J-S23016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLENNA L. NOVAK AND ESTATE OF 

JEFFERY LEONARD NOVAK, A/K/A 

ESTATE OF JEFFERY L. NOVAK BY 

AND THROUGH GLENNA L. NOVAK, 

EXECUTRIX 

Appellants

v.

MUTUAL BENEFIT INSURANCE 

COMPANY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1592 MDA 2021

Appeal from the Order Entered November 8, 2021

In the Court of Common Pleas of Dauphin County Civil Division at No(s): 

2018-CV-01574-CV

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 14, 2022

Glenna L. Novak and the Estate of Jeffrey Leonard Novak (collectively 

“Appellants”) appeal from the order granting summary judgment in favor of

Mutual Benefit Insurance Company (“MBIC”). Appellants allege the trial court 

erred in finding their claims barred by the statute of limitations. We affirm.

According to Appellants’ Complaint, in June 2011, Jeffrey Leonard Novak 

(“Decedent”) was operating a motorcycle when a vehicle driven by Roy E. 

Wright made a left turn across Decedent’s lane of travel, causing the 

motorcycle to strike the vehicle. Decedent was thrown from his motorcycle 

and sustained injuries, including severe head trauma, which resulted in death.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellants sought recovery from Wright, who had an insurance policy 

through Progressive Specialty Insurance Company (“PSIG”). Wright’s policy 

had a bodily injury limit of $50,000, which PSIG tendered.

Appellants also submitted a claim for underinsured motorist (“UIM”) 

coverage under Decedent’s motorcycle policy (“motorcycle policy”). The 

motorcycle policy was issued by Progressive Advanced Insurance Company 

(“PAIC”). PAIC informed Appellants that Decedent had rejected UIM coverage. 

Appellants sued, contending the UIM rejection was ineffective, and they 

eventually reached an agreement to resolve the suit for $20,000.

Appellants’ counsel wrote to MBIC, which had issued insurance on two 

of Appellants’ other vehicles, a car and a truck, seeking consent to settle the 

two claims. In a letter dated October 3, 2012, MBIC stated the motorcycle 

that Decedent was driving at the time of the accident was not insured by MBIC.

Therefore, MBIC explained, UIM coverage was not available under its policy

and its consent was not required for settlement:

The information provided to us indicates that [Decedent]

was driving an owned motorcycle at the time of this 

accident, which was not insured with us. The underinsured 

motorist coverage under his personal auto policy would not 

be available based on this fact.

. . .

Therefore, [MBIC’s] consent to any liability settlements is 

not necessary. 

Id. at Exh. 22. The letter quoted an exclusion for UIM coverage:

EXCLUSIONS
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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”: 

a. 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 under this policy. This includes a trailer 

of any type used with that vehicle.

b. Who does not own any auto, while “occupying”, or 

when struck by, any motor vehicle you own which 

is insured for this coverage on a primary basis 

under any other policy.

Id.

After obtaining court approvals, PSIG later paid the $50,000 bodily 

injury limits in 2014. PAIC paid the $20,000 settlement August 2017.

Appellants then made a claim to MBIC for UIM coverage under the 

personal auto policy. In a January 2018 letter, MBIC denied UIM coverage, 

stating it had previously denied coverage in the October 2012 letter, when it 

explained that its consent was unnecessary for the settlements. Complaint at 

Exh. 20.

Appellants commenced this action in February 2018, by filing a writ of 

summons, and they filed a complaint in May 2019. They alleged breach of 

contract, sought a declaratory judgment, and requested damages for bad 

faith. 
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MBIC ultimately filed a motion for summary judgment arguing, in part, 

that Appellants’ claims were barred by the statute of limitations. Appellants

filed a cross-motion for partial summary judgment. The court heard argument 

and denied Appellants’ motion and granted MBIC’s motion. It reasoned

Appellants did not commence their lawsuit within the four-year statute of 

limitations. Appellants filed a notice of appeal.

Appellants raise the following issues:

1. When determining whether the applicable four-year 

limitations period for a breach of contract action claiming for 

UIM coverage and benefits had lapsed, did the trial court err 

when it held that, as a matter of law, the meaning of the 

terms “claim” and “coverage” are indistinguishable under 

the holding in Erie Ins. Exch. v. Bristol, 643 Pa. 709, 174 

A.3d 578 ( 2017) or, alternatively, the terms are not 

factually relevant and material to the events underlying 

[Appellants’] cause of action for breach of contract and the 

applicable four-year limitations period to timely file such 

action?

