Auto Accident
Recent Important Auto Accident Cases
WINTER (JANUARY) 2007 AUTO CASENOTES
By Scott B. Cooper
SchmidtKramer P.C.
717-232-6300
scooper@SchmidtKramer.com
Lowery v. Port Authority of Allegheny County , -- A.2d –- ( Pa. Commw. Dec. 29, 2006) (Passengers on a self-insured Port Authority bus are entitled to receive uninsured motorist benefits).
Julie Lowery (“Lowery”) and Nicole Tarr (“Tarr”) were injured in a car accident on January 13, 2001, while passengers on a bus that was owned and operated by the Port Authority of Allegheny County (“Port Authority”). The driver who was responsible for the accident and the injuries was uninsured. Lowery and Tarr both sought uninsured motorist benefits from the Port Authority, which denied that they were entitled to these benefits since it alleged it was a sovereign entity that was not required to provide any benefits unless an exception to sovereign immunity was applicable.
The trial court held that they were not entitled to uninsured motorist benefits under the Motor Vehicle Financial Responsibility Law (“MVFRL”) since passengers are not be entitled to first party benefits from such a self-insured entity and there was no exception to sovereign immunity allowing for such benefits to exist. The Commonwealth Court observes that under the plain language of Section 1787(a) (3) of the MVFRL all self-insured must make available at least uninsured motorist benefits of $15,000 per person and $30,000 per accident. Therefore, an injured passenger should receive uninsured benefits of at least $15,000 per person/$30,000 per accident. The trial court decision is reversed and the case is remanded to the trial court for a determination of how many uninsured motorist claims will be covered for the accident. (PATLA Amicus Brief was written by PATLA members Sandy Neuman, Esquire from Pittsburgh and Scott B. Cooper, Esquire from Harrisburg).
Paravati v. Port Authority of Allegheny County , -- A.2d –- ( Pa. Commw. Dec 29, 2006) (insured is not precluded from receiving uninsured motorist benefits from a self-insured sovereign port authority bus and also UM benefits on their own personal motor vehicle insurance policy for the same accident).
Sara Paravati (“Pavarati”) was injured in an accident on July 20, 2000, while a passenger on a bus that was owned and operated by the Port Authority of Allegheny County (“Port Authority). She recovered underinsured motorist benefits under her own personal motor vehicle insurance policy and then made a claim with the Port Authority for uninsured motorist benefits when she discovered that the tortfeasor who caused the accident was not insured for the accident. The Port Authority denied benefits by stating that it was immune from being required to provide benefits and also that even if benefits were allowed, they were not applicable in this case since it would be stacking of benefits, which are not allowed by Sections 1774 and 1787 of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”).
The Commonwealth Court holds that sovereign immunity does not bar a claim against it for uninsured motorist benefits but also that the insured is not precluded from receiving uninsured motorist benefits from the bus company and also benefits on their own personal motor vehicle insurance policy. The Court observes that the insured is not allowed to stack the coverage provided under Section 1774 of the MVFRL from the uninsured recovery but can still proceed with stacking under Section 1733 of the MVFRL. It also did not matter that the personal insurance policy paid underinsured monies and not uninsured monies.
Dillow v. Myers , No. 3469 EDA 2005 ( Pa. Super. Dec. 21, 2006) (memorandum) (Punitive damages may be greater against a non-reckless employer than those assessed against the employee who was acting within the course and scope of his employment at the time of an accident).
John Dillow (“Dillow”) recovered both compensatory and punitive damages as a result of a motor vehicle accident. The driver of the vehicle who caused the accident was sued as well as his employer under the theory of Respondent Superior. The tortfeasor driver passed away prior to the trial. The verdict for punitive damages was $155,000 against the company and $100 against the driver.
The employer appealed and one argument was that the verdict was not proper because the punitive damages assessed against it were more than those assessed against the employee. The Superior Court finds that there was not an abuse of discretion for the award and that [t]here is no rule that an employer’s punitive damages must be limited or proportionate to those caused by its employee when fault is premised on the theory of vicarious liability.” Therefore, the Superior Court memorandum opinion confirms that punitive damages against a non-recklessemployer that are based solely on Respondent Superior of a reckless employee who was acting within the course and scope of his employment may be greater than those assessed against the employee, since the damages are based upon financial status, punishment and deterrence.
There was also an issue of whether or not the verdict should be reduced or benefits not plead, proven and recovered when the workers’ compensation carrier is paid its lien directly from the tortfeasor insurance carrier. The court found that no reduction should occur and that, "A workers’ compensation lien is between the worker and his carrier. Normally, the percentage of counsel fees and costs are deducted from the amount due on the lien. A defendant in a civil case cannot essentially deprive plaintiff’s counsel of his fee for his services by prepaying the lien." The trial court verdict is affirmed.
American International Ins. Co. v. Vaxmonsky , -- A.2d – ( Pa. Super. Dec. 21, 2006) (Section 1731 rejection form signed by an insured is void because the company did not include the word "all" in the rejection form where the phrase should appear "all losses and damages.")
