J-A15045-14

2014 PA Super 192 

TIMOTHY AND DEBRA CLARKE, H/W, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellants 

v.

MMG INSURANCE COMPANY AND F. 

FREDERICK BREUNINGER & SON, 

INSURANCE, INC. 

 Appellees No. 2937 EDA 2013 

Appeal from the Order Entered August 1, 2013 

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 03407

BEFORE: PANELLA, LAZARUS AND JENKINS, JJ.

OPINION BY JENKINS, J. FILED SEPTEMBER 04, 2014 

Appellants Timothy and Debra Clarke appeal from the order entered in 

the Philadelphia Court of Common Pleas denying their motion for partial 

summary judgment and granting MMG Insurance Company’s (“MMG 

Insurance”) cross-motion for partial summary judgment.1

 We vacate and 

remand for further proceedings. 

On April 16, 2012, Plaintiff-Appellant Timothy Clarke suffered serious 

and permanent injuries in a motor vehicle accident. Mr. Clarke was driving 

his motorcycle when a car turned in front of him, causing a collision that 

____________________________________________ 

1

 F. Frederick Breuninger & Son, Insurance, Inc. is not a party to this appeal. 
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threw him from his motorcycle. Mr. Clarke suffered multiple injuries and was 

placed on life support for eleven days at Paoli Memorial Hospital. He 

underwent multiple surgical procedures before his release. 

At the time of the accident, Mr. Clarke had two motor vehicle 

insurance policies in effect. American Modern Select Insurance Company 

issued the first for the motorcycle, and MMG Insurance Company issued the 

second for Mr. Clarke’s two automobiles—not his motorcycle. Appellants had 

underinsured motorist (“UIM”) coverage for the motorcycle through the 

American Modern Select Insurance policy. Mr. Clarke received payments of 

$25,000 from American Modern Select Insurance Company for his 

motorcycle policy and $100,000 from the other driver’s insurance company. 

Those payments, however, proved insufficient to cover Mr. Clarke’s financial 

losses from the accident. 

Appellants then sought coverage under their insurance policy issued by 

MMG Insurance Co. — specifically under the UIM coverage clause, which 

provided coverage in the amount of $300,000 per accident. MMG Insurance, 

however, denied the UIM claim, based on the “Household Exclusion” clause. 

MMG Insurance asserted that the Household Exclusion clause precluded 

coverage because the motorcycle involved in the accident was not a covered 

vehicle under the MMG Insurance policy, which only covered two 

automobiles owned by Appellants. 
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On October 24, 2012, Appellants filed their initial complaint and, on 

December 27, 2012, filed an amended complaint. Appellants’ amended 

complaint named MMG Insurance Company and F. Frederick Breuninger & 

Son Insurance, Inc. (“Breuninger Insurance”) as defendants. The amended 

complaint sought declaratory relief against MMG Insurance (count I) and 

asserted claims of breach of contract (count II), negligence (count III), and 

breach of warranty (count IV) against both MMG Insurance and Breuninger 

Insurance. 

On March 5, 2013, Appellants filed a motion for partial summary 

judgment on their claim for declaratory relief against MMG Insurance. MMG 

Insurance opposed the motion and, on April 3, 2013, filed a cross-motion for 

partial summary judgment. On April 16, 2013, the trial court denied both 

parties’ motions. On April 25, 2013, Appellants filed a motion for 

reconsideration. On May 16, 2013, MMG Insurance opposed Appellant’s 

motion for reconsideration. On August 1, 2013, upon a second review,2

 the 

trial court denied Appellants’ motion for reconsideration (and thus also their 

partial summary judgment motion) and granted Appellee MMG Insurance’s 

cross-motion for partial summary judgment. 

____________________________________________ 

2 On June 20, 2013, the trial court marked Appellants’ motion for 

reconsideration “moot.” After a case management conference with the trial 

court, the parties stipulated to vacate the June 20, 2013 order and place 

Appellants’ motion for reconsideration before the trial court for its 

determination again. 
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The trial court denied Appellants’ motion on the grounds that “the 

policy language of the Household Exclusion clause clearly and 

unambiguously excludes the coverage sought by [Appellants], and because 

the Order is consistent with Pennsylvania public policy regarding Household 

Exclusion clauses.” Trial Court Opinion, 12/30/13, at 4. 

