Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit
3-22-1996
US Underwriters Ins v. Liberty Mutl Ins Co Precedential or Non-Precedential:
Docket 95-1558
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation "US Underwriters Ins v. Liberty Mutl Ins Co" (1996). 1996 Decisions. Paper 221. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/221
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 95-1558
U.S. UNDERWRITERS INSURANCE CO.; MARYLAND CASUALTY COMPANY
v.
LIBERTY MUTUAL INSURANCE COMPANY; PERLOFF BROTHERS, INC. a/k/a PERLOFF, INC.
Liberty Mutual Insurance Company and their insured, Perloff Brothers, Inc., Appellants.
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 93-cv-05015)
Argued: February 5, 1996
Before: SLOVITER, Chief Judge, ROTH and SAROKIN, Circuit Judges
(Opinion Filed March 22, l996)
Bernard E. Jude Quinn, Esq. (Argued) German, Gallagher & Murtagh 200 South Broad Street 5th Floor Philadelphia, PA 19102 Attorney for Appellee U. S. Underwriters Ins.
1 Christopher P. Seerveld, Esq. (Argued) Post & Schell 1800 JFK Boulevard 19th Floor Philadelphia, PA 19103 Attorney for Appellee Maryland Casualty
Andrew B. Klaber, Esq. (Argued) Weber, Goldstein, Greenberg & Gallagher 1811 Chestnut Street 6th Floor Philadelphia, PA 19103 Attorney for Appellants
OPINION OF THE COURT
ROTH, Circuit Judge:
In this diversity action, we must determine whether the
Supreme Court of Pennsylvania would consider certain conduct as
falling within the definition of "use or maintenance of a motor
vehicle," as defined by the Pennsylvania Motor Vehicle Financial
Responsibility Law's ban on subrogation for certain types of
insurance benefits, 75 Pa.C.S.A. § 1720. We predict that the
Supreme Court of Pennsylvania would conclude that a driver who
slips on grease from a nearby kitchen when he steps on the ground
while alighting from a car is not engaged in use or maintenance
of a motor vehicle. We will therefore reverse the decision of
the district court.
I.
2 The district court disposed of this case on motion for
summary judgment. We have jurisdiction over the appeal from the
district court's final order pursuant to 28 U.S.C. § 1291.
Subject matter jurisdiction rests on 28 U.S.C. § 1332. We
exercise plenary review over the district court's order, both as
an appeal from grant of summary judgment, Petruzzi's IGA
Supermarkets v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d
Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 554 (1993),
and because the dispute requires only an interpretation of law,
Matter of Resyn Corp., 945 F.2d 1279, 1280 (3d Cir. 1991).
II.
The parties agree on the relevant facts. On November
27, 1987, Robert Hilpl parked his car in the parking lot of the
St. Johns Neumann Nursing Home. Hilpl was employed as a bid
manager for Perloff Brothers, Inc., and had arrived at the
nursing home to meet with representatives of Woods Management
Services, a company that operated the nursing home's kitchen.
Woods Management was a prospective customer of Perloff Brothers,
and Hilpl intended to present the Woods representatives with
calendars, planning guides, and other business-related paperwork.
After parking his car and turning off the engine, Hilpl
began to exit the vehicle. He placed his left foot on the ground
and started to stand up, pushing off with his right foot from
inside the vehicle. In the process, Hilpl slipped on a pool of
grease or similar substance that had coated a section of the
parking lot. He fell, striking his back on the sill of the car
3 door. At oral argument, the parties appeared to concede that the
grease emanated from the nursing home's kitchen.
Hilpl's employer, Perloff Brothers, accepted
responsibility for the injury, treating it as a work-related
incident covered by the Pennsylvania Workers' Compensation Act,
77 P.S. §§ 1-1602. Liberty Mutual Insurance Company ("Liberty
Mutual"), the workers' compensation carrier for Perloff, provided
Hilpl with lost wage benefits and medical benefits. As of June
30, 1993, benefits totaled $285,875.82. At the time of oral
argument, benefits exceeded $400,000.
In addition to receiving benefits, Hilpl brought a
third party action in the Philadelphia Court of Common Pleas,
seeking damages for the injuries he sustained in the accident.