Thomas Vaxmonsky (“Vaxmonsky”) was injured in a motor vehicle accident in 2001. He initially applied for insurance coverage in 1993 and signed a form that purportedly rejected underinsured motorist coverage. The policy was issued and up until the accident the policy never provided for UIM coverage and no premiums was paid for any such coverage. After the accident and injuries Vaxmonsky made a claim for UIM benefits because the rejection form did not use the statutorily mandated language of Section 1731 of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”). The form signed in 1993 removed the word “all’’ from it and did not say “all losses and damages” as mandated by the MVFRL. The trial court found in favor of the insured and the company appealed.
The Superior Court affirms the trial court and holds that the Section 1731 form signed by the Vaxmonsky’s was void because the company did not include the word "all" in the rejection form where the phrase should appear "all losses and damages." The court says that the deletion of the word "all" rendered the form void. The court notes that the statute requires more than simply the signing and dating of the form or it is void.
Ertwine v. Progressive Direct , NO. 2005 GN 4638 (Carpenter, J., Blair Co. Dec. 15, 2006) (Household exclusion not valid when the insured selects stacking).
On April 5, 2005, Douglas Ertwine (“Ertwine”) was killed while operating his motorcycle. After recovering the bodily injury limits from the tortfeasor’s insurance policy his estate made a claim for underinsured motorist benefits under policy, which provided for three (3) vehicles on a separate policy with Progressive Direct (“Progressive”). The policy with Progressive provided for Stacked Coverage and the motorcycle was not listed on the Progressive policy. Progressive denied based upon the household exclusion, which did not provide coverage to the estate if the injury occurred while operating a vehicle insured within the household that was not covered on the policy.
The Progressive policy contained provisions within the stacking endorsement three (3) pages later that stated that coverage “shall” apply to bodily injury to “you” or a “relative” and also for coverage while operating an “uncovered” vehicle. The trial court sets aside the household exclusion because Ertwine suffered a bodily injury while operating an "uncovered" motorcycle at the time he had purchased stacked coverage with Progressive.
The trial court concludes "that anyone reading this section would reasonably believe that stacked coverage existed whether the vehicle operated at the time of the accident was a covered vehicle under the policy or whether is was not a covered vehicle." The court finds that the stacking endorsement should supersede the exception in the exclusion. The court notes that the presence of the coverage while occupying an "uncovered" vehicle is unexplainable since there is no reason to state a coverage that is already excepted out. Therefore, based upon the clear language of the policy and the additional ambiguity the trial court awards coverage.
Brumbaugh v. Erie Insurance Exchange , 2006-2211 (Walker, J., Franklin Co. Nov. 30, 2006) (Injured worker can receive underinsurance motorist benefits even though injured by a co-worker in the course and scope of employment).
On February 27, 2006, Dirk Brumbaugh (“Brumbaugh”) was injured while walking in the parking lot of his employer. He was injured in the course and scope of his employment and the accident was caused by a co-worker. He received workers’ compensation, but could not sue his co-worker because he had received compensation benefits. He then made a claim with his own insurance carrier Erie Insurance Exchange (“Erie”) for underinsured motorist benefits, which refused to pay based upon Brumbaugh’s inability to recover for the negligence of the co-worker as not being “legally entitled” to such benefits.
Erie argued that under the decision in Nationwide Mutual Ins. Co. v. Chiao, 186 Fed. Appx. 181 (3rd. Cir. 2006) it did not have to pay the benefits. The difference with the Erie policy and the policy in Chiao was that case focused on the phrase “due by law.” The Third Circuit in Chiao found that “due by law” prevented any recovery of UIM benefits.
The trial court does not follow Chiao but instead follows and relies upon Superior Court cases, which award uninsured and underinsured benefits in similar situations including, Warner v. Continental/CNA Ins. Co., 688 A.2d 177 (Pa. Super. 1996) and Chatham v. Aetna Life & Casualty Co., 570 A.2d 509 (Pa. Super. 1989). In both of those cases the injured victim could recover because they were not bringing claims against the employer, but an independent third party. The trial court notes that there is no real difference between being injured by a non-employee and an employee and there was a reasonable expectation of coverage.
The trial court finds that there should be coverage and awards benefits in favor of Brumbaugh.
Copies of the opinions above can be obtained by calling or e-mailing Scott B. Cooper of SchmidtKramer P.C. at 717-232-6300 or scooper@SchmidtKramer.com.
Free Consultation
Have you or someone you care about been injured in an auto accident? Contact a Pennsylvania auto accident lawyer at SchmidtKramer today. Our office is located in Harrisburg and we have successfully advocated for clients throughout Pennsylvania, including Camp Hill, Carlisle, Chambersburg, Harrisburg, Juniata, Lancaster, Lebanon, Lewisburg, Lewistown, Mechanicsburg, Palmyra, Perry County, Pottsville, Shippensburg, State College, and York. Complete a FREE Online Consultation Form or call us today.
SchmidtKramer Personal Injury Lawyer Rated A by Martindale-Hubbell.
Pennsylvania Office209 State Street
Harrisburg, PA 17101
Phone: (717) 232-6300
Fax: (717) 232-6467
1 (800)232-6301
