J-S17004-18

2018 PA Super 146

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ERIN C. DOONER, JEAN A. FONTE, 

JEFFREY J. KOWALSKI, GARY J. 

FEDORCZYK, AND PROGRESSIVE 

ADVANCED INSURANCE COMPANY

APPEAL OF: JEAN A. FONTE No. 2821 EDA 2017

Appeal from the Order Entered August 2, 2017

In the Court of Common Pleas of Monroe County

Civil Division at No(s): 3140 CIVIL 2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.: FILED JUNE 04, 2018

Appellant, Jean A. Fonte, appeals from the August 2, 2017 order 

granting summary judgment in favor of Appellee, State Farm Mutual 

Automobile Insurance Company (“State Farm”). After careful review, we 

affirm. 

The trial court summarized the following undisputed facts and 

procedural background of this case in its August 2, 2017 opinion:1 

Prior to the evening of May 15, 2014, Erin C. Dooner [(“Ms. 

Dooner”)] and [Appellant] [] were involved in a romantic 

relationship. While traveling in [Ms.] Dooner’s vehicle, the couple 

was involved in a one[-]car accident. [Ms.] Dooner had a motor 

vehicle insurance policy number 173-0212-A08 through [State 

____________________________________________

1 On September 20, 2017, the trial court filed a statement pursuant to 

Pa.R.A.P. 1925(a), incorporating by reference its August 2, 2017 opinion, in 

which the court previously addressed the issues raised by Appellant on appeal. 
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Farm’s] company. Because of this accident, [Ms.] Dooner was 

arrested and taken to the Monroe County DUI Center. [Appellant] 

then retrieved her own vehicle, a 2004 Dodge Stratus, in order to 

pick up [Ms.] Dooner from the DUI Center sometime after 

midnight on May 16, 2014. [Appellant’s] vehicle was insured by 

an automobile policy through Progressive Advanced Insurance 

[Company] (hereinafter “[Progressive]”). As [Appellant] was 

driving the couple home, they began to fight. [Appellant] claims 

[Ms.] Dooner struck her in the face. As the fight continued, [Ms.] 

Dooner grabbed the bottom of the steering wheel and jerked it. 

This caused the Dodge Stratus to swerve into oncoming traffic and 

collide head-on with a police cruiser. The police cruiser was 

operated by Jeffrey J. Kowalski (hereinafter “[Officer] Kowalski”). 

Gary J. Fedorczyk (hereinafter “[Officer] Fedorczyk”) was a front 

seat passenger in the police vehicle at the time of the accident. 

[Appellant] and [Officer] Kowalski, along with his wife, have 

filed lawsuits in this [c]ourt against [Ms.] Dooner relating to the 

accident. These suits are respectively filed at 3416 CV 2014 and 

1859 CV 2016. On April 27, 2016, [State Farm] filed a Complaint 

for Declaratory Judgment stating that it has no duty to defend, 

indemnify, or otherwise provide liability coverage to [Ms.] Dooner 

under [its] insurance policy. On May 30, 2017, [State Farm] filed 

a Motion for Summary Judgment. There is also a Motion for 

Summary Judgment filed by [] Progressive currently pending 

before the [c]ourt in 3140 CV 2016. Oral argument was not held 

in this matter and a decision [was] rendered based upon the 

submissions of the parties. 

Trial Court Opinion (“TCO”), 8/2/17, at 1-2. 

On August 2, 2017, the trial court entered an order granting State 

Farm’s motion for summary judgment and finding that State Farm does not 

owe a duty of coverage in this case. Appellant filed a timely notice of appeal 

on August 25, 2017, followed by a timely, court-ordered Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. Herein, Appellant raises 

the following issue for our review: 

Did the trial court abuse its discretion and commit error by 

granting [s]ummary [j]udgment on behalf of [State Farm], 
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improperly determining that State Farm did not owe a duty of 

coverage to [its] insured[,] [Ms.] Dooner, and all parties who 

suffered injuries through [Ms.] Dooner’s negligence, thus 

misapplying case law and relevant precedent? 

Appellant’s Brief at 5. 

Our standard of review with respect to a trial court’s decision to grant 

or deny a motion for summary judgment is as follows: 

A reviewing court may disturb the order of the trial court only 

where it is established that the court committed an error of law or 

abused its discretion. As with all questions of law, our review is 

plenary. 

