Evans ever tell Pressley that this requested information was required as a precondition to coverage before he could add Brown to Pressley's policy. Id. at 74-75.

Evans failed to add Brown to Pressley's policy as promised on January 26, 1997. Id. at 79. On March 16, 1997, Brown was killed when she was struck by a drunk driver. On March 17, 1997, Pressley called Evans to inform him that her mother had been killed and she asked him how she could recover benefits since Pressley believed that Brown was covered by her insurance since January 26, 1997. Id. at 84-85. At first Evans denied that Brown was covered by the policy because he never received Brown's Social Security number and driver's license number. Evans then acknowledged that he had promised to add Brown to the policy on January 26, 1997. At no time did Evans question Pressley as to where Brown resided. In fact, he assumed that Brown resided with Pressley. Id. at 87-88.

On March 17, 1997, after learning of Brown's death, Evans telephoned Travelers and attempted to have Brown added to Pressley's policy as a listed driver of the Cougar automobile. N.T., 10/11/01, Vol. I, at 17. Evans did not inform the Travelers representative that he was already aware that Brown was dead and that a claim was being made for coverage. Evans specifically asked the Travelers representative to backdate the effective date of Brown's addition to Pressley's policy so it would be effective as of January 26, 1997. Id. at 96-97.

Travelers computer system was unable to backdate the effective date of Brown's addition to Pressley's policy to the requested date of January 26, 1997. Rather, they could only backdate the effective date of the addition to March 11, 1997, the date of the last change made on the policy. Evans asked that Brown's addition to Pressley's policy be added with an effective date of March 11, 1997, five days prior to Brown's death. Evans requested that Travelers add Brown as a listed driver on the policy so that she or her estate would be eligible for benefits under the policy. Those benefits included first-party and underinsured motorist benefits. Id. at 97. Travelers added Brown to Pressley's policy retroactively with an effective date of March 11, 1997. Id. at 101-102.

On March 19, 1997, Daniel Hank Williams, Brown's brother, telephoned Evans to inform Evans that he was handling Brown's affairs and asked what needed to be done. Evans acknowledged to Williams that Brown was covered under Pressley's policy and that he was already aware of her death. Evans gave Williams a telephone number for Travelers' Pittsburgh office and told him to call them direct. Id. at 103. Williams dialed the number given to him by Evans and reached Travelers representative, Ruth Lorey. Lorey advised that she too was aware of the accident and acknowledged that Brown was covered under Pressley's policy. At no time did Lorey or anyone else ever indicate that there would not be coverage for this loss. N.T., 10/11/01, Vol. II, at 3-4.

On March 20, 1997, Lorey sent a letter confirming the substance of her conversation with Williams. Without reserving any rights, Lorey again acknowledged that Brown was

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