Donnelly v. Bauer
Donnelly v. Bauer
Opinion of the Court
OPINION OF THE COURT
The sole issue in these consolidated appeals is whether the Motor Vehicle Financial Responsibility Law (“MVFRL”)
An understanding of the specific facts particular to' each appellant is not necessary for purposes of this appeal. Instead, one must understand the general facts concerning appellants’ original purchase of automobile insurance.
In the appeal sub judice, there are two general factual scenarios regarding the original purchase of automobile insurance. Appellants Havel, Urquhart and Trulear all purchased original automobile insurance policies with the insurance company of their choice after July 1, 1990.
Subsequent to the purchase of insurance, each appellant was involved in an automobile accident. As a result of their accidents, appellants instituted a lawsuit against the respective appellee in each case on this appeal. Appellants filed motions in limine prior to trial seeking to preclude appellees from raising the limited tort waiver defense. In essence, appellants sought to invalidate their limited tort selections on the grounds that their insurance companies had failed to provide the proper notice before the purchase of insurance that is required by 42 Pa.C.S. § 1705. The notice required by 42 Pa.C.S. § 1705(a)(1) must contain the annual premium which an insured would incur if he purchased the limited tort option or the full tort option.
Appellants’ motions in limine were consolidated in the trial court pursuant to Philadelphia Civil Rule 206.2 and the Administrative Order of the Honorable Alex Bonavitacola. The trial court, after reviewing the above-referenced statutory provisions and the purpose behind the enactment of the MVFRL, concluded that appellants’ insurance companies were
After entering this order, the trial court certified the present cases for interlocutory appeal to the Superior Court. On March 6, the Superior Court granted permission to appeal. On October 29, 1996, an en banc Superior Court in a seven-to-three decision reversed the trial court. The Superior Court majority decision enforced appellants’ limited tort selections because it found that the legislative design and administrative scheme formulated by the Insurance Department only required the cost comparison to be offered to insureds renewing their policy for the first time after July 1, 1990. Since appellants did not purchase their original insurance policy until after July 1, 1990, no premium comparison was required for appellants.
This Court begins its analysis by looking to the appellants who obtained their insurance through the voluntary market. In enacting the 1990 amendments to the MVFRL,
When enacting this plan to provide rate reductions, the General Assembly provided mechanisms by which consumers were to be alerted of their available options. Section 1705(a)(1) of Title 75 provides:
(a) Financial responsibility requirements.-
(1) Each insurer, not less than 45 days prior to the first renewal of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance described in subsections (c) and (d). The notice shall be a standardized form adopted by the Commissioner and shall include the following language:
NOTICE TO NAMED INSUREDS
A. “Limited Tort” Option- The laws of the Commonwealth of Pennsylvania give you the right to a choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket*604 expenses, but not for pain and suffering and other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury” as set forth in the policy or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this “limited tort” option is $_
Additional coverages under this option are available at additional cost.
B. “Full Tort” Option- The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverage as required by law under this “full tort” option is $_
75 Pa.C.S. § 1705(a)(1). The parties to this appeal agree that Section 1705(a)(1), standing alone, only required insurers to notify existing policy holders of the available tort options and the annual premium for each tort option.
Section 1791.1(b) of Title 75 reads similar to Section 1705(a)(1).
While the parties agree as to the applicability of Section 1705(a)(1) and 1791.1(b), they diverge as to who must be notified by the provisions found at Section 1705(a)(4) of Title 75. Section 1705(a)(4) provides:
Each insurer, prior to the first issuance of a private passenger motor vehicle liability insurance policy on or after July 1, 1990, shall provide each applicant with the notice required by paragraph (1). A policy may not be issued until the applicant has been provided an opportunity to elect a tort option.
