Toy v. Metropolitan Life Insurance

licenses, they I believe challenged benefiting from facilities factual determination least, to a are, entitled very a direct them with invests concerning proximity such whether interest.3 appellate the dismissal support I am unable to

As embodied reasoning matters based on jurisdiction original dissent. I majority opinion, respectfully in the dissenting opinion. joins this Justice CASTILLE A.2d 186 TOY, Appellant/Cross-Appellee, Georgina COMPANY LIFE INSURANCE METROPOLITAN Martini, Appellees/Cross-Appellants. and Bob Pennsylvania. Supreme Court 28, 2006. Argued Feb. July 2007. Decided readily distinguishable those from are present 3. The circumstances There, petition- Gambling Subsidies. Against prevailing in Citizens subject matter of interest in the of a direct preserve did not a claim ers rather, standing by virtue of asserted proceeding, but the administrative as a arising petitioner’s status out of interests more diffuse financial gaming facility county in which property owner in the taxpayer and Subsidies, Gambling Pa. at Against to be located. See Citizens 319-20, 916 A.2d at Allen, Pendleton, Kevin P. Esq., Jr., Brian John Esq., Pittsburgh, for Metropolitan Life Insurance Company and Bob Martini. Beck,

James Michael Esq., Philadelphia, for amicus curiae Product Liability Council, Advisory Inc. Becker,

Patricia Hale Esq., for amicus curiae American Council of Life Insurers. Behrend,

Kenneth Robert Esq., Pittsburgh, Georgiana Toy. Donovan,

Michael D. Esq., Searles, David A. Esq., Philadel- phia, for amicus Center, curiae National Consumer et Law al. CAPPY, C.J., CASTILLE, NEWMAN,

BEFORE: SAYLOR, BAER, EAKIN and JJ.

OPINION Justice CAPPY. Chief action, Georgina Toy

In Appellant/Cross-Appellee this civil Appel- against causes action (“Toy”) brought several Company Life Insurance lees/Cross-Appellants Metropolitan Life”) of its sales Bob (“Metropolitan representatives, and one “Defendants”). (“Martini”) granted We (collectively, Martini statute, (1) faith purview to consider the bad review (“ (2) 8371”); reliance justifiable § § Pa.C.S. whether Toy brought of the under the Unfair Trade an element claims (“Consumer Protec- Practices and Protection Consumer Law (3) Law”), Defen- seq.;1 201-1 et whether tion P.S. summary judgment grounds on dants were entitled justifiable be unable to establish the element Toy would reasons, Superior following at trial. For the reliance affirmed, though statutory order is a matter of Court’s on 8371 claim.2 Toy’s construction

I.

A. Facts based on summary Toy’s The relevant on judgment, record In February Toy is as follows.3 deposition testimony, Toy’s brought were Consumer Law claims accrued and Protection prior amendments the statute was in effect to the under Legislature No. made in 1996. See Dec. P.L. 906 to the statute Therefore, days. in 60 all of references made this effective opinion to the Protection Law concern statute that Consumer governs claims. ("Cases”) that approximately case is one 200 cases remain 2. This pending against Metropolitan representatives Life and its sales many Allegheny County, which raise of the Court of Common Pleas of 249(IV) allegations. Allegheny County Rule same Court, designated assigned complex and Rules of Local Cases single judge, R. Stanton Wettick. to a the Honorable Toy Defendants’ Motion for 3. We note that did not raise whether Toy's testimony, Summary Judgment, relying deposition on violated nurse, age registered of and as a years working she had held for about and her position twenty years. Toy husband owned a small business and their home. own Through employment, Toy her held a tax-sheltered annuity Toy and a life insurance to policy. begin preparing wanted husband, Martini, acquainted retirement. who was with arranged for a between Martini and so that meeting Toy they could discuss a At product Metropolitan Life offered. their Martini meeting, presented Toy regard- information ing Metropolitan Life Martini ex- Savings Plan. 50/50 if plained plan was a and that savings Toy vehicle $50, monthly payments make the plan would $100,000 generate a fund of reached approximately when she sixty-five. Martini also informed life Toy that insurance went along part plan. with and was of the indicated to Toy When Martini that she was interested in the he had her plan, complete Insurance,” and execute an “Application for Life which asked a questions concerning lifestyle series of health. month, following

The Toy policy received of insurance (“Policy”) Metropolitan from Life. The cover sheet of the Policy following had information on “Metropoli- written it: tan Life Company Insurance will the amount of insurance pay the other provide benefits of this to its policy according provisions”; Georgina “Insured M. “Face Amount Toy”; $31,544 10, 1992”; Insurance as of Feb. “Policy Number 925 A;” Life”; 001 595 “Plan Policy”; Whole “Whole Life “Life payable dies”; insurance when insured “Premiums pay- able for a period”; stated and “Annual dividends.” The cover sheet also displayed a “10-Day Right Policy,” Examine which stated: Borough Nanty-Glo Surety the rule announced v. American Co. York, (1932). House, New 309 Pa. 163 A. 523 See Penn Center Inc. (1989) (Testimonial Hoffman, affida- witnesses, moving party documentary, vits of the or his even if uncontradicted, will entry summary not afford sufficient basis for the

judgment, credibility testimony since the is still a matter for the omitted). jury.) (quotation may policy You return policy. Please read this whom representative through to the sales Metropolitan receive it. days you from the date bought it within you will be 10-day period, policy it you If return within paid. any premium refund beginning. from the We will void C.) Exhibit (Defendants’ Summary Judgment, Motion for cash 4, guaranteed forth a value Policy set page On $11,008.86 a interest rate of 4% guaranteed based on 65 of age “[tjhis 8, policy Policy stated page a On year. and, attached when application riders any includes issued, Policy contract.” The makes the entire up policy Authori- Representative’s on set forth a “Limitation Sales also person, or other representative sales ty,” providing “[n]o (a) President, may a Secretary, or Vice-President our except (b) insurance; change or or contract of change any make or in writing must be Any change of this any policy. terms waive President, or a Secretary our Vice-President.” signed by (Id.) time, Toy Policy’s cover sheet. Over only looked at

Toy Life. $1,400 Metropolitan in premiums a total of paid action 1994, pending of a Florida class Toy was notified Life, that she had and became concerned Metropolitan against point, At that Company. from the life insurance purchased Policy and the making premium payments, Toy stopped lapsed. History Procedural

B. on November filed a for Writ Summons Toy Praecipe and an amended February on complaint a against on March Defendants. (“Complaint”) complaint that Defendants undertook Toy alleged In her Complaint, Policy nature of the the true marketing disguise scheme vehicle; that it or investment savings to be misrepresent her to Policy about the led misrepresentations Defendants’ in a that due to investing savings plan; believe she was she life insurance purchased misrepresentations Defendants’ want; pre- misrepresentations that Defendants’ she did retirement she securing type product her from vented needed; and that engaged practices Defendants these premiums because the and administrative fees associated with life insurance than higher those annuities and similar products. retirement Based on these allegations, Toy set forth, alia, inter claims under the Protection Consumer Law (Count against IV),4 Defendants III and Count and a claim for § faith bad 88715 against Metropolitan engag- Life for The competi- Consumer Protection Law defines "unfair methods of deceptive tion” and practices” "unfair or acts or in the conduct of trade commerce, and declares them to be unlawful. 73 P.S. 201-3. The private right statute persons upon creates of action in whom unfair competition deceptive methods of practices and unfair or acts or are result, employed and who as a sustain an ascertainable loss. 73 P.S. The specific 201-9.2. Consumer Protection Law lists unfair methods competition deceptive practices, and unfair or acts or and includes a 201-2(4)(i)-(xvii). provision. Toy catchall Complaint, P.S. In her alleged following prohibited prac- that the Defendants committed the provision: tices and violated the catchall § 201-2 Definitions As used in this act. (4) competition” "Unfair deceptive methods of and “unfair or acts or

practices” any following: mean one or more of the (ii) Causing likelihood of misunderstanding confusion or of toas source, services; sponsorship, approval goods or certification of or (v) Representing goods sponsorship, approval, that or services have characteristics, uses, ingredients, quantities they benefits or that do not have.... (vii) standard, Representing goods particular that or services are of a model, quality grade, goods particular or or style are of a or if another; they are of (xvii) Engaging any in other fraudulent conduct which creates a misunderstanding. likelihood of confusion or 201-2(4)(ii),(v),(vii), (xvii). §§ 73 P.S. and former provides: 5. The bad faith statute § policies 8371. Actions on insurance arising In an action policy, under an insurance if the court finds insured,

the insurer may has acted bad faith toward the the court following take all of the actions: (1) Award interest on the amount of the claim from the date the by claim equal was made the insured in prime an amount to the rate plus of interest 3%. (2) punitive damages against Award the insurer. Insurance is under Unfair activity that unlawful ing VI).6’7 (Count (“UIPA”), § 1171.1 et seq. Practices Act P.S. action of In the the commencement interval between several the trial court made Complaint, her filing and Pover, Cases, 35 Pa.D. & C.4th Ihnat v. rulings one of (3) attorney against and fees the insurer. court costs Assess § 42 Pa.C.S. 8371. engaging in method persons an unfair prohibits The from UIPA practice competition deceptive act or in the business an unfair or or Commissioner P.S. 1171.4. The Insurance insurance. UIPA, empowered Pennsylvania and is enforces Commonwealth upon penalties injunctions impose civil administrative and 1171.10, 1171.9, provisions. §§ 40 P.S. its insurers who violate 1171.11. deceptive acts competition and unfair or The UIPA methods of unfair alleged Metropolitan bad faith practices Toy Life’s or constitute conduct 8371 are: deceptive competition” and "unfair or 1171.5 methods of "Unfair practices” or defined acts (a) or competition” deceptive "unfair acts or "Unfair methods means: practices” in the business of insurance estimate, (1) circulating issuing any illustra- Malting, publishing, or tion, statement, circular, comparison presentation, omission sales which: (1) benefits, any advantages, terms of Misrepresents conditions or policy; insurance (2) circulating issuing, publishing any manner Making, or advertisement, containing any represen- announcement or statement with respect business of tation or to the insurance statement which respect any person in the of his insurance business conduct untrue, misleading. deceptive or persons; (10)(vii) amounts due and due under an Compelling persons insurance ultimately policy by ^[*] to institute recovered ^[*] offering substantially ^[*] litigation in actions to recover brought less than amounts such (12) on or Making representations false or fraudulent statements policy, purpose of application relative for insurance for the to an commission, fee, any insur- obtaining money or other benefit from a ers, agent, or individual. broker 2). 1171,5(a)(l)(i),(2),(l 0)(vii),(l §P.S. 40 misrep- Toy negligent also claims for law fraud and asserted common II, (Counts respectively), and a against Defendants I and resentation V). (Count Metropolitan negligent supervision against for Life claim appeals. in These not at issue these claims are (Pa.Com.Pl.1997). in all rulings applied These Cases, relevant.8 such concerned the ruling scope where One of the bad faith statute. The trial court ruled that bad faith not, Metropolitan argued, 8371 was Life limited to claims, allegations that an insurer refused to but cover could allegations be founded on that the did not satisfy insurer duty that the it in imposed upon relationship law its with its insured. Id. at 139-40. The trial court reasoned that broadly; only written that the restriction reflected in its that it reach language is does not conduct that is otherwise law; permissible to insurers under Pennsylvania court not narrowly; should read a remedial statute and that the Legislature creating comprehensive for remedy fraudulent conduct and violations of all provisions UIPA enacting merely to this Court’s responding refusal in D Ambrosio v. Pennsylvania National Mutual Ca Co., sualty (1981), Ins. 431 A.2d 966 adopt taken approach by Supreme California in Gruenberg Court Co., v. Aetna Ins. 9 Cal.3d 108 Cal.Rptr. 510 P.2d (1973), and create a for remedy an insured alleged who that his insurer acted in bad faith denying payment Ihnat, loss covered under the parties’ insurance contract. Pa.D. & C.4th at 126-31.

