U.S. Underwriters Insurance v. Liberty Mutual Insurance ( 1996 )

SLOVITER, Chief Judge,

dissenting.

The issue is whether the Supreme Court of Pennsylvania, which had a long history of protecting the recovery of damages for injuries incurred by the drivers and occupants of automobiles, would have permitted the workers’ compensation carrier in this case to be subrogated to the recovery received by the driver. At the time of the accident in question, the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. Cons.Stat. Ann. § 1720, explicitly barred a workers’ compensation carrier from subrogation for benefits paid if the injuries arose “out of the maintenance or use of a motor vehicle.” See 75 Pa. Cons.Stat. Ann. § 1720 (1984). The driver in this case, Robert Hilpl, was injured while alighting from the vehicle when he slipped and injured himself by landing on the vehicle. I believe that under these facts the Supreme Court of Pennsylvania would have held that Hilpl was engaged in the “use” of that vehicle.

The MVFRL replaced the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 Pa. Stat. Ann. § 1009.101-1009.701 (repealed effective Oct. 1, 1984), which had defined “maintenance or use of a vehicle” as “maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into or alighting from it.” (Emphasis added). The MVFRL continues to use the phrase “maintenance or use” but does not define it. Thus, the strongest argument for the majority’s position is that there is no longer language explicitly covering alighting from a vehicle in the new law’s reference to the “maintenance or use” of the vehicle.

However, there is no legislative history to indicate that by enacting the MVFRL, the Pennsylvania legislature intended to exclude accidents occurring when a person exits a vehicle. Moreover, Pennsylvania’s Statutory Construction Act, 1 Pa. Cons.Stat. Ann. § 1921(c)(5), provides that it is appropriate to consider former law where legislative intent is unclear. Significantly, Pennsylvania intermediate courts have looked to prior statutes and case law interpreting these statutes to determine whether an injury “arises out of the maintenance or use of a motor vehicle.” See, e.g., Alvarino v. Allstate Ins. Co., 370 Pa.Super. 563, 537 A.2d 18 (1988) (analyzing prior statute and case law to determine that dog bite did not arise out of use of motor vehicle); Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 550 A.2d 1346 (1988) (analyzing prior statute and case law to determine that injury resulting from fight on bus did not arise out of use of motor vehicle).

In a recent Pennsylvania Superior Court case, the court reaffirmed that “maintenance or use” of a vehicle is presumed if the injured party is an “occupant” of the vehicle at the time of the accident. Lucas-Raso v. American Manufacturers Ins. Co., 441 Pa.Super. 161, 657 A.2d 1, 4 (1995). I do not understand the majority to dispute that Hilpl was an “occupant” of his ear at the time of the accident. See Tyler v. Insurance Co. of N. Am., 311 Pa.Super. 25, 457 A.2d 95, 97 (1983) (person alighting from vehicle still an occupant); Frain v. Keystone Ins. Co., 433 Pa.Super. 462, 640 A.2d 1352, 1357 (1994) (entering vehicle is transaction essential to its use). It follows that Hilpl was “using” his vehicle when he was injured.

In Lucas-Raso, upon which the majority relies, the court found no “use” but that case is distinguishable. When the plaintiff fell in a parking lot it was not while she was alighting but while she was walking around her car with the intent of entering it. She did not come into any contact with the vehicle in the course of her fall, and it would indeed stretch “maintenance or use” language to encompass “intended use.” In contrast, in this case Hilpl had never completely disengaged from his use of the car.

Hilpl described his position at the time of the accident in the following picturesque manner:

Q. Where was your weight? Was your weight on your feet at that point as you rose from the seat?

A. No. My weight was still on — my butt was still, like, in the car, and my feet went out from under me. You know, if you could only picture — you know, you’re getting out of the car and getting out of it front ways, and you have all of this and you’re inching out and your feet go out from underneath of you, like that (Witness indicating), and then you come down, and boom.

Q. So when your back hit the rocker panel — what you mean by the rocker panel, I’ll call the—

A. Where the door closes.

Q. The threshold of the door?

A. Yes.

Q. The bottom part that’s parallel to the ground?

A. No, the top part.

Q. Well—

A. Where the door closes. Where that silver thing is.

Q. Okay. Where the floor ends and the door part begins.

A. Yes.

Q. Okay. Now, when you came down, did you come down on to that rocker panel, that silver part you just mentioned?

A. Yes. That’s solid iron. That’s only a silver plate over that.

Q. And that silver plate is still within the car; correct?

A. Oh, yes.

Q. And, so, your back hit that portion still within the car?

A. Yes.

Q. After your back hit that portion, what did your body do?

A. I slid down on the ground.

App. at 194.

The majority appears to base its decision that Hilpl was not “using” his car when he was in the process of alighting from it and injured himself on the car’s rocker panel on the fact that the ear didn’t cause the injury. While it may be true that the ultimate cause of Hilpl’s injury was the grease left on the parking lot which he came in contact with, there seems to be no dispute that his injuries resulted from his physical contact with a portion of the car as he was exiting from it.

The majority concedes that under Pennsylvania law the causal connection required is not proximate cause; “but for” causation is sufficient. See Alvarino, 537 A.2d at 20-21 (“but for” causation is sufficient as long as there is connection greater than mere happenstance between injuries sustained and insured vehicle). That “but for” causation is evident in this case. But for the manner in which Mr. Hilpl exited his car, and but for the fact that he landed on the rocker panel of his car, this accident would not have happened. Thus, Mr. Hilpl’s accident and injuries were directly related to his use of the car. It is not helpful to speculate whether a different accident might have happened had he slipped on a slippery substance elsewhere in the parking lot. Thus, I believe Pennsylvania' courts would hold that Hilpl was vehicle oriented, because he was still partially in the car, the keys remained in the ignition and he was “inching out.” I would therefore affirm the decision of the district court.