75 Pa.C.S. § 1705(a)(4). Appellants argue that Section 1705(a)(4) requires an insurer to supply all applicants for automobile insurance, both original purchasers and those seeking renewals, with the notice containing the premium differential for each tort option that is required by Section 1705(a)(1). Conversely, appellees argue that Section 1705(a)(4) does not apply to original purchasers of automobile insurance. Instead, appellees argue that Section 1705(a)(4) was meant to apply only to existing policyholders as of July 1, 1990 who desired to have a new policy issued with the tort
The object of all statutory interpretation is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). As this Court has noted, the repeal of the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101, and the simultaneous enactment of the MVFRL, reflected a legislative “concern for the spiralling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways.” Paylor v. Hartford Ins. Co., 536 Pa. 583, 587, 640 A.2d 1234, 1235 (1994). This legislative concern over the increasing costs of automobile insurance is the public policy which is to be advanced when interpreting the statutory provisions of the MVFRL. Id.
Here, Section 1705(a)(4) requires that each applicant for insurance receive the notice required by Section 1705(a)(1) prior to the first issuance of a policy on or after July 1, 1990. While the terms “applicant” and “first issuance” are not defined by the MVFRL, the common meaning of “applicant” is a person asking for something
In reaching this conclusion, the Court recognizes that its interpretation of Section 1705(a)(4) is inconsistent with regulations promulgated by the Insurance Commissioner at 31 Pa.Code § 68.102 and 68.107. Section 68.102 provides:
(b) Both the full tort and limited tort options shall be printed on the same sheet of paper. The form requires an indication of the dollar amount of savings that will be realized by the choice of the full tort or limited tort option. The dollar savings notification will offer an insured a way to compare the price of his current in-force policy with the same policy employing either the minimum 10% full tort or 22% limited tort cost savings mandated by the act of February 7, 1990 (P.L. 11, No. 6) (Act 6). The term “basic coverage,” as used in this notice, means the coverage that the insured has in force at the time the notice is sent.
31 Pa.Code § 68.102 (emphasis added). Section 68.107 provides:
Section 1791.1(b)—notice of tort options.
Notices for limited tort and full tort options are mandated for insureds. These forms are required for new business on or after July 1, 1990, and for renewal policies issued after the first renewal cycle following the initial notices required in 75 Pa.C.S. § 1705 (relating to election of tort options). The use of statutory language is required. These notices shall be sent with the annual renewal forms. As previously indicated, the annual renewal occurs at the annual anniversary date of the issuance of the original policy.
31 Pa.Code § 68.107. Moreover, an affidavit of the Deputy Insurance Commissioner at the time the regulations were issued stated that the Insurance Department viewed Section 1705(a)(4) as only applying to individuals who had insurance prior to July 1, 1990 and who sought to obtain the benefits of the tort options provided by the 1990 amendments to the MVFRL by having a new policy issued rather than waiting for their renewal period to arrive.
While this Court has held that appellants should have received the premium differential notice as required in 75 Pa.C.S. § 1705(a)(1) prior to the purchase of the original policy, this Court still must determine whether appellants are entitled to any remedy. Appellants argue that the trial court correctly held that pursuant to 75 Pa.C.S. § 1705(a)(3), appellants were deemed to have chosen the full tort option rather than the limited tort option which appellants actually elected to purchase and for which they paid. For the reasons described below, this Court disagrees.
In the recent case of Salazar v. Allstate Ins. Co., 549 Pa. 658, 702 A.2d 1038 (Pa. 1997), the named insured rejected uninsured/underinsured coverage when she originally purchased her insurance policy and she subsequently renewed her policy without making any changes. Residents living with the named insured were then involved in an accident and sought
In the case sub judice, Section 1705(a)(3), upon which appellants rely, provides:
If a named insured who receives a notice under paragraph (1) [75 Pa.C.S. § 1705(a)(1)] does not indicate a choice within 20 days, the insurer shall send a second notice. The second notice shall be in a form identical to the first notice, except that it shall be identified as a second and final notice. If a named insured has not responded to either notice ten days prior to the renewal date, the named insured and those he is empowered by this section to bind by his choice are conclusively presumed to have chosen the full tort alternative. All notices required by this section shall advise that if no tort election is made, the named insured and those he is empowered to bind by his choice are conclusively presumed to have chosen the full tort alternative. Any person subject to the limited tort option by virtue of this section shall be precluded from claiming liability of any person based upon being inadequately informed.