The trial court then requirements articulated two that an insured must meet in prevail order to on a bad faith claim. First, the insured must establish that the insurer breached a second, known duty; and the insured must establish that the insurer acted out of a motive self-interest or ill Id. at will. view, 132. In the trial court’s the former could be established showing engaged insurer practices consti- tute common law fraud or UIPA violations. Id. at 139-40. 23, 2003,

On May Defendants filed a motion for summary judgment, seeking judgment on all of the in Toy’s Counts Complaint. claim, As to faith Toy’s bad Metropolitan Life’s Cases, initially assigned 8. When supra Judge see n. Wettick held a during status conference which counsel identified nineteen issues that Judge the Cases had in common. Wettick four addressed of those Ihnat, preliminary objections issues in which were raised in Defendants filed the Cases. Metropoli- in Ihnat. ruling the trial court’s starting point was an justifiable reliance is inasmuch as Life asserted that tan fraud, from the necessarily it followed element of common law reliance was justifiable §of 8371 that court’s construction trial Life Metropolitan faith claim. an element of bad likewise support made in that Defendants repeated argument then any Toy’s on of summary judgment to their entitlement misrepresenta- alleged based on Martini’s claims that were justifiable the element Toy prove that could tions: addition, argu- Life set forth the Metropolitan In reliance. is limited in that the bad faith statute it had made Ihnat ment an insured provide an failed to with to a claim that insurer As to policy provided. that his insurance coverage benefits Law, Protection under the Consumer Toy’s brought claims too, inability to estab- Toy’s contended that here Defendants summary judgment entitled them to justifiable reliance lish Inc., Co., Weinberg v. Sun this Court’s decision since under (2001), an justifiable reliance was Pa. Protection Law claims. of her Consumer element of its light trial court with Defendants agreed The Ihnat, justifiable reliance was construction of claim, Weinberg, and that under bad faith element an element of her Consumer reliance also justifiable was agreed The trial court also claims. Protection Law justifiably that she Toy prove unable Defendants the Poli- about alleged misrepresentations on Martini’s relied thus, on all of summary judgment entitled cy, and required such show- Complaint of action causes court, Policy’s discrepancy For the trial between ing. Martini Toy alleged misrepresentations sheet and the cover terms led to this conclusion. Policy and its made about trial court stated: The on notice policy placed Toy of the insurance

The cover sheet repre- discrepancy to be a between appeared that there and the terms of written of Mr. Martini sentations company plaintiff. the insurance between agreement on Mr. Martini’s longer rely could no plaintiff Consequently, patent have been falsity of which would representations, the first only page review of plaintiff though cursory to her. the document that MetLife delivered 41^42) (footnote omitted). (Trial addi- Opinion Court’s tion, rule barred parol the trial court ruled evidence Accordingly, by claims. Toy’s misrepresentation-based all 8, 2003, granted the court Defen- Order dated December trial Toy’s and dismissed Summary Judgment, dants’ Motion prejudice.9 § Protection Law claims with 8371 and Consumer from the Toy brought timely appeal Superior the Court In a published opinion, Superior trial court’s order. the Court claim, to Toy’s affirmed the trial court’s order as 8371 the trial court’s order as to Protec- Toy’s reversed Consumer Co., tion claims. v. Insurance 863 Toy Metropolitan Law Life 1A.2d (Pa.Super.2004). claim, respect Toy’s

With to 8371 the Court did Superior decision, not the trial namely, discuss basis the court’s its construction of the faith encompass bad statute to instances of Rather, insurer fraud or unfair trade the practices. Superior the disagreed Court with two elements that the trial court show, stated an insured who asserts a bad faith claim must see 7-8, supra p. requisite and reiterated its ele- view ments of a bad faith claim are that the insurer refused to provide benefits and knew or that it recklessly disregarded lacked a basis (quoting reasonable for the refusal. Id. at 14 Co., Booze v. Allstate Ins. (Pa.Super.2000)). 750 A.2d elements, Toy’s Since bad faith claim did not include these the Superior Court held that it at 14- properly dismissed. Id.

As to all of claims that Toy’s depended upon proof that misrepresentations Martini made about the Policy, Superi- that the trial in concluding they Court held court erred that rule, parol concluding Toy’s were barred evidence that Toy's 9. The trial court's December 2003 Order dismissed all of claims fraud, prejudice. Toy's negli- The trial court also that ruled that gent misrepresentation, negligent supervision claims were barred limitations, 5524(7), two-year under statute of Pa.C.S. and that negligent supervision proceed claim could not because Martini was acting scope employment. outside the of his Reasoning exceptions. one of the rule’s fell within allegations that due to Defendants’ prove to Toy essentially sought conduct, purchase that she Policy agreed fraudulent features, Superior savings certain and investment omitted proceed claims could Toy’s Court determined to the exception parol a contract in the execution of the fraud Id. See n. 4. recognized. that this Court has evidence rule (1953). Co., Pa. Bardwell Willis Protection Law Consumer specifically regard With decision claims, reviewed this Court’s Superior Court re- correctly trial court Weinberg, and determined justifiable reliance. the element of Toy to demonstrate quired however, court, the Superi- trial 9-11. 863 A.2d at Unlike Defendants the record did not entitle concluded that or Court 541 of the on 540 and judgment. Based Sections summary (Second) had it of Torts10 and cases which Restatement provide: 10. These Sections Duty Investigate § to 540. justified in recipient misrepresentation of fact is The of a fraudulent truth, falsity although might relying he have ascertained upon its investigation. representation had he made an of the n Comment: investiga- only applies not when an in this Section a. The rule stated money propor- expenditure of effort and out tion would involve transaction, be magnitude but also when it could of the tion to the expense. it no any Thus is considerable trouble made without about his who has made a fraudulent statement defense to one is his books to examination position that his offer to submit financial hand, cursory glance would have rejected. if a mere On the other falsity regarded falsity representation, its is disclosed §in obvious under the rule stated 541. (Second) § Torts 540 and Comment a.

Restatement Obviously Be or False Representation Known to justified in misrepresentation is not recipient The of a fraudulent falsity its is relying upon if he knows that it is false or its truth him. obvious to Comment: Thus, misrepresentation not although recipient is of a fraudulent falsity if recovery he could have discovered its barred from because by investigating honesty its of the maker's he had shown his distrust senses, truth, recover required his and cannot he nonetheless to use falsity which misrepresentation the blindly upon a if he relies opportunity to make a patent him if he had utilized his would be to investigation. cursory examination or (Second) a. of Torts 541 and Comment Restatement been determined that an insured obligated read policy and discover an agent had the extent of misstated insurance coverage, Superior Court held that failure the Policy’s review cover sheet or Toy’s receipt policy of a that made no mention of the savings plan she she thought had purchased, not prohibit did her from demonstrating that she justifiably relied on Martini’s alleged misrepresentations. Id. (Second) at 12-13 (citing 540, 541, Restatement §§ of Torts Rempel Co., v. Nationwide Ins. Pa. 370 A.2d Life 368 (1977)(plurality), and v. Pressley Prop. Travelers Cas. Corp., 817 A.2d (Pa.Super.2003)).

Toy Defendants filed Petitions for Allowance of Appeal, respectively. Petition, This Court granted Toy’s limit- (1) ing review to whether the Superior Court’s decision that a

claim under 8371 is limited to the unreasonable refusal by an insurance company pay a valid claim conflicts with Pennsylvania law and the reasoned decisions of other appel- courts, (2) late whether the Superior interpreta- Court’s tion of the Consumer Protection require justifiable Law to reliance conflicts with the rules of statutory construction and contradicts the reasoned decisions of appellate courts other jurisdictions that require a lesser standard reliance to bring a claim under those States’ consumer protection statutes. Toy Co., Metropolitan Insurance Life (2005). This Court also granted Defendants’ Petition as to whether the Superior Court’s determination on the issue of Toy’s justifiable erroneous, reliance was negating the express, clear and unambiguous terms of an insurance contract favor of oral representations allegedly made prior to the issuance of the contract. Id. at 479.

II. Our analysis begins with our standard and of scope review. The Pennsylvania Rules of Civil Procedure that govern summary judgment instruct in part, relevant court shall enter judgment whenever there is genuine no issue any of material fact as to a necessary element of the cause of action or defense that could be established by additional

34 1035.2(1). Rules, No. a

discovery. Pa.R.C.P. Under an evidentiary for is based on summary judgment motion moving party judgment to a record that entitles the No. 1035.2.11 In consider- matter of law. Note to Pa.R.C.P. of a court summary judgment, the merits a motion for ing most to the light non-moving the record in the favorable views issue of genuine and all as to the existence of party, doubts against moving party. fact resolved material must be (2001). SEPTA, 211, 435, 772 438 v. 565 Pa. A.2d Jones summary only court where Finally, may grant judgment clear from to such a is and free doubt. right judgment 132, (1991). Tasman, v. Pa. 589 A.2d 206 Marks 527 A. The Bad Faith Statute turn issue with bad regard We first to statute, a bad which us to consider faith faith asks whether premised of 8371 be on meaning may claim within engaged that an or unfair allegations deceptive insurer purchase the insured to an insurance soliciting conduct policy. construction, statutory issue is a which the question

This (“Act”) controls. 1 Statutory Construction Act of 1972 Pa.C.S. Therefore, with the seq. begin provisions § 1501 et we Act, it is fundamental guide Act us. Under object of all of statutes interpretation construction “[t]he the intention of the General is to ascertain and effectuate 1921(a). 1 The Act instructs that Assembly.” Pa.C.S. are and free from all words of a statute clear “[w]hen it not to be under the ambiguity, disregarded letter of is 1921(b). Signifi- spirit.” its Pa.C.S. pretext pursuing may granting appellate An reverse the of a motion sum- court mary judgment if been an error of law or an abuse of there has Club, Inc., Gulph Pa. Mills Tennis discretion. Atcovitz (2002). are the issue as whether there no A.2d As law, any presents question fact genuine issues as to material our novo; thus, review we defer to the determi- is de need not standard review, scope made tribunals. Our to the extent nations lower us, plenary. necessary legal question to resolve the before Buffalo Jones, (2002); Township v. 664 n. 2111(a)(2). No. Pa.R.A.P.