On September 12, 2013, Appellants filed a praecipe to settle, 

discontinue, and end all remaining claims against MMG Insurance and 

Breuninger Insurance.3

 On the same day, Appellants filed a timely notice of 

appeal. Both Appellants and the trial court complied with Pennsylvania Rule 

of Appellate Procedure 1925.4

Appellants raise the following issues for our consideration: 

1. Where the language of the policy agreement 

between Appellee MMG Insurance Company and 

Appellants clearly and unambiguously excludes 

underinsured motorist coverage only where the 

injury is sustained while occupying a vehicle that has 

no underinsured motorist coverage, did the [t]rial 

[c]ourt err as a matter of law when it concluded 

MMG Insurance Company did not owe the Appellants 

underinsured motorist coverage for injuries 

____________________________________________ 

3

 The remaining claims were as follows: breach of contract (count II), 

negligence (count III), and breach of warranty (count IV) against both MMG 

Insurance and Breuninger Insurance. 

4

 On October 18, 2013, the trial court ordered Appellants to file a statement 

of matters complained of on appeal within twenty-one days. On November 4, 

2013, Appellants submitted their statement. On December 30, 2013, the 

trial court submitted its 1925(a) opinion. 
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sustained while occupying a vehicle which had 

underinsured motorist coverage? 

2. Where the terms of an underinsured motorist 

exclusion used by MMG Insurance Company excluded 

coverage only for injuries that occurred in a vehicle 

that was not covered for underinsured motorist 

coverage, was it error for the [t]rial [c]ourt, in 

determining the intent of the parties to the 

agreement, to ignore the different language used by 

the insurer in the exclusion for uninsured motorist 

coverage which, by its terms, excluded coverage if 

the injuries occurred in a vehicle which was not 

covered for uninsured motorist coverage under the 

MMG Insurance policy, and therefore the [c]ourt 

erred in its determination that Appellee MMG 

Insurance Company owed no underinsured motorist 

coverage to Appellants who were injured while 

occupying a vehicle which had underinsured motorist 

coverage? 

3. In determining the intent of the policy agreement 

between Appellee MMG Insurance Company and 

Appellants, did the [t]rial [c]ourt err in examining

and relying upon public policy rather than the plain 

language of the policy agreement, and therefore err 

in its determination that Appellee MMG Insurance 

Company owed no underinsured motorist coverage 

to Appellants who were injured while occupying a 

vehicle which had underinsured motorist coverage? 

4. In the alternative, did the [t]rial [c]ourt err as a 

matter of law in denying Appellants’ Motion for 

Partial Summary Judgment and granting the 

Appellee MMG Insurance Company’s Cross-Motion for 

Partial Summary Judgment when it failed to construe 

the ambiguous language in the underinsured 

motorist coverage provision of the policy in favor of 
J-A15045-14

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Appellants, which would entitle the Appellants to 

underinsured motorist coverage under their MMG 

Insurance Company policy? 

Appellants’ Brief at 5-6. 

The interpretation of an insurance contract is a question of law. 

United Services Auto. Assoc. v. Elitzky, 517 A.2d 982, 986 

(Pa.Super.1986), appeal denied, 528 A.2d 957 (Pa.1987). The standard of 

review of questions of law is de novo, and the scope of review is plenary. 

Genaeya Corp. v. Harco Nat’l Ins. Co., 991 A.2d 342, 346 

(Pa.Super.2010) (citing Buffalo Twp. v. Jones, 813 A.2d 659, 666 n.8 

(Pa.2002)). Thus, in interpreting a contract, this Court need not defer to the 

trial court. United Services Auto. Assoc., 517 A.2d at 986. 

