Phyllis DOROHOVICH, Appellant, v. WEST AMERICAN INSURANCE COMPANY, also known as West American Insurance Company of the Ohio Casualty Group of Insurance Companies, a Corporation; and the Ohio Casualty Group, also known as the Ohio Casualty Group of Insurance Companies, also known as the Ohio Casualty Insurance Company, a Corporation.
Superior Court of Pennsylvania.
Filed April 3, 1991.
589 A.2d 252
Argued Oct. 25, 1990.
In sum, I would find, consistent with the purposes of the Rule providing for late joinder of third parties, that the additional defendants, Dr. Hodess and Associates, should be joined in this proceeding.
Stephen P. McCloskey, Washington, for appellees.
Before CIRILLO, President Judge, and McEWEN and MONTGOMERY, JJ.
Phyllis Dorohovich appeals from an order entered on March 26, 1990 in the Westmoreland County Court of Common Pleas granting West American Insurance Company‘s (“West American“) motion for summary judgment. We quash.
On August 31, 1985, Ms. Dorohovich went to Wilson‘s Service Station to obtain unleaded gasoline for her 1978 Jeep and to fill two gasoline cans with leaded gasoline to be used in her lawn mower. Upon arriving at Wilson‘s, Ms. Dorohovich parked her vehicle in front of a gasoline pump which dispensed leaded gasoline. Ms. Dorohovich then exited her vehicle, and proceeded to the rear of the jeep to remove the two gasoline cans which remained inside the jeep. While Ms. Dorohovich was in the process of removing two gasoline cans from inside her vehicle, she was allegedly injured when gasoline was sprayed on her by Scott Kasparek, an employee of Wilson‘s Service Station. Ms. Dorohovich was removing the gasoline cans so that they could be filled with leaded gasoline to be used in her lawn mower; her motor vehicle used only unleaded gasoline. At the time of this incident, Ms. Dorohovich was insured under an automobile insurance policy issued by West American pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL“). See
Initially, in light of the procedural posture of this appeal, we must determine whether the trial court‘s decision to grant West American‘s motion for summary judgment on Ms. Dorohovich‘s claim for first party benefits is a final order for purposes of appeal even though her claim for uninsured or underinsured motorist benefits has been submitted to arbitration.
It is fundamental,
that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which ends the litigation or, alternatively, disposes of the entire case.... Conversely, an order is interlocutory and not final unless it effectively puts the litigant out of court....
In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications.... The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.
Praisner v. Stockner, 313 Pa.Super. 332, 336-37, 459 A.2d 1255, 1258 (1983) (citations and quotations omitted). Generally, because our courts frown upon piecemeal litigation, “an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.” Id. However, where separate and distinct causes of action have been joined in one complaint, a judgment entered on one or more of those causes of action is final and appealable because it terminates the litigation upon a separate cause of action and puts the litigant “out of court” on that cause of
We must therefore determine whether an order dismissing a claim for first party benefits is a separate and distinct cause of action or whether it is merely an alternate theory of recovery to the claim for uninsured or underinsured motorist benefits which is currently in arbitration. A cause of action has been defined as: “The fact or facts which give a person a right to judicial relief. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle a party to sustain and give him [or her] the right to seek judicial remedy in his [or her] behalf.” Black‘s Law Dictionary 201 (5th ed. 1979).
An order is final if it puts the aggrieved party out of court “on all theories of recovery asserted against a given defendant for a given loss.” Sweeny v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987). Alternate theories of recovery are different means to recover the same damages or relief for a single harm. Garofolo v. Shah, 400 Pa.Super. 456, 583 A.2d 1205 (1990) (en banc). Separate causes of action seek different relief for different harms. Id. As such, if a litigant seeks recovery under alternate theories for a given loss, an order dismissing one
Based upon the foregoing discussion, we will focus upon the loss or losses for which Ms. Dorohovich sought recovery in her multi-count complaint. Motheral, supra. West American, pursuant to the instant policy, has promised to pay benefits to Ms. Dorohovich if she sustained injuries arising out of the maintenance or use of a motor vehicle. Ms. Dorohovich has allegedly suffered injuries and West American, pursuant to the contract of insurance, has refused to pay her any benefits. Consequently, Ms. Dorohovich has essentially filed a breach of contract claim against West American to recover benefits allegedly due her under the instant contract of insurance.