Hilpl sued Woods Management, Neumann Nursing Home, and the
nursing home's parent organization, the Archdiocese of
Philadelphia. Pursuant to 77 P.S. § 319, Liberty Mutual acquired
a subrogation lien on the proceeds of this action by operation of
law.
On June 30, 1993, the Common Pleas action was settled
for $800,000. As part of the settlement, U.S. Underwriters
Insurance Co., the insurer of the nursing home, and Maryland
Casualty Co., the insurer of Woods Management, (hereinafter,
collectively, "the Tort Liability Insurers") agreed to assume
responsibility for all amounts that had accrued on Liberty
Mutual's subrogation lien on or before the settlement date.
On October 1, 1993, the Tort Liability Insurers filed a
declaratory judgment action in the U.S. District Court for the
4 Eastern District of Pennsylvania seeking to invalidate the
subrogation lien pursuant to 75 Pa.C.S.A. § 1720. Section 1720
bars a compensation insurer's right of subrogation to recover
workers' compensation benefits from an insured's third-party tort
recovery if the insured's injuries arose from the maintenance or
use of a motor vehicle. The parties filed cross motions for
summary judgment, and on June 8, 1995, the district court entered
judgment for plaintiffs. Liberty Mutual appealed.
III.
This controversy is easily located within the landscape
of Pennsylvania law. It takes place at the intersection of the
Pennsylvania Workers' Compensation Act, 77 P.C.S.A. §§ 1-1602,
and the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A.
§§ 1701-1798. Hilpl and his injury are clearly subject to the
provisions of Workers' Compensation Act. Section 319 of that act
grants a workers' compensation insurer subrogation rights to an
employee's recovery from a third party tortfeasor. Section 1720
of the Financial Responsibility Law limits that right, barring
subrogation where an employee's injury arose out of the
maintenance or use of a motor vehicle.1 1 This section provides:
§ 1720. Subrogation In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant's tort recovery with respect to workers' compensation benefits . . ..
Id.; Walters v. Kamppi, 545 A.2d 975 (Pa. Commw. 1988) (applying plain meaning of statute to bar subrogation), appeal denied, 544
5 The current dispute turns on the meaning of
"maintenance or use of a motor vehicle" as defined by § 1720. The
Tort Liability Insurers contend, and the district court agreed,
that Hilpl's actions in exiting his car fell within the scope of
maintenance or use. Liberty Mutual argues otherwise, claiming
that Hilpl's injury did not manifest the degree of causal
connection to the vehicle required by the Pennsylvania courts.
The answer to this question is obviously controlled by
state law. We therefore begin with the relevant statute.
Unfortunately, none of the terms in the phrase "arising out of
the maintenance or use of a motor vehicle" are among those
defined in 75 Pa.C.S.A. § 1702, the list of statutory definitions
for the Financial Responsibility Law. The terms are also absent
from the general definition section for the Vehicle Code. 75
Pa.C.S.A. § 102. There is therefore no controlling statutory
provision for this case.2
A.2d 512 (Pa. 1989). The Pennsylvania legislature subsequently repealed § 1720's prohibition with respect to worker's compensation benefits, leaving in place its bar on subrogation rights for other types of compensation. Act of July 2, 1993, § 25(b), 1993 Pa. Laws 190-44. Pennsylvania courts have interpreted this amendment as prospective only. Fulmer v. Pennsylvania State Police, 647 A.2d 616 (Pa. Commw. 1994); Byard F. Brogan, Inc. v. W.C.A.B., 637 A.2d 689 (Pa. Commw. 1994); see also Carrick v. Zurich-American Ins. Group, 14 F.3d 907 (3d Cir. 1994) (predicting prospective application). 2 The Tort Liability Insurers correctly point out that Pennsylvania's Statutory Construction Act, 1 Pa.C.S.A. §1921(c)(5), advises that former law on the subject may be considered in ascertaining the legislature's intent when the words of a statute are not explicit. For our purposes, however, we must first look to controlling state authority, and prior enactments are only persuasive, not binding.
6 Absent controlling statutory authority, we turn to the
decisions of the highest state tribunal to answer a question of
state law. The Pennsylvania Supreme Court, however, has not
ruled on the terms of this provision.