35 is explicit, of the statute are not cantly, only when words to consider Assembly’s by the General intent be ascertained like the occasion statutory language, matters other than ing statute; of its enact necessity and for the circumstances ment; attain; a object it and the consequences seeks 1921(c); § 1 particular interpretation. Pa.C.S. Common (2002). Packer, 192, wealth v. 798 A.2d 196 be Lastly, provides phrases the Act and shall “[w]ords according construed to the rules of and according grammar their that “technical approved usage”; common and but words phrases acquired peculiar and and such others as have a and ... appropriate meaning according shall be construed to such 1 peculiar appropriate meaning and definition.” Pa.C.S. 1903(a). § The latter includes or terms that have words in the acquired particular meaning a law. See Semasek (1985). Semasek, 109, 111 trial

Presently, Toy adopts perspective, arguing court’s a faith Legislature did not articulate the reach of bad remedy any § claim under and intended the statute to act that com- prohibited Pennsylvania’s to insurers under Thus, mon or if statutory Toy argues, alleges law. an insured UIPA, has, that an a provision insurer violated of the she § necessarily the insured states a bad faith claim under 8371. disagree. We at the time that the General Assem bly § enacted 8371 to to an insured provide remedy when “ [him],’ his insurer ‘acted in faith 42 Pa.S.C. bad toward § the term faith’ had acquired ‘peculiar ‘bad § 1903. appropriate meaning’ this context.” See Pa.C.S. § into as the Act incorporate meaning When we instructs, and also consider that to an action speaks “arising policy,” grants under an insurance an award based on the “amount of the claim from the date claim was insured,” made than go we need no further the words of the to ascertain that the did intend Legislature statute for the provide Toy remedy deceptive or unfair she practices alleges Metropolitan engaged which her soliciting purchase Policy. Pa.C.S. 1903, 1921(a)-(b). §§ 1 See Pa.C.S. that an insured the claim development of

The historical he accuses his insurer when against its insurer brings a claim has that such faith and the consideration acting bad early During part the case.12 this to be given been reveals liability policies who insureds with Century, of the Twentieth subjected to routinely parties third were by had been sued Ashley Stephen insurers. S. practices by settlement abusive ed.1987). (1st § 1:03 at 8 Liability, (“Ashley”), Bad Faith often to compelled insureds were practices, Because of these or third actions party monies to settle contribute their own they in actions that verdicts satisfy to excess required practices the victims of such to settle.13 When hoped had policies categories and corre of insurance 12. There are two broad signifi coverage by that have insureds sponding claims for insurance Jr., McMonigle, Bad Faith L. Insurance in context. Richard cance this (6th ed.2005). The first Pennsylvania ("McMonigle") § at 14 2:02 which an insured makes a third category liability is insurance protects from actions Liability the insured party claim. Id. insurance contract, parties to the insurance brought by persons are third who defense, in the event that the insured is promises to cover costs sued, indemnity, is found in the event insured and the costs of liability coverage that an policyholder of liable. Id. Claims a are often referred to as third company acted in bad faith insurance party at 15. bad faith claims. Id. non-liability which an in- category insurance under The second non-liability A party Id. 2:03 at 15. makes a first claim. sured directly him from a risk of loss to policy protects the insured insurance illness, death, like, promises pay the damage, to property or §Id. 2:03 at 16. specified when the loss is sustained. insured a amount to are often referred by policy in these circumstances Claims a holder party faith claims. Id. at 16-17. as first bad case, party the insured for an amount typical a a third sued 13. In liability coverage, exceeding and offered to the limits of the insured's policy equal than the limits. amount to less settle his claim for an Exercising right control over defense and of exclusive its contractual settlement, accept policy limits offer to would refuse to the insurer settle, Ashley, § 1:02 contributed to the settlement. unless the insured settle, Alternatively, party the insured and offered to at 5. a third sued policy The would exceeded limits. insured but in an amount that contributing policy and would request limits that the insurer consider Again, pay settle the action. exercis- the difference in order to offer right over defense and settle- ing of exclusive control its contractual trial, ment, go would a verdict refuse. The action the insurer would result, against and the policy the insured would in excess of limits satisfy judgment pay a that was would have to an amount insured willing to contribute to settle the greater it had been than amount sought in the redress courts under the terms of their insur- contract, ance found they themselves without a remedy. This then, because liability policies provided they provide that an today, insured could not sue his insurer until a third party had obtained a judgment; the insurer had full control of claim; the defense and settlement of a and that an may insured not settle except at his expense. Ashley own 6; Schmidt, § 1:02 at C. 90 A. at Having rejected 654. breach of contract circumstances, action in these the early courts suggested that insureds in these circumstances should pursue remedy action, by way of a tort cause of such as fraud or negligence. Ashley p. 1.03 at

The regard law this changed. the landmark case of Co., Hilker v. Western Automobile Ins. Wis. N.W. (1930), insured, who sought amount he was com pelled to to a pay party third who had judgment secured a excess the insured’s liability coverage, brought claim insurer, against his alleging faith, that the insurer acted bad him defending properly, information from withholding him, and failing settle the action within policy limits. Altering its traditional view that there remedy was no insureds making such allegations, Supreme Wisconsin recognized claim, Court the insured’s and upheld jury’s verdict in his court, favor. Id. at 257-59. For the theoretical underpinning of the insured’s claim the implied covenant of faith good and fair dealing that is part every contract, and provides which that neither party to a contract do anything injure will right of the other to receive the benefits of their agreement. Moreover, Id. at 258-59. it was the court’s that recognition view of such a claim for bad faith in light was needed of the provisions in insurance contracts give insurers control over the defense and settlement of third party actions. Id. at 258. time, the courts in jurisdictions many provided remedy

at common under the implied law duty good faith fair dealing to an insured with liability insurance alleged who See, e.g.,

action. Co., Brewing C. Schmidt & Sons Co. v. Travelers’ Ins. 286, (1914). 244 Pa. 90 A. 653 88 or settling defending acted in bad faith insurer

its cases § 1:05 and Ashley, action. party a third indemnifying 1.14 cited footnote v. In Cowden jurisdictions. of those was one

Pennsylvania 459, A.2d Pa. 134 Surety Company, 389 Casualty Aetna pre- the evidence (1957), whether considered 223 this Court suffi- and insurer was insured in the action between sented deciding proceed finding that jury’s justify cient to of bad faith verdict, guilty the insurer was the trial to judgment upheld though we at its decision. Even arriving that the evidence on the grounds for the insurer entered n.o.v. 585, Co., See, 396 Ins. 183 W.Va. v. Nationwide Mut. e.g., Shamblin Nicholson, (1990); 777 P.2d Co. v. Farm Fire & Cas. 766 State S.E.2d Foster, (Alaska 1989); 528 So.2d Co. v. Acci. & Indem. 1152 Hartford (Colo. Trimble, 1988); (Miss. Group, 691 P.2d 1138 Inc. v. Farmers 255 267, (1984); Co., 1984); 725 Mont. 682 P.2d 210 Gibson v. W. Fire Ins. Co., 30, (Iowa 1982); 33 315 N.W.2d Kooyman Bureau Mut. Ins. v. Farm 87, 140, Co., N.Y.S.2d 351 40 N.Y.2d 386 Mut. Ins. v. Nationwide Kulak Husted, 230, (1976); 634 519 P.2d v. 214 Kan. Rector N.E.2d 735 211, Blissett, 429 (1974); Ark. 492 S.W.2d v. 254 Mut. Ins. Co. Members 224, Co., 60 Wis.2d 208 (1973); Auto. Ins. v. Farm Mut. Howard State Co., (1973); So.2d Union Ins. 250 Thompson v. Commercial 442 N.W.2d 421, Rowland, (Fla.1971); 221 Tenn. 427 v. Auto. Ins. Co. State 259 Co., 375, (1968); Neb. 118 Ins. 174 v. Union Fire 30 Olson S.W.2d Cosby, Ala. (1962); v. 277 & Indem. Co. Accident N.W.2d 318 Hartford 192, Co., (1965); 596, 94 Idaho Openshaw v. Allstate Ins. 173 So.2d 585 White, (1971); 248 Md. Ins. Co. v. Farm Mut. Auto. P.2d 1032 State 484 Exch., 324, (1967); 19 Utah Fanners Ins. Ammerman v. A.2d 269 236 Price, 261, (1967); 206 Va. Co. v. Aetna Cas. & Sur. 430 P.2d 576 2d Fowler, (1966); 390 P.2d 602 Sur. Co. v. 220 W. Cas. & 146 S.E.2d Co., Bonding 339 Mass. & Ins. (Wyo.1964); v. Massachusetts Murach Parsons, (Del. (1959); 145 A.2d 397 v. 338 Stilwell 158 N.E.2d Co., 1958); Trucking 321 P.2d Fidelity L.C. Jones & Cas. Co. v. American Henderson, (Okla.1957); Ariz. 313 Ins. Exch. Farmers Co., (1957); 141 N.E.2d 16 10 Ill.2d Krutsinger v. Ill. Cas. P.2d 404 Inc., Son, (1957); & 307 S.W.2d v. J.F. Schneider American Sur. Co. Co., 339, 82 N.W.2d 376 249 Minn. (Ky.1957); v. Anchor Cas. Larson Co., (1957); Or. 298 P.2d Nat. Ins. v. Franklin Radcliffe 596, Cosby, Ala. 173 (1956); v. 277 & Indem. Co. Accident Hartford 362, Co., (1965); Mo. 228 Ins. 360 Zumwalt v. Utilities 585 So.2d 185, Co., (1950); 87 Republic Mut. Ins. 152 Ohio St. 750 Hart v. S.W.2d Co., (1949); 94 N.H. & Indem. Accident 347 Dumas N.E.2d Hartford Co., (1947); 484, 108 Vt. v. Hardware Mut. Cas. Johnson 56 A.2d 57 Co., 269, (1936); Conn. Hoyt v. Factory Liab. Ins. 120 Mut. A. 788 187 Co., (1935); 156, Maryland Cas. 163 Tiger Pine Co. v. River 179 A. 842 (1931); v. Am. Indem. Furniture Co. 491 G.A. Stowers 161 S.E. S.C. Co., (Tex.Com.App.1929). 15 S.W.2d insurer, ac- liability upon we impose insufficient to was under an indem- relationship “the contractual knowledged that faith in good ‘a of requiring high degree one nity policy was company’s generally’ counsel indemnity the conduct of the faith” good act the utmost toward that the insurer “must with actions third-party of claims where disposing the insured in of a verdict settlement within there is little or no likelihood an insurer limits; by that the manner which and policy a give can rise to third-party of an action handles the defense at acted in bad faith. Id. insured that the insurer by claim the omitted). Pennsylvania We also noted (quotations had country jurisdictions throughout joining the was a entire amount of be liable for the may held that an insurer insured, re- by party against a third judgment secured han- in the if the insurer’s policy, limitation gardless any a claim, accept proffered a failure to dling including settlement, a manner as to evidence bad done such discharge in the of its faith on the of the insurer part v. Nationwide duty. Gray contractual Id. 227-28. See also (1966) (con- Co., 223 A.2d 8 Mutual Insurance holding) firming Cowden’s significant