75 Pa.C.S. § 1705(a)(3). While Section 1705(a)(3) clearly governs an individual renewing his policy and his failure to make a choice, the situation faced by appellants is markedly differ
The decision that the MVFRL does not provide a remedy is also supported by the policy behind the enactment of the MVFRL and its amendments, to stem the rising cost of insurance in the Commonwealth. Here, appellants, based on a notice form which provided accurate information on the difference between the tort alternatives, freely chose the limited tort option. In making this free choice, appellants received a greater reduction in their premiums than if they had chosen the full tort option. Appellants were content with this lower premium and their choice until they unfortunately were involved in automobile accidents with appellees. Now, appellants seek to escape from what they freely chose and paid for in order that they may obtain a full tort recovery. If this Court were to fashion a remedy not expressly provided for in the MVFRL, this Court would essentially contravene the cost containment policy behind the MVFRL because allowing appellants the full tort coverage they seek would result in giving appellants something for which no individual has paid, which in turn, would result in insurance companies passing on this extra costs to all other insureds.
. 75 Pa.C.S. §§ 1701 et seq.
. Havel applied for an original insurance policy with Allstate Insurance Company on May 2, 1992. Urquhart applied for insurance with American Independent Insurance Company on January 27, 1993. Trulear applied for insurance with American Independent Insurance Company on January 21, 1993.
. The MVFRL defines a non-economic loss as "pain and suffering and other nonmonetary detriment.” 75 Pa.C.S. § 1702.
. A "serious injury” is defined by the MVFRL as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. § 1702.
. The Pennsylvania Assigned Risk Plan, adopted by the Pennsylvania Insurance Department pursuant to 75 Pa.C.S. § 1741, provides for the equitable apportionment among insurers providing automobile insurance to Pennsylvania residents of applicants who are entitled to insurance but are unable to procure it through ordinary methods. All motor vehicle insurers offering insurance in Pennsylvania are required to participate in the Assigned Risk Plan.
. Section 1705(a)(3) provides, in pertinent part, that: "all notices required by this section shall advise that if no tort election is made, the named insured and those he is empowered to bind by his choice are conclusively presumed to have chosen the full tort alternative.”
. The three dissenting judges of the Superior Court believed that the trial court’s interpretation of the statutory notice provision of the MVFRL was a reasonable and fair interpretation of the legislative intent behind the provisions.
. Act of February 7, 1990, P.L. 11, No.6.
. Section 1791.1(b) of the MVFRL provides that:
In addition to the invoice required by subsection (a), an insurer must, at the time of the application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured notice of the availability of two alternatives of full tort insurance and limited tort insurance described in section 1705(c) and (d) (relating to election of tort options):
The laws of the Commonwealth of Pennsylvania give you the right to choose either of the following two options:
A. “Limited Tort” Option.- This form of insurance limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering and other nonmonetary*605 damages unless the injuries suffered fall within the definition of "serious injury” as set forth in the policy or unless one of several other exceptions noted in the policy applies.
B. "Full Tort” Option- This form of insurance allows you to maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers.
If you wish to change the tort option that currently applies to your policy, you must notify your agent, broker, or company and request and complete the appropriate form.
75 Pa.C.S. § 1791.1(b).
. Webster’s New World Dictionary (2d Ed.) at 67.
. Webster’s New World Dictionary (2d Ed.) at 749.
. As noted by the Superior Court, the facts surrounding the assigned risk appellants are virtually the same as above except that they received a PA-1000 notice rather than a Section 1791.1(b) notice. Since the MVFRL also does not provide a remedy to assigned risk individuals
Dissenting Opinion
dissenting.
