Holland Ex Rel. Holland v. Marcy, 817 A.2d 1082

Holland Ex Rel. Holland v. Marcy

817 A.2d 1082

Pa. Super. Ct.

2002

Check Treatment

*1 31, 2002, Court on December pursuant 214(d)(1), Pa.R.D.E.,

Rule directing Rolf

R. Larsen to why show cause he should

not be placed on temporary suspension,

upon consideration of the merits filed,

responses it is hereby

ORDERED that the Rule is made abso-

lute; Rolf R. Larsen placed on tempo-

rary suspension and he shall comply with

all the provisions of Pa.R.D.E.; Rule

and the matter is referred to the Disciplin-

ary 214(f)(1), Board pursuant to Rule

R.D.E.

Chief Justice CAPPY and Justice

LAMB did not participate in consideration

or decision of this matter. HOLLAND,

Joel M. Holland, Heather L.

Minors, by HOLLAND, Theresa L. Guardian,

Parent and Natural Holland,

Theresa L. in Her Own

Right, Appellants, MARCY, Appellee,

Edward E.

Joel R. HOLLAND.

Superior Pennsylvania. Court of

Argued Feb. 2002.

Filed Dec. *2 JOHNSON, SOLE, P.J.,

Before: DEL ELLIOTT, HUDOCK, ORIE FORD TODD, MELVIN, LALLY-GREEN, BOWES, and JJ. BENDER MELVIN, BY J.: ORIE OPINION and Holland Appellants, Joel Holland, through minors Heather Holland, mother, appeal Theresa their summary judg granting from the Order Edward E. Appellee, ment in favor of Marcy. trial court determined auto neglected acquire mother because regis her mobile coverage tered and was deemed to therefore option pur the limited selected 1705(a)(5), mi suant 75 Pa.C.S.A. Appellants shoes nor stood the same as their likewise deemed mother subject recovery. to a trial court found reaching this decision the expressed the rationale persuasive of Hames v. Commonwealth Court case Housing Authority, 696 A.2d Philadelphia (Pa.Cmwlth.1997). rep Homes Since conflicting from this viewpoint1 resents a Burkes, Court’s decision Ickes v. en (Pa.Super.1998), granted A.2d we banc re-examine this certification review, After Court’s view on issue. the Homes persuaded we anaylsis Our reasoning. Court’s interplay the relevant sections between Motor Financial Pennsylvania Vehicle (MVFRL), prior Responsibility Law term construing the appellate precedent MVFRL, in the “owner” used convinces as Ickes, expressed in as us that the rationale herein, is the better fully crystallized more Sciarrino, Erie, for Anthony appel- J. Therefore, grant view. we reverse lants. fur and remand for summary judgment Budde, Erie, Marcy, ap- K. to the minor proceedings respect Joanna ther pellee. Appellants. Lewis, 1262, 1265 718 A.2d n. recognize that "a monwealth

1. We of course decision denied, binding pre (Pa.Super.1998), appeal is not the Commonwealth Court however, Court; may it upon this cedent persuasive for its value.” Com considered FACTS AND injuries PROCEDURAL HISTO- were not serious defined RY MVFRL, thus, judgment summary appropriate. Appellants respon- filed ¶ 2 Before turning to a discussion briefs, 27, 2000, September sive and on issues, legal we set forth the facts and *3 oral argument was heard before the Hon- procedural history of this matter. This Connelly. January 5, orable Shad On negligence action arose a from motor vehi- 2001, Judge Connelly granted summary cle accident early occurred judgment. timely This appeal followed. 3, morning August Appellants 1997. passengers in a 1985 Chevrolet Ce- ISSUES lebrity by owned Theresa and be- Holland ¶ 4 ex-husband, Appellants frame two for our by driven issues ing her Joel R. Hol- First, [Appel- “[a]re land. The Holland consideration. minor travelling vehicle was easterly by in an direction in the left lane bound the vehicle lants] [sic] owners’ County, imputed State Route 20 in Pennsylva- option Erie selection of the limited tort An nia. accident occurred when Mr. Mar- if the owner fails to have insur- automobile who cy, traveling easterly was right brief, Appellants’ ance?” at 5. Alternative- lane, abruptly made a left crossing turn ly, if the limited tort appropri- was left (passing) lane into the west- ately applied injuries “[a]re the of Joel bringing bound lanes State Route (facial 20 his scarring), Holland na- of sufficient vehicle into contact with the vehicle occu- require jury ture to a if said determine serious, by the pied Appellants. result As a of the injuries constitute ‘permanent dis- impact, Joel Holland suffered laceration figurement’ under Section 1702 of the forehead, scar; to his leaving a and further Id. [MVFRL]?” sustained a sprain. cervical strain and DISCUSSION