2. When determining whether the applicable four-year

limitations period for a breach of contract action claiming for 

UIM coverage and benefits had lapsed, did the trial court err 

in holding that a denial of UIM coverage is not dependent 

upon, in the first instance, the existence of any pending 

request or claim by [Appellants] for such coverage or 

benefits?

3. When determining whether the applicable four-year

limitations period for a breach of contract action claiming for 

UIM coverage and benefits had lapsed, did the trial court err 

when holding that while a denial of UIM coverage is not 

dependent upon any pending claim or request for coverage 

or benefits, a breach of a duty under the policy contract by 

the insurer had nevertheless occurred on a triggering date 

asserted by the insurer, even though the insurer had neither 

asserted in its pleading nor provided any evidence that 

[Appellants] had ever requested performance by the insurer 
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under the contract to provide them either UIM coverage or 

UIM benefits?

4. When determining whether the applicable four-year

limitations period for a breach of contract action claiming for 

UIM coverage and benefits had lapsed, did the trial court err 

when it failed to determine whether and how the insurer 

breached the [Appellants’] family motor vehicle policy when 

the insurer sent the letter from which the trial court 

established the triggering date for the running of the 

limitations period and in light of insurer denying it ever 

breached any duty to [Appellants] under the policy contract?

5. When determining whether the applicable four-year

limitations period for a breach of contract action claiming for

underinsured motorist (“UIM”) coverage and benefits had 

lapsed, did the trial court err in holding that the insurer’s 

letter from which the trial court established the triggering 

date for the running of the limitations period constituted a 

denial of coverage, as a matter of law, rather than leaving 

to a jury to determine, as fact, whether the context, 

content, interpretation, and use of the letter should bar 

[Appellants’] contract action?

6. When determining whether the applicable four-year

limitations period for a breach of contract action claiming for 

UIM coverage and benefits had lapsed, did the trial court err 

in finding that [Appellants’] counsel had admitted or 

conceded that the insurer’s letter was a denial of a claim or 

a denial of coverage?

7. When determining whether the applicable four-year

limitations period for a breach of contract action claiming for 

UIM coverage and benefits had lapsed, did the trial court err 

in failing to consider the import and application of the 

decision in Clarke v. MMG Insurance Company, 2017 PA 

Super. 192, 100 A.3d 271 (2014) on the timeliness of 

[Appellant’s] UIM claims and whether [Appellants] are

entitled to summary judgment on their breach of contract 

claim in the instant case?

Appellants’ Br. at 5-6.
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We review the grant of summary judgment for error of law and abuse 

of discretion. See In re Risperdal Litig., 223 A.3d 633, 639 (Pa. 2019). 

“[S]ummary judgment is appropriate only in those cases where the record 

clearly demonstrates that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law.” Id. (quoting

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 

2002)). “The trial court must take all facts of record and reasonable inferences 

therefrom in a light most favorable to the non-moving party” and “must 

resolve all doubts as to the existence of a genuine issue of material fact 

against the moving party.” Id. The court “may only grant summary judgment 

‘where the right to such judgment is clear and free from all doubt.’” Id.

(quoting Summers v. CertainTeed Corp., 997 A.2d 1152, 1159 (Pa. 2010)).

Appellants argue the first three issues together, and therefore we will 

address them together. They maintain the accrual date for the action could 

not have occurred before August 2017, when they submitted a UIM claim to 

MBIC. They distinguish a denial of a “claim” from a denial of “coverage,” and 

argue that under Erie Insurance Exchange v. Bristol, 174 A.3d 578 (Pa. 

2017), the statute of limitations does not begin to run on a UIM claim until 

the insurance company denies a “claim.” They maintain neither could have 

happened until Appellants submitted a claim for UIM coverage. Appellants 

contend that “[a]n unsolicited opinion or observation by an insurer that it may 

or may not have coverage applicable to a particular matter is different from 

an insurer processing a claim affirmatively stated and submitted by an insured 
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to the insurer for action and denying that insured the specific benefits 

claimed.” Appellants’ Br. at 21-22. 