When a state's highest court has not spoken on a
subject, we must attempt to predict how that tribunal would rule.
Kowalsky v. Long Beach Township, 72 F.3d 385, 387 (3d Cir. 1995).
In making such determinations, we give due deference to the
decisions of lower Pennsylvania courts. Winterburg v. Transp.
Ins. Co., 72 F.3d 318, 322 (3d Cir. 1995). The rulings of
intermediate appellate courts must be accorded significant weight
and should not be disregarded absent a persuasive indication that
the highest state court would rule otherwise. City of
Philadelphia v. Lead Indus. Ass'n, Inc., 994 F.2d 112, 123 (3d
Cir. 1993); Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d
Cir. 1991). In the current case, existing decisions of
Pennsylvania's intermediate appellate court provide ample
guidance for us to resolve this dispute.
We begin with Lucas-Raso v. American Mfrs. Ins. Co.,
657 A.2d 1 (Pa. Super. 1995), appeal denied, 668 A.2d 1119 (Pa.
1995), a recent case in which the meaning of "maintenance and
use" under the Financial Responsibility Law was squarely before
the Pennsylvania Superior Court. The court surveyed the relevant
Pennsylvania case law, placing particular reliance on the
adoption in Alvarino v. Allstate Ins. Co., 537 A.2d 18, 20 (Pa.
Super. 1988), of an interpretation of "arising out of ownership,
maintenance or use" announced by the Pennsylvania Supreme Court
7 in Manufacturers Casualty Ins. Co. v. Goodville Mut. Casualty
Co., 170 A.2d 571 (Pa. 1961). In Manufacturers, the Supreme
Court had held: "Arising out of 'means causally connected with,
not proximately caused by.' 'But for' causation, i.e., a cause
and result relationship is enough to satisfy this [requirement]."
Id. at 573. Alvarino applied this definition to § 1720.
The Lucas-Raso court then stressed the importance of
the causation element. First, the causation inquiry serves the
legislature's purpose in passing motor vehicle insurance
legislation, namely "to compensate losses directly resulting from
motoring accidents and to leave injuries tangential to driving to
other systems of compensation. Id. at 3 (citing Prudential
Property & Casualty Ins. Co. v. McDaniel, 493 A.2d 731 (Pa.
Super. 1985)). Even more importantly, causation ensures that
injuries suffered by a victim arise from the use of the motor
vehicle itself. Id. In other words, "[t]here must be a link
between the injury and the motor vehicle before compensation will
be awarded." Id. at 4.
The court next applied these principles to the facts of
the case. In Lucas-Raso, the plaintiff had been injured when
walking around the back of her car to reach the driver's side.
The plaintiff alleged that despite her physical position outside
the vehicle, she was nevertheless an occupant of the car. The
court considered this claim, noting that "it is not disputed that
'maintenance and use' is presumed if occupancy can be shown." Id.
The Superior Court ultimately ruled that she was not an occupant.
More importantly for the current case, the court then made clear
8 that occupancy alone would not satisfy § 1720's requirement of
maintenance and use. As the court explained, "Even if we agreed
that . . . [the victim] was an occupant, she must still prove the
existence of a causal connection between the injuries sustained
and the maintenance and use of the motor vehicle." 657 A.2d at
4.
We believe that Lucas-Raso accurately captures the
state of Pennsylvania law on maintenance and use of a motor
vehicle. If nothing else, Lucas-Raso and the cases it surveys
make clear that the crucial point for triggering § 1720's
maintenance and use prohibition is a causal connection between
vehicle and injury. We therefore turn to that element.
In assessing whether the necessary causal nexus exists,
we could--as the parties wish--struggle with the legal equivalent
of angels and pinheads. For example, the vehicle obviously was,
in a sense, a cause of the accident: Hilpl was alighting from
the car when he fell; the car was a part of the stream of events
that lead to his injury. Viewing causation in these terms,
however, makes it essentially all-encompassing: If not for the
unfortunate coincidence of a multitude of causes, Hilpl, his car,
and a layer of grease might not have combined so painfully on
that late November day. This approach to causation would bring
§1720 into play whenever an automobile was even tangentially
related to an accident, since absent the car, the accident
arguably might not have occurred. This in turn would contravene
the Pennsylvania Superior Court's repeated cautions that the
Financial Responsibility Law was not intended to be a general
9 liability statute, but rather a system of compensation for
"losses directly resulting from motoring accidents." 657 A.2d at
3. Nevertheless, so the counterargument goes, here the car was
involved.