Heather Holland suffered a contusion of knee, right her sprain, cervical strain and ¶ Initially, 5 we note that when consid face, contusions to her and recurrent nose ering whether the trial court erred Appellants bleeds. against instituted suit summary granting judgment, our review Marcy to Mr. recover and non- economic Kleban v. plenary. National Fire Union damages economic sustained as a result of (Pa.Su 39, Insurance 771 A.2d 42 alleged negligence. his Moreover, per.2001). this Court is not bound the conclusions of the of law Thereafter, 3 an An- Marcy Mr. filed court, trial swer, may as we reach our con own New Matter and a Complaint Join and draw our clusions own inferences. Additional Defendant R. Holland2. Joel Ins., Adamski Allstate 738 A.2d 1033 Following discovery, which revealed that denied, (Pa.Super.1999), appeal Pa. 563 coverage on the Holland vehicle (2000) omitted). 655, (citation 759 A.2d 381 lapsed, Marcy had Mr. filed Motion for Summary mayWe disturb the trial order Judgment mi- court’s arguing Appellants only upon finding of an law or nor were bound the deemed error of abuse of discretion. selection result- Bostick v. Schall’s Inc., 1232, from ing Repairs, Theresa Brakes and Holland’s failure to 725 A.2d denied, appropriate (Pa.Super.1999), maintain insurance on her mo- 1236 appeal tor vehicle. He further that all asserted of Pa. 743 A.2d 912 deter injuries Appellants claimed mining summary whether judgment ex-husband, Marcy's Additional Defendant Joel matter or raised defenses to Mr. Holland, appeared R. has never the instant claims. nor necessary permit struction is neither granted, applies this Court properly Property, Pennsylvania ted. Price v. standard as the trial court. Harber same (Pa.Super.2002). “When A.2d 407 City Philadelphia Limited v. Center Office unambigu clear and words of a statute are Partnership, Ltd. A.2d LPCI ous, under disregard them court cannot denied, 506 (Pa.Super.2000), appeal spirit pursuing pretext (citation (2001) omit- Burgoon, Pa.Super. statute.” Grom ted). (1996); 1 Pa.C.S.A. Summary judgment is when the proper 1921(a). pleadings, depositions, answers inter- file, involves the inter- Since this matter rogatories, and affi- admissions on *4 the of sections of pretation various davits demonstrate that there exists no MVFRL, by analyzing the begin we must genuine issue of material fact and the express of the statute. Kmonk- words moving party judgment is entitled to as Mut. Auto. Ins. Sullivan v. State Farm determining a matter of law.... 514, 521, 955, A.2d 959 567 Pa. 788 judgment whether a grant summary to (2001). examination, therefore, begins Our trial court must resolve all doubts 1705(a)(5), § provides: which “[a]n moving against party and examine currently registered private owner of a light in a record most favorable to motor vehicle who does not have passenger Summary the non-moving party. judg- be to shall deemed may only granted ment eases the limited tort alternative.” chosen where it clear and from doubt is free added). part In relevant (emphasis moving party judgment is entitled to as 1705(b)(2) § states: tort “[t]he a matter of law. to apply elected a named insured shall Greco, 945, v. A.2d Schwartzberg 793 947 passenger under private all insureds Cohen, (Pa.Super.2002) (quoting Piluso policy motor are not named vehicle who 549, 764 A.2d 550 (Pa.Super.2000), appeal private passenger under another insureds denied, (2002) added). (emphasis motor policy.” vehicle (citations omitted)). 1705(b)(3) provides that “an indi- Section ¶ Moreover, statutory interpre 6 currently is not an of a vidual who owner tation issues of that are involves law sub registered private passenger motor vehicle ject plenary to review Court. insured or in- and who is not named Packer, Commonwealth 798 any private passenger mo- sured under judi A.2d 192 The primary goal of precluded policy tor shall not be interpretation cial statutes is ascer maintaining from an action noneco- give Legislature’s tain effect nomic or economic loss sustained loss Lenko, intent. Holt v. A.2d accident as the conse- a motor vehicle (Pa.Super.2002). Legislature’s intent person pur- the fault of another quence of all reading “can be derived sec law.” applicable (emphasis suant together added). and in tions of the statute con note that under Additionally, we 1702(2) 1705(f), junction with each other and construed an § § “Insured” both statute.” in the any residing with reference entire is defined as individual O’Malley, insured who is ex rel. Storms v. of the named Storms household named (Pa.Super.2001) (quoting A.2d Pa other relative of the spouse or (Pa.Su Isdaner, custody of insured; a minor in the nea v. or or relative ordinary named insured plain If either the per.2001)). clear, insured. Pa.C.S.A. judicial named meaning of a is con- statute 1705(f) 1702(2), added). Therefore, (emphasis A the Commonwealth Court “named insured” is defined “[a]ny as indi- it necessary found to remand so the trial vidual identified name an as insured court could determine the reports whether policy private passenger motor vehicle raised an fact concerning issue of whether 1705(f). insurance.” 75 Pa.C.S.A. the minors impairment sustained serious bodily function. The Commonwealth ¶ Appellants application advocate for Court went on to address the alternative in Ickes to the facts of this holding of our argument the minors were neither Conversely, case. Marcy argues Mr. owners of their mother’s vehicle nor Hames applicable more because its facts named insureds under automobile in- virtually identical. Initially, we note thus, surance not barred from the fact that Ickes injured involved an pursuing recovery. full tort Hames, adult passenger whereas case, injured instance passengers involved ¶ 11 In rejecting appellants’ argu- who were minors ais distinction without a ment, in Hames concludes as panel difference determining proper inter- follows: pretation applicable provisions uninsured, Because her vehicle was *5 the MVFRL. Angela by operation Hames is deemed Hames, 9 In appellants, of law to have Venice selected the limited tort Hames, Hames, minor, 1705(b)(2) Moreover, § Venicia provides Hames, minor, Kiara were involved in an option that the tort selected a named accident in which their vehicle apply collided insured shall to all insureds under with a vehicle driven an employee policy. Logically, then it must fol- appellee, the Philadelphia Housing Author- low that Venica and Kiara are bound . ity. Venice driving Hames was an unin- their mother’s deemed selection of the Plymouth sured Voyager minivan regis- option, limited tort regardless of wheth- wife, tered to his Angela Hames. Venicia er she had an insurance on her Kiara, age six and respectively three vehicle. accident, at the time of passen- were To decide accept Ap- otherwise and to gers in the Appellee vehicle. filed a mo- pellants’ argument greater would afford tion for summary judgment on ground rights parents to minor children whose that Venicia and Kiara were bound have no insurance than to minor chil- option Angela because Hames’ dren whose in- parents purchased Thus, vehicle was uninsured. the children surance and chosen op- the limited tort were not entitled to recover non-economic tion. damages they unless suffered serious Hames, 696 A.2d at 888. disagree We