In Ms. Dorohovich‘s claim for uninsured or underinsured motorist benefits she requests $20,000.00 plus costs for losses and damages uncompensated by other insurance. In her claim for first party benefits, Ms. Dorohovich seeks $20,000.00 plus costs for medical expenses, loss of earnings, and impairment of earning capacity. The breach of contract claim for uninsured or underinsured benefits does not specify what damages and losses amount to $20,000.00. However, the gas station employee‘s conduct which allegedly resulted in Ms. Dorohovich‘s injuries gives rise to her contractual claim for both first party benefits and for uninsured or underinsured benefits. Moreover, since we find that the losses pled specifically in the claim for first party benefits are the same losses pled generally in the claim for uninsured or underinsured benefits, Ms. Dorohovich can be compensated for those losses through her claim
In sum, because both of Ms. Dorohovich‘s claims seek recovery for a single loss and arise under one insurance policy, the two claims are merely alternate theories of recovery on the contract of insurance. As such, Ms. Dorohovich is not out of court on all theories of recovery and the order granting West American‘s motion for summary judgment on the claim for first party benefits is interlocutory and must be quashed. Motheral, supra; Garofolo, supra; Praisner, supra.
However, even if the instant order were appealable, our review of the merits of the case would lead us to conclude that Ms. Dorohovich is not entitled to recover first party benefits under the instant policy, and that West American‘s motion for summary judgment was properly granted. Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035(b), which provides in pertinent part:
The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The relevant portion of Ms. Dorohovich‘s insurance policy provides as follows:
We will pay Basic First Party Benefits to or for a covered person who sustains bodily injury caused by an accident arising out of the maintenance or use of a motor vehicle.
(emphasis added). When interpreting the provisions of an insurance policy we are guided by the following:
The interpretation of an insurance policy is a question of law that is properly reviewable by the court.... In construing the policy we are mindful that “[p]olicy clauses providing coverage are interpreted in a manner which affords the greatest possible protection to the insured.... The insured‘s reasonable expectations are the focal point in reading the contract language.” ... Our object, as is true in interpreting any contract, is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument.... Where a provision of a policy is ambiguous, the policy is to be construed in favor of the insured and against the insurer, the drafter of the agreement.... Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.
Geisler v. Motorists Mutual Insurance Co., 382 Pa.Super. 622, 626-27, 556 A.2d 391, 393-394 (1989) (citations omitted); see also Smith v. United Services Automobile Association, 392 Pa.Super. 248, 572 A.2d 785 (1990). Ms. Dorohovich contends that there is a genuine issue of material fact as to whether she is entitled to first party benefits pursuant to the instant insurance policy. Specifically, relying upon Ei-
The purpose underlying the MVFRL “is to provide broad coverage to assure the financial integrity of the policyholder, and ... [it] is to be liberally construed to effectuate that purpose.” Callahan v. Federal Kemper Insurance Co., 390 Pa.Super. 201, 207, 568 A.2d 264, 267 (1989). To effectuate this purpose, courts have declined to impose external restrictions upon the rights of claimants. Id. Nonetheless, an automobile insurance policy is not designed to provide general liability coverage.
With the above principles in mind, we must determine whether Ms. Dorohovich‘s injuries “arose out of the maintenance or use of a motor vehicle.” The phrase “arising out of the maintenance and use of a motor vehicle” is not defined in the MVFRL. This court, however, has previously looked to the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act (“No-Fault Act“),
although the insurance contract does not require the injury to be the proximate result [of the maintenance or use of a motor vehicle] in the strict legal sense of the term, it does not extend to something distinctly remote, although within the line of causation. The claim of responsibility has to be deemed to possess the requisite articulation with the use or operation of the vehicle until broken by the intervention of some event which has no direct or substantial relation to the use or operation [of the motor vehicle.]