Pennsylvania law provides for a four-year statute of limitations on 

breach of contract actions and related declaratory judgment actions. See 42 

Pa.C.S.A. § 5525(a)(8). In Bristol, Bristol was injured in a hit-and-run 

accident in the course of his employment, in 2005. He sought uninsured 

motorist (“UM”) coverage under a fleet policy that afforded such coverage, 

subject to arbitration. The insurer issued a reservation of rights letter. After 

the parties each selected an arbitrator, and Bristol gave a statement, the 

proceedings stalled until the insurer filed a declaratory judgment action, in 

2013, claiming the statute of limitations on Bristol’s UM claim had expired.

The Pennsylvania Supreme Court disagreed that the statute had even 

begun to run. It stated at the beginning of its opinion that “the running of the 

statute [of limitations] is commenced upon an alleged breach of a contractual 

duty,” which it explained “would be occasioned by the insurer’s denial of 

coverage or refusal to arbitrate.” 174 A.3d at 580. It reasoned that Section 

5502 of the Judicial Code defines the method of computing periods of 

limitations and provides that “[t]he time within which a matter must be 

commenced under this chapter shall be computed . . . from the time the cause 

of action accrued[.]” Id. at 585 (quoting 42 Pa.C.S.A. § 5502(a)) (emphasis 

removed) (alterations in original). The Court then restated its holding, using 

a slightly different wording: “We conclude the proper circumstance to start 

the running of the limitation period is an alleged breach of the insurance 
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contract, which will be occasioned in this context by a denial of a claim or the 

refusal to arbitrate.” Id. at 589.

Here, the trial court concluded the limitations period began to run when 

MBIC denied coverage in the October 2012 letter and therefore the current 

case, commenced in 2018, was barred by the statute of limitations:

Based on our reading of Bristol, it does not appear that a 

claim must be made before the limitations period begins. 

Rather, the breach occurs as soon as the insurance company 

denies coverage for the subject accident. As such, we find 

that the limitations period begins once coverage is denied.

In the instant matter, it cannot genuinely be disputed that 

[MBIC] denied coverage of the subject accident by letter 

dated October 3, 2012. Although [Appellants] had not yet 

made a claim under their [MBIC] Policy, a plain reading of 

the letter makes clear that [MBIC] is denying coverage for 

the subject accident. [Appellants’] counsel even admitted 

that he read the letter as a denial of coverage at the time 

that he received it. It wasn’t until a case came out in 2014 

that he started to think that the denial of coverage was 

improper. However, based on the language in Bristol, the 

limitations period started running on the date that

[Appellants’] counsel received the denial of coverage. Thus, 

in order to file a timely breach of contract claim, 

[Appellants] should have filed their action no later than 

October 3, 2016, which they did not do. Therefore, 

[Appellants’] claims are untimely, and summary judgment 

should be entered in favor of [MBIC] on all claims.

Trial Court Opinion, filed Nov. 8, 2021, at 4.

The trial court did not err. Although the Supreme Court in Bristol used 

somewhat varying language, it is indisputable that it said that the statute 

begins to run upon the denial of coverage (as well as upon the denial of a 

claim or a refusal to arbitrate). Here, the denial of coverage occurred in 
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October 2012. Although Appellants had not yet submitted a claim to MBIC, 

the October 2012 letter regarding consent to settle said in plain language that 

pursuant to policy provisions, MBIC would not be affording Appellants UIM 

coverage. If Appellants disagreed with MBIC’s interpretation of the policy, 

Appellants could have and should have taken steps to challenge the 

interpretation at that point. The trial court properly concluded that the statute 

of limitations began to run when Appellants received the October 2012 letter. 

We next address Appellants’ fourth and seventh claims together. In their 

fourth claim, Appellants argue the trial court erred because it “did not analyze 

or opine on the viability of any UIM claim by Appellants against [MBIC].” 

Appellants’ Br. at 22. They argue the statute of limitations began to run when 

they had the right to institute and maintain a suit. They claim the first time 

they could maintain a suit would have been either August 22, 2017, when the 

UIM payment was received under the prior settlement from the insurer of the 

motorcycle, or January 28, 2018, when they received MBIC’s letter denying 

the claim they submitted.

In the seventh issue, Appellants argue the court erred in failing to 

consider the import and application of Clarke on the timeliness of the claims. 

