Tuesday, March 27, 2012

Pennsylvania Superior Court Addresses Propriety of Limited Tort Election Forms

In its recent "non-precedential" decision in the case of Hockenberry v. Liberty Mutual, No. 1292 M.D.A. 2011 (Pa. Super. March 15, 2012 Panella, Ott and Platt, J.J.) (Memorandum Opinion by Ott, J.), the Pennsylvania Superior Court addressed a declaratory judgment action with regards to the issue of whether or not the injured party Plaintiffs were entitled to “full tort” status under the motor vehicle insurance policy based upon the tort election forms.

This matter arose out of a motor vehicle accident. After receiving $15,000.00 from the tortfeasor’s policy, the injured party turned to her own underinsured motorist coverage under the Liberty Mutual policy. The Liberty Mutual policy provided for the “limited tort” coverage. The injured party Plaintiffs filed a declaratory judgment action seeking a ruling that they were entitled to “full tort” coverage.

In this matter, there was a stipulation between the parties in which the UIM carrier admitted that it did not provide the injured party Plaintiff with a Tort Election Form. Instead, the injured party Plaintiff’s selection of the tort option was simply checked off on part of the application form. The Plaintiff further alleged that the UIM carrier did not explain the tort options to the Claimant at the time the Claimant applied for the policy or at anytime thereafter.

The Superior Court also noted that it was undisputed that the Claimants renewed the UIM policy on a yearly basis up to the date of the accident and that each policy renewal indicated that the policy provided “Limited Tort” coverage.

The Hockenberry court reviewed the law of Pennsylvania under 75 Pa. C.S. §1705 which required that each applicant be provided with a specific form for the applicant to make an affirmative choice for the “Limited Tort” option. The law also provided that, absent the affirmative election of “Limited Tort,” the applicant will be considered to have chosen the “Full Tort” option.

The Hockenberry court reviewed the Pennsylvania Supreme Court decision in the case of Donnelly v. Bauer, 720 A.2d 447 (Pa. 1998), in which it was held that the MVFRL provided no remedy for an applicant who was provided with a deficit Tort Election Form.

Here, however, the Hockenberry Court found that the Plaintiffs were not provided with a deficit form; rather, they were not provided with any form at all as required by 75 Pa. C.S. §1791.1.

The Superior Court rejected the UIM carrier’s argument that the language required in §1791.1, regarding tort options, was found in the application. 

The Hockenberry court found that the failure to provide the statutorily mandated form, with regards to the Limited Tort selection, was not rectified by the insured signing a policy application form. The Superior Court was also not swayed by the argument that the injured party Claimant repeatedly renewed the policy with the “Limited Tort” option being clearly identified in each renewal.

The court instead held that “[b]ecause the required §1705 Election Form was not used and there was no other affirmative election of “Limited Tort” the trial court’s holding that the Hockenberrys are bound by “Limited Tort” is in error and must be reversed.”

It is noted that Judge Platt gave a dissenting opinion.

Anyone desiring a copy of this case may contact me at dancummins@comcast.net.

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