Andreyo v. Radle

KLEINFELTER, P.J., This is the summary judgment motion of defendant Nicholas A. Radie in this automobile accident case. For the reasoning asserted below, Radle’s motion is denied. We begin with a recitation of the pertinent facts. On October 8, 1997, Radie was driving his car along South 23rd Street when he struck plaintiff Matthew Andreyo. Matthew, who was 15 years old at the time and resided with his father, Joseph Andreyo, suffered injuries to his left knee. Sadly, Matthew passed away on January 11, 2001, of circumstances unrelated to this accident. Matthew instituted this cause of action by filing a complaint on September 26, 2000, asserting negligence against Radie. The complaint does not assert a claim for economic losses. Thereafter, on November 9,2000, Radie filed an answer with new matter. In his new matter, Radie asserts that Matthew’s claims are barred by the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., since Matthew’s father elected the limited tort option on his automobile insurance and Matthew was considered an “insured” under that policy. Matthew filed a reply to Radle’s new matter on November 14, 2000. The matter presently for our consideration is Radle’s motion for summary judgment, filed June 19,2001. Both [11] parties have submitted briefs supporting their respective positions, and a three-judge panel of this court entertained oral argument on August 16, 2001. As a preliminary matter, we note the standard promulgated by our appellate courts to guide us in deciding a summary judgment motion. “[Sjummary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ... Summary judgment may be granted only in those cases where the right is clear and free from doubt. . . . The moving party has the burden of proving that there is no genuine issue of material fact.... Moreover, the record and any inferences therefrom must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party....” Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 73-74, 658 A.2d 423, 425 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995) (citations omitted); see also, Green v. Paul Revere Insurance Group, 121 Dauph. Cty. Rep. 63 (2001). The threshold issue is whether a pedestrian (here a minor) who is injured through the negligence of a motor vehicle operator is limited in his recovery by his father’s election of the limited tort option1 in his automobile in [12] surance policy. More directly, were pedestrian accidents contemplated to fall within the purview of the MVFRL? We have found no appellate authority that directly answers this question. We emphasize “directly” since the case of Murray v. McCann, 442 Pa. Super. 30, 658 A.2d 404 (1995) (relied on by Radie), which is factually akin to the case at bar, would appear to answer this question in the affirmative. Murray, however, is of limited value since the only legal issue on appeal was the application of the “serious injury” exception under section 1705 of the MVFRL. Thus, the persuasiveness of Murray is limited to that of dicta. [13] Several county courts have addressed the pedestrian issue directly. In Leidy v. Hall, 77 Lancaster L.Rev. 561 (2001), the Lancaster County Court of Common Pleas, relying on Murray, applied the MVFRL and the limited tort option to a pedestrian. The Lancaster court also cited Reidinger v. Linebaugh, 35 D.&C.4th 78 (Lanc. Cty. 1998); but that case, too, only concerned a “serious injury” analysis. Similarly, in Eckler v. Watson, 29 Mercer L.J. 393 (2001), the court held that, as the statutory listing of exceptions in the MVFRL does not except pedestrians in a motor vehicle accident, they must necessarily be bound by an election of the limited tort option in their insurance policy. Likewise, in Spearman v. Rabe, 146 Pitts. L.J. 111 (Allegheny Cty. 1998), the Allegheny Court of Common Pleas applied the limited tort provisions of the MVFRL, without analysis, to a pedestrian. On the other hand, the Blair County Court of Common Pleas has reached a contrary result. In Stotler v. Bickel, 96 CP 519 (Blair Cty. slip op. 1998), the court addressed the issue as to whether the MVFRL applied to a pedestrian who was also the owner of an uninsured vehicle. Granted, the uninsured aspects of the MVFRL address a different issue than the limited tort option, but the force of logic applies equally to both. In refusing to hold the plaintiff to the terms of section 1714, the Stotler court relied on the Superior Court’s analysis in Kafando v. State Farm Mutual Automobile Insurance Co., 704 A.2d 675 (Pa. Super. 