They argue that the reasoning advanced in the October 2012 letter was 

“actually correct on the face of the Policy and its terms,” and that is why 

Appellants did not assert a UIM claim between 2011 and 2016. Appellants’ Br. 

at 35-36. They argue, however, the “initial reasoning fundamentally changed” 

when this Court issued Clarke. Id. at 36. They claim they could not have 
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requested UIM coverage until they received payment under the motorcycle 

policy, which occurred in August 2017, because until then, they could not have 

demonstrated there was UIM coverage for the motorcycle, as the insurer of 

the motorcycle had contested UIM coverage. They conclude that before 

Clarke, “it was fairly assertable that UIM coverage was non-existent because 

the motorcycle was not an insured vehicle under [MBIC’s] [p]olicy,” but after 

Clarke “UIM coverage could be pursued if UIM coverage on the motorcycle 

could be demonstrated.” Id. at 37-38.

In Clarke, this Court concluded that where a motorcycle had UIM 

coverage through a separate policy, an auto policy exclusion barring coverage 

for injury sustained in vehicles “not insured for this coverage” did not apply. 

100 A.3d at 276. We reasoned the policy did not require that the insured 

maintain the UIM coverage under the insurance policy at issue. Id. at 277.

We do not agree that Clarke impacted the statute of limitations. Rather, 

if Appellants wanted to challenge MBIC’s interpretation of the claim, as 

evidenced in the October 2012 letter, they could have commenced an action 

at that time, as the plaintiffs in Clarke did. A subsequent change in the law 

does not change an accrual date for the statute of limitations. Because the 

change in law did not impact the accrual date, the claim that Appellants could 

not have known the status of UIM coverage under the Progressive policy until 

the settlement is meritless. Moreover, Appellants provide no legal support for 

the claim that the statute of limitation could not start to run until they received 

payment from the other insurer. These claims fail. 
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In their fifth claim, Appellants argue the trial court erred in finding the 

October 2012 letter constituted a denial of coverage as a matter of law. They 

claim it was a factual issue, that the jury should have decided. They claim that 

the October 2012 letter was not an unambiguous denial of coverage. Rather, 

the letter to which it responded merely sought the consent of MBIC to settle 

claims Appellants had against others. Under the policy, Appellants had a duty 

to seek consent prior to the settlement. MBIC’s response that it did not believe 

it had to consent to the settlement merely discharged Appellants from their 

duty to report settlements. Appellants claim reasonable minds can disagree 

as to the letter and therefore there were genuine issues of material fact that 

should have been submitted to a jury. They further note that MBIC did not 

“produce[] evidence that it believed there was UIM coverage available to 

[Appellants] in the first instance in order that it was available to be denied” in 

October 2012. Appellants Br. at 32 (emphasis omitted).

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This was not a factual issue for the jury. Rather, the October letter 

stated that UIM coverage is not available under the policy. Even Appellants’

counsel admitted at argument below that when he received the letter, he read 

it as denying coverage:

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1 Appellants further argue the testimony of Susan Romano, MBIC’s corporate 

designee and the person who wrote the October 2012 letter, should not be 

sufficient to award summary judgment. However, the trial court did not rely 

on her testimony, and, regardless, we conclude that even without this 

testimony, there was no genuine issue of material fact that the claim accrued 

in October 2012.
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[APPELLANTS’ COUNSEL]: If you’re asking me at that time, 

being candid to the Court, if you’re asking me did I interpret 

[the October 2012 letter] as a denial of . . . coverage

because the motorcycle was not covered under the family 

policy and, therefore, is not a covered vehicle, that would 

have been my interpretation at that time and I would have 

agreed with that under the reading of that exclusionary 

clause, his motorcycle was not.

N.T., 10/1/2021, at 18. Counsel argued that after Clarke, the denial was no 

longer correct. The relevant time, however, is the date of the issuance of the 

letter, not years later, when an allegedly applicable change in law occurs. 

Reasonable minds would not dispute that the 2012 letter was a denial of 

coverage, and there was no genuine issue of material fact.

Appellants next argue that the trial court erred in finding their counsel 

admitted or conceded that the October 2012 letter was a denial of a claim. 

They argue that the transcript reflects the position they have maintained 

throughout the case and did not concede it was a denial.

The trial court did not err. Counsel conceded that upon receipt of the 

letter in 2012, he interpreted the letter as a denial of coverage. N.T., 

10/1/2021, at 18. That counsel has continually argued during this case that 

Clarke altered the legal landscape, and his interpretation of the applicable 

exclusion, does not change that fact that, in 2012, he interpreted the letter as 

a denial. The record supports the finding of a concession. The court did not 

err or abuse its discretion.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2022