I respectfully dissent because I cannot agree with the Majority that an insured party has no remedy when an insurance carrier fails to comply with the provisions of the Motor Vehicle Financial Responsibility Law (“MVFRL”)
In a dissenting opinion, which Mr. Justice Nigro joined, I agreed with the majority that Section 1791 should be read in pari materia with Section 1731(c.1), which provides that where an insurer fails to produce a valid form by which an insurer rejects uninsured motorist coverage, “coverage ... under that policy shall be equal to the bodily injury limits.” 75 Pa.C.S. § 1731(d). The majority in Salazar held that the presence of a statutorily created remedy in Section 1731 implied that the lack of such a remedy in Section 1791 indicated that the appellants were not entitled to relief. I disagreed, noting that noncompliance with Section 1791 is as contrary to the MVFRL’s goal of advising insured individuals of the benefits and limits under the Law as is noncompliance with Section 1731. In the instant matter, Section 1705(a)(3) provides that if an individual who is renewing a policy does not respond to two notices informing him or her of the tort options, “the named insured and those he is empowered by this section to bind by his choice are conclusively presumed to have chosen the full tort option alternative.” 75 Pa.C.S. § 1705(a)(3). Consistent with the position I expressed in Salazar, I believe that the failure to provide a first-time purchaser of insurance with a cost comparison of the limited and full tort options is inimical to the aims of the MVFRL.
The MVFRL does not contain a statement of findings and purpose. Prior to the 1990 amendments that rendered UM and UIM coverages optional, this Court stated that the legislature enacted the MVFRL to reduce the rising cost of automobile insurance and the resultant increase in uninsured motorists. Baylor v. Hartford Ins. Co., 536 Pa. 583, 640 A.2d 1234 (1994). Since the 1990 amendments, the Superior Court has held that one of the objects of the MVFRL is to afford the injured claimant the broadest possible coverage. Motorists Ins. Co. v. Emig, 444 Pa.Super. 524, 664 A.2d 559 (1995). In this way, the MVFRL is to be liberally construed.
Id. at 1048. Furthermore, as Judge Del Sole noted in his dissenting opinion in the instant matter, in which Judges Beck and Ford Elliott joined:
It is apparent from the legislative discussions surrounding the passage of Act 6 that it was important to allow informed consumers to make choices about the insurance which would best suit their needs.... To protect consumers by providing them with information about their options necessitates that they be informed about the costs associated with each choice. The goal of providing for an informed consumer is not in conflict with the equally important goal of making automobile insurance more affordable and available. Both concerns were at work in the passage of Act 6.
Donnelly v. Bauer, 453 Pa.Super. 396, 683 A.2d 1242, 1251 (Pa.Super. 1996) (Del Sole, J. dissenting).
The purposes of the MVFRL include “protecting] the consumer by providing him or her with sufficient information to intelligently and knowingly elect options or reject coverage upon the initial application and upon renewal,” Salazar, 702 A.2d at 1049 (Newman, J. dissenting), and “providing] the broadest possible coverage to injured parties,” Salazar, 702
. 75 Pa.C.S. § 1701 et seq.
Reference
- Full Case Name
- Dennis DONNELLY, Appellant, v. Debra BAUER, Appellee; Francis and Kathy HAVEL, Appellants, v. Lorriane McCARRY, Appellee; Roberto HENNINGHAM, Appellant, v. Nong PHEACH, Appellee; Joan P. WILLIAMS and Barbara Merriweather and Denise Williams and Helene Savage, v. Mary Sandra SHEMONSKY. Appeal of Barbara MERRIWEATHER; Mervis M. URQUHART and DeWayne Dixon, a Minor, by His Parent and Natural Guardian, Mervis M. URQUHART and Mervis M. Urquhart in Her Own Right, Appellants, v. Marla MEDNICK, Appellee; Julia TRULEAR, V, Roger TRULEAR, v. Bessie LAYTON. Appeal of Julia TRULEAR; Francisco HIGUITA and Rosalba Higuita, Appellants, v. Hai Son DINH, Appellee
- Cited By
- 65 cases
- Status
- Published