McKelvey, 392 Pa.Super. at 221-22, 572 A.2d at 771. Accordingly, in determining whether the injury arose out of the maintenance or use of the motor vehicle, we must look to the “instrumentality used to cause the injury.” Smith, 392 Pa.Super. at 252, 572 A.2d at 786 (quoting Spisak v. Nationwide Mutual Insurance Co., 329 Pa.Super. 483, 387, 478 A.2d 891, 893 (1984) (emphasis original)).
The claimant in Eichelberger had been stranded on the side of a highway because her vehicle had run out of fuel. Consequently, there was a causal connection, arguably attenuated, between the automobile and her injury. Here, it is undisputed that Ms. Dorohovich‘s vehicle uses only unleaded gasoline and that although she had stopped at the gas station to obtain gasoline for her vehicle and for her lawn mower, when she was sprayed with gasoline her auto was parked in front of the gasoline pump which dispensed only leaded gasoline. Moreover, Ms. Dorohovich was sprayed with leaded gasoline by the gas station attendant who had retrieved the leaded gasoline pump to fill Ms. Dorohovich‘s gasoline cans. As stated earlier, the leaded gasoline was to be used not in her motor vehicle, but in her lawn mower. Consequently, Ms. Dorohovich‘s injuries, at best, arose out of the maintenance and use of her lawn mower, not her motor vehicle.
Additionally, when Ms. Dorohovich was sprayed with the gasoline she was standing outside the rear of her vehicle and was attempting to retrieve the gasoline cans by reaching into the vehicle. This court has, on many occasions, been asked to determine whether an insured‘s injuries, sustained while loading or unloading a motor vehicle, arose out of the maintenance or use of a motor vehicle. See Huber, supra; Omodio, supra; Callahan, supra; Martin
Here, unlike Huber, there is no specific exclusion which prevents recovery for injuries sustained while loading or unloading a motor vehicle, except while occupying the vehicle.6 It is clear, however, that Ms. Dorohovich was outside her vehicle attempting to unload the gasoline cans when she was sprayed with gasoline and therefore her injury did not arise out of the maintenance or use of her motor vehicle. See Huber, supra; Dull, supra (injuries,
Further, the insureds in Callahan and Omodio were injured as a result of unloading their respective motor vehicles. See Callahan, supra (insured injured while lifting bathtub inside the trailer); Omodio, supra (insured sustained injury to his lower back while standing inside and loading his truck). Here, Ms. Dorohovich‘s injuries did not result directly from the act of unloading gasoline cans from her motor vehicle, but rather the act of a third party—the gas station attendant. As such, Ms. Dorohovich‘s injuries were caused by a source which was external to the vehicle, not the vehicle itself. See Smith, supra; Alvarino, supra; Schweitzer, supra.8 Therefore, were we to address the instant issue, we would conclude that the requisite causal connection between the maintenance or use of the motor vehicle and Ms. Dorohovich‘s injuries was not present, and
Appeal quashed.
McEWEN, J., files a concurring and dissenting opinion.
McEWEN, Judge, concurring and dissenting:
The majority opinion understandably concludes that the order which granted the motion of West American for summary judgment on the claim of appellant for first party benefits is interlocutory because appellant is still able to pursue before arbitrators an alternate claim for uninsured or underinsured benefits, thereby requiring that the appeal be quashed. The majority does not, however, simply quash the appeal but proceeds instead to a learned discussion of what will, for the arbitrators, be an issue of fundamental focus, namely, did the injuries of appellant arise “out of the maintenance or use of a motor vehicle“.1 As many advocates will characterize that further discussion by the majority as commendable, as will label it needless dicta. Those advocates would all agree, however, that once the issue becomes a matter of discussion, expression of a contrary view becomes a matter of obligation. Thus it is that I state that, in my opinion and contrary to the expression of the majority, the injuries of appellant did arise from “maintenance or use of a motor vehicle“.
West American states repeatedly in its preliminary objections, its memorandum in support of the preliminary objections, and its brief to this court that appellant suffered the injuries while “she was attempting to remove a gasoline can from the rear of her automobile“. Therefore, West American, in my view, acknowledges—admits if you will—that appellant was “unloading” the vehicle. The carefully craft-