In another this area the law underwent way by of a decision rendered the Califor- by transformation In Supreme Gruenberg, nia Court. 9 Cal.3d Cal. (1973), the court extended the Rptr. 510 P.2d been to an bad faith remedy given alleging that had insured an bad faith in third-party setting alleging claim insured court Gruenberg, permitted claim context. first-party premises against his business policy insuring insured with dealing fire to faith and fair rely implied duty good on damage for the refusing pay property to sue his insurer for The court an insurer “fails to he sustained. held where by refusing, faith its insured fairly good deal cause, to its insured for a loss proper compensate without such conduct rise to cause policy, may give covered faith implied good action in tort for breach of an covenant fair Id. at 1037. dealing.” 40 Giuenberg fash

Thereafter, adopted a number of courts remedy as to a common law approach give ioned a similar so his first that his insurer dealt with alleged to an insured who Pennsylvania claim in faith.15 The courts were party bad 'Ambrosio, D 966, 431 A.2d at this Court was among them. Grtien to embrace opportunity squarely presented claim for berg and allow insured who party an had made first com insurance to recover property policy under his payment fees and damages, punitive damages attorneys pensatory duty of theory implied costs on a that his insurer breached the pay for good dealing by wrongfully refusing faith and fair Gruen that under damage acknowledged to his boats. We its berg, allegations compensate that an insurer refused to cause by policy proper insured for a loss covered without faith and fair duty good actionable as a breach of the argued that the insured before us that such dealing, and remedy prevent action that would insurance only claims. Id. in the of first industry handling party abuse determined, however, the serious “[although 968. We go of ‘bad faith’ conduct insurance carriers cannot ness dramatic, already our made unrecognized, Legislature ha[d] UIPA, faith in the efforts to curb the bad sweeping conduet[ ]” to announce and Legislature and indicated that it was “for the implement public policy governing the Commonwealth’s Co., See, (Wyo. e.g., McCullough Rule 789 P.2d 855 15. v. Golden Ins. Nicholson, (Alas- 1990); 777 P.2d 1152 State Farm Fire & Cas. Co. v. Co., 179, 1989); v. Ins. 207 Conn. 540 A.2d 693 ka. Verrastro Middlesex Co., 381, (1988); Tank v. State Farm Fire and Cas. 105 Wash.2d 715 Law, (1986); Question P.2d In Re 399 N.W.2d 1133 Certification of Co., (S.D.1987); County Arnold v. National Mut. Fire Ins. 725 320 1987), Co., (Tex. Unigard v. Mut. 730 P.2d 1014 S.W.2d 165 White Ins. Co., 272, (Idaho 1986); Hoskins v. Aetna Ins. 6 Ohio St.3d 452 Life Savio, (Colo. (1983); Co. v. P.2d 1258 N.E.2d 1315 Travelers Ins. 706 Co., 1985); v. Mut. Auto. Ins. 279 S.C. 306 Nichols State Farm Co., (1983); S.E.2d 616 Chavers v. National Sec. Fire & Cas. 405 So.2d Co., (Ala.1981); 1 Ins. 128 Ariz. Noble National American Life Co., (1981); A.2d 624 P.2d 866 Bibeault v. Hanover Ins. Fire, (R.I.1980); Chrysler-Plymouth v. 279 N.W.2d Corwin Westchester Co., (N.D. 1979);; v. Continental Ins. 85 Wis.2d Anderson Flint, (1978); Co. v. 574 S.W.2d 718 N.W.2d 368 MFA Mut. Ins. Co., (Tenn.1978); Am. Home Assurance 577 P.2d 899 Christian v. Peterson, (Okl.1977); Fidelity 91 Nev. United States & Guar. Co. v. (1975). 540 P.2d 1070 Therefore, regulation of insurance carriers.” Id. at supplement system we declined of sanctions established under the remedy UIPA with a deter bad faith conduct on part of insurers in the first party setting, claim and held that the “count in for trespass alleged bad faith conduct of an insurer, seeks punitive damages which both damages distress, rejected.” emotional must be At Id. at 970. time, same the Legislature we invited to consider whether additional required sanctions to in- unscrupulous deter surers in the Commonwealth. Id. at 970.

It was against this backdrop Assembly the General § in time, enacted 8371 1990. It is evident that this by term “bad faith” as it concerned allegations by made an insurer, insured against his had a acquired particular meaning is, in the That law. the term “bad faith” the duty concerned of good faith and fair dealing the parties’ contract and the manner an by which insurer discharged its obligations defense and indemnification in the claim third-party context or its obligation pay to a loss party first claim context. See, Cowden, e.g., 223; D’Ambrosio, 134 A.2d at at A.2d (6th ed.1990). 966. See also Black’s Law Dictionary (“ ‘Bad Faith’ on the of an part insurer is any frivolous or unfounded refusal to pay proceeds of policy.”) In other words, the term captured those actions an insurer took when called upon to perform its obligations contractual of defense and indemnification or payment of a loss that satisfy failed to the duty of faith good and fair dealing implied in the parties’ Thus, insurance § contract.16 when provides which concurring opinion disagrees The interpretation with our 16. believing by it to be too narrow and particular constrained fact Cowden, D’Ambrosio, patterns in A.2d 223 and 431 A.2d at 966. case, repeating It bears that in this we determine the essence of the given claim an insured under the bad faith statute. As we observe footnotes 17 and we do not consider what actions amount to bad faith, may wliat actions of an proof insurer be admitted as of its bad faith, whether an insurer's violations of the UIPA are relevant to proving a bad faith claim or whether the standard of conduct the Superior applied Court has performance to assess an insurer's obligations contractual in bad faith cases is the correct one. area, In only this the term "bad faith" refers to the claim an brings against statute, also, insured his insurer under the bad faith but as to policy” under an insurance “arising in an action

remedy insurer, this of his is read with has made claim an insured on the mind, only can conclude faith in we meaning of bad are clear and us, of the statute that the words before question relief give not to intended Legislature and that explicit, that his alleges to an insured who the bad faith statute in soliciting deceptive practices engaged unfair insurer Accordingly, § we 42 Pa.C.S. purchase policy. summary judgment entitled to Life was Metropolitan hold that and establishes asserts his insurer exhibited the conduct an insured nonetheless, related, although are liable. These matters it is the former. The concurrence separate We write to and distinct. every the concur- one of the cases appears to write to the latter. unduly page our view of on 4 to describe rence cites perspective, the Superior Court's with the restrictive and inconsistent 8371, alleging failed that his insurer brought action under insured question proper The satisfy party in the manner. first claim his not whether the insured in each of those cases was before the court Rather, it was cognizable the bad faith statute. alleged a claim under to the insurer's at trial the insured as whether the evidence offered claim admissible prove the bad faith was sufficient to behavior and/or 1136, Exch., See, e.g., 899 A.2d § Condio v. Erie Ins. in a 8371 action. alia, (2006) (concluding, record did that the (Pa.Super.2006) 1153 inter thorough pursue a findings failed to support the that the insurer adversary; or investigation, insured as an independent treated the informed); Harleysville Mutual keep Zimmerman failed to the insured Co., (concluding (Pa.Super.2004) that 173 Ins. 860 A.2d findings improperly asserted supported that the insurer evidence knowledge prior had information or that its insured concealed coverage unsupport- on an problem with the roof and denied structural Co., (Pa.Su- theory); 734 A.2d 901 O’Donnell v. Allstate Ins. able insurer, occurring (concluding by an whether per.1999) that conduct before, during, litigation faith claim is admissible to or after of the bad faith, present failed to evidence but that the insured show bad claim). investigative an unreasonable denial of the improper tactics or concurring quotation author's way, opinion’s of this In the same Exch., Pa. 903 A.2d dissenting v. Erie Ins. 588 statement in Hollock There, (2006), brought a the mark. the insured 1189 misses properly process alleging § that her insurer failed to claim under 8371 coverage. The issue pay underinsured motorist her claim for during conduct of the insurer was whether the presented to this Court throughout the trial on the insured's bad discovery and the course of establishing purposes for should have been considered faith claim damages punitive award. The liability setting the amount not, here, against brought claim the insured whether the issue was given meaning of the purview, § fell within 8371's the insurer § statutory 42 Pa.C.S. 8371. term “bad faith.”

43 law.17,18 § claim Toy’s on 8371 as a matter of B. The Consumer Protection Law issue, turn to Toy’s We next second which is whether erred in reliance is Superior holding justifiable Court element of her Consumer Protection claims. This issue Law 201-9.2, § concerns the of 73 P.S. in the meaning provision right Consumer Protection Law that creates a private action. 201-9.2 states part “any Section relevant here, Toy's 17. We would end our for discussion first issue but our clarify Toy desire to an assertion of that has no merit. contends Superior repeatedly allegations that the Court has held that of UIPA § violations constitute a claim of bad faith under 8371. The cases that Toy support proposition, cites in her brief for do not stand this but rather, questions by concern two raised the bad faith with which statute grappling, the lower have courts been but which are not before us and day. remain for another question may play The first concerns the role UIPA in the though trial of a bad faith claim. Even it is Insurance Commission- statute, er Superior who enforces the there are Court decisions that may conclude that an insured ask the court to consider whether an insurer's violations of the UIPA are evidence that an insurer acted in See, handling e.g., bad faith a claim. Romano v. Co., Pa.Super. Nationwide Mutual Fire Ins. 646 A.2d 1228 (1994) (holding may that the insured make reference to a section in the refusing pay UIPA to illustrate its insurer's bad faith behavior for loss). Co., Indemnity F.Supp. But see Parasco v. Pacific (E.D.Pa.1996) (explaining that the insured’s references to sections of practices the UIPA cover unfair claim or settlement if committed frequency practice with such as to indicate a business not show that do wrongfully failing the insurer should be liable under 8371 for case). particular defend or settle litigating The second issue concerns whether an insurer’s conduct against complaint may the bad faith claim that its insured asserts it in a determining be considered the court in whether extent and to what See, e.g., an insured is entitled to relief under 8371. Ilollock v. Erie Exchange, (Pa.Super.2004), improvident Ins. 842 A.2d 409 dismissed as ly granted, Pa. given disposition, 18. We position also observe lhal our we take no on Superior reasoning granting Metropolitan summary Court's Life judgment, which was a reiteration of the standard of conduct that the Superior applied Court has in other to determine whether the cases Likewise, supra p. given insurer is liable under 8371. See 9. question concerning scope in which context of the bad faith case, position statute arose in this we take no on whether independent creates an cause of action form or is a of additional relief Companies, under a cause of action. See Birth Center v. St. Paul 376, (2001). Pa. 787 A.2d 387 n. 14 primarily or goods or leases services person purchases who suffers thereby and family purposes or household personal, as a personal, real or property, money ascertainable loss of method, of a by any person employment of the use or result act.” 73 section 3 of this practice act or declared unlawful § 201-9.2. P.S. construction, the statutory matter of that as a