injury. The trial court agreed and further 1705(a)(5) interpretation with this the, that injuries determined minors’ (b)(2). in Hames does holding not serious and granted therefore sum- provide analysis not an of the terms used mary judgment. the relevant sections or make refer-

¶ 10 appeal On the Commonwealth ence to provided by the definitions initially Court inju- considered the serious MVFRL concerning meaning of the record, ry question. After reviewing terms “named insured” or “insured” as (b)(2) the court determined that it Rather, was unclear as used in subsections re- Hames to whether appellants actually had that parents assumes children of ceived certain at the reports comply medical time who fail to with the financial re- the trial court granted summary judgment. sponsibility requirement would be treated The vehicle was vehicle. uninsured motor parents who do than children of better solely in her hus- registered titled and regard point would out comply. we against filed suit Mrs. Ickes have no band’s name. parents who that the children injuries sustained for the Ms. Burkes necessarily better off recovery for both eco- seeking the accident purchased who have parents than those of damages. Ms. and non-economic op- the limited tort nomic insurance and chosen seeking in limine is not Burkes filed a motion A without insurance parent tion. was not en- that Mrs. Ickes crimi- subjecting himself or herself to determination Rather, she recovery. full tort risking the loss titled to prosecution but is also nal by the limit- bound Mrs. Ickes was argued if is found to family parent assets to was deemed her husband an More- ed tort causing be at fault in accident. Alternatively argued she over, by an unin- have chosen. if the Hollands were hit interest tortfeasor, property had a would not have their that Mrs. Ickes they sured was a car. Therefore she or underinsured motorist her husband’s own uninsured of the uninsured no re- de owner coverage tap into and thus risk facto chosen the limit- to have covery judg- the tortfeasor is and also deemed the event 1705(a)(5). §of by operation sight not lose ed tort proof. ment We must arguments, rejected trial court both purpose requiring finan- The fact in favor of jury returned a verdict cial is to insure that and the respond has the Mrs. Ickes. ability tortfeasor inflict- for the harm he or she has

damages affirmed. We appeal this Court On upon ed the innocent victims. entitled, pursuant found Mrs. Ickes *6 ¶ essence, 1705(b)(3), 12 In full tort benefits § the Hames Court to collect with when equating owner named insured because: pro-

in fact and the definitions precedent 1) currently of a was not an ‘owner’ she hold vided in the statute itself lead us to to a lack motor vehicle registered [due articulated, ap- it Although otherwise. not 2) she was not ownership]; of indicia of inferring that pears the Hames court is any private passenger under an ‘insured insured,” and Angela Hames was “named 3) she was policy;’ motor “in- therefore her minor children were that The fact fault for the accident. at under the nonexistent As “policy.” sured” husband, of an unin- as the owner her such, option, Angela the limited tort which vehicle, sured, was currently registered was deemed to have chosen Hames have chosen the limited to ‘deemed law, in- to all operation apply of would law, alternative,’ see 75 of operation mo- “private passenger sureds under her 1705(a)(5), mean § does not Pa.C.S.A. argument This contra- policy.” tor vehicle is an ‘insured’ Ickes] that the [Mrs. the in language dicts the clear used by the MVFRL. defined MVFRL, ignores purpose Ickes, reaching this at 656. In 713 A.2d 1705(a)(5), punish which serves to 1705(b)(2) and §§ compared decision we vehicle for them of an uninsured the owner (b)(3) with interplay their and examined failing in to meet or willfulness neglect 1705(a)(5) the defini- by reference to responsibility prescribed financial their 1705(f). the def- §in Given provided tions e.g., Habbyshaw, law. See infra. we found by the MVFRL supplied initions