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non-moving party bears the burden 

of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. Failure of a 

nonmoving party to adduce sufficient evidence on an issue 

essential to his case and on which it bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law. Lastly, we will view the record in the light most 

favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. 

Byoung Suk An v. Victoria Fire & Cas. Co., 113 A.3d 1283, 1287-88 (Pa. 

Super. 2015) (citation omitted). Additionally, we note that the interpretation 

of an insurance policy is a question of law that we will review de novo. See 

Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 91 (Pa. 

Super. 2015). 

Here, Appellant avers that Ms. Dooner’s policy with State Farm “provides 

coverage for a ‘non-owned car’ if the car is in lawful possession of you or any 
J-S17004-18

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resident relative.” Appellant’s Brief at 12 (emphasis in original). Appellant 

further notes that the policy is silent with respect to the definition of the terms 

“possession” and “lawful.” Thus, she concludes that the policy is ambiguous 

and must, therefore, be construed in her favor. Id. (citing Madison 

Construction Company v. Harleysville Mutual Insurance Company, 735 

A.2d 100, 106 (Pa. 1999) (stating that where a provision of an insurance policy 

is ambiguous, the policy provision is to be construed in favor of the insured 

and against the insurer)). After careful review of the record, we deem 

Appellant’s claim to be wholly without merit. 

We begin our analysis by setting forth well-established rules of 

insurance contract interpretation. “The task of interpreting [an insurance] 

contract is generally performed by a court rather than by a jury.” Madison 

Construction, 735 A.2d at 106 (Pa. 1999).

The goal in construing and applying the language of an insurance 

contract is to effectuate the intent of the parties as manifested by 

the language of the specific policy. When the language of an 

insurance policy is plain and unambiguous, a court is bound by 

that language. Alternatively, if an insurance policy contains an 

ambiguous term, the policy is to be construed in favor of the 

insured to further the contract’s prime purpose of indemnification 

and against the insurer, as the insurer drafts the policy, and 

controls coverage. Contract language is ambiguous if it is 

reasonably susceptible to more than one construction and 

meaning. Finally, the language of the policy must be construed in 

its plain and ordinary sense, and the policy must be read in its 

entirety. 

Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1, 14 (Pa. 

2014) (internal citations and quotation marks omitted). See also Wagner v. 
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Erie Ins. Co., 801 A.2d 1226, 1231 (Pa. Super. 2002) (adding that when 

construing a policy, we may inform our understanding of words of common 

usage by considering their dictionary definitions). Moreover, a court “will not 

find a particular provision ambiguous simply because the parties disagree on 

the proper construction; if possible, it will read the provision to avoid an 

ambiguity.” Brown v. Everett Cash Mutual Insurance Company, 157 

A.3d 958, 962 (Pa. Super. 2017). 

Mindful of the foregoing legal principles, it is clear that the focal point of 

our inquiry is the language of the insurance policy. Under the terms of the 

policy, State Farm will provide coverage for “damages an insured becomes 

legally liable to pay because of ... bodily injury to others ... and damage to 

property[,] caused by an accident that involves a vehicle for which that 

insured is provided Liability Coverage by this policy.” Policy, Exhibit “E” to 

Complaint for Declaratory Judgment, at 7 (emphasis in original). The term 

“insured” is defined under the policy as:

1. you and resident relatives for:

a. the ownership, maintenance, or use of:

(1) your car; 

(2) a newly acquired car; or 

(3) a trailer; and 

b. The maintenance or use of:

(1) a non-owned car; or 

(2) a temporary substitute car. 

Id. (emphasis in original). 
J-S17004-18

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After applying the policy’s definition of “insured” to the instant facts, we 

deem Ms. Dooner’s use of a “non-owned car” to be the only possible qualifying 

scenario for coverage by State Farm in this case. A “non-owned car” is defined 

under the policy as,

a car that is in the lawful possession of you or any resident relative

and that neither:

1. Is owned by:

a. you; 

b. any resident relative; 

c. any other person who resides primarily in your

household; or 

d. an employer of any person described in a., b., or c. 

above; nor

2. Has been operated by, rented by or in the possession of:

a. you; or 

b. any resident relative

during any part of each of the 31 or more consecutive days 

immediately prior to the date of the accident or loss.

Id. at 4-5 (emphasis in original). 