Appellants’ first two issues ask this Court to interpret the exclusionary 

language of the UIM Coverage provision in their insurance policy agreement 

with MMG Insurance. In their first issue on appeal, Appellants argue the 

language of the policy clearly and unambiguously covers Mr. Clarke’s injuries 

sustained from the underinsured motorcycle involved in the accident up to 

$300,000.00. In their second issue on appeal, Appellants assert that the trial 

court erred in its interpretation of the policy by failing to give effect to all of 

its language. Specifically, Appellants allege the trial court erred when it 

treated the different exclusionary language used by the insurer in the 

Uninsured Motorist (“UM”) coverage provision, which was not present in the 

UIM coverage provision, as surplusage. We agree. 
J-A15045-14

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When the language of a policy is clear and unambiguous, the court is 

bound to give effect to the policy and cannot interpret the policy to mean 

anything other than “what it says.” Nationwide Mut. Ins. Co. v.

Cummings, 652 A.2d 1338, 1342 (Pa.Super.1994) (internal citations 

omitted). The “goal [of the Court in] interpreting an insurance policy . . . is 

to determine the intent of the parties as manifested by the language of the 

policy.” Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial 

Union Ins. Co., 908 A.2d 888, 897 (Pa.2006) (internal citations omitted). 

Disputes over coverage must be resolved only by “reference to the [] 

provisions of the policy” itself. Cohen v. Erie Indem. Co., 432 A.2d 596, 

597 (Pa.Super.1981). 

An insurance policy must be read as a whole, and not 

“in discrete units.” Luko v. Lloyd's London, 573 A.2d 1139, 1142 

(Pa.Super.1990). Therefore, the two exclusions must be read together and 

construed according to the meaning of their words, “while at the same time 

giving effect to all of [the policy’s] provisions.” Masters v. Celina Mut. Ins. 

Co., 224 A.2d 774, 776 (Pa.Super.1966).

“Our rules of construction do not permit words in a contract to be 

treated as surplusage . . . if any reasonable meaning consistent with the 

other parts can be given to it.” Tenos v. State Farm Ins. Co., 716 A.2d 

626, 631 (Pa.Super.1998). Indeed, if the court is “forced to choose between 

two competing interpretations of an insurance policy, we are bound, as a 
J-A15045-14

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matter of law, to choose the interpretation which allows us to give effect to 

all of the policy’s language.” Millers Capital Ins. Co. v. Gambone Bros. 

Dev. Co., 941 A.2d 706, 716 (Pa.Super.2007), appeal denied, 963 A.2d 471 

(Pa.2008). A principle frequently applied as an aid in arriving at the policy’s 

intention is that the mention of one thing implies the exclusion of another 

thing. See Rimpa v. Erie Ins. Exchange, 590 A.2d 784, 787-90 

(Pa.Super.1991) (interpreting the language of a statute) (citing Omodio v. 

Aetna Life and Cas., 559 A.2d 570 (Pa.Super.1989)). 

Here, the trial court disregarded the clear and unambiguous language 

of the UIM exclusion in the policy agreement when read in the context of the 

agreement as a whole. It also did not apply well-developed and fundamental 

principles of contractual interpretation or rules of construction. 

To ascertain the intent of the parties to the policy agreement, we must 

examine the language of the insurance policy agreement as a whole, which 

requires reading the UIM exclusion and the UM exclusion together, and 

construing the words according to their reasonable meaning within the 

policy. See Millers Capital Ins. Co., 941 A.2d at 716; Masters, 224 A.2d 

at 776. The UIM coverage section excludes coverage for injuries sustained in 

vehicles “not insured for this coverage.”5

 A plain reading of the UIM 

____________________________________________ 

5

 Appellants paid for UIM coverage under this policy. The policy included the 

following exclusion to UIM coverage: 

(Footnote Continued Next Page) 
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exclusionary language, standing alone, dictates coverage. The vehicle that 

Mr. Clarke was occupying was “insured for this coverage” because Appellants 

had UIM coverage for the motorcycle through a separate insurance policy 

issued by American Modern Select Insurance. 

When the MMG Insurance policy, including the UM exclusion language, 

is examined as a whole, it becomes apparent that the decision to deny 

coverage was premised on a misreading of the terms of the UIM exclusion. 