¶ unambiguous case, clear and was In Ickes Mrs. Ickes 1705(b)(2), application- describes which accident while in a motor vehicle injured by reference options of the tort in husband’s passenger her riding as election, well as a de facto indicia only applies named insured’s the vehicle as an owner ownership” to be considered poli- situations where there is an insurance § 1714 of the Be pursuant cy in a named insured MVFRL. place thus thea, upon 126. Based Bethea supra at there policy. pri- under Where is no inquiry in Allen became whether there passenger vate motor vehicle insurance indicia of control or owner was “sufficient place there can be no “named imputing ship support which would Thus, only person insured.” that can obligation provide responsibili be deemed to have chosen the limited tort In answer ty” onto the driver-husband. uninsured, an an alternative is owner of question looked to certain de ing this we currently registered vehicle. factors, namely: the husband’s terminative ¶ holding in lakes is consistent Our property in the vehicle under interest Court’s, with this as well as the Common law; Pennsylvania property marital wealth Court’s construction of the term purchased fact that was automobile provisions “owner” as used other married; the hus couple after the MVFRL, person as a that has “an actual the owner-wife on the residing band’s cognizable property right the vehicle as accident; permitting date the wife’s ownership.” well as de facto indicia of See the husband to drive the vehicle which he v. Pennsylvania Responsibili Bethea Fin. knew was uninsured at the time he was Plan, ty Assigned Pa.Super. Claims it; and, enjoyment driving husband’s (1991) Habby of the use and benefits of the car. Under DOT, Licensing, shaw v. Driver Bureau of facts, imputed these we the wife’s owner (Pa.Cmwth.1996) (discussed 683 A.2d 1281 conse ship status onto the husband and infra). quently imputed the denial of entitlement Merriweather, In Allen v. first-party to receive benefits. (1992), Pa.Super. appeal 605 A.2d 424 contrast, deter- where we have denied, (1993), indicia mined there insufficient was asked to determine wheth Court ownership impute we have refused to aer husband-driver of an uninsured motor instance, Ibarra, ownership status. For *7 vehicle, registered solely and titled in his injured, supra, this held that a wife Court name, wife’s was considered an “owner” of titled driving while an uninsured vehicle § the uninsured vehicle under 1714 of the hus- registered solely estranged and her § MVFRL. Pursuant to an owner of name, an owner of the band’s was not registered vehicle that not have does did have a inter- property nor she financial cannot recover responsibility Consequently, in the vehicle. we did est first-party resolving benefits. In this for impute upon responsibility not her the question applied we the definition of owner respon- financial the decision not to secure §in 102 found of the Vehicle Code to the sibility, precluded and thus she was guided by and the MVFRL were further recovering first-party § 1714 under from Fin. Pennsylvania decision Bethea different benefits under her on a Plan, Co., 407 Responsibility Assigned Claims In Elder v. Nationwide Ins. vehicle. (1991) (which (1991), 122 Pa.Super. A.2d we Pa.Super. 410 599 996 holding in Ibarra v. ef- prior preclusive clarified our declined to extend the also Casulty § Ins. without an Property persons Prudential & fect of own- (1991)). Pa.Super. 585 A.2d 1119 interest in the uninsured vehicle. ership Bethea, Therein, person language (cid:127)In that a must we noted that “the of we held preconditions applicability its cognizable property right [§ 1714] “an actual of without highway of a this Commonwealth upon ownership currently regis- the required by responsibility the financial tered vehicle.” at 998. but uninsured Id. 1705(a)(5) penal- chapter. this In addition to § Similarly, pre- of (d), any per- provided by ties subsection upon application conditions its the owner- with this subsec- comply son who fails to ship currently registered of a unin- but summary offense and tion commits sured vehicle. shall, conviction, sentenced to upon ¶ Moreover, DOT, Habbyshaw a fine of pay $ Licensing, Bureau Driver of added). (emphasis Pa.C.S.A. (Pa.Cmwth.1996), the Commonwealth the court therein reference this section question Court of whether considered provision under this “[i]t stated: is clear deemed an husband could be “owner” of failing penalties comply the car in his wife’s registered name for require responsibility financial purposes §of 1786. Section 1786 of the ments, criminal and administra including pertinent part provides MVFRL as fol only to owners or penalties, apply tive lows: registrants.” A.2d Habbyshaw, 683 at Required responsi- § 1786. financial added). (emphasis bility ownership ques- In answering (a) Every General motor vehicle rule. — 1786 of purposes tion for Section type required to be registered specifi- MVFRL the Court Commonwealth operated title under this which or reasoning in cally applied Al- this Court’s registered shall be currently covered and The Commonwealth len Bethea. responsibility. financial were sufficient Court concluded there husband based on ownership indicia (d) Suspension registration op- the time of his traffic the facts that “[a]t erating privilege. Department of —The were married and stop, he his wife suspend shall Transportation regis- The car was living together. [husband] a period tration of a vehicle for of three vehicle in the house- driving only was the if required months it determines the hold, he licensed driver. and was the was not secured at errand Appellee personal on a required by chapter shall time, interview, job he had not asked operating privilege suspend car for that permission wife’s to use the his registrant a period owner or He to the car and errand. access had department if the three months deter- Id. at it it was uninsured.” knowing drove registrant or mines that the owner has *8 operated permitted operation or husband, Thus, Ickes, as the in required without the finan- vehicle currently regis- sole owner of an uninsured responsibility. cial vehicle, to chosen tered was deemed pursuant limited to tort alternative (f) 1705(a)(5). However, properly we de- Operation § a with- of motor vehicle status as required responsibili- impute clined to his deemed out financial who had no to his wife a motor limited tort selector ty. -Any owner of vehicle — by Be- ownership as established responsi- existence of financial interest which the in the unin- riding merely thea and was legal oper- for its bility requirement is a time of the accident operate vehicle at the the motor vehi- sured ation shall not the wife was operated injuries. her Since permit causing upon cle it to or policy. Consequently, they per finan- are legal obligation under no to maintain cle maintain an action for non- did not mitted to both responsibility cial for vehicle she own, subject to the same economic loss and economic loss sustained she could not be of the fault of consequence as the another punishment as an owner who has violated applicable tort law. To person pursuant the law. innocent vic punish hold otherwise would difficulty 21 The with Homes’ rationale of another. Hen tims for the conduct See revealed one considers related is when Harleysville rich v. Ins. instance, provisions of the MVFRL. For (1993) (wherein our Su without operates an owner who a vehicle found that the restriction preme Court requisite com against recovery of first benefits party summary subject mits a offense and is registered vehicles owners uninsured suspension registration fine of vehicle and such apply passengers does not operating and 75 Pa.C.S.A. privilege. See also, vehicles); Berger v. uninsured see 1786(d) (f); Habby §§ 1785 and & and Rinaldi, 78, 651 A.2d 553 Pa.Super. shaw, If supra. accept we the rationale denied, (1994), appeal Harms, expressed in then extension we (1995) 1705(a) § (holding that A.2d 971 willing would also have to be to deem where the apply does not to situations spouse having innocent nonowner his uninsured operating claimant was not subject and summary committed a offense accident). vehicle at the time of the suspension operat her a fine and of her ing privilege. example This is but one ¶ Essentially, glean what can be construction of where Homes Court’s Allen, Ibarra, Bethea, ed from the cases of 1705(a)(5) (b)(2) § could lead to an §§ Habbyshaw Elder and is that incongruous result. 1786(d) 1752(a)(3), 1785, (f), serve to only the owner for his or punish

