By Kevin L. Connors, Esquire

 The very recent decision of the Pennsylvania Superior Court in McWeeney v. Estate of Janet R. Strickler, published on January 30, 2013, hinged on whether the Plaintiff, a permissive user of her fiancé’s car, could either be characterized as a “named insured” or as an “insured” under the personal automobile insurance policy purchased by her fiancé, with the fiancé having elected the limited tort option, in the course of securing that insurance.

At the trial court level, the trial court had granted Summary Judgment in favor of the Defendant, seeking judgment that the Plaintiff was bound by the limited tort option election made by her fiancé, under a personal automobile insurance policy issued by Progressive Insurance.

If bound by that election, the Plaintiff would not be able to recover personal injury damages for pain and suffering, as she was not apparently able to prove that she had sustained a “serious injury”.

Opposing Summary Judgment, the Plaintiff argued that she was not bound by the limited tort election selected by her fiancé under the Progressive Insurance policy, as she argued that she was neither a “named insured” or an “insured” under the automobile insurance policy.

The trial court granted the Summary Judgment, finding that there was no “genuine issue of material fact”, as to whether the Plaintiff was, in fact, bound by the limited tort option election under Progressive’s insurance policy.

So holding, the trial court found and concluded that the Plaintiff was an “insured” under the Progressive Insurance policy, by virtue of the Plaintiff having been a permissive driver of the Progressive-insured vehicle.

Appealing the Summary Judgment to the Superior Court, Plaintiff raised three issues:

  •  Was she a “named insured”;
  • Was she an “insured”;
  • Whether the Plaintiff was bound by her fiance’s election of the limited tort option under the Pennsylvania Motor Vehicle Financial Responsibility Law.

Analyzing the definitions utilized by the Pennsylvania Motor Vehicle Financial Responsibility Law (PMVFRL), the Superior Court ruled that a “named insured”, is anyone who is individually named on the insurance policy, as well as including anyone who would be insured under the policy, who was not named as an insured under another private passenger motor vehicle insurance policy.

In the event of concurrent coverage, the insurance policy insuring the vehicle in which someone is an occupant at the time of accident, takes priority as primary coverage, over any other available insurance policies.

Although the Plaintiff was not listed as a “named insured” on the insurance policy, she was listed as a regular driver, with the Plaintiff having been labeled as a “principal driver”.

Not withstanding the designation of “principal driver” being made as to the Plaintiff on the insurance policy, the Superior Court concluded that the Plaintiff was not a “named insured” on the policy, as “named insured” is a technical term in the insurance industry, and it is only used to refer to individuals designated as “named insureds” on the face of or in the declaration section of the insurance policy.

Since the Plaintiff was not designated as a “named insured” under the policy, the Superior Court turned to the issue of whether the Plaintiff would have been an “insured” under the policy.

Ruling that the Progressive insurance policy converted all permissive drivers into “insureds”, both as to liability and as to first party benefits, the Superior Court held that the Plaintiff was, in fact, an “insured” under the Progressive policy.

However, the Superior Court held that the Progressive policy more broadly defined “insured” than the PMVFRL did, in terms of binding permissive drivers to the owner’s election of the limited tort option, and the Superior Court held, therefore, that the Progressive policy controverted public policy, by barring more drivers from claiming non-economic damages against third party tortfeasors, than had been contemplated by Section 1705 of the PMVFRL.

  • Section 1705(f) defines an “insured” as:
  •  An individual residing in the household of the named insured who is:
  • A spouse or other relative of the named insured;
  • A minor in the custody of either the named insured or relative of the named insured.

Finding that the Plaintiff did not meet either definition of “insured” under the PMVFRL, the Superior Court held, that by virtue of the fact that the Plaintiff did not own a motor vehicle, and was not insured under anu motor vehicle liability insurance policy, that her eligibility to claim personal injury damages for non-economic losses in third-party actions must be governed by Section 1705(b)(3), allowing non-owners, as uninsured motorists, to seek both economic and non-economic damages, as follows:

(a)        Application of tort option.—(3) An individual who is not an owner of a currently registered private passenger motor vehicle and who is not a named insured or insured under any private passenger motor vehicle policy shall not be precluded from maintaining an action for noneconomic loss or economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law.

75 Pa.C.S.A. § 1705(b)(3).

Where a motorist does not own a vehicle, and is not related to the owner of the car that they are driving, the Superior Court held in McWeeney that the Plaintiff is not precluded from seeking non-economic damages against a third-party tortfeasor, even if the Plaintiff is otherwise insured for both liability and first party benefits purposes, as a permissive driver, under the insurance policy insuring the vehicle being operated by the Plaintiff.

To the extent that the trial court found that the Progressive policy precluded the Plaintiff from recovering non-economic damages, the Superior Court held that the policy preclusion was unenforceable.

Of course, this issue would not have arisen, if the Plaintiff had been insured under another automobile insurance policy.

 

ConnorsLaw LLP

Trust us, we just get it!

It is trust well spent!

Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Subrogation Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.

With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.

Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at [email protected] (Phone: 610-524-2100 Ext. 112).