Pennsylvania Nat. Mut. Cas. Ins. Co. v. Gartelman

Decision Date13 September 1979
Docket NumberNo. 1202,1202
Citation405 A.2d 779,43 Md.App. 413
PartiesPENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. Doris M. GARTELMAN et al.
CourtCourt of Special Appeals of Maryland

M. Natalie McSherry, Baltimore, with whom were Louis G. Close, Jr., and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief, for appellant.

Lee Gordon, Baltimore, with whom were Gordon & Goodman, P. A., Baltimore, on the brief, for appellee Doris M. Gartelman.

Ronald H. Jarashow, Annapolis, with whom were William A. Franch and Goldsborough, Franch & Collett, Annapolis, on the brief for other appellee.

Argued before GILBERT, C. J., MELVIN, J., and EVERNGAM, K. THOMAS, Specially Assigned Judge.

MELVIN, Judge.

The issues in this appeal involve the proper application of the Personal Injury Protection Endorsement (the PIP Endorsement) and the Uninsured Motorists Insurance Endorsement (the UM Endorsement) to a policy of automobile liability insurance, issued October 27, 1976, by the appellant, Pennsylvania National Mutual Casualty Insurance Company (Penn National) to Gilbert J. Gartelman, the husband of appellee, Doris M. Gartelman.

On July 13, 1977, while Mrs. Gartelman was operating a Garelli "moped" on a public highway in Anne Arundel County, Maryland, she allegedly sustained personal injuries when she was forced off the highway by an unidentified motor vehicle. The moped was owned by Mr. Gartelman. It may be generally defined as a vehicle with two wheels in tandem designed to be operated by human power with the assistance of a small internal combustion engine. Mr. Gartelman's policy listed seven different motor vehicles owned by him as "covered automobiles." The moped was not so listed.

Mrs. Gartelman looked to Penn National for benefits under the PIP Endorsement and the UM Endorsement of her husband's policy. Penn Mutual denied coverage under either endorsement because of a certain exclusion provided in each endorsement. Mrs. Gartelman and her husband thereupon filed a petition for declaratory judgment seeking a declaration that benefits were available to Mrs. Gartelman under each endorsement. The Gartelmans joined the Maryland Automo bile Insurance Fund (MAIF) as a defendant in the action and requested a further declaration that in the event the court found no coverage under the UM Endorsement in the Penn National policy, MAIF, would "be required to accept the claim of the Plaintiffs under the terms and conditions of Article 48A (Annotated Code of Maryland)."

Penn National's motion for summary judgment on the issue of the PIP Endorsement was denied; instead, summary judgment in favor of Mrs. Gartelman was granted on that issue. MAIF's motion for summary judgment, in which MAIF successfully contended that Mrs. Gartelman was covered by the UM Endorsement in the Penn National policy, was granted. Penn National filed a timely appeal from the order of court (Goudy, J.) directing that these two judgments be entered.

The issue as to each endorsement is whether an exclusion provided in the endorsement is legally effective to deny coverage to Mrs. Gartelman.

I.

THE PIP ENDORSEMENT.

Section 539 of Article 48A (Md.Ann.Code, 1979 Repl.Vol.) provides in pertinent part that no policy of motor vehicle liability insurance may be issued after January 1, 1973, unless it affords minimum medical, hospital, disability, and loss of income benefits up to $2,500 (the PIP coverage) for "The named insured and members of his family residing in his household . . . injured in any motor vehicle accident (including an accident involving an uninsured motor vehicle or a motor vehicle whose identity cannot be ascertained) . . . ." (Emphasis added.) Section 540 provides that benefits required under section 539 shall be payable without regard to fault. Section 545 provides for permissible exclusions from the coverage prescribed by section 539 and reads as follows:

"The coverages prescribed under § 539 of this article may exclude from benefits thereunder any person otherwise insured under the policy who:

(a) Intentionally causes the accident resulting in the injury, or

(b) Is injured while operating or voluntarily riding in a vehicle known by him to be stolen, or

(c) Is injured while in the commission of a felony or while in violation of § 21-904 of the Transportation Article.

(d) With respect to motorcycles, economic loss benefits required under § 539 may be excluded, or may be offered with deductibles, options or with specific exclusions. (1972, ch. 73, § 1; 1977, ch. 765, § 13.)"

Penn National sought to comply with the mandate of section 539 by including in the policy issued to Mr. Gartelman its "Maryland Personal Injury Protection Endorsement." The endorsement contained, however, the following exclusion:

"This insurance does not apply:

(a) . . .