¶ 22 Fortunately, words used failure to maintain insurance on their her 1705(b) § clearly of the MVFRL are de 1705(a)(5) no different. vehicle. Section is fined, engage and thus we need not Hence, rule of stare deci application of the there statutory construction. this case 1705(a) § must sis dictates be construed no the fact that the minors dispute is over Furthermore, the same manner. Further, they owners. do not 1705(b), § applicability of which is titled meet the definition of either a “named dependent “Application options,” of tort provided insured” or an “insured” as a “named upon who is or is not considered 1705(f). § Accordingly, when Consequently, or an (3) insured” “owner.” (b)(2) 1705(a)(5), are read to- of “insured” and light meaning of the clear gether and the terms used therein are construction past “named insured” and our given .plain meaning as defined “owner,” to now find that Joel of the term 1705(f), § the minors can fall within are barred Holland and Heather Holland 1705(b)(3), §of as individuals the ambit un losses recovery from of non-economic currently regis- who are not owners of 1705(b)(2) engage in requires der us to private passenger tered motor vehicle redrafting judicial impermissible named or insureds an who are not insureds *9 1705(a)(5). § find that the Homes de private passenger vehi- We under motor parties may though the be different.” that for even 3. rule of decisis declares "The stare 578, certainty, Tilghman, reached in the sake of a conclusion v. 543 Pa. Commonwealth 898, applied (1996). which to those one case should follow, 903 n. 9 n. same, substantially if the facts are minors. We to bility under the MVFRL just by expanding cisión does 1705(a)(5). § The effect of the scope reasoning.4 of adopt to decline punitive to extend the Hames decision is sum, precedent as the above 1705(a)(5) beyond § the vehicle’s scope of stemming illustrates, consequences blame on the own- placing owner also requi- meet the failure to from an owner’s and other resident relatives spouse er’s the MVFRL financial site they otherwise have where the facts show to owners or those only flow should ownership interest. As a matter no con- It would be to be owners. deemed statutory interpretation, although “one attentively to what a that a non- admonished to listen to now hold tradictory us says[;] one must also listen atten- statute chil- as in Ickes or minor spouse, owner say.” it not Felix tively to what does case, instance in Hames and the dren as Frankfurter, Reflections on Some selected the limited are deemed to have Statutes, L.Rev. Reading of 47 Colum. 1705(a) § when we pursuant to (1947). If the intend- Legislature similarly do so for situated would not beyond to limited tort status impute ed 1752(a) and 1786. under spouses it could have owner of an uninsured vehicle Therefore, holding in we reaffirm our easily language included the “owner’s previous with the keeping Ickes as it is spouse and other resident relatives” to ef- of the term owner as used construction Instead, specifi- it fectuate such a result. and the the MVFRL both this Court 1705(a)(5) § cally scope limited the recognize Court.5 We Commonwealth precedent well as Accordingly, owners. as reaffirm Ickes leaves that our decision to logic dictates that we also decline to ex- a conflict between this Commonwealth’s 1705(a) § preclusive tend the effect of issue, intermediate courts on the appellate ownership an interest persons without authority must await deter- and thus final the uninsured vehicle. The Hames None- Supreme mination our Court. 1705(a) § conjunc- application Court’s theless, carefully reviewing ap- after 1705(b)(2) § tion with its construction of area, and in this pellate jurisprudence imputing this case would have the effect of decisis, and respect to stare obligation provide responsi- giving due suggests insured’ as defined in 75 Pa.C.S.A. 4. The dissent of the 'named (he 1705(f) "clearly § statute ... an did have financial [she] evinces intent because 1705(a)(5) legislature legal to create the fiction of an have responsibility, would not policy where the uninsured owner have merely was ‘deemed to [she] stated but, rather, place of a vehicle stands in the of a named option,’ chosen the limited tort slip p. legislature can insured” 4. While the expressly was deemed stated [she] would employ legal an fiction to secure intended private in a to be a ’named insured ” result, disregard plain Ickes, courts should not passenger motor vehicle insurance.’ Baxter, meaning Washington of a statute. Moreover, Judge Hudock 713 A.2d at (1996); 719 A.2d 733 Guinn v. Statement, Concurring if the points out in his 500, 614 Alburtis Fire 531 Pa. A.2d result, Legislature it is did not intend such Hamer, (1992); Commonwealth power legislative to correct and not within the Here, reading plain judiciary. statutory definition of the term "named usage along the common insured” per- of the first issue 5. Since our resolution past "owner” dic- of the term construction recovery pursue plaintiffs to mits the minor result. tates the instant dam- and non-economic for both economic injuries ages, question of whether their colleague, Judge Popovich, recognized As our disfigurement permanent serious Legislature had intended constitute in Ickes "If the is moot. 1702 of the MVFRL position] to be under Section in Theresa Holland’s [someone *10 court, parents by due deference to our sister it is our dren whose flout the law considered view that this Court’s decision buying insurance than to children of more Ickes reflects a more in jurisprudentially responsible parents purchase who liability sound rationale. insurance, but who choose the limited tort option.