The UIM exclusion provision relied upon by MMG Insurance to deny coverage 

is actually missing exclusionary language that appears elsewhere in the MMG 

Insurance policy (namely, the UM exclusion provision). The trial court 

opined, “[the] policy, when read as a whole, clearly and unambiguously 

shows the intent of the parties to provide UIM coverage only for the two 

(Footnote Continued) _______________________ 

EXCLUSIONS 

* * * 

A. We do not provide Underinsured Motorists Coverage for 

“bodily injury” sustained:

1. By you while "occupying", or when struck by, any motor

vehicle you own which is not insured for this coverage. 

This includes a trailer of any type used with that vehicle. 

2. By a "family member who owns an auto, while "occupying", 

or when struck by, any motor vehicle owned by you or any 

"family member" which is not insured for this coverage.

This includes a trailer of any type used with that vehicle. 

Appellants’ Brief at 15-16 (emphasis added in brief). 
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covered automobiles [listed on the MMG Insurance policy] and not for any 

other vehicles, such as the motorcycle.” This reasoning, however, 

undermines the plain language of the exclusion, which does not require that 

the insured maintain the UIM coverage under the MMG insurance policy. See 

Cummings, 652 A.2d at 1342. 

Any potential ambiguity implicated by the phrase “for this coverage” –

specifically, whether it refers to UIM coverage through any insurer or UIM 

coverage under the particular policy – is resolved when viewed in light of the 

language of the UM exclusion in the same policy. The UM coverage clause 

excludes coverage for injuries sustained in vehicles “not insured for this 

coverage under this policy.”6 Thus, the lack of the phrase “under this 

____________________________________________ 

6

 When the MMG Insurance Co. policy is examined as a whole, and the UIM 

exclusion is compared to other exclusions — namely, the UM exclusion — the 

distinction is apparent. The UM exclusion explicitly states that coverage does 

not extend to vehicles covered for UM coverage “under this policy.”

EXCLUSIONS 

* * * 

A. We do not provide Uninsured Motorist Coverage for “bodily 

injury” sustained:

1. By an “insured” while “occupying”, or when struck by, any 

motor vehicle owned by that “insured” which is not insured

for this coverage under this policy. . . . . 

2. By any “family member” while “occupying”, or when stuck 

by, any motor vehicle you own which is insured for this 

coverage on a primary basis under any other policy.

(Footnote Continued Next Page) 
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policy” in the UIM exclusion clause when read in the context of the 

exclusionary language of UM coverage and, thus, the policy as a whole, 

dictates coverage because the motorcycle was insured for UIM coverage 

through another insurer. See Rimpa, 590 A.2d at 787-90.

Further, the missing language “under this policy” confirms that MMG 

Insurance understood how to exclude coverage for injuries occurring in 

vehicles not insured by MMG Insurance, and confirms that the policy 

intended to include UIM coverage as long as the Clarkes maintained first-tier 

UIM coverage through any insurer. Specifically, and in distinction to the UIM 

exclusions, the exclusions for UM coverage state that the policy only covered 

vehicles which were both “insured for this coverage” and when that coverage 

was “under this policy.” 

The phrase “under this policy” is not mere surplusage. If the UIM and 

UM exclusions were intended to have the same meaning, they would have 

the same language. See Cohen v. Erie Indem. Co., 14 Pa. D.&C. 3d 444, 

448 affirmed, 432 A.2d 596 (Pa.Super.1981) (insurance policy subsections 

would be similarly phrased if their intention were the same); Farmers Ins. 

Co. of Washington v. U.S.F. & G. Co., 537 P.2d 839, 842 (1975) (same); 

cf 101 Pa.Code § 15.141(b)(5) (guidelines for choice of words and phrases 

(Footnote Continued) _______________________ 

Appellants’ Brief at 16-17 (emphasis added in brief). 
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in legislative drafting) (“[u]se the same word throughout if the same 

meaning is intended and do not use the same word to denote different 

meanings”). The exclusions do not have the same words; there is an 

additional element included in the UM exclusion. Thus, the parties did not 

intend the exclusions to have the same meaning. The parties utilized the 

phrase “for this coverage” and did not include the specific exclusionary 

language “under this policy”, and thereby purposefully excluded that term 

from the UIM household exclusion. The parties, therefore, intended to 

provide coverage if a first-tier UIM policy existed. Because Appellants 

contracted with another insurer for first-tier UIM insurance, a determination 

that they were also covered for UIM insurance under this policy gives effect 

to all of the language contained in the policy agreement. 

