L.S. v. David Eschbach, Jr., Inc.

CONCURRING AND DISSENTING OPINION BY

JOHNSON, J.:

¶ 1 In this case, the Majority concludes that L.S. was not an occupant of the school bus at the time of the accident, that the accident was a motor vehicle accident and that L.S.’s rights of recovery are limited by her mother’s limited tort automobile insurance policy.

¶ 2 I concur in the Majority’s conclusion that L.S. was not an occupant of the school bus. The Majority correctly states that L.S. can establish neither that she was vehicle oriented rather than highway-or-sidewalk oriented nor that she was engaged in a transaction essential to the use of the vehicle at the time of injury, which are the last two elements of the four-part test the Supreme Court established in Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). Therefore, L.S. was not an occupant of the school bus.

¶ 3 I also concur in the Majority’s conclusion that the accident was a motor vehicle accident. However, I do not agree that a motor vehicle accident falls within the purview of the Motor Vehicle Financial Responsibility Law when a pedestrian is struck down in traffic. In my view, the MVFRL does not implicate pedestrians.

¶ 4 The record establishes that on October 2, 1997, after alighting from her school bus and attempting to cross the street behind several school buses, which were in line behind her bus, L.S. was struck and injured by a car driven by William C. Hosier. L.S. commenced a suit against Brenda Lowery, who was the driver of the school bus, and David Eschbach, Jr., who owned the bus company, alleging that they were negligent for not following the proper unloading procedures. Thereafter, Lowery and Eschbach joined Hosier and Donald M. Shellenberger, who was the driver of the vehicle which allowed L.S. to cross in front of his vehicle and into the path of Hosier’s vehicle. L.S. filed a Stipulation of Discontinuance as to Hosier and entered into a joint tortfeasor release with Shellen-berger. Thus, this appeal pertains to L.S.’s negligence claims against Lowery and Eschbach.

¶ 5 I must respectfully dissent from the Majority’s conclusion that 75 Pa.C.S. section 1705 must be applied to pedestrians. The threshold issue before this Court is whether a pedestrian, in this case a minor, who is injured through the negligence of a motor vehicle operator is limited in her recovery by her mother’s election of the “Limited Tort Option” in the mother’s automobile insurance policy. Upon review, I conclude that section 1705 is inapplicable to pedestrians.

¶ 6 In this case, we are called upon to interpret section 1705(a) of the Motor Vehicle Financial Responsibility Law (MVFRL), which defines the insured’s rights under the limited tort option. See 75 Pa.C.S § 1705(a). It states in pertinent part:

§ 1705. Election of tort options

(a) Financial responsibility requirements.—

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NOTICE TO NAMED INSUREDS

A. “Limited Tort” Option — The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury” as set forth in the policy or unless one of several other exceptions noted in the policy applies....

75 Pa.C.S. § 1705(a).

¶ 7 The rules of statutory construction inform our understanding of section 1705 and guide our analysis of whether this provision applies to pedestrians. See 1 Pa.C.S. §§ 1901-1989. Section 1921 emphasizes that the legislative intent of the statute must control any interpretation of a statute. See 1 Pa.C.S. § 1921. See also Motorists Ins. Companies v. Emig, 444 Pa.Super. 524, 664 A.2d 559, 566 (1995) (stating that the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the legislature). Section 1921 states in pertinent part:

§ 1921. Legislative intent controls

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S. § 1921(a), (b).

¶ 8 The overriding intent of the legislature in enacting the MVFRL was to reduce the rising cost of purchasing motor vehicle insurance and deter people from failing to insure their vehicles. See Rajando v. State Farm Mutual Auto. Ins. Co., 704 A.2d 675, 677 (Pa.Super.1998) (stating “[t]he MVFRL was designed to deter people from failing to insure their vehicles more forcefully than the prior statute.”). See also Motorists Ins. Companies, 664 A.2d at 566 (determining that “[t]he intent of the General Assembly in enacting the MVFRL was to reduce the rising cost of purchasing motor vehicle insurance.”). The application of a limited tort motor vehicle insurance policy to a pedestrian does not effectuate the policies underlying the MVFRL. In fact, the application of the limited tort option to pedestrians could deter individuals from electing the limited tort motor vehicle insurance and thereby undermine the MVFRL’s effort to reduce the costs of motor vehicle insurance, since limited tort insurance enables insurance companies to limit their potential costs and thereby reduce consumer’s insurance premiums.