¶ 25 Order reversed. Case remanded proceedings. for further Jurisdiction re- ¶ in Mother-Appellant present 3 The the linquished. in study irrespon- case is a case A sibility. policy Dairyland with Insur- ¶ SOLE, P.J., 26 DEL FORD 13, February ance Co. was cancelled on ELLIOTT, J., BENDER, join in J. non-payment premium. In majority opinion. policy, that Mother selected the limited ¶ HUDOCK, Concurring J. files a policy tort A procured was then Statement. with Farm State Insurance on June again Mother selected the limit- ¶ TODD, Concurring J. files a tort option. policy ed That was cancelled Statement. 19,1997, July on because Mother’s driver’s ¶ BOWES, Concurring J. files a suspended license had been on November JOHNSON, in Dissenting Opinion, which being 1995. After that in- notified her LALLY-GREEN, join. J. and J. cancelled, surance had been al- Mother Now, BY CONCURRING STATEMENT lowed the car to be driven. her HUDOCK, J.: irresponsibility being by giv- rewarded ing greater protection her children than

¶ join 1 I in reluctantly the result she had chosen when she had insurance majority. reached coverage. in question statute which binds all occupants of a vehicle to the tort ¶ 4 It injustice, is no answer to this insured”, elected “named does majority suggests, parents in this very its terms seem to limit the effect of necessarily situation will not be better off insureds, this subsection to presup- which parents display than who responsibil- more poses policy. the existence of an insurance ity irresponsible because the parents sub- case, present there no ject prosecution themselves to criminal effect at the time of the accident and Sec- if family they and risk loss of assets 1705(a)(5), tion compels which an election found to be at fault an accident. The of limited tort where there is irrespon- fact remains that the children of no coverage, apply only seems to to an parents greater protection sible will have passengers “owner”. Since the minor the fault party-all when lies with third owners, the car were not the result vyithout in- parents paying for such believe, I majority, reached is cor- protection. creased " rect. join majority’s disposi- 5 While I in the 2 I disagree majority, with the howev- tion, legislature I correct suggest er, that the result herein does not reward injustice by amending statute to make irresponsible parents, who violation of clear that one who vehi- law, operates motor I carry liability do not insurance. Lability cle without insurance is deemed to agree Commonwealth Court Hames, 696 A.2d at the result select limited herself and greater rights occupants here affords to minor chil- for all of the vehicle.

1093 Court”); v. O’Mal BY concern of the Storms STATEMENT CONCURRING (Pa.Super.2001) TODD, ley, 779 A.2d J.: Pa.R.C.P.2039(a), requiring (purpose of Majority’s thorough agree 1 I with compromise, of settlement approval court of the statute analysis of which a of actions to or discontinuance and, hence, join in that holding its question to settlements party, prevent minor is a is by the passengers minor are not bound that and ensure that are unfair to minors imputed of the vehicle owner’s selection of the mon the minor receives benefit by failing to maintain awarded); Sys. ey Shaner State well, recognize I automobile insurance. as Educ., 308, 313- Higher 40 Pa. D. & C.4th however, by inconsistency pointed out (C.P. 1998) do not (parents Dauphin Judge thoughtful concurring Hudock in his the claims authority to release possess herein statement that the result reached merely potential claims of a minor child or affording rights to greater has effect relationship), parental because of the aff'd irresponsible the minor children of drivers (Pa.Cmwlth. A.2d 535 opinion, without purchase liability who have failed to insur- 1999). public policy, as enunciated This ance than minor children of insured Commonwealth, con of this is the courts parents who have selected the limited tort jurisdictions. of other sistent with that short, however, I option coverage. stop See, Skiing e.g., Cooper Aspen joining Judge Hudock’s be- Concurrence (Co.2002) (holding P.3d join I suggestion cause cannot his not re parent may under Colorado law the legislature inconsistency correct this prospective claims lease minor’s own “by amending the statute to make clear negligence), and cases cited therein. that one who a motor operates liability without is deemed to AND DISSENTING CONCURRING select a limited herself and BOWES, BY J.: OPINION for all occupants of the vehicle.” majority’s interpre- that the believe ¶2 agree I Judge While Hudock Re- tation of the Motor Vehicle Financial legislature’s prerogative that it is the to (MVFRL), 75 sponsibility Law Pa.C.S. revisit this issue and address this inconsis legisla- our seq., contrary et I tency, suggest legislature would that the intent, I and I dissent. respectfully ture’s consider a solution which takes into consid trial court’s deci- would instead affirm the eration the purposes both of the MVFRL that the minors this case bound sion requiring and the However, I the limited tort public policy of this con Commonwealth of mate- genuine find that there is a issue chil cerning protection rights facial fact to whether Joel Holland’s rial dren, parents’ ability even from their permanent disfigure- serious scarring is compromise rights, pur those whether remand for a ment would reverse and inadvertently. e.g., or Ni posefully See can recover for decide whether Joel jury to Combs, 23, 34, cholson v. 550 Pa. 703 A.2d injuries. his (1997) (one bargain parent cannot ¶ 2 involves an automobile right support litigation This away his or her children’s Moore, plaintiffs, the two minor accident in which parent); from the other Moore v. Holland, (1993) 18, 25, Holland and Heather 166-67 Joel auto- (in cases, riding in an uninsured concept injured “the while custody child operat- their mother and ... mobile owned inappropriate waiver where would father. The issue before the ultimate ed their the welfare of the child is *12 whether the Court is aforesaid minors are relative of the named insured.” 75 Pa.C.S. 1702,1705(f). §§ by option. bound the limited tort ¶ ¶ 5 Based on the fact that the minors’ goal judicial 8 The interpretation insurance, mother this case had no the legislation give is to ascertain and effect to majority concludes there is no policy under 1921(a). § intent. 1 legislative Pa.C.S. major- which she is named insured. The Legislative by intent is discerned certain ity continues that since the minors did not principles established by the promulgated own an they uninsured vehicle and since 1 legislature. Pa.C.S. 1901-1978. Sev- are not named insureds or insureds under precepts eral of the outlined in those statu- policy, other under 75 Pa.C.S. tory pertinent enactments herein. 1705(b)(3), § they precluded are not from First, when the words of a statute are maintaining an action for non-economic unambiguous, they clear and are not to be loss or economic loss sustained in a motor 1921(b). disregarded. § Pa.C.S. fault of accident is the another those situations when the words of a stat- person. explicit, legislative ute are not may intent ¶ garnered by

