Alvarino by Alvarino v. Allstate Ins. Co.

• Decision Date: 03 February 1988
• Citation: 370 Pa.Super. 563,537 A.2d 18
• Parties: Robby Gabriel ALVARINO a Minor, by His Father Gabriel ALVARINO and Gabriel Alvarino, Appellants v. ALLSTATE INSURANCE COMPANY.
• Court: Pennsylvania Superior Court

Page 18

537 A.2d 18

370 Pa.Super. 563

Robby Gabriel ALVARINO a Minor, by His Father Gabriel ALVARINO and Gabriel Alvarino, Appellants v. ALLSTATE INSURANCE COMPANY.

Superior Court of Pennsylvania.

Argued Oct. 28, 1987.

Filed Feb. 3, 1988.

Dennis L. Scanlon, Philadelphia, for appellants.

William H. Resch, Jr., Philadelphia, for appellee.

Before CAVANAUGH, BECK and HESTER, JJ.

BECK, Judge:

This is an appeal from a grant of judgment on the pleadings in favor of appellee defendant Allstate Insurance Company.

In reviewing a grant of judgment on the pleadings, we must determine if the action of the trial court was based on a clear error of law or whether the pleadings raise factual issues that should clearly be decided by the jury. Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986). In making this determination, we must confine ourselves to the pleadings and relevant documents attached thereto and accept as true all well pleaded statements of fact made by the party against whom judgment has been granted and consider against such party only those other facts that he specifically admits. Jones v. Travelers Insur. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986). We do not consider pleaded conclusions of law nor do we draw unjustified inferences of fact. Id.

Under this standard, we find that the relevant facts for purposes of our review of the trial court's action are clear and are as follows. On September 14, 1985, appellant Robbie Alvarino and his father, appellant Gabriel Alvarino, were bicycling in their neighborhood when they came upon a neighbor who was driving his van through the neighborhood. The neighbor had a dog chained inside his van. The neighbor stopped his van to speak with the Alvarinos. Robbie Alvarino then entered the van. The neighbor drove on with Robbie in the van and Gabriel following behind on his bicycle. The neighbor stopped the van shortly thereafter and Gabriel Alvarino caught up to the van and again stopped to speak to the neighbor. At that time, the dog bit Robbie Alvarino who was still in the van.

Gabriel Alvarino owned a policy of motor vehicle insurance issued by appellee Allstate Insurance Company. Appellant sought to collect first party benefits under that policy to cover medical expenses incurred by both himself and Robbie as a result of the dog bite. ¹ Allstate refused the claim, contending that the policy did not afford coverage for expenses incurred because of the dog bite. Appellants then sued Allstate for the claimed benefits. Allstate answered the complaint and asserted New Matter, denying coverage, to which appellants filed a Reply. Allstate then filed a Motion for Judgment on the Pleadings which the trial court granted by Order dated December 9, 1986.

We are presented with only one issue in this appeal. That issue involves the proper construction of Sections 1711 and 1712 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. Cons.Stat.Ann. §§ 1701--1798 (Purdon 1987) (the "Financial Responsibility Law"). These sections require an insurer issuing or delivering liability insurance policies covering motor vehicles to make available for purchase first party benefits with respect to "injury arising out of the maintenance or use of a motor vehicle ..." 75 Pa. Cons.Stat.Ann. §§ 1711, 1712. Appellants contend that the trial court erred in concluding that as a matter of law, their injuries arising from the dog bite did not arise out of the maintenance or use of a motor vehicle.

The heart of appellants' argument is as follows. Under the now repealed Pennsylvania No-fault Motor Vehicle Insurance Act, tit. 40, §§ 1009.101-1009.701 (Purdon 1987) (repealed effective Oct. 1, 1984), insurers were required to pay no-fault benefits for injuries arising out of the maintenance or use of a motor vehicle. In this regard, the No-fault Act was the same as the Financial Responsibility Act. Id. § 1009.103. However, the No-fault Act also required that for no-fault benefits to be paid, the injury had to arise from the use or maintenance of the motor vehicle "as a vehicle." Id. § 1009.103. On the other hand, the Financial Responsibility Law does not contain any reference to a requirement that the injuries arise from the use of a motor vehicle "as a vehicle". Thus, appellants argue that the legislature has evidenced an intent to broaden the scope of coverage under the Financial Responsibility Law and to require insurers to provide first party benefits in a case like that before us.

Although appellants indicate that there are no Pennsylvania cases decided either under the No-fault Act or the Financial Responsibility Law dealing with a situation precisely like the one presented in the instant case, they do cite two cases decided in other jurisdictions where injuries resulting from a dog bite occurring in a motor vehicle were held to be within the coverage of the applicable automobile policy. See National Indemnity Company v. Corbo, 248 So.2d 238 (Fla.1971); Hartford Accident & Indemnity Co. v. Civil Service Employees Insurance Co., 33 Cal.App.3d 26, 108 Cal.Rptr. 737 (1973).

Appellee's short answer to appellants' argument, with which we agree, is divisible into two parts. First, appellee argues that under the principles developed in construing the No-fault Act, appellants are clearly not entitled to benefits in this case. Second, appellee argues that the change in statutory language on which appellants so heavily rely is irrelevant to this case and that, therefore, the principles developed under the No-fault Act are equally applicable here.

Appellee's analysis is unquestionably correct. The analysis is premised on the valid assumption that if appellants' injuries would not have been considered to have arisen out of the use of a motor vehicle under the No-fault Act and if the only changes to the statutory language of the Financial Responsibility Law concerning this requirement do not compel a different conclusion, then appellants are equally not entitled to recover benefits under the Financial Responsibility Law. Moreover, appellee's analysis of the case law under the No-fault Act and appellee's conclusion that under that case law the injuries in this case cannot be considered to have arisen from the use of a motor vehicle are also correct. Lastly, we agree with appellee that the change in the language of the Financial Responsibility Law which eliminated the requirement of use "as a vehicle" does not change the result in this case.

In Manufacturers Casualty Ins. Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961), a case decided before enactment of the No-fault Act, the Supreme Court construed the phrase "arising out of the ownership, maintenance or use" of a motor vehicle in an automobile insurance policy as follows:

Arising out of "means causally connected with, not proximately caused by." "But for" causation, i.e., a cause and result relationship is enough to satisfy this provision of the policy.

Id. at 607-08, 170 A.2d at 573. ² This construction of a requirement that an injury arise out of the maintenance or use of a motor vehicle has been carried over into interpretation of the No-fault Act's use of the same phrase. For example, in Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982), this Court relied on Manufacturers Casualty in concluding that:

The same construction of the phrase "arising out of the maintenance or use of a motor vehicle" can be applied to the No-fault Act. Thus, while the causal connection need not rise to the level of proximate causation, for purposes of coverage under the No-fault Act there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle.

Id. at 303, 452 A.2d at 737. The Schweitzer Court held that injuries sustained by the owner of a vehicle who was beaten while in her vehicle did not arise from the use of the vehicle. See also Camacho v. Nationwide Ins. Co., 314 Pa.Super. 21, 460 A.2d 353 (1983), aff'd, 504 Pa. 351, 473 A.2d 1017 (1984) (injuries sustained by driver sitting in car from exploding bottle thrown into car did not arise out of use of motor vehicle); Erie Insur. Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982) (injuries sustained by passenger sitting in car when shot by driver did not arise out of use of motor vehicle).

The lesson from these and other cases on point is that there must be some causal connection between the injuries and the use of the...