Toy contends her to establish requires §in 201-9.2 result of’ “as a phrase her loss and connection between more than a causal nothing reliance, behavior, as the justifiable not Defendants’ unlawful on the premised Toy’s position Superior Court concluded. relied on this incorrectly Superior Court contention Toy for its conclusion. While Weinberg decision Court’s law, justifiable Pennsylvania that under dispute does fraud, see of common law Gibbs reliance is an element (1994), that Ernst, she argues Protection Law that the Consumer does not state Weinberg Rather, Weinberg it. all party prove that a requires private “reliance.” Since prove must private party states is that a law, “reasonable reliance” or can mean under the “reliance” fact,” Field v. “reliance see or bare “justifiable reliance” (1995), Toy Mans, 133 L.Ed.2d 351 516 U.S. S.Ct. must prove of reliance she that the level argues settled, urges this has to be yet Protection Law Consumer required of reliance is the lowest level only to hold Court Protec- liability under Consumer impose of her in order to tion on the Defendants. Law did indeed Weinberg decision is'mistaken. Our

Toy Toy of the claims is an element justifiable reliance settle In Weinberg, Protection Law. brought under Consumer Company Sun Oil against a class action plaintiffs brought (“Sun”) alleging Protection Law under the Consumer had broadcast- Sun and radio advertisements certain television and in misleading selling it was gasoline ed about the (xvii).19 201-2(4)(v), (vii), (ix), While of 73 P.S. violation —2(4)(ii), § 201 the Consumer Except claim under 73 P.S. for a by the Toy were also asserted claims that asserts Protection Law view, not amount to a material Weinberg. In our this does plaintiffs in limited to consumers plaintiffs proposed the class was had it not limited to those purchased gasoline, who Sun was had on their making purchas consumers who relied the ads decisions. At the certification ing hearing, plaintiffs class Law, position took the that under the Consumer Protection reliance on allegedly deceptive Sun’s ads need not be shown by each member of the class before the class could be certi statute, fied. Sun countered that under the detri individual shown, mental reliance on the ads causation must be and and requirement that this render class certification inappro would The trial priate. agreed court with Sun and denied class certification. Weinberg, 777 A.2d at Court, however,

The its Superior disagreed. Following decision, reasoning prior its DiLucido v. Terminix Interna tional, Inc., (1996), 450 Pa.Super. 676 A.2d 1237 Superior plaintiffs Court determined that while the claims 201-2(4)(vii) § brought § under the catchall at 201- and 2(4)(xvii)were fraud-based and required proof tradition fraud, al elements of common law the claims they brought 201-2(4)(v) 201-2(4)(ix) § for advertising, false different and did not require showing of reliance. 777 at 444-45. Accordingly, Superior A.2d affirmed the Court trial court in part and reversed the trial court in Id. part. Sun,

This granted Court allocatur to and in a unanimous decision, rejected Superior Court’s conclusion that Consumer Protection did not require plaintiffs prove Law the traditional elements common law fraud in all of their claims. Id. at 446-47. We determined that the Superior Law, Court’s view of the Consumer Protection which the court DiLucido, previously had articulated in was erroneous be cause it premised on the guide considerations that Attorney General he is pursuing when enforcement action. 201-9.2, Id. at 445-6. Construing language 73 P.S. action, provides private which right differentiating 201-4, it language from the in 73 P.S. which authorizes allegations Toy difference in the nature of the made under the Consum- against er Law plaintiffs Protection and those made defendants against Weinberg. Sun in interest, reiter- public officials to act we Commonwealth “ foun- underlying ‘the Protection [Consumer Law’s] ated ” in the “[n]othing and held that prevention[,]’ dation is fraud history suggests Protection legislative Law] Consumer [of directed statutory language ever intended legislature the traditional com- away consumer fraud to do against causation.” 777 A.2d at 466 mon elements of reliance and law Properties, and n. 1 Commonwealth v. Monumental (quoting 812, (1974), Inc., 450, and citing Legisla- 459 Pa. 1, no. tive House 1975 Sess. vol. Representatives, Journal: 1975) (remarks 63, 2149-60, 16, final (July upon 2180-82 Senate, 1976 vol. passage); Legislative House Journal: Sess. (remarks (June 1976) 114, 28, final upon no. at 1197-98 that all of the Accordingly, we concluded passage)). Senate of com- claims the traditional elements plaintiffs’ incorporated at 446. fraud of reliance and causation. Id. mon law reliance that a common type plaintiff alleging As Gibbs, reliance, justifiable fraud must is see prove law states that a Weinberg necessarily plaintiff alleg A.2d at prove Protection must ing violations Consumer Law Sports, reliance. Yocca v. justifiable Pittsburgh See Steelers (2004) Inc., (confirming 854 A.2d 425 that Wein justifiable required held that reliance of Consumer berg Therefore, plaintiffs). Weinberg Protection Law we justifiable reliance is an element of Consumer hold Protection claims.20 Law interpretation In addition to her mistaken of this Court's decision Weinberg,Toy the Consumer Protec- makes erroneous assertions about opportunity tion Law as it relates to her claims that we take this First, Toy baldly that the Consumer Protection Law is correct. asserts meaning within the 1927 that must be a uniform act of Pa.C.S. construed, protection other consumer laws have been con- state fact, strued, showing only ordinary require point reliance. act, the Consumer Protection Law is not a uniform and the consumer protection laws that the States have enacted differ from one another in Inc., Products, many respects. See Stetser v. TAP Pharmaceutical (2004) (comparing contrasting N.C.App. 598 S.E.2d 584-85 laws). among protection the differences state consumer Second, any Toy of the Consumer Protec- contends construction requires justifiable Law that reliance cannot stand in view of the

tion applies pursing Trade Commission en- standards that Federal

C. Reliance Justifiable We now turn to appeal. Defendants’ Defendants contend that the Superior Court erred in reversing trial court’s order them granting summary judgment on Toy’s Consumer Protection rely Law claims. Defendants on this Court’s deci- sion Yocca. They argue that under the analysis we set case, forth in that Toy precluded as a matter of law from pointing alleged Martini’s misrepresentations about the Policy to justifiable establish essential element of reliance because misrepresentations those are rebutted the terms of a clearly written and fully integrated contract. Defendants also argue that it follows from Yocca’s that a holding plaintiff in Toy’s position should be required to the parties’ read contract, written such that an action under the Consumer Protection Law does not lie for a party who to do neglects so thereby fails to detect the differences between the writing and the misrepresentations that allegedly made about its contents. start

We with our decision in Yocca. Yocca concerned claims that brought were by purchasers of stadium builder (“SBLs”). licenses SBLs were granted licenses that the pur- chaser the right buy annual season tickets to that games would be in played the new stadium built for being the Pittsburgh Steelers football team. The plaintiffs received a (“SBL Brochure”) brochure that included diagrams depicting general the location of stadium, seats the new information about applying purchase SBLs, for the and the process by which one could indicate his preference for specific seats. Each plaintiff applied for an SBL and ultimately executed a forcement actions under the Federal Trade Setting Commission Act. question aside the actually govern of what standards the Federal Trade actions, recognize Commission's enforcement we that federal decisions brought under provide guidance. the federal statute can See Monumen- is, Properties, however, tal 329 A.2d at 818. There no rule that binds us to those decisions. Finally, Toy’s arguments relating several to the amendment that was provision made to the catchall of the Consumer Protection Law 1996 noted, are irrelevant. As brought claims arose and are under the statute as it existed before it was supra amended 1996. See n. 1.

Therefore, bearing the 1996 amendment appeal. has no in this (“SBL the number specifying agreement Agreement”),

written fee, the of his stadium he the location purchased, of SBLs of addi- incorporated The a document Agreement seats. SBL reference, an integration terms included by tional which the entire clause, the “contains stating Agreement that SBL provided matters respect the agreement parties representations agreements supersede any herein and shall parties the hereto.” by made or entered into previously at 431. A.2d to learn that disappointed the

Subsequently, plaintiffs were in the not located they assigned seats stadium were the be, that given diagrams them to they expected where The filed plaintiffs Brochure. a com- accompanied the SBL “Steelers”), plaint against (collectively, several defendants alia, the parties’ inter breached Steelers alleging, made in the Brochure by fulfilling promises SBL contract seats, stadium and violated process assigning about in the making Law false assurances Protection Consumer for seats in stadium requests specific Brochure that SBL price met reductions would be sections would be made, if such could not be honored. requests objections in the nature of preliminary

The Steelers filed claims, the trial court sustained. demurrer which fully Agreement integrated, out that the SBL Pointing previous negotiations thereby superseding any parties’ Brochure, trial court concluded reflected the SBL from parol precluded plaintiffs pursuing evidence rule Determining Id. their breach of contract claims. nor that the Consumer goods the SBLs were neither services covered, were, if they and that even Protection Law they prior representa- relied on plaintiffs prove could not fully integrated tions in the SBL Brochure because that they signed, the trial court also concluded contract had Id. Protection claims failed. plaintiffs’ the Consumer Law the trial the Court reversed appeal, On Commonwealth order, claims at holding plaintiffs’ dismissal the court’s insofar as it objections stage improper was preliminary the represent- Agreement clear that the SBL completely ed the parties’ entire contract or that the sale of SBLs fell Protection Id. at 434- purview. outside Consumer Law’s This Court reversed Court. We first Commonwealth explained the rule in parol applied Pennsylvania. evidence “ We reiterated the rule declares that ‘the parties, where mistake, any without fraud or have their deliberately put engagements writing, writing law declares be not ” best, only the but the only evidence of their agreementf;]’ preliminary negotiations, “[a]ll conversations and verbal agreements are merged superseded by the subsequent ” “ contract[;]’ fraud, accident, written and that ‘unless averred, mistake be the writing agreement constitutes the parties, between the and its terms cannot be added to nor ” subtracted from by parol evidence.’ Id. at 436 (quoting Co., (1924)). Gianni v. Russell 126 A. We further explained that for parol evidence rule to apply, there must be a writing that represents parties’ entire contract, and that whether there exists such a writing is determined by assessing whether the witing appears to be a itself, contract complete importing legal a complete obli- gation without any object as to the uncertainty or extent of parties’ engagement. Id. We also that an inte- noted gration clause that states that the writing repre- meant to sent the parties’ agreement entire is a clear sign witing that, is meant to just be thereby all of expresses parties’ negotiations, agreements conversations and made prior to its execution. Id.