Further, under the contractual interpretation maxim that the “mention 

of one thing implies the exclusion of another”, a court may not add language 

to a provision, particularly where the language was contained in a separate 

provision but excluded from the provision at hand. See Madison Constr. 

Co. v. The Harleysville Mut. Ins. Co., 144, 678 A.2d 802, 806 

(Pa.Super.1996), affirmed, 735 A.2d 100 (Pa.1999). The trial court’s 

interpretation of the policy added new, extrinsic language to the MMG 

Insurance policy—namely “under this policy” to the UIM exclusion. This was 

error. 
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Not only is the UIM exclusion different from the UM exclusion, the UIM 

exclusion is also different from the language typically used in insurance 

policies to disclaim coverage for vehicles not listed in the policy. “It is 

important to distinguish [an insurer-defendant’s] exclusionary provision from 

[] exclusion provisions found in many other insurance policies.” Madison 

Constr. Co., 678 A.2d at 805. Pennsylvania courts have upheld household 

exclusions which specifically stated that the coverage is excluded for motor 

vehicles not insured for “coverage under this policy.” See, e.g., Erie Ins. 

Exch. v. Baker, 601 Pa. 355, 972 A.2d 507 (Pa.2009). In all of the cases 

that upheld a household exclusion, the critical language — “under this 

policy” — merited the denial of UIM coverage and guided the court's 

interpretation of the policy as clearly and unambiguously excluding 

coverage. Id. In contrast, the MMG Insurance policy, by its plain language, 

does not exclude coverage for vehicles not covered for UIM coverage under 

that policy. Instead, the MMG Insurance policy excluded coverage for 

vehicles which did not maintain any UIM coverage under any policy. Because 

Appellants maintained first-tier UIM coverage through American Modern 

Select Insurance, they are entitled to UIM coverage under their second-tier 

MMG Insurance policy. 

In their third issue on appeal, Appellants allege the trial court erred in 

examining and relying upon public policy rather than the plain language of 

the policy agreement. We agree. 
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“[W]hen the question is one of contract interpretation, public policy 

arguments are irrelevant.” Municipality of Mt. Lebanon v. Reliance Ins. 

Co., 778 A.2d 1228, 1232 (Pa.Super.2001). Public policy concerns are 

always secondary to the “clear and unambiguous [terms of a] contract,” 

which “must be given its plain meaning....” Eichelman, 551 Pa. at 564, 711 

A.2d at 1008. Courts are bound to give effect to clear contractual terms and 

only examine public policy when enforcement of those terms “would be 

contrary to a clearly expressed public policy.” Prudential Prop. & Cas. Ins. 

Co. v. Colbert, 813 A.2d 747, 752 (Pa.2002). By looking to public policy as 

a component of its interpretation of the MMG Insurance policy itself, the trial 

court failed to read, interpret, and apply the policy as it was written. 

In Prudential v. Colbert, 813 A.2d 747, 752 (Pa.2002), the Court 

examined public policy concerns only after the plain meaning of the policy 

exclusion justified a denial of coverage. Id. (there was “no dispute that, as a 

matter of contract interpretation, the ... policy exclusion would justify [the 

insurer] in denying coverage”). Here, as discussed above, the plain meaning 

of the policy exclusion is clear and unambiguous, and thus must be given 

effect. 

In their fourth issue on appeal, Appellants assert, in the alternative, 

that the language of the UIM exclusion creates ambiguity that requires the 

Court to construe the policy language against MMG Insurance. Because we 
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find the exclusionary language of the UIM coverage provision clear and 

unambiguous, it is unnecessary to address this issue. 

Order vacated. Case remanded. Jurisdiction relinquished. 

Judge Lazarus joins the Opinion. 

Judge Panella files Dissenting Opinion. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/4/2014