¶ 9 Moreover, section 1903(a) states that the words and phrases of statutes “shall be construed according to their common and approved usage.” 1 Pa.C.S. § 1908(a). See also McKelvey v. McKelvey, 771 A.2d 63, 64 (Pa.Super.2001) (concluding that words of a statute must be construed according to their plain meaning). There is nothing in the language of section 1705 to suggest that a pedestrian’s right to recover are implicated or limited by the election of a limited tort option in an automobile insurance policy. See 75 Pa.C.S. § 1705. Rather, the plain language of section 1705, as evidenced by 1705(a)(1), and 1705(b)(2), concerns only drivers and passengers of motor vehicles. See 75 Pa.C.S. § 1705. Section 1705(a)(1) states, that “the laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers.” 75 Pa.C.S. § 1705(a)(1) (emphasis added). Section 1705(b)(1) states, in pertinent part:

where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise”

75 Pa.C.S. § 1705(b)(1) (emphasis added). Taken together these subsections illustrate that the legislature intended section 1705’s limited tort option to include drivers and passengers exclusively. Therefore, section 1705 should not be construed to suggest that the legislature also contemplated the inclusion of pedestrians within the purview of Section 1705.

¶ 10 Moreover, the language of the MVFRL does not notify insurance consumers that their election of the limited tort option will limit their ability to seek a recovery if they are injured as a pedestrian. If the legislature had so sought to limit a pedestrian’s ability to seek a remedy it would have stated this expressly in the statute. In the absence of such statutory language, the MVFRL should be read to exclude limitations on a pedestrian’s rights of recovery. See Key Savings and Loan Ass’n v. Louis John, Inc., 379 Pa.Super. 226, 549 A.2d 988, 991 (1988) (determining that “[T]his Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it.”).

¶ 11 In this case, L.S. was neither a driver of a motor vehicle, occupant of a motor vehicle, nor a consumer of motor vehicle insurance. Thus, she is decidedly not a part of the population to whom this statute is directed and her rights of recovery as a pedestrian should not be defined by the statutory parameters of the MVFRL.

¶ 12 In Andreyo v. Radle, a trial court addressed the issue of whether a minor pedestrian is bound by the parent’s election of limited tort coverage. See 121 Dauphin County 167, 59 Pa. D. & C.4th, 2002 WL 32003974 (Dauphin County 2002). While the Andreyo decision is not binding on this Court, its analysis of this issue is relevant to the current discussion. In An-dreyo, the defendant, while driving his car, struck and injured the plaintiff, who was a fifteen-year old pedestrian. Thereafter, plaintiff filed a negligence complaint against the defendant. In his answer, defendant asserted that the MVFRL barred plaintiffs claim since plaintiffs father had elected the “limited tort option” in his automobile insurance policy and plaintiff was considered an “insured” under the policy. The trial court concluded that the statutory application of tort options applied exclusively to operators and passengers of vehicles and not to pedestrians. See id. at 171. The court reasoned that the MVFRL was not intended to apply to “an insured” when the “insured” is a pedestrian, on some other non-automobile conveyance; or.. .sitting in his living room should an errant automobile come crashing through his door.” Id. at 172. I agree with the Andreyo court’s reasoning, and conclude, accordingly, that neither the words and language of section 1705, nor the legislative intent of the statute will permit a statutory interpretation that a pedestrian wholly unattached to a motor vehicle whether as owner, operator, passenger, or any other type of occupant, is contemplated to fall within the purview of section 1705.

¶ 13 Nowhere in the MVFRL has the legislature even made mention of a person in their capacity as a pedestrian. Section 1705, both in its original form and as amended, contains no reference to pedestrians in any capacity. I am unable to join in a statutory interpretation that would interfuse the rights of the innocent pedestrian into the matrix designed to reduce the rising cost of purchasing motor vehicle insurance. I perceive such a clear intent in the enactment and implementation of the MVFRL, I dare not extend the scope of its coverage where our legislators have not.

¶ 14 Accordingly, I concur in the Majority’s determination that L.S. was not an occupant of the school bus and that the accident was a motor vehicle accident. However, I must most respectfully dissent from my learned colleagues’ conclusion that L.S.’s rights to recovery are limited by section 1705.