Thursday, January 31, 2013

Superior Court Clarifies Applicability of Limited Tort Option

Tort Talkers may recall that, a while back, I reported on the McWeeney v. Estate of Strickler, No. 2009-SU-6582-01 (C.P. York Dec. 16, 2011 Thompson, J.), the Court granted a Defendant’s Motion for Summary Judgment and denied a Plaintiff’s Motion for Partial Summary Judgment in a Limited Tort case.

The trial court's decision has now been reversed on appeal by the Pennsylvania Superior Court.

According to the trial court Opinion, at the time of the accident, the injured party Plaintiff was operating a vehicle owned by her fiancé. That vehicle was covered by Progressive Insurance Company and listed the fiancé as the “Named Insured” under a Limited Tort policy. However, both the injured party Plaintiff and her fiancé were listed as principal drivers on the policy declarations page. The trial court additionally noted that the injured party Plaintiff was a permissive driver of the vehicle on the date of the accident.

The Defendant filed a Motion for Summary Judgment arguing that the Plaintiff was covered by the Limited Tort option and had not sustained any serious injuries so as to breach the Limited Tort threshold. In response, the Plaintiff filed a counter-motion arguing that she was not bound by the Limited Tort option because she was not “a named insured” or “insured” within the definition provided under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S. §1705.

In its decision, the trial court had found, as a matter of law, that the Plaintiff was insured under the Limited Tort option of the Progressive policy. The trial court noted that, under an application of the MVFRL, as well as the terms of the Progressive Insurance policy, it appeared that the injured party Plaintiff fell within the definition of an “insured person” under that policy, at the very least, as a permissive driver of the covered vehicle and as a person listed as one of the principal drivers on the declarations page.

Based on these facts, the trial court felt that the Plaintiff did indeed fall under the definition of a “named insured” as found under 75 Pa.C.S. §1705(f) (“a named insured” for purposes of §1705 is “any individual identified by name as an insured in a policy of private passenger motor vehicle insurance.”).

The trial court went on state that, as a named insured, the injured party Plaintiff would be held to the same tort option selected by the other named insured under the policy, i.e., the Limited Tort option in this case.

On January 30, 2013, the Pennsylvania Superior Court reversed and held that under the above facts and under the plain and unambiguous terms of the MVFRL, the injured party Plaintiff was not a "named insured" nor an "insured" under Section 1705. Therefore, she was not bound by the limited tort selection and the trial court erroneously found that she was deemed bound by limited tort. 

The McWeeney case was decided by President Judge Stevens along with Judges Bender and Gantman.  The Opinion was written by President Judge Stevens.

The Superior Court held that, under Section 1705, "only one who is identified by name as an insured on the face of the policy is a 'named insured' for purposes of tort election."

The court also stated that to hold that the permissive driver is an "insured" bound by limited tort contravenes the intent of Section 1705 as Section 1705(f) of the MVFRL limits the class of people who are considered bound by the limited tort selection and the permissive driver was not found to be within that class.

Ultimately, the trial court order was vacated and the case remanded.

Anyone wishing to review the Pennsylvania Superior Court's decision in the case of McWeeney v. Estate of Strickler may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer and Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.
The McWeeney case may prove to be another case that is useful in determining which tort option will apply to a Plaintiff where the Plaintiff is a named insured and/or an insured under policies containing conflicting tort options, i.e., one with the full tort option and one with the limited tort option.
Other cases to consider in this analysis of which tort option should apply include:
Hoffman v. Troncelitti, 839 A.2d 1013 (Pa. 2013);
Progressive Halcyon Ins. Co. v. Kennedy, 908 A.2d 914 (Pa.Super. 2006).
There may be other cases out there on this issue as well and further research is recommended.

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