*1
unwilling
to an
witness who is
way
no
connect-
ed with the action. The very inability of a
plaintiff
malpractice
to compel
action
the attendance and testimo-
of
ny
a “disinterested” medical witness underscores the
need and
of
importance
allowing such a plaintiff
opportunity of questioning his
as an
adversary
expert.
McDermott v. Manhattan Eye, Ear &
Hospital,
Throat
supra,
28-29,
at
72-73,
N.Y.S.2d at
It must necessarily follow this reasoning from court trial erred when plaintiff refused allow to read to jury deposition testimony Codario, of Dr. a party to Dr. Codario, however, defendant. As the error was receipt harmless. The of his testimony regarding the entry infection, the staph as the explained, would not have his altered for his non-liability, treatment of the patient did not commence until after the infection had him, developed. As the compulsory proper- non-suit was entered. ly reasons,
For these I would reverse remand for new against trial the claims all except defendants Dr. Codario. him, As would affirm. Sylvia Klopp,
Richard Appellees, D. KLOPP and J. COMPANIES, KEYSTONE INSURANCE Charles F. Grimm and the Agency. North Central Club Motor Insurance Appeal COMPANIES, Appellant. KEYSTONE INSURANCE
Superior Pennsylvania. Court of
Argued June 1988.
Filed Oct. *2 Gallagher, Robert A. Williamsport, for appellant. Lubin, Norman Williamsport, for Cent., Grimm and North appellees. CIRILLO,
Before President Judge, and WIEAND and SOLE, DEL JJ. SOLE,
DEL Judge: The courts of this Commonwealth have, again, once been question asked to consider the of whether a material mis- representation contained in an application for automobile permit insurance will the insurance company rescind the policy it issued to applicant when the misrepresentation is later previous discovered. three decisions the answer negative and insurers have not been allowed to rescind the policy. Following cases, the lead of these we too find that an insurer who later learns of an applicant’s failure to disclose information material to the risk is not permitted to rescind the policy as a contract which is void ab initio.
In action, the instant Appellant, Keystone Insurance Com- pany, issued a binder to Appellees on the same day they applied automobile insurance. The next day, Appellee, Sylvia Klopp, was involved in an automobile accident. Within a month Appellees received from Keystone both an automobile policy card, with a insurance identification notification that Keystone was rescinding the binder and policy accompanied by the return of Appellee’s premium deposit. Keystone’s refusal to provide insurance and the basis for attempt its to rescind the policy were based certain material misinformation on supplied Appellees’ insurance application. presented When with cross-motions for summary judgment, the trial rescission, court ruled that cancellation, as opposed to is not remedy a available to an insurer such Appellant. The trial court’s ruling obligat- ing Keystone to Appellees insure for the accident is contest- ed by Keystone because it maintains that there exists a common law to rescind a policy which is based upon a misrepresentation and is void ab initio. claim,
The identical presented when separate two panels of the Court, Commonwealth In rejected. a consolidated appeal before Pennsylvania Supreme
Court, the Commonwealth Court’s decisions were affirmed. Metro. Prop. 'r, & Liab. v. 218, Insurance Com 517 Pa. (1987). A.2d 588 In an Opinion Announcing the Judgment Court, Justice McDermott sound rationale for the conclusion that Act 1008.1-1008.11, P.S. §§ was intended to supersede all common rights law remedies and that the insurer was able to terminate an automobile insurance policy solely provided means under the statute. See also Prop. Metro. & Liability v. Dept., Ins. (1988). Pa.Commw.Ct. 537 A.2d The case before the Supreme Court was heard 6by justices and the opinion of Justice McDermott was joined by one justice. justice One concurred in the result and two joined concurring opinion authored by Chief Justice Nix. the Concurring Opinion, Chief Justice Nix declined agree that insurers are to be foreclosed from rescinding and, policies instead, reasoned that the Commonwealth rulings Court’s should be affirmed since the misrepresenta tions cases before the court were not material to the claimed loss. Because the Opinion of Justice McDer mott adopted by majority it is not binding precedent, persuasive nevertheless its value is to be considered. Covil, 375, 380-381, Commonwealth v. 474 Pa. (1977). 378 A.2d provided
The rationale Opinion Announcing the Judgment of the Court details convincing why reasons insurer cannot elect to rescind a policy and instead must *4 comply with Act 78 in order to terminate a policy. The Supreme Opinion Court deals with this situation as follows: it looks to the policy Act; rationale behind the it makes reference to limiting courts; access to the provides it expert and expeditious claims; forums for resolving it prevents unscrupulous insurers from bargaining down claims by rescission; threats of and it encourages insurers perform to better and more efficient investigations prior entering into a stated, contract. As we find this reasoning persuasive and repeat will not seek to ground herein. The in this area thoroughly plowed, we see no need duplicate to the task.1 Opinion
The authored Justice McDermott also treats and dismisses a further presented claim now Appellant. Keystone asserts that Act 78 does not apply under the facts of this case because it premi returned the um deposit and rescinded the policy days binder after the days binder was issued and 36 after issuance of the Since policy. Act 78 states that it shall apply not to policies in which have been effect than 60 Appel less days, lant reasons that Act 78 has no application present to the factual 1008.6(3). situation. 40 P.S. §
This presented issue was also in the cases before the Court, Supreme and it In rejected. concluding was likewise meritless, that this claim is cited Justice McDermott an in exception requires the Act which insurer an who desires to cancel policy sixty within of its days supply existence to the insured with a written statement of the reason 1008.6(3). cancellation. 40 Appel- P.S. With § lant’s Opinion “However, claim the states: argument this ignores explicit language exception which clearly legislative indicates the intent govern the termination of policies even during sixty day period. Although that language prescribes only procedures minimal be fol- lowed, it nevertheless clearly prescribes what insurer Com’r, must do.” Prop. Metro. & Liab. v. Insurance supra, (footnote at omitted). A.2d at 594 Appellant’s
We now turn to remaining claim. It rightly asserts that the Appel- trial court erred awarding Contrary Appellant’s position the fact that this case under arises Act, provisions Responsibility of the Motor Vehicle Financial Act, seq., opposed repealed Pa.C.S.A. et to the § now No-Fault Supreme does not mandate a result different from that reached Opinion Announcing Judgment Metro. the conclusion Act exclusive means Pennsylvania company which a insurance can sever its ties to an party any provisions insured based reached found Rather, legislative No-Fault Act. and the intent concerns behind Act 78 were considered.