We then discussed the rule, so-called exceptions to the observing that parol evidence may be introduced to vary witing meant to be the parties’ contract, entire a party when avers that that the contract is ambiguous or that a term was omitted from the fraud, contract because of accident or mis- take. Id. at regard fraud, 437. With exception we noted that this Court has restricted the exception allega- tions of contract, fraud the execution of a and has refused to apply exception to allegations of fraud in the inducement of a contract. We stated that parol “while bemay evidence that there fraud on claim was party’s

introduced based i.e., fraudulently contract, that a term was the execution of contract, may not be admitted parol the evidence from omitted the in the inducement of that there was fraud on a claim based i.e., false contract, party representa- made opposing that an the to to party agree the complaining that induced tions Place Liberty n. 26 HCB Contractors (citing Id. contract.” (1995), Associates, Hotel 104).21 Bardwell, 100 A.2d at hand, we deter- to the case principles these

Applying the en- parties’ Agreement represented that the SBL mined the sale concerning unambiguous contract and was tire fraud in the claim was for plaintiffs’ Because the SBLs. inducement, representations that the allegations based on Brochure about the sale SBLs made in the SBL Steelers Agreement, into the SBL agree to enter plaintiffs led the rather rule applied, that evidence parol determined we at 438. Applying fraud Id. exception. than the-rule’s previous negotiations rule, any concluded that evidence we concerning the sale parties or between agreements in the SBL expressed or those terms vary explain SBLs Further, Id. we barred from admission. Agreement breach of plaintiffs’ that the trial court agreed with claims, that the Steelers violated allegations based on contract Brochure, properly in the were conditions SBL terms and Bardwell, deny exception decision to the fraud we announced our entering by fraud into only alleges he was induced party who that to a alleges that a agreement, party it who also but to allow to into an parties' fraudulently written omitted from misrepresentation was follows: contract as merely averred slightest plaintiffs that if had not the doubt There is alleged parol evidence thereof falsity representations, oral of the plaintiffs fact that furthere have been inadmissible. Does the would fraudulently made representations were averred that these oral [sic] they fraudulently by accident or mis- averring without subsequent complete written contract suffice from the take omitted "no”; question testimony to this admissible? The answer make the mockery, parol become a evidence rule would if it were otherwise avoid, have to do to party written contract would all a to the because (and that the false nullify prove) to aver modify or it would be fraudulently made. representations were original). (emphasis in Id. form no dismissed because those terms and conditions could parties’ contract. Id. part then Protec plaintiffs’

We determined that Consumer claims, required plaintiffs prove tion Law which on the SBL they justifiably representations, relied Brochure’s Id. at failed as matter law. 439. We observed their plaintiffs’ allega Consumer Protection Law claims and justifiable premised tions of reliance were on the assertion in the representations that the SBL Brochure about sale of purchasing becoming par SBLs induced them into them and ties to the SBL Id. that Agreement. We also observed under rule, parol any the evidence of those representations were the superceded by fully integrated agreement parties the signed upon and that reliance them disclaimed therein. was Id. Accordingly, “given we concluded that this Common rule, wealth’s the evidence adoption parol plaintiffs] [the not on simply jtistifiably any be said have relied [could] representations by made the Steelers before the en parties tered into Agreement.” (emphasis the SBL Id. added and in Thus, original). we held that the in the allegations plaintiffs’ complaint failed to establish that entitled to relief they were the Consumer Protection Id. Law. hand,

Turning to the our case at careful consideration of the principles that us in Yocca guided reveals that the conclusion there, that plaintiffs’ allegations justifiable we reached the reliance were unsustainable as a inapt. matter law is Defendants are correct that Toy’s Consumer Protection Law claims, Yocca, like those made in fully integrated concern a contract,22 reliance, that Toy’s allegations justifiable and like Yocca, those made in concern misrepresentations that do not in appear terms conditions the parties’ agree- written overlooked, however, ment. Defendants the have Superi- or Court found that fraud concerning savings claims features that Defendants plan represented would be included Policy fully integrated implicitly 22. That the is a contract was deter- by parol mined the trial court when it held that the evidence rule applied Toy's particular impliedly in case. This determination was upheld by Superior Court. fraud in the claim for amount to a parties’ agreement in the such, a far demand contract,23 that as of a execution alleged claim to the fraud than that analysis applied different in the representations concerning in Yocca plaintiffs into the SBL entering into them that induced Brochure SBL Yocca, excep the fraud while explained As we Agreement. in two applies potentially rule evidence parol tion to inducement, alleges a party where in the scenarios —fraud through entering agreement into he induced was execution, party fraud, in the where fraud other’s actual and the as to terms that he mistaken alleges the other’s due to he executed agreement contents only Pennsylvania, has determined fraud —this Court case, in this but was execution, alleged which is fraud rule’s Yocca, from the evidence excepted parol is alleged Bardwell, at 104.24 See operation. to a not applied rule is evidence parol

The fact claim, Toy’s, like a contract in the execution of fraud noted, decision disagreed with the trial court’s Superior Court 23. As Law Toy's Consumer Protection rule barred parol that the evidence claims, execution of the fraud in the holding Toy's claim fell within that challenge the not supra p. 10. Defendants did exception. See a contract regard. in Nor claims this characterization of Superior Court's exception recognition of an request we revisit our Defendants did of a contract in the execution parol rule for a fraud evidence to claim. First, policy that for this distinction. There are several reasons 24. serve, integrity uphold the which is to parol rule aims to evidence writing considered the embodiment is written contract because Inc., Stores, Pa. agreement, v. Food Fair parties' see Rose true recognize (1970), by a refusal to furthered is not 262 A.2d recognize refusing exception, in to as it is fraud in the execution in the fraud This is so because exception in the inducement. for fraud context, agreement is allegation that the written is in the execution complete intent and contractual expression parties' true by parties were omitted agreed to that were inasmuch as terms Second, party were allowed to through if a writing fraud. from that contra- formation that prior to contract representations made introduce merely alleging by contract of his written or varied the terms dicted fraudulent, exception could fraud representations were third, Bardwell, party a to a at 104. And the rule. See swallow fraudulent inducements ability protect himself from contract has the part of the written be made insisting "inducements” that those they Id. refusing if are not. agreement, to contract in significant. It means that when fraud the execution is are alleged, representations prior made to contract formation integrat- not considered a superseded by fully disclaimed ed fraud in the induce- agreement, they written as are when Thus, ment analysis justifi- is asserted. our of the element of able in reliance Yocca—that due to the evidence rule’s parol operation, party a cannot be said to relied on justifiably have prior representations superseded that he has and disclaimed through a fully integrated apply written contract —does not context, fraud the execution of a contract the prior where representations are not deemed superseded disclaimed rale, instead, under the parol evidence but are viewed absent wrongfully from the to memorialize writing Yocca, the parties’ contractual undertaking. See 854 A.2d at Therefore, case, we conclude that in Toy’s Yocca’s analysis justifiable on the element of reliance is presently unavailing. brings

This us to argument Defendants’ that Toy’s failure to read the Policy should also lead to Yocca’s result. context, In this adopt order to argument, Defendants’ we would have conclude that a party even whose fraud in the execution of a contract claim subject is not to the parol evidence rule’s is operation unable as a matter to prove law justifiable reliance on misrepresentations that alleges he fraudulently omitted from the written contract because he did not read the contract to see that they were not it.

We cannot reach this conclusion. Defendants’ position tantamount to imposing upon such party duty investi- gate the falsity the misrepresentations upon he which suit, such, brings and as overrides the law that we have developed over the years the determination of the element justifiable reliance in this area. Some time ago, we deter- mined that a party engages in intentional who fraud should be defrauded, made to to answer he party even if the latter less diligent was than in protecting himself in the conduct of his Emery affairs. See v. Third Pittsburgh, National Bank of 881, (1934) (“ omitted) 171 A. (quotation 882 ‘The is not law designed alone, to protect vigilant although it rather

54 them, a to even the protection intended as favors but is credulous, of the de- as the machinations foolishly against ”). consulted the Restate- regard, In this we signedly wicked.’ element of Torts, that its to the approach of determined ment own, had done coincided our and we justifiable reliance is, That we have before, the rules it set forth. embraced an allegedly principle recipient relied on the duty investigate is under no misrepresentation fraudulent but that he is not justifiably rely, in order to falsity its fraudulent allegedly the truth of an justified relying upon falsity it or if its if he to be false knows misrepresentation Circelli, 64 A.2d 798 Merritz v. 361 Pa. obvious. (First) (1949) for the of Torts Restatement (citing fraud); reliance for justifiable the element of parameters Co., Bank & Trust Exchange v. Nat. See Neuman Corn Weinstein, (1947) and Savitz v. Pa. 51 A.2d (First) (1959) 173, 149 110, 113 Restatement (citing A.2d Pa. Gibbs, fraud); 647 A.2d § 525 for the elements of Torts (Second) the elements of Torts 525 for Restatement (citing Porreco, fraud).25 61, 811 A.2d 566 Porreco Cf. J.) (2002) that where (dissenting, Saylor, (explaining (plurality) is not under justifiable, party reliance is to be party’s to the Restatements of Law investigate according duty Contracts). Toy conclude that Accordingly, we Torts and fact that she did not Policy no to read the and the duty justifiable from establishing not her preclude do so does reliance. Court, disagree with

Finally, Superior like the we justifi Toy could establish trial court’s determination falsity misrepresenta- of Martini’s reliance because the able reason, correctly Superior Court relied on we note that the 25. For this (Second) of principles in 540 and 541 of the Restatement Sections Torts, 10-11, Toy's justifiable analyze supra pp. the issue of see view, however, was no need present In our there reliance in the case. guidance in which in insurance cases Superior Court to look for for the coverage, even he was entitled to certain an insured asserted that coverage provide though did not such the insurance contract itself policy to discover the despite that the insured did not read the fact See, e.g., Pressley v. Travelers coverage actually provided. extent (Pa.Super.2003). Casualty Corp., Property obvious, Policy given tions about the the information on Policy’s justifiable cover sheet. have stated that We reliance is a of fact the fact-finder to typically question for decide, their requires parties, and a consideration of the relationship, surrounding and the circumstances their transac- Rockwell-Standard, Corp., tion. See Co. v. 446 Pa. Scaife (1971). In Toy A.2d asserts that Martini told Metropolitan product her Life she was purchas- a life ing component, included insurance conclude that it is we jury to decide whether the of Martini’s falsity alleged misrepresentations Policy’s about the contents was obvious Toy unjustified. her Accordingly, whether reliance was we hold that are summary judg- Defendants not entitled to ment on Toy’s Consumer Protection claims because there Law a genuine issue of material fact as to the essential element 1035.2(1). justifiable reliance. See Pa.R.C.P. No.

III. (1) this summary, Court concludes that: Pa.C.S. § 8371 does not encompass allegations by an insured that his engaged insurer in unfair or deceptive practices soliciting (2) the purchase policy; of a this decision in Weinberg, Court’s stands for the that that proposition plaintiff of the alleging violations Consumer Protection Law prove justifiable must the common element of law fraud reliance; (3) a plaintiff whose Consumer Protection Law claims set forth a fraud the execution of a contract claim is precluded not as a matter of from establishing law the element reliance; (4) justifiable and that such a is not plaintiff under duty read the contract order to allege prove justifiable element of reliance.

