Downing v. Harleysville Ins. Co.

• Decision Date: 04 February 1992
• Citation: 412 Pa.Super. 15,602 A.2d 871
• Parties: Reginald DOWNING and Billie Jean Downing, his Wife and Guardian, Appellee, v. HARLEYSVILLE INSURANCE COMPANY, Appellant.
• Court: Pennsylvania Superior Court

Page 871

602 A.2d 871

412 Pa.Super. 15

Reginald DOWNING and Billie Jean Downing, his Wife and Guardian, Appellee, v. HARLEYSVILLE INSURANCE COMPANY, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 12, 1991.

Filed Feb. 4, 1992.

William H. Pugh, IV, Norristown, for appellant.

Phillip H. Baer, Philadelphia, for appellee.

Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.

DEL SOLE, Judge:

Harleysville Insurance Company, [Harleysville] appeals from an award of Summary Judgment entered in favor of Plaintiff-Appellees, Mr. and Mrs. Downing, in the amount of $90,000 plus interest. Harleysville challenges this award on the basis that it is premised on an improper conclusion that Mr. Downing was an "occupant" of the Harleysville vehicle and further that this award would wrongly allow the Downings to receive multiple coverage for first party benefits against two carriers of equal priority. Because this second issue called into question a review of the decision reached in Manolakis v. Transamerica Insurance Company, 396 Pa.Super. 256, 578 A.2d 503 (1990), alloc. granted, 526 Pa. 637, 584 A.2d 319 (1991), the parties were asked to argue the case before this en banc panel. Following argument and review of the record presented, we conclude that the trial court did err in determining that Mr. Downing was an occupant of the Harleysville vehicle. We, nevertheless, find that the Downings were properly awarded first party benefits against Harleysville under 75 Pa.C.S.A. § 1713(a)(4). Because we further hold that no other carrier involved in this matter was at the same or higher priority level as Harleysville, a discussion of the Manolakis decision is rendered unnecessary.

We begin our discussion with a brief recitation of the underlying facts. Mr. Downing, who neither owned a car nor lived with any relative who owned a car, was traveling as a passenger in a vehicle operated by Gerald W. Hartley which was insured by the Prudential Insurance Company [Prudential]. While proceeding on their journey, Mr. Hartley and Mr. Downing noticed a vehicle disabled by a flat tire and they stopped to render assistance. The disabled vehicle was insured by Harleysville. Mr. Downing offered to change the tire on behalf of the operator of the disabled vehicle. While standing next to the side of the disabled vehicle holding the jack to change the tire, the vehicle and Mr. Downing were struck by a third vehicle operated by an uninsured motorist who was driving under the influence of alcohol. Mr. Downing suffered serious injuries causing him to remain in a comatose state since the accident and resulting in the amputation of his right leg. His medical expenses have been substantially in excess of $100,000.

In 1986 Mr. Downing and his wife and guardian, Billie Jean Downing, commenced a civil action against both Prudential and Harleysville for first party benefits. Prudential subsequently paid the Downings the maximum amount of its coverage, $10,000, plus interest and counsel fees and was dismissed from the action. (The Stipulation of Dismissal signed by the parties indicates the amount to be $9,300.) The Downings then filed a motion for Summary Judgment against Harleysville, which answered and filed a cross motion for Summary Judgment. The court granted the Downings' motion. Since the maximum coverage under the Harleysville policy was $100,000 and since the Downings already recovered $10,000 from Prudential, the court entered a Judgment for $90,000 representing the balance of the coverage available. The trial court reasoned that under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701 et seq., Mr. Downing was an "occupant" of both the Prudential vehicle in which he was traveling as a passenger and the disabled Harleysville vehicle to which he was providing assistance when the accident occurred. Based upon this finding the court ruled that the Downings were entitled to recover from both carriers who were at the same priority level. In reaching this conclusion the court rejected Harleysville's position that the court was permitting the "stacking" of coverage.

The provisions of the MVFRL address the sources of recovery and their respective priority levels in § 1713. In determining Mr. Downing's relationship with the motor vehicles involved and the insurers, it is necessary to detail its provisions.