610 Although lees’ counsel fees. the trial court these awarded fees, no rationale for its provided award. of the Responsibility
Section 1798
Motor Vehicle Financial
Pa.C.S.A.,
Law, 75
for an
award
reasonable
“in the
an insurer
found
attorney fees
event
is
to have
acted
no
foundation.” A
provision
with
reasonable
similar
1009.107(3)
in
repealed
was contained
Section
of the now
Act.
in
interpreting
No-Fault
terms contained
Act,
No-Fault
it has
held that “an insurer
lacks a
particular
reasonable basis for
a
claim if an
denying
appel-
court has
held that such a claim is
already
payable”.
late
Co.,
v. State Farm Mut. Auto. Ins.
207,
Rago
Pa.Super.
(1986).
general
513 A.2d
“However the
rule
is
exception.
has an
Where
issue ...
accorded review by
Pennsylvania Supreme
insurer can assert
that it
a
possessed
denying
reasonable basis
benefits
Id.,
cit-
Supreme
rendered its decision.”
before
Court
ing, Wingeart v. State Farm Mutual Automobile Insur-
Co.,
ance
Pa.Super.
(1985).
Judgment in part. Judgment affirmed reversed and va- cated in part. relinquished. Jurisdiction J.,
WIEAND, concurring files a and dissenting opinion. WIEAND, Judge, and concurring dissenting: Although I concur in the decision of the to fees, vacate the of counsel I award dissent from the majori- ty’s holding that obtained of fraudulently policy automo- bile cannot insurance be rescinded. In the of absence controlling by decision the Supreme adopt would and reasoning follow the of Concurring Opinion au- Chief Justice Nix in Metropolitan Property and thored Liability Co. v. Commissioner, Insurance Insurance Commonwealth 517 Pa. Pennsylvania, A.2d of (1987) hold that and an insurer may assert well recognized rescind ab initio a of insurance policy upon learning that the application therefor contained mis- representations material to the risk. action, this declaratory judgment the parties have
stipulated most of February the facts. On Klopp Richard D. Sylvia Klopp J. applied Keystone (Keystone) Insurance Co. for a of policy providing insurance coverage for their 1981 Subaru station wagon. Keystone issued a 8, 1985, binder same On day. February Sylvia Klopp in a driving was involved vehicular accident while insured vehicle. The issued policy and received Klopps on February 4, 1985,
On April sixty less days than after issuance of binder, premium gave returned the notice that it had rescinded the ab initio of policy because material misrepresentations application. contained in the Despite requests histories, for information regarding driving applicants failed disclose that Richard had been Klopp issued speeding preceding tickets within the three
years and that Sylvia Klopp had been involved in a prior accident within period. same The parties, part of their stipulation, agreed that these misrepresentations had risk, been material to the and that if this information had been known to Keystone, a automobile insurance would not have been issued.
Whether a policy of vehicular insurance issued misrepresentations material applicant can be rescind- ed initio or ab cancelled merely upon discovery fraud, as the majority observed, was considered Su- preme Court in Metropolitan Property and Liability In- surance Co. v. Commissioner, Insurance Commonwealth Pennsylvania, supra. issue, With to this how- ever, the Court agree. could not Two were of the *7 opinion that, statute, the legislature had determined to limit an relief, insurer’s where it had been fraudulently induced to issue a policy, cancellation. Three justices, however, were of the opinion that the recognized well to rescind initio ab such under circumstances had not been abrogated legislature. Nevertheless, they concurred in the decision to because, disallow rescission in their judg- ment, the applicant’s misrepresentations had not been mate- rial to the A single risk. justice concurred in the result opinion. Thus, without although the Court’s decision was unanimous, the members thereof did not agree upon the rationale for their decision. decision, The Court’s therefore, does not precedential have value with the issue now before this Court.
A majority panel this would follow the opinion who opined that the right of rescission had abrogated legislature. I would follow the view that the false procurement insurance, of a policy of which may act, well be a criminal is also grounds for rescinding the policy ab initio. Any other result can serve only This, encourage fraud. in my judgment, was not the intent of the legislature. case,
In the instant the parties are agreed, and the concedes, of this majority that the misrepresentations applicants made pertained driving to their records and were material to the Keystone risk which was being asked assume. Under I these circumstances would hold is entitled to rescind its ab initio. To the extent otherwise, that the of this Court holds respectfully dissent.
Michol Lea LEASURE LEASURE, Appellant. James Paul Superior Pennsylvania. Court of July
Submitted 1988.
Filed Oct.