Mitchell v. Travelers Insurance

538 A.2d 1372, 372 Pa. Super. 105, 1988 Pa. Super. LEXIS 858
CourtSuperior Court of Pennsylvania
DecidedMarch 16, 1988
DocketNo. 552
StatusPublished
Cited by3 cases

This text of 538 A.2d 1372 (Mitchell v. Travelers Insurance) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. Travelers Insurance, 538 A.2d 1372, 372 Pa. Super. 105, 1988 Pa. Super. LEXIS 858 (Pa. Ct. App. 1988).

Opinion

WIEAND, Judge:

In the event that an uninsured pedestrian is struck and injured by a motorcycle, is it the insurer of the motorcycle or the Assigned Claims Plan carrier which is required to pay basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act? 1 The trial court held that it was the Assigned Claims Plan carrier. We conclude that this was error and that the insurer of the motorcycle is liable for no-fault benefits. Therefore, we reverse.

On March 24, 1983, while crossing an alley in Johnstown, Pennsylvania, twelve-year-old Carl Mitchell was struck by a motorcycle owned by Louis Wattman and operated by Michael Wattman. The Mitchell boy was uninsured and was not otherwise covered by a policy of insurance providing no-fault benefits. The motorcycle which struck Mitchell was insured under a policy issued by Public Service Mutual Insurance Company (PSMI).

On October 31, 1984, Twila J. Mitchell, the mother and natural guardian of the injured boy, commenced an action for basic loss benefits on his behalf against Travelers Insurance Company (Travelers), the carrier designated by the Assigned Claims Plan, and PSMI, the insurer of the motorcycle. Both Travelers and PSMI denied liability on grounds that the other was the primary obligor and applicable source of security for the payment of basic loss benefits. On April 15, 1987, the trial court entered a final order [108]*108granting a motion by PSMI for summary judgment and dismissing it from the action. Travelers appealed.

PSMI argues at the outset that Travelers lacks standing to appeal. We reject this argument. The law is clear that a defendant has a sufficient interest in and, therefore, standing to appeal from an order entering judgment in favor of a co-defendant or otherwise letting the co-defendant out of the case. East Broad Top Transit Co. v. Flood, 326 Pa. 353, 357, 192 A. 401, 403 (1937); Schwartz v. Jaffe, 324 Pa. 324, 330-331, 188 A. 295, 298 (1936); Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 427 n. 1, 381 A.2d 990, 992 n. 1 (1977). This is particularly so where, as here, the only real issue is which of two insurance carriers is required by statute to pay the plaintiffs claim.

Section 204 of the No-fault Act2 “in effect creates a hierarchy among potential sources of security” which are responsible for the payment of basic loss benefits to a person injured in an automobile accident. Tyler v. Insurance Co. of North America, 311 Pa.Super. 25, 29, 457 A.2d 95, 97 (1983). Section 204(a) provides:

(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an [109]*109accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

In determining the applicable source of benefits under this section’s priority system, “the pertinence of each subsection must be considered seriatim — that is, the applicability of each preceding subsection must be excluded before the next may be considered. The security provided by the assigned claims plan is applicable only as a last resort.” Tyler v. Insurance Co. of North America, supra, 311 Pa.Superior Ct. at 30, 457 A.2d at 97.

Instantly, the inapplicability of subsections (1), (2), and (3) has been established beyond peradventure. The minor plaintiff was not an employee, was not an insured under any policy of insurance, and was not the driver or occupant of a vehicle at the time of the accident. Whether subsection (4) is applicable depends on whether the motorcycle involved in the accident is a “motor vehicle.”

Section 103 of the No-fault Act3 defines a motor vehicle as a “vehicle of a kind required to be registered under ... The Vehicle Code.” Under the Vehicle Code, a motorcycle is a vehicle which must be registered. See: 75 Pa.C.S. §§ 102, 1302. The conclusion is inescapable, therefore, that a motorcycle is a “motor vehicle” within the meaning of the No-fault Act and is subject to the same insurance coverage requirements as are other vehicles. See: Tyler v. Insurance Co. of North America, supra, 311 Pa.Superior Ct. at 29 n. 3, 457 A.2d at 96 n. 3; Samsel v. Travelers Indemnity Co., 295 Pa.Super. 188, 190, 441 A.2d 412, 413 (1982). See also: Singer v. Sheppard, 464 Pa. 387, 406 n. 29, 346 A.2d 897, 907 n. 29 (1975) (motorcycles are motor vehicles for purposes of compulsory insurance; no-[110]*110fault benefits, therefore, are available to third persons injured by a motorcycle). This is not altered by the provisions of Section 103 of the No-fault Act which preclude the operator or passenger of a motorcycle from recovering basic loss benefits. This exclusion was inserted because of the greater risk attaching to operators of motorcycles. See: Singer v. Sheppard, supra, 464 Pa. at 406, 346 A.2d at 906-907. It was not intended to exclude a motorcycle from the definition of a motor vehicle or exempt a motorcycle insurer from liability for basic loss benefits to a person injured as a result of an accident involving the motorcycle. See: Tyler v. Insurance Co. of North America, supra 311 Pa.Super. at 29 n. 3, 457 A.2d at 96 n. 3.

PSMI argues, however, that its policy does not contain a specific provision requiring it to pay basic loss benefits to an uninsured pedestrian who may be struck by the motorcycle of its insured. We reject this argument. PSMI was required by statute to provide such coverage. Section 104 of the No-fault Act4 provided as follows:

(a) Security covering a motor vehicle. — Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth. Security shall be provided for the payment of basic loss benefits,

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Related

United States Court of Appeals, Third Circuit
912 F.2d 672 (Third Circuit, 1990)
Mitchell v. Travelers Insurance
564 A.2d 1232 (Supreme Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
538 A.2d 1372, 372 Pa. Super. 105, 1988 Pa. Super. LEXIS 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-travelers-insurance-pasuperct-1988.