Confronted with an ambiguity in its own insurance policy, an insurance company will sometimes attempt to rewrite its policy long after it first issued that policy.  Last week, the Pennsylvania Superior Court again rejected such gamesmanship, emphasizing that, when interpreting an insurance policy, a court “must examine and construe the policy as it exists, not the way [the insurer] wishes it had drafted it with the benefit of hindsight.”  In Rourke v. Pennsylvania National Mutual Casualty Insurance Company, 2015 PA Super 100 (Pa. Super. Ct. 2015), the Superior Court reaffirmed the long-standing principle that a court cannot rewrite a policy to include terms an insurer omitted.

In Rourke, a 19-year-old (former) foster child was severely injured in an auto accident.  Seeking coverage pursuant to their personal auto policy, the (former) foster parents argued that that policy afforded coverage because the 19-year-old was a “family member.”  “Family member” was defined in their policy to mean “a person related to you by blood, marriage or adoption who is a resident of your household.  This includes a ward or foster child.”  The policy, however, failed to define the terms “foster child” or “ward.”  In relevant part, the Court’s analysis focused only on whether the 19-year-old was a “ward.”  The insurer claimed that the 19-year-old was not a “ward” because he was not a minor at the time of the accident.  The Pennsylvania Superior Court soundly rejected this argument:Continue Reading Read Insurance Policy as Drafted, Not as Insurance Company “Wishes It Had Drafted It”