Dannetta Pressley, etc. v. The Travelers Property and Casualty Coporation, et al.

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

I. FACTUAL AND PROCEDURAL HISTORY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On March 20, 1997, Lorey sent a letter confirming the
substance of her conversation with Williams. Without reserving
any rights, Lorey again acknowledged that Brown was covered
under Pressley’s policy for first-party benefits including
$25,000.00 for medical charges, $10,000 for an accidental death
benefit and $2,500.00 for funeral expenses. Id. at 4-5.
Pressley reasonably relied on the assurances of Travelers based
upon the March 20, 1997 letter from Ruth Lorey that her mother
was covered for all available coverages under the policy. Id. at
34.

On March 23, 1997, Attorney Homer Walton, a friend of
Pressley’s, discussed the terms of Brown’s coverage with Evans.

Walton asked Evans about the coverage available for Brown
under Pressley’s policy. Evans acknowledged that there was first
party benefits coverage for Brown since she was on Pressley’s
policy. When asked about underinsurance coverage, Evans said
there was no underinsurance coverage because Pressley never
forwarded Brown’s Social Security number and driver’s license
number as requested. Id. at 6-7.

Upon learning that there was a potential underinsurance
claim, Travelers made no more acknowledgements of coverage
and Thomas Lighthall from Travelers sent a letter to Pressley on
March 21, 1997 saying that the claim was being investigated.
Id. at 16. On March 31, 1997, Mr. Lighthall sent a Reservation
of Rights letter to Pressley advising her, inter alia, that Travelers
was conducting an investigation of the claim, and was reserving
all rights under the policy. N.T., 10/11/01, Vol. II, at 105.

6 The lower court entered the above-referenced order of October 17,
2001, and in response thereto, Evans Agency and Evans filed a notice of
appeal at 1971 WDA 2001 and Travelers filed a notice of appeal at 1996
WDA 2001. By Order dated February 7, 2002, appeals 1971 and 1996 WDA
2001 were listed consecutively before a single panel of this Court for
purposes of argument or submission.

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¶ 28 Order affirmed.

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Reported by AKM