IV. reasons, For all of the forgoing Superior the order affirmed, Court is statutory albeit as matter of construction as to the claim brought Toy in the consideration participate did not

Justice BALDWIN decision of this case. in the participate did Former Justice NEWMAN of this case. decision Opinion Court Justice CAPPY delivered

Chief 11(B),in which Justice to Part I and Part respect to Part Castille, join; respect Eakin and Baer with Saylor, 11(A), join; and with Saylor in and which Justice Castille join. 11(C), Eakin and Baer in which Justice to Part respect in which Justice concurring opinion EAKIN files a Justice joins. Baer opinion and concurring dissenting files a

Justice SAYLOR joins. in which Justice Castille EAKIN, concurring.

Justice 11(C). I, 11(B), agree Part While I join I Part Part 42 11(A), I find separately I because the result of Part write an insurer’s limited to actions for § 8371 is not Pa.C.S. or of its disposal an claim pay failure to insurance wrongful majority The finds indemnification. of defense and obligations case of “bad faith” our interpretation for a narrow support 8371, arguing: § to the enactment of prior law by made allegations it concerned term “bad faith” as [T]he insurer, acquired particular had against an insured his duty good faith concerning] ... meaning the law by the manner in the contract and dealing parties’ and fair of defense and discharged obligations its which an insurer claim context or its obli- third-party in the indemnification first claim context. party for a loss in the gation pay However, the plain at 199. at Majority Op., may limited as it a court provides §of 8371 is not so language faith an insurer has acted bad toward relief whenever grant an insured, “action under insurance long so as the aris[es] (“In arising § 42 8371 an action See Pa.C.S. policy____” that the insurer has if the court finds policy, an insurance insured, all of may the court take faith acted bad toward actions....”). in following Assembly Had the General § tended to limit 8371 to case claims to an limiting law claims, insurer’s bad faith refusal to it could pay dispose § used more language have restrictive to limit 8371 to “actions ” arising under an insurance claim as opposed those “under an insurance policy.” See Commonwealth Rieck Invest (The (1965) ment Corporation, A.2d “legislature must be to mean it plainly intended what has (citation omitted)). expressed.”

The majority argues § because a court to permits interest on the award “amount of the claim from the date the insured,” claim was made the section does not provide private for the remedy deceptive practices or unfair of insur- companies. ance Majority Op., See 928 A.2d at 196 8371(1)). However, § (quoting § provides 8371 also an award punitive or the damages assessment of court costs and 8371(2- attorney’s fees against insurer. See Pa.C.S. 3). While the wording award interest under 8371(1) may apply exclusively to an insurer’s faith bad claim, 8371(2) failure to pay the plain language of 8371(3) is not limited this manner and may provide thus remedy any Therefore, other “bad faith” conduct. I join cannot the inference that provisions remedial in any 8371 restrict the way meaning of “bad faith.” The majority’s reliance on Cowden v. Aetna and Casualty Co., 459, Surety (1957), 389 Pa. 134 A.2d 223 and D'Ambrosio Pennsylvania Co., v. National Mutual Casualty Insurance 501, (1981), 431 A.2d 966 to establish a and “peculiar appropriate meaning” of the term “bad faith” in the insurance context is equally unpersuasive, as neither expressly limited fact, the notion of “bad faith.” In D'Ambrosio employed the term “bad faith” to according practices the trade determined to be unfair methods of competition or unfair or deceptive acts or practices under Unfair Insurance Act Practices (UIPA):1

Although the seriousness of “bad faith” conduct insur- ance carriers cannot go unrecognized, our Legislature has 1. See 40 P.S. §§ 1171.1-1171.15.

58 bad dramatic, to curb the efforts sweeping made

already faith conduct.

[*] ^[*] :k to and have no reason suggest, to we There is no evidence under believe, of sanctions established system created cause judicially aby be supplemented must [UIPA] to announce Legislature it for the Surely action.... public policy governing the Commonwealth’s implement and view, it is carriers. our of insurance regulation sanctions to determine whether legislature for the equally to deter required the Act are those created under beyond than scrupulous. which is less conduct to deter adequately serves conclusion that the [UIPA] Our attempt only appellant’s conduct applies faith bad attempt also to his recover damages but punitive recover for “emotional distress.” damages D’Ambrosio, Thus, if our jurisprudence even 970. “particular appropriate to D’Ambrosio established prior context, in the insurance the term “bad faith” meaning” of term.2 meaning expanded significantly D’Ambrosio faith in the insur- duty good we held Subsequently, disclosure complete of full and duty context “includes ance provided by that is every coverage to all of the benefits Court for the Eastern Superior and the U.S. District The Court consider- Pennsylvania interpreted D'Ambrosio to allow have District of determining faith” conduct alleged “bad UIPA violations ation Co., Group, 865 A.2d Ltd. v. CGU Ins. 8371. See The Brickman ("[Cjonduct which constitutes a violation (Pa.Super.2004) determining may when whether an insurer also be considered the UIPA Co., 8371].”); Ins. O'Donnell Allstate [§ in bad faith under acted (same); Mut. Fire (Pa.Super.1999) Romano v. Nationwide A.2d (1994) ("While Co., Pa.Super. Ins. faith,’ specifically [D'Ambro- refer to an insurer’s 'bad does not UIPA reach.”); conduct within the UIPA’s utilized that term to describe ] sio Co., 108, Fidelity F.Supp. 110 Guar. 818 MacFarland v. U.S. & see also (E.D.Pa.1993) constituting of (considering alleged conduct violations Co., faith); determining Assurance Rottmund v. Continental in bad UIPA 1104, (E.D.Pa.1992) (examining other statutes on F.Supp. 1109 813 8371); Coyne § v. Allstate subjects bad faith under to describe similar Co., 673, (E.D.Pa.1991) (utilizing provisions of F.Supp. 678 Ins. 771 conduct). to describe bad faith UIPA

59 requirements, or all applicable policies along with policy v. making time limitations for a claim.” Dercoli including any (1989). Co., 906, 554 A.2d 909 Pa. Nat’l Mut. Ins. Moreover, the majority’s Court has not followed Superior Exch., restrictive Condio v. Erie Ins. 899 A.2d view. See acted (considering 1142 whether insurer (Pa.Super.2006) arbitrator, securing in bad faith in witness selecting neutral Brown testimony, permitting attorney delay litigation); Co., 500-01 Progressive (Pa.Super.2004) v. Ins. A.2d (“Bad variety objectionable faith a wide of con- encompasses .... into good investigation duct also includes ‘lack of faith [It] ” facts, (citation and failure to communicate the claimant.’ omitted)); Co., Harleysville Zimmerman Mutual Ins. (“The A.2d has (Pa.Super.2004) scope [§ ] been extended to the of an insurer investigatory practices during litigation by initiated an insured to obtain the proceeds of his or her insurance v. Allstate Ins. policy.”); O’Donnell Co., (same). (Pa.Super.1999) 909-10

Therefore, I disagree majority promulgat- with the ing 8871 the intended faith” to Assembly General “bad have a “peculiar appropriate meaning” constrained by fact In- particular situations Cowden and D’Ambrosio. stead, “bad faith” concerns breach of an any “implied insurer’s covenant of faith and fair good dealing” parties’ con- tract. An insurer must refrain from act that any injure would the insured’s right receive benefit the contract.

Nevertheless, I must conclude appellant does have remedy alleged bad faith conduct com- by mitted appellees soliciting purchase of appellant’s policy. Extending the insurer’s faith to duty good conduct occurring prior to the of the insurance making policy is contrary plain an language my opinion, insurer’s faith duty good begins only after the creation of an insurance Before policy. signs the insured receives and policy, legal there is no between the insurer and relationship insured, and neither party any obligation has undertaken regarding Thus, agreement. misrepresentations future false regarding statements made insurer an insurance

60 faith” meaning of “bad under the broad falling while policy, the conduct, of faith towards any duty good not breach do Brickman the See policy. the creation of insured before Ltd., “under an insurance not arise They at 930. do Group policy.” creation, the extent statutory is a

Because a bad faith claim by the an insured must be resolved duty an insurer’s of § 1921. Sec- 1 Pa.C.S. interpretation. of See statutory rules an insurance arising under “In an action provides, tion 8371 has acted in bad faith that the insurer if the court finds policy, insured, following take all of the may the the court toward actions____”42 added). In address- (emphasis Pa.C.S. faith under duty good of the of ing scope whether the the of a during litigation the insurer extended to conduct of claim, noted: Cappy bad faith Chief Justice lack of at the is the looking The obvious words problem the should be drawn on the of where line clarity question on policy” an insurance arising of the “action under scope the faith. Is the insurer acted bad assessing whether when limited to the conduct scope the of the conduct ... or does it extend underlying policy[,] on the insurer from the initial claim the entire that resulted litigation the policy.... under insurance Exch., Hollock v. Erie Ins.

(2006) C.J., concluding (Cappy, dissenting). (plurality) 8371 does not cover of bad faith conduct scope Cappy during litigation, conduct Chief Justice insurer’s dealing and fair duty good that an of faith stressed insurer’s the insurer relationship arises from the contractual between id., words, his relation- at 1191. In “[t]he and insured. See policy. the insurance parties is defined ship between terminated, or the paid, has been the claim policy Once Thus, is over.” Id. once relationship claim denied the severed, duty good faith between relationship has been See id. parties extinguished. it a clear answer to whether may provide § While litigation of a bad parties during to the conduct of extends claim, clearly imposition plain language precludes faith its faith of insurance duty good preceding execution The under an insurance coverage. plain language “arising the existence of an insurance policy” clearly contemplates policy alleged wrongful at the time conduct. Without relationship duty good contractual between the parties, Further, faith cannot exist. id. in order to “arise under See an insurance the action relation to the policy,” must bear some Thus, policy itself. the Court dismissed a claim Superior § under for an pay judgment 8371 insurer’s failure to against it because the the action as a plaintiff merely brought creditor, judgment not wronged Ridgeway as a insured. See (Pa.Su- Co., v. U.S. 793 Credit Ins. A.2d 976-77 Life Life per.2002). Similarly, cannot con- appellant allege appellees’ misrepresented duct the terms of her policy, only actual but her for life application insurance. I

Accordingly, agree § that 8371 cannot extend to claims to relating the conduct of insurers before the formation anof Ltd., (“Nei insurance contract. See Brickman at 930 Group ther O’Donnell nor any other case 8371 interpreting extends that section’s to protection preceding conduct the execution Co., insurance coverage.”); Kilmore v. Erie Ins. Pa.Super. (1991); see also Weisblatt v. Minn. Co., Mut. (E.D.Pa.1998) (“The Ins. 4 F.Supp.2d Life duty good faith fair-dealing and ... ‘applies only to the enforcement performance and contracts and not [insurance] (citation omitted)). to their formation ....’” However, this does not preclude appellant from all relief grant and does not a license to insurance companies to mislead customers during solicitations. The Insurance may Commissioner still an bring against action the company insurance the enforce unfair practices Further, outlined UIPA. See 40 1171.8. P.S. as appellant alleged her complaint, may insured bring private claim under the Consumer Protection Laws. See 73 P.S. 201-9.2. joins