be considering the mischief majority 6 I believe that the overlooks remedy objec- statute seeks to and the significance of the statutory language 1921(c)(3), § tive of the statute. Pa.C.S. that an of a registered uninsured owner intent, In determining legislative we vehicle is “deemed to have chosen” the presume that Assembly General did option. limited tort This choice of words not intend a result that is or expresses legislature’s pro- absurd unrea- intent 1922(1). § sonable. Finally, Pa.C.S. vide for the fictionalized creation of an parts policy statutes or under which the unin- statutes are to be affirmatively sured owner of a vehicle has pari construed materia. 1 Pa.C.S. § option. selected the limited tort ¶

¶ MVFRL, only 7 Pursuant 4 These principles militate favor of policy “named insured” under an insurance finding plaintiffs that the minor are bound can a tort option. By indicating choose by statutory the limited tort that an uninsured automobile owner is con- provision critical analysis, to our sidered to “have chosen” the limited tort 1705(a)(5), § provides, C.S. “An owner of a unin- option, legislature intended the currently registered private passenger mo- sured vehicle owner to be treated like a tor vehicle who does have financial policy. named insured under an insurance responsibility shall be deemed chosen the limited tort option.” (emphasis materia, pari 8 When read in ' added). Next, 1705(b)(2) § 75 Pa.C.S. 1705(a)(5) 1705(d) § § support C.S. states, option “The tort elected a named interpretation such an of the MVFRL. apply insured to all 1705(a)(5) shall insureds under provides that the unin- Section private passenger policy motor vehicle sured owner is deemed to “have chosen” who are not named insureds under another option, the limited tort whereas section private passenger policy.” 1705(d) motor vehicle that each who person states A “named is an individual insured” identi- by” the limited tort be “bound shall policy fied name as an insured in under precluded instituting from a suit private passenger motor vehicle insurance. certain limited circumstances. If the legis- 1705(f). 1705(a)(5) § Finally, § 75 Pa.C.S. an “insured” lature intended Pa.C.S is defined in relevant “a part as minor restricted to the owner of the vehicle, custody employed of either the named insured or uninsured it would have I the minor Consequently, believe narrower as can be found 1705(d) Pa.C.S where it utilized the in the person, the uninsured children of phrase by” “bound than “have cho- rather under a fic- persona of a named insured By stating sen.” that the uninsured owner insurance, are bound tional of a vehicle is deemed to “have chosen” insured, selected the named option, intended legislature *13 is, option. that the limited tort See a more than expansive interpretation the 1705(d) (f)(2). Undeniably, and Pa.C.S majority Clearly, endorses. fall within the clearly the minors at issue legislature evinces an intent the to cre- minors statutory definition of insureds as legal policy ate the fiction6 of an insurance custody mother. See 75 Pa.C.S. of their where the uninsured a vehicle owner of § 1702. stands in the of a named shoes insured. ¶ majority 9 The focuses on the silence ¶ interpretation alleviates the This of the MVFRL concerning application of sought mischief to be remedied the the spouse and objective. The statute and fulfills its owner, minor children of the uninsured but MVFRL was amended in 1990 due to con- ignores it the fact legislature that if the increasing cerns over the costs of automo- intended the uninsured owner aof increasing bile insurance and the number to “be bound” the limited tort motorists, legisla- of uninsured and these it option, simply would have said This so. express public policy tive concerns the that do, it did I and therefore conclude that interpreting we must when the advance legislature the did not intend the result reached the majority. statutory provisions of the MVFRL.7 legislature fully empowered Pennsylvania The is Re- to and Motor Vehicle Financial fictions, (MVFRL), legal sponsibility ef- employs often Law which took as do the courts. See, 1, 1984, e.g., replaced the No- Iafrate, fect on October Commonwealth v. 527 Pa. 497, (1991) repeal- primary concerns in Fault Act. (examining legal 594 A.2d 293 ing spiraling were the the No-Fault Act person given age that a fiction reaches a on costs of automobile insurance and the re- day preceding the anniversary the of his sultant increase in the number of uninsured birth); In re Deed Trust Rose Hill Ceme objective the motorists. The MVFRL Ass’n, (1991) tery 527 Pa. 590 A.2d 1 provide coverage the was to broad to assure (discussing legal by legislature fiction created integrity In holder. corporation legal entity separate that is a and fact, curtailing spiraling the cost of automo- shareholders); distinct from its Common protecting public bile and insurance Mudrick, wealth 507 A.2d 1212 by negligent against caused motorists loss (1986)(legal possession fiction of constructive frequently two rea- most mentioned cases). drug By passage sons of the MVFRL.... rates in Penn- 1988 automobile insurance 7. The lead situation that to the 1990 amend- sylvania highest were the fifth in the coun- ments to the MVFRL in which full tort and fact, premiums try. were so incorporated limited tort were was detailed in high Philadelphia that the number of Pennsylvania a noted work entitled Ve- Motor operators ‘stag- uninsured was labeled as Insurance, states, part: hicle which gering.’ alleged causes of the ‘insur- Some costs, problem precipitated rising The main that ance health care crisis’ motorists, repeal movement to Act in lack of strict enforce- No-Fault uninsured driving rising against under the 1984 was insurance costs. Ironical- ment standards influence, ly, reducing proliferation of lawsuits. insurance rates was one of the and J.R.; Sloane, Ronca, Act, (Citations omitted). promises of the No-Fault but the reali- T.A.; L.A.; Lutz, D.L.; Shollenberger, ty pre- was that No-Fault benefit insurance 1.1, Pennsylvania July Mundy, §§at 1.2. between J.F.2001 miums increased 875% Analysis September An 1982.... Motor Vehicle Insurance: [I]n an result Rump Casualty Surety produces v. Aetna unreasonable intent, (1998); contrary legislative applica- Pa. 710 A.2d 1093 see also construction, statutory cannons of ble Exchange, v. Erie Insurance Lewis (2002). Thus, common sense. 793 A.2d 143 should be construed to avoid re- MVFRL that the Having determined limited warding intentionally motorists who ne- applies, question remains glected purchase McClung insurance. herein meet whether the minors (Pa.Su- Breneman, under that recovery threshold for per.1997). did not Appellants concede Heather injury contend that sustain serious but duly 12 I am mindful that a concomi- A record indicates Joel did. review the purpose provide tant of the MVFRL is to scar down his that Joel sustained a vertical However, coverage injured parties. *14 stops just eye- that above his forehead in way the result I reach no interferes with brow. my that conclusion does purpose because recovery. preclude recovery;