1998): “the deterrent purpose of section 1714 is not advanced by withholding benefits from a party who owns an uninsured motor vehicle but who is nevertheless injured while riding as a passenger [14] in an insured vehicle.” Section 1714 did not apply since the plaintiff “was not operating his own uninsured vehicle at the time of the accident.” Id. at 676. Kafando relies in large part on the logic of our Supreme Court in Henrich v. Harleysville Insurance Companies, 533 Pa. 181, 620 A.2d 1122 (1993): “The MVFRL [Motor Vehicle Financial Responsibility Law] replaced the former ‘no-fault’ statute, PL. 489, no. 176 (1974). The MVFRL was designed to deter people from failing to insure their vehicles more forcefully than the prior statute. This is the purpose of section 1714. If [the claimant] had been injured while operating her own uninsured but registered motor vehicle, we can see how it could at least be argued that the deterrent purpose of section 1714 might be applied to her so as to prevent her from recovering under her father’s insurance policy. However, those are not the facts in the instant case (and we express no opinion as to how we would decide this case if they were). Here, [the claimant] was hurt while a passenger in her friend’s uninsured motor vehicle. It is hard to see how punishing a person like [the claimant] or the threat of punishing her, would deter someone like her driver, an unrelated third party, from neglecting to procure auto insurance. Likewise, it is draconian to punish [the claimant] for failing to insure her own car when she was not injured in it or hurt by it. Indeed, she was not even driving it. We cannot attribute either such unrealistic or harsh motives to the legislature unless they were clearly spelled out. We hold that section 1714 does not apply to [the claimant] because she was not operating her own uninsured motor vehicle at the time of the accident.” Kafando, 704 A.2d at 677 quot [15] ing Henrich, 533 Pa. at 185, 620 A.2d at 1124. (emphasis in original) Kafando also relied heavily on Berger v. Rinaldi, 438 Pa. Super. 78, 651 A.2d 553 (1994), which held that the limited tort option, section 1714(a)(5), was not applicable to a plaintiff who was not operating his uninsured vehicle at the time of the accident. Stotler, supra, concludes: “Following this reasoning, it would be highly incongruent for this court to permit application of section 1714 to a pedestrian when it does not apply to a passenger.” Stotler at 4. We subscribe to the Stotler-Kafando-Berger analysis, as it seems illogical to deny full tort coverage to a pedestrian plaintiff, who, at the time he was struck, had absolutely no connection with his father’s automobile. We further divine legislative intent by returning to the language of section 1705(a) and the required Notice To Named Insureds: “The laws . . . give you the right to choose a form of insurance that limits your right and the right of members of your household ... for injuries caused by other drivers.” “Caused by other drivers” necessarily implies that there is another driver in addition to the plaintiff driver. We place no weight on defendant’s argument that “pedestrians” are not mentioned in the “exceptions” sub-paragraph (d) of. section 1705 since we conclude that section (b), application of tort options, is intended to apply only to operators or passengers of vehicles. To illustrate this point we need only look at the language in section (b)(2), which provides for resolution of the conflict that necessarily arises where “an insured” is covered by more than one policy. In such case, the section [16] provides that he is covered by the policy covering the vehicle “in which the insured is an occupant at the time of the accident.” (emphasis added) The MVFRL, in this court’s opinion, was not intended to apply to “an insured” when the “insured” is a pedestrian, on some other non-automobile conveyance; or, for that matter, sitting in his living room should an errant automobile come crashing through his door. Had we held that the limited tort option applied to Matthew Andreyo, we would next need to evaluate whether Matthew’s injuries were “serious” as contemplated by section 1705.2 Instead, we may consider the noneconomic damages alleged in Matthew’s complaint, namely, the pain and suffering and emotional distress claims. Included in Matthew’s response to Radle’s motion for summary judgment is the operative report pertaining to the medical treatment he received following the car accident. The report provides a possible basis of recovery for pain and suffering as well as emotional distress damages resulting from his injuries. This evidence, of course, necessarily implicates issues of factual determination. As such, we cannot quantify such damages as a matter of law and are required to deny Radle’s motion. We enter the following: ORDER And now, April 1, 2002, upon consideration of the motion for summary judgment submitted by defendant Nicholas A. Radie, said motion is hereby denied. Footnotes [1] (d) Limited tort alternative — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the in [12] jury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss, except that: “(1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault “(i) is convicted or accepts accelerated rehabilitative disposition for driving under the influence of alcohol or a controlled substance in that accident; “(ii) is operating a motor vehicle registered in another state; “(iii) intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person; or “(iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage).” 75 Pa.C.S. §1705. (emphasis added) “Serious injury” is defined in 75 Pa.C.S. §1702: “A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement.” [2] We agree with the dissent that Matthew’s injuries were not “serious” as a matter of law and that, if the MVFRL were applicable, he would fall within the ambit of an “insured.”