Case of note from most recent blue advance sheets for Atlantic Second Reporter

Bole v. Erie Insurance Exchange, 967 A.2d 1017 (Pa.Super. 2009).


HOLDING: Firefighter was actively engaged in a rescue at the time of his injury-causing motor vehicle accident, so as to support the application of the rescue doctrine and entitle him to recover underinsured motorists benefits.



This underinsured (UIM) arbitration case involved a volunteer firefighter who was seriously injured in his own automobile accident while en route to respond to another major motor vehicle accident elsewhere.

The firefighter pursued a UIM claim against his own carrier, Erie Insurance. The arbitration panel hearing the case accepted Erie's argument that the firefighter was not entitled to an award because his claim did not fall within the parameters of the rarely invoked "rescue doctrine."

The Erie County Court of Common Pleas then upheld the decision of the arbitration panel when it denied the firefighter's petition to modify the arbitrator's decision. The firefighter then appealed to the Superior Court which, in this 2-1 decision reversed the trial court's decision and remanded the matter for further proceedings.

In this decision, the majority opinion explains that the "rescue doctrine" was initially adopted over 100 years ago by the Pennsylvania Supreme Court in the 1900 decision of Corbin v. City of Philadelphia, 195 Pa. 461, 45 A. 1070 (Pa. 1900). In order to recover under this doctrine, the rescuer need only show that his acts were reasonably appropriate and performed in the exercise of ordinary care. See Bell v. Irace, 619 A.2d 365, 369 (Pa.Super. 1993); Pachesky v. Gates, 510 A.2d 776 (Pa.Super. 1986).

Noting that it did not have a transcript of the underlying UIM arbitration proceedings, the Bole court indicated that, while it may very well be the case that the facts did not support the application of the rescue doctrine, on the basis of the facts known, the Superior Court disagreed with the panel's decision that the firefighter was not actively engaged in a rescue at the time of his injury.

In so ruling, the court noted that the rationale of the rescue doctrine was to free a person who is injured while undertaking a rescue from the narrow standards of legal, proximate, or factual cause. The Bole court explained that the doctrine only applies when the person being rescued was legitimately perceived to be in risk of death or serious bodily injury.

Here, the firefighter had been dispatched to respond to a call that a car had rolled over and its occupants were trapped. This, the court felt, was indeed an emergency situation that risked death or serious bodily injury for the persons being rescued and thereby encouraged a rescue by another. Under the doctrine, until it was determined that the emergency had passed and there were no such risks present, the person going to the rescue should be considered to be actively engaged in a rescue in the context of the doctrine.

The Superior Court rejected Erie's argument that the firefighter's own accident was too attenuated to be considered to have been an active part of the rescue. Also rejected was the argument that the fireman's rule, which precluded recovery for "professional" rescuers in similar situations.

The case was remanded back down for further proceedings consistent with the opinion, including a requirement that the panel consider the additional factor of whether the fireman acted reasonably and with due caution when responding to the emergency.

In his dissenting opinion, Judge Fitzgerald agreed with the majority's decision that the fireman's rule did not apply but felt that the majority opinion unnecessarily expanded the definition of a "rescue" under the doctrine. As such, Judge Fitzgerald "reluctantly" concluded that, in his opinion, the firefighter failed to prove the applicability of the rescue doctrine.