Justice BAER this concurring opinion. SAYLOR, dissenting. and concurring Justice (B) 11(A) As majority opinion. of the I join I Part however, treatment 11(C), majority’s I differ with to Part rule. parol evidence Toy’s complaint allegations that majority accepts The contract but concludes fully integrated concern op. Majority Opinion, not See apply. rule does parol evidence reasons, that Ms. majority The 41-53, A.2d at 205-07. (as to in the inducement to fraud claim does not amount Toy’s generally apply evidence rule would parol which law), rather, to fraud but amounts Pennsylvania prevailing (as rule does not evidence parol the execution which footnote, any dismisses majority In a id. apply). See of fraud allegations claims reflect that Ms. argument execution, by fraud in the inducement, opposed Superior challenged Defendants have indicating in this re- Toy’s allegations of Ms. characterization Court’s 206 n. n. 928 A.2d at op. at 52 Majority Opinion, gard. See instance, majority I although agree with In the first Superior the expressly not controverted Defendants have fraud in the involving of characterization Ms. Court’s the challenged execution, they sufficiently that have I believe that this length, at reasoning by arguing, Court’s Superior Pittsburgh Sports, Yocca v. Steelers by is governed matter (2004), majority the Inc., A.2d 425 which Pa. fraud in the inducement. See involving as a case characterizes Therefore, I 49-50, 928 A.2d at 205. at Majority Opinion, op. of applicability the questions concerning the not resolve would based on waiver. evidence rule parol the that there merits, argument advance an Defendants On ability to upon party’s limitations reasonable should be some their very plainly conflict with affirmative claims advance em- plaintiff even when agreements, written integrated, highlight Defendants fraud. In particular, the rubric of ploys free-standing of a promise as to the allegations that Ms. Toy’s $100,000 in 23 years value of an accumulated savings plan by not only contradicted whole repeatedly squarely life policy insurance which was the sole instrument that she received,1 but also by application signed.2 written she Defendants contend that applying exception parol to the evidence rule such circumstances make the general would easy rule so to avoid that it no rule at will amount to all.3 I agree with the tenor of this I argument. believe that the parol evidence rule an objective promote subsumes certain ty contract, of stability and to some reasonable place limitations litigation exposure on the of the business communi others, ty and by investing an obli contracting parties with gation read their written agreements and abide clear terms, allegation short of an of fraud of a sort that would not be obvious from the integrated face agreement, and/or in the absence circumstances in reading which the written agreement would be reasonable. v. Warfflein, Thorne Cf. (1882) (“We 100 Pa. 519 cannot agree it is proper throw fraud, whole case into the on jury ground box page 1. The policy specifies retirement-age guaran- declarations $11,000. teed cash value of application 2. This was entitled “APPLICATION FOR LIFE INSUR- ANCE”; Insured”; Toy “Proposed identifies Ms. at the outset as the benefit, specifies provides premium a death payments equal to the investment; Toy's amount beneficiary; of Ms. identifies a contains medical application; data consistent with an insurance and contains "Proposed immediately words Insured” beneath the line on which Toy signed application. Toy Ms. deposition Ms. conceded in her signed application, that she only this but had either not read it or representations skimmed it in reliance on Mr. Martini’s that it was an application savings plan policy. for a and not a life insurance See 111-16, 122-23, 129, Deposition Georgina Toy 146-50. 33.21, (4th ed.1999) (“[c'lourts at 672 Williston on Contracts Cf. recognized exception have ... up that this fraud would swallow representations during negotiations, rule if made but not included executed, the contract as could be characterized as fraud and then used (citation omitted)); complete agreement.” to undo an otherwise Anno tation, ride; right Parol-evidence to show in inducement or execu fraud contract, ("That tion written 56 A.L.R. Pt. II a mere failure to carry alleged parol promise out an contemporaneously made with a agreement prove written inception does not such a fraud in the of the parol contract as will warrant the admission of evidence to show the alleged promise writing at variance with the seems clear both on reason according would, weight authority. to the of To hold otherwise out, pointed reasoning has been be in a circle and be a virtual itself"). abrogation parol-evidence of the rule contract to a written parties of because one two simply to the contradictory parol stipulations there were testifies that There must time. to at the same 'writing, agreed of the terms be derived may that which fraud other than be evidence of terms. We parol in the written the mere difference from are, case, and we in the present can find no such evidence in error court below was therefore, the learned opinion jury.”).4 fraud to the leaving question parol to the exception the fraud containing In terms to has been rule, Pennsylvania the approach evidence in the “mak- on fraud reliance a distinction between maintain in the “omis- fraud versus representations, oral ing” prior For contract. subsequent written of terms from sion” Co., 100 A.2d 102 in Bardwell v. example, Willis (1953),the Court stated: merely had that if plaintiffs doubt slightest

There is not parol alleged representations, oral falsity averred Does been inadmissible. not have thereof would evidence repre- that these oral further averred the fact that plaintiffs averring made without fraudulently sentations were mistake omitted or accident or they fraudulently were to contract suffice written subsequent complete from the ques- to this The answer testimony make the admissible? rule “no”; parol evidence if it were otherwise tion all a to written party because mockery, become would it avoid, nullify modify to do to contract would have (and representations that the false prove) tobe aver would made. (fraudulently) fraudulenty Court, The original).5 (emphasis A.2d at 104 Id. at between however, the boundaries closely developed has not reading written discussing in relation to 4. Ms. duties documents, obligations only relative notably, majority addresses her Majority Opinion, op. policy. reading See of the life insurance mention, however, 54-55, of her failure no 928 A.2d at 208. It makes of) (or written facial character apprehend the to read otherwise supra 2. signed. See note which she application for life insurance loosely induce translated into appears have been concern This made, although in the fraud the courts have distinction menl/execution encompass commonly be understood appears to most inducement omission, fraudulent and it to making fraudulent and seems sufficient, open question me to be an it is to claim lay whether to the exception, contracting party fraud add to a claim of making” representations concerning “fraudulent (a subject integrated the matter of the contract matter that is the clearly exception) allegation outside an that the defendant suggested also that the false terms were within the written contract, although they most clearly not set forth the contract. Bardwell,

For the policy reasons set forth in I believe the Court should not so extend the In exception. my fraud view, in terms of the potential for opening exception to abuse, ready there is a very modest difference between making representations concerning subject matter of a contract, general misrepresentations concerning actual terms Moreover, of the written contract. con- where written tractual terms are clear and apparent, ability review document protects equally against either form of misrepresen- view, tation. my maintaining to the exception parol omission,” evidence rule for “fraud the Court should require something beyond mere misrepresentations obvious concerning the terms of an integrated contract.

Here, the circumstances entailed Ms. execution proposed insured of a document that plainly, was obviously, and consistently styled as an application for life insurance. is, position however, Her that she believed that the document something was entirely different based on Mr. oral Martini’s representations concerning subject matter. Deposi- See (“Mr. tion of Georgiana Toy, at 95 Martini never in the entire presentation of the material given was that evening indicated that I buying what was awas life insurance policy. The entire presentation totally regarding savings 50/50 it, as he plan, referred to it investment.”); and was an (“My assumption at the time was that I ... signing what was was a contract savings plan.”). In the absence of

misrepresentations about concerning collateral facts and not facts 2d, purport nature or of the contract. See Am.Jur Fraud Deceit (2007). § factual circumstances would in terms of

anything more terms of the written apprehend not to read Toy cause Ms. fall should allegations that such I believe application, her than the rule rather evidence parol the purview within exception.6 substantially contains Toy’s complaint that Ms. recognize

I fraud, that Metro- she asserts which allegations broader the essentially practice institutionalized Life had politan free-standing as policies disguised life insurance marketing conclusion agree Judge I with Wettick’s savings plans. about her circumstances develop particular failed to she has her as render Defendants such would transaction with own to reasonable sufficiently its character to apprehend failure parol effect of the claims from the her justify excepting 916896, (W.D.Pa. Deak, Pizza, *7 2007 WL LLC v. Accord Domino’s ("Where 23, 2007) opportunity to party the has had sufficient March execution, ability subsequently to agreement prior to the the review eliminated”); Nat'l Bank Belleville execution is all but claim fraudulent (1983) Rose, Ill.App.3d 74 Ill.Dec. 456 N.E.2d situations, is, ("The avoid the unavailable to of fraud in most defense party have agreement complaining the could where effect of the written instrument, reading and was in fact afford- by the fraud discovered so.”). generally 4 See opportunity full to do ed a on Insurance Couch 2007) ("[I]f (3d ready to the ... has access the insured 56:15 ed. truth, liability the insurer setting no documents forth truth or to Thus, may be agent's the insured misstatements. because of arises signs application agent’s fraud if tire insured spite of the bound it, reading without reading policy retains the when delivered without agent’s falsity reading have disclosed the would it when such ”). representations. regarding uncertainty Pennsylvania acknowledge that there is some I expectations doctrine in the consumer scope reasonable setting in this support that consumers I the notion insurance arena. failing study policy terms at disadvantaged to detailed for not be should length reasonably expect that they in which could in circumstances however, understanding, Toy’s coverage To Ms. be available. would involve agreement Metropolitan Life did not her main thrust of moreover, Judge support Wettick's conclusion policy; I insurance to in Ms. circumstances simply not reasonable for one that it is free-standing understanding sav- that she had secured maintain the insurance, only application that she ings life when the plan that was not was, insurance, policy received life and the that she signed was one for face, sync expectation. materially with her asserted out of on its well, ten-day subject "free-look” condi- Notably, tion, policy was as it, any right it for Toy to examine return providing Ms. with a a full refund. during period, and secure reason claims for affirmative At in the context of rule. least evidence remedies equitable as those monetary damages, opposed restitution, Judge I support therefore as rescission and such determination. summary judgment Wettick’s need note, Toy Ms. type alleged As a final fraud has redress, as the Insurance Commissioner not go without take conduct and to such asserted investigate authority the Unfair Insurance remedial measures appropriate 22, 1974, No. P.L. See July Act. Act of Practices amended, §§ 40 P.S. 1171.1-1171.15. dissenting joins concurring this

Justice CASTILLE opinion.

928A.2d 215 Appellee Pennsylvania, COMMONWEALTH RAINEY, Appellant. Michael Pennsylvania. Supreme Court May 2006. Submitted July Decided

Case Details

Case Name: Toy v. Metropolitan Life Insurance

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 18, 2007

Citation: 928 A.2d 186

Docket Number: 33 & 34 WAP 2005

Court Abbreviation: Pa.