Accordingly, in order for State Farm to owe liability coverage in the 

instant case, Appellant’s Dodge Stratus must qualify as a “non-owned car” of 

the insured, Ms. Dooner. Based on the foregoing definition, it is evident that 
J-S17004-18

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coverage hinges on whether Ms. Dooner was in “lawful possession” of the 

Dodge Stratus at the time of the accident.2 

Unfortunately, Pennsylvania has little caselaw [sic] explaining the 

meaning of “lawful possession” in terms of a passenger interfering 

with a driver. As the policy does not explicitly define the term 

“possession,” [State Farm] relies on the Black’s Law Dictionary 

definition. Possession is defined therein as:

(1) The fact of having or holding property in one’s power; 

the exercise of dominion over the property; (2) the right 

under which one may exercise control over something to the 

exclusion of all others; the continuing exercise of a claim to 

the exclusive use of a material object; (3) the detention or 

use of a physical thing with the intent to hold it as one’s 

own; (4) something that a person owns or controls.

Black’s Law Dictionary (10th ed. 2014). Additionally, [State Farm] 

includes the Merriam-Webster definition of “possession” as “1. (a) 

the act of having or taking into control; (b) control or occupancy 

of property without regard to ownership; (c) ownership; ... 2. 

Something owned, occupied, or controlled.”

TCO at 5-6. 

Appellant argues that all of the foregoing definitions of “possession” 

involve an aspect of control; thus, the court should determine whether Ms. 

____________________________________________

2 We note that the trial court applied the term “temporary substitute car”

rather than “non-owned car” to its analysis. See TCO at 4. A “temporary 

substitute car” is defined under the policy as “a car that is in the lawful 

possession of the person operating it and that: (1) replaces your car for a 

short time while your car is out of use due to its: a. breakdown; b. repair; c. 

servicing; d. damage; or e. theft; and (2) neither you nor the person operating 

it own or have registered.” Policy at 6. We conclude that “non-owned car” is 

the more appropriate term here. Regardless, whether the policy would 

provide coverage for the insured’s use of either a “non-owned car” or a 

“temporary substitute car” hinges on whether there was lawful possession; 

hence, this discrepancy is inconsequential. We are in agreement with the 

remainder of the trial court’s analysis regarding lawful possession. 
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Dooner had control of the Dodge Stratus at the time of the accident. See

Appellant’s Brief at 14. In response to Appellant’s claim, the trial court opined: 

We do not believe that possession and control are synonymous 

and can be used interchangeably. However, as control appears to 

be a consideration in determining possession, we will examine 

[Appellant’s] argument further. In support of her argument, 

[Appellant] cites a number of DUI related cases. See 

Commonwealth v. Wolen, ... [685 A.2d 1384] ([Pa. Super.] 

1996); Commonwealth v. Woodruff, ... [668] A.2d 1158 ([Pa. 

Super.] 1995); Commonwealth v. Trial, ... 652 A.2d 338 ([Pa. 

Super.] 1994); Commonwealth v. Wilson, ... 660 A.2d 105 

([Pa. Super.] 1995). 

The cases cited by [Appellant] are immediately distinguishable 

from the current matter as all of the fact patterns involve the 

defendant being found in control, in part, because they were the 

only person in or around the car, leaving them the only person 

likely to have been driving it. The Wolen court noted, “whether 

a person is in actual physical control of the motor vehicle is 

determined based upon a totality of the circumstances.” [] 

Wolen, ... 685 A.2d [at] 1385.... In Wolen, the [Pennsylvania] 

Supreme Court found that a jury instruction stating “an individual 

may be in actual physical control of his vehicle ... so long as that 

individual is keeping that car in restraint or is in a position to 

regulate its movement” was not inappropriate. Id. at 1387 

(emphasis added).... 

As the matter at hand involves a motor vehicle insurance policy, 

it is necessary to consider control in terms of the entire vehicle, 

not just the steering wheel. [Appellant] remained seated in the 

driver’s seat during the entire altercation. She never relinquished 

control of any other mechanism of the car’s movement, such as 

the gas or brake pedals, to [Ms.] Dooner.... [Appellant’s] 

deposition testimony in which she states her hands may have 

been off the wheel at the time of the accident ... does not change 

the fact that she was in the driver’s seat. Even if her hands were 

briefly removed from the wheel, she was in the position of control 

of the vehicle. A driver operating a vehicle does not relinquish 

control simply because they remove their hands from the steering 

wheel for a moment. Nor does a driver relinquish possession or 

control of an automobile by allowing an alleged inebriated and 

belligerent individual into it as a passenger. Nor does she 
J-S17004-18

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relinquish control when that alleged inebriated and belligerent 

individual irrationally attempts to grab the steering wheel while a 

passenger in the vehicle. Based upon the totality of the 

circumstances, we do not find that [Ms.] Dooner[’s] briefly 

grabbing the steering wheel amounted to her taking lawful 

possession or control of the vehicle. 