§ 1713. Source of benefits

(a) General rule.--Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority:

(1) For a named insured, the policy on which he is the named insured.

(2) For an insured, the policy covering the insured.

(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.

(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident. For the purpose of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident unless it was parked so as to cause unreasonable risk of injury.

75 Pa.C.S.A. § 1713

As stated, the trial court, when ruling on the Summary Judgment motion, determined that Mr. Downing was an "occupant" of both the Prudential vehicle and the Harleysville vehicle under § 1713(a)(3). We conclude that he could not be classified as an "occupant" of either vehicle; rather, the Downings may recover against Harleysville under § 1713(a)(4) because their injuries arose from "the maintenance or use" of the disabled Harleysville vehicle which was "involved in the accident."

Recovery under each of the priority levels outlined in § 1713 is premised on the occurrence of an injury which arises out of the "maintenance or use of a motor vehicle." See 75 Pa.C.S.A. § 1711, § 1712 and § 1713(a). For the injury to "arise" from such use it is further well established that there must be some causal connection between the motor vehicle and the injury before the motor vehicle insurer is required to pay first party benefits. Id.

The scope of the term "occupant" was first addressed in Tyler v. Insurance Company of North America, 311 Pa.Super. 25, 29, 457 A.2d 95, 96 (1983) under Section 204 of the No-Fault Act, 40 P.S. § 1009.204 (repealed.) Therein the court was considering whether a person who had alighted from a vehicle remained an occupant of that vehicle. The court concluded:

He continues to "occupy" the motor vehicle until he severs all connection with it. That point of severance is reached when he becomes highway oriented as opposed to being vehicle oriented. Until then, the alighting passenger continues to be an occupant of the [vehicle]. Until such a person is on his or her own without reference to the [vehicle], the person has not ceased to be a passenger or occupant.

Id., at 31, 457 A.2d at 97.

Our supreme court subsequently in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984) examined the term "occupying" in determining whether an individual who had alighted from a vehicle continued to occupy it. The individual in that case had been involved in a minor motor vehicle accident and, as a result, was standing approximately ninety-seven (97) feet from his vehicle giving information to a police officer when he was struck and killed by an uninsured motorist. The estate of the individual who was killed sought to establish that he continued to "occupy" the vehicle which he was operating prior to the accident. The policy in question defined the "occupying" to mean "in or upon or entering into or alighting from." In reaching the conclusion that the estate was entitled to recovery since the deceased party would be considered to be "occupying" the vehicle at the time of the accident, the court set forth the following criteria, which it found were met:

(1) there is a causal relation or connection between the injury and the use of the insured vehicle;

(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;

(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and

(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

Id., 504 Pa. at 335, 473 A.2d at 1009.

Guided by these principles, we conclude that Mr. Downing had not remained an "occupant" of the Prudential vehicle in which he was traveling as a passenger prior to the accident.

Mr. Downing's continued relationship with the Prudential vehicle is strikingly similar to the situation which existed between an injured party and a Cadillac automobile in Aetna Cas. & Sur. Co. v. Kemper Ins. Co., 657 F.Supp. 213 (E.D.Pa.1987). Therein an individual named Kendricks was a passenger in a Cadillac automobile insured by Aetna Casualty and Surety Company. The driver of the Cadillac, Smith, stopped along side the road to help a friend whose pick-up truck had become disabled. While Smith looked under the hood of the pick-up and Kendricks stood nearby, both were injured when a tractor-trailer hit the rear of the truck. In considering Pennsylvania No-Fault Act and its provisions relating to priority payments, the court had to determine whether Kendricks remained an "occupant" of the Cadillac at the time of the accident such that Aetna would be responsible for payment of his claims. The court examined the four criteria set forth in Contrisciane, supra, and stated:

Smith and Kendricks became "highway-oriented" when they left the Cadillac for the purpose of helping Perry with his pick-up truck. Moreover, their actions were not essential to the use of the Cadillac. Unlike the situation in Contrisciane, where the person had to go to the police car before he could continue using his car, the...