not it limits ¶ held that Supreme 15 Our Court has majority suggests reading The that such a plaintiff a the determination of whether of the statute the children for the punishes injury must be made has suffered serious parent. simply sins of the This not so. evidence, is taken in the by jury unless the Even these failed though parents minors’ is light plaintiff, most favorable to the such responsibility by pur- to exercise financial that minds could not differ on reasonable insurance, chasing their children not plaintiffs injury the conclusion that precluded recovering against negli- Baxter, from Washington serious. gent injuries if their are serious. tortfeasor 719 A.2d 733 Section recovery simply Their limited to the injury of the MVFRL defines serious death, parents same extent as those who have personal injury resulting as “[a] responsibility yet body exercised financial cho- function or impairment serious disfigurement.” sen the limited tort permanent serious permanent issue this case is whether recovery To unlimited allow Although disfigurement serious occurred. placed money child of a has no parent who Pennsylvania appel- there is an absence limit premium pool, into the but to recov- authority single on whether a scar can late ery paid to the child of a has parent who disfigure- permanent constitute serious pool into that but elected the limited tort ment, guidance can be found case law comport does not with our obli- language in a New interpreting similar light Act in of its gation interpret Jersey statute. objectives. equally important dual and Branker, In Falcone v. 135 N.J.Su Placing the child of an uninsured vehicle (1975), Superior per. the child of position in a better than owner Jersey employed a sound finan- Court of New parent who has chosen to exercise determining when a scar con analysis cial not advance the responsibility does disfigurement serious legislative goals Regard- permanent of the MVFRL. stitutes statutory equivalent of its specter prosecution purposes less of the of criminal of the MVFRL.8 majority, today its raised decision Law, wording Although Jersey statute's 8. the New Responsibility Financial Second Edition perma- provides must suffer (2001 Revision). plaintiff that disfigurement, "significant” the Falcone nent regarding The Court examined case law KRELL, N.B.K. Bobbie Bobbie permanent disfig

the definition of serious Beers, Appellant, compensation urement the workers’ area and that to fall that concluded within definition, impair sym the scar must SILVER, M.D., Appellee. Lawrence metry appearance plaintiff or such unsightly, misshapen, imperfect, he is Pennsylvania. Superior Court or deformed in some manner. The Court opined also that a facial scar mars Submitted Oct. 2002. such an extent as to attract attention Filed Jan. 2003. disfigurement. would be a serious Accord Denied March Reargument court, ing disfig to the Falcone whether a statutory urement fulfills the definition is following objective

determined fac coloration, appearance,

tors: the scar’s ex noted, however,

istence and size. It that a progressively

scar that becomes ap less

parent with time permanent. would not be *15 Living