Id. at 6-8. We discern no abuse of discretion in the trial court’s finding that 

Ms. Dooner was not in possession of the vehicle at the time of the accident, 

or in its conclusion that State Farm, therefore, does not owe any liability 

coverage in this case. 

Even if Ms. Dooner had been found to be in “possession” of the vehicle, 

we further agree with the trial court’s conclusion that such possession would 

not have been “lawful.” 

“Lawful” is defined as “not contrary to law; permitted by law.” 

Black’s Law Dictionary (10th ed. 2014).... It is beyond belief that 

the action of a passenger striking the driver of a moving vehicle 

and grabbing the wheel in such a manner as to cause the vehicle 

to enter another lane and crash head-on with an approaching 

vehicle could be considered “lawful” for “lawful possession” of a 

vehicle. [Ms. Dooner] did not have the permission of the 

owner/driver to be driving or in control or possession of the 

vehicle. Likewise[,] it is difficult to imagine this is a scenario that 

either party to the insurance contract would have reasonably

expected to be covered when agreeing to the policy. Therefore, 

we find that even if [Ms.] Dooner could be found to have had 

possession of the vehicle at the time of the accident, it was not 

lawful. Summary judgment is appropriate at this time. 

TCO at 9. After careful review, we discern no abuse of discretion or error of 

law by the trial court. 

Finally, while not binding on this Court, we are also persuaded by the 

rationale behind the decision in North Carolina Farm Bureau Ins. Co. v. 

Nationwide Mut. Ins. Co., 608 S.E.2d 112 (N.C. Ct. App. 2005), where the 
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issue was whether the passenger was in lawful possession of a vehicle involved 

in a crash under circumstances similar to the instant case. In Farm Bureau, 

the passenger “suddenly grabbed the [steering] wheel and attempted to steer 

the car into a weigh station the car was passing.” Id. at 112. When the driver 

attempted to regain control of the car by steering back to the left, it struck 

another car, resulting in the death of the other driver. Id. The sole issue

before the court was whether the passenger was in lawful possession of the 

car when he grabbed the steering wheel. The Farm Bureau Court deemed 

this issue to be a matter of first impression in North Carolina and, thus, 

analyzed decisions in a number of other states which addressed a related 

issue, concerning whether a passenger who grabs the steering wheel is 

operating a vehicle as referred to in an insurance policy exclusion. The Court 

was persuaded by the reasoning of those states which held that “a passenger 

who grabs the steering wheel is actually interfering with the vehicle’s 

operation.” Id. at 114 (citations omitted). As such, the Court determined 

that it could not find the act of grabbing a steering wheel of a moving car from 

the passenger seat in the circumstances presented to constitute “possession” 

of the car. Id.

The Farm Bureau Court further held that “even if [the passenger] were 

in possession of the car, the possession would not have been lawful.” Id.

If a driver suffered a medical emergency and lost control of a car, 

perhaps a passenger could have a good faith belief that she could 

take possession of the car by grabbing the steering wheel; 

however, that circumstance is not before us. Here, the evidence 

indicates that [the passenger] grabbed the wheel while joking 
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around. Common sense dictates that a reasonable passenger 

cannot in good faith believe that she may lawfully possess a car 

by suddenly grabbing the steering wheel of a moving car in this 

manner.

Id. We believe the same logic applies here. Ms. Dooner’s action of grabbing 

the steering wheel did not constitute possession of the car, but rather 

interfered with Appellant’s operation of the vehicle. Even if Ms. Dooner was 

found in possession of the car at the time of the accident, the possession 

would not have been lawful. 

As Appellant failed to establish a genuine issue of material fact, we 

conclude that the trial court did not commit an error of law or abuse its 

discretion when it granted State Farm’s motion for summary judgment. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/4/18