(b) . . .

(c) to bodily injury sustained by the named insured or any relative while occupying . . . any motor vehicle owned by the named insured . . . and which is not an insured motor vehicle."

"Named insured" is defined in the endorsement to mean:

"the person or organization named in the declarations and if an individual (Mr. Gartelman), includes his spouse if a resident of the same household (Mrs. Gartelman)."

"Insured motor vehicle" is defined in the endorsement as:

"a motor vehicle of which the named insured is the owner, to which the bodily injury liability insurance of the policy applies and for which a specific premium is charged."

"Motor vehicle" is defined in the endorsement as:

"an automobile and any other vehicle, including a tractor, operated or designed for operation upon a public road by any power other than animal or muscular power."

Thus, it is clear that under the terms of the endorsement the exclusion quoted above deprives Mrs. Gartelman of coverage because she (a "named insured") sustained bodily injury while occupying a motor vehicle owned by a "named insured" (Mr. Gartelman) and which was not insured.

Penn National concedes that the endorsement exclusion "is not specifically provided for in § 539." Nor, of course, is it included in the list of exclusions permitted by section 545. For these reasons Judge Goudy held that the exclusion resulted in less coverage than that required by law and was, therefore, ineffective. We agree.

Section 539 mandates that the benefits of PIP coverage be afforded to, among others, "the named insured and members of his family residing in his household" who are "injured in any motor vehicle accident." It is not disputed that but for the exclusion, Mrs. Gartelman fits the category of persons to whom coverage Must be afforded. A well-established rule of statutory construction was expressed by the Court of Appeals in State Insurance v. Nationwide, 241 Md. 108, 117, 215 A.2d 749, 754-755 (1966).

"Where a statute expressly provides for certain exclusions, others should not be slightly read therein by implication, for if the Legislature intends other exclusions it is so easy to add them to the already-named explicit ones. Cf. Vanderford v. Farmers' Bank, 105 Md. 164, 66 A. 47 (10 L.R.A.,N.S., 129); Fowel v. State, 206 Md. 101, 110 A.2d 524; 2 Sutherland Statutory Construction (3 ed.), § 4915.

Here, the Legislature has provided in section 545 for certain permissible exclusions from the coverage mandated by section 539. The exclusion contained in Penn National's PIP Endorsement is not among them. Penn National would have us add to that list, by judicial fiat, an exclusion that the Legislature did not see fit to provide. This, we decline to do.

Penn National argues that our decision in Lord v. Maryland Automobile Insurance Fund, 38 Md.App. 374, 381 A.2d 23 (1977), supports the conclusion that the disputed exclusion is permissible. In that case, the claimant, a non-resident of Maryland, sought PIP benefits from the named insured's insurance carrier after sustaining injuries in an automobile accident while he was driving the named insured's automobile with her consent in Louisville, Kentucky. The insured's insurance policy contained a provision that excluded from its PIP coverage "any person other than the Named Insured or a member of his family who is a resident of the same household If the accident occurs outside of Maryland." (Emphasis added.) In upholding the validity of the exclusion, we found no statutory bar to "imposing a contractual territorial limitation which excludes (from PIP benefits) non-residents of the State of Maryland." We cited authority (Couch on Insurance 2d § 37.803 (1961) to the effect that "(t)erritorial use limitations are valid" and "are not conditions." We found in the Maryland statutes concerning automobile insurance "no legislative intent" to bar the territorial exclusion challenged in that case.

We are not persuaded that the same considerations that convinced us to sanction the territorial exclusion in the Lord case require approval of the exclusion in the case now before us.

In enacting section 539 of the Maryland Insurance Code, we think the Legislature intended to create two classes of persons to whom the benefits of PIP coverage must be afforded. The first class includes the named insured and his family members residing in his household "injured in any motor vehicle accident," and the second class includes "other persons" who are entitled to the benefits of PIP coverage only when a vehicle to which the policy applies is involved. 1 With respect to the first class, to which Mrs. Gartelman clearly belongs, the language of the section does not condition coverage upon the occupancy of an "insured motor vehicle" at the time of the accident. the members of that class are entitled to coverage when injured in "Any " motor vehicle accident 2 even when an "insured motor vehicle" is not in any way involved in the accident. Because Penn National's exclusion in its PIP Endorsement does condition coverage for members of the first class upon their occupancy of "an insured motor vehicle" it is...

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