Fortunately, we can avoid this debate. It is a matter
of hornbook tort law that every incidental factor that arguably
contributes to an accident is not a "but for" cause in the legal
sense. See Berry v. Borough of Sugar Notch, 43 A. 420 (Pa.
1899). Our survey of Pennsylvania cases demonstrates that the
Commonwealth's understanding of "use of a motor vehicle" simply
will not encompass the causal nexus at issue here. See Smith v.
United Servs. Auto. Ass'n, 572 A.2d 785, 787 (Pa. Super. 1990)
(rejecting claim that injury from hay thrown from hayride arose
from maintenance or use of a motor vehicle), appeal dismissed,
601 A.2d 276 (Pa. 1991); Roach v. Port Auth. of Allegheny County,
550 A.2d 1346 (Pa. Super. 1988) (rejecting claim that bus
passenger injured in fight between two other passengers arose out
of maintenance or use of motor vehicle); Alvarino v. Allstate
Ins. Co., 537 A.2d 18 (Pa. Super. 1988) (holding that injury to
child bitten by dog while passenger in car did not arise from use
of motor vehicle); Camacho v. Nationwide Ins. Co., 460 A.2d 353
(Pa. Super. 1983) (holding that injury to driver from explosive
thrown into his car by passenger in passing automobile did not
arise out of maintenance or use of vehicle), aff'd, 473 A.2d 1017
(Pa. 1984); Schweitzer v. Aetna Life & Cas. Co., 452 A.2d 735
(Pa. Super. 1982) (holding that injuries to woman, who was pushed
into her automobile and beaten inside automobile by operator of
10 motorcycle, did not arise out of maintenance and use of motor
vehicle); Erie Ins. Exchange v. Eisenhuth, 451 A.2d 1024 (Pa.
Super. 1982) (rejecting claim that injuries to automobile
passenger shot by police officer in pursuing vehicle arose out of
maintenance or use of automobile); see also Pecorara v. Erie Ins.
Exchange, 596 A.2d 237 (1991) (rejecting as absurd a literal
interpretation of "used by any person . . . employed . . . in the
automobile business" because such interpretation would prohibit
"coverage for an accident . . . if [the owner] had lent his dump
truck to a friend to haul lumber to a campsite, if that friend
also happened to be an employee of an automobile business");
Ferry v. Protective Indem. Co., 38 A.2d 493 (Pa. Super. 1944)
(refusing coverage for injury caused to pedestrian while truck
driver was loading truck); cf. Walters v. Kamppi, 545 A.2d 975
(Pa. Commw. 1988) (finding requirements of § 1720 met where truck
driver was injured in automobile accident caused by slippery
substance on highway from allegedly negligent road maintenance),
appeal denied, 554 A.2d 513 (Pa. 1989). We also note that the
words "occupying, entering into, or alighting from a motor
vehicle," which appeared in the definition of "use or
maintenance" under the old Pennsylvania No-Fault Motor Vehicle
Insurance Act, 40 P.S. § 1009.106 (repealed), were not included
when the legislature replaced the No-Fault Act with the Financial
Responsibility Law. We believe that this action shows a
legislative intent consistent with the Pennsylvania Superior
Court's understanding. Hilpl's activity does not fall within the
11 meaning of § 1720, as intended by the legislature and interpreted
by the courts.
In concluding that there was no causal connection
between Hilpl's alighting and his subsequent accident, we place
particular reliance on the Superior Court of Pennsylvania's
discussion in Ohio Casualty Group of Ins. Cos. v. Bakaric, 513
A.2d 462 (Pa. Super. 1986), appeal denied, 520 A.2d 1384 (Pa.
1987). In Bakaric, a husband injured his wife by shooting her in
the face with a handgun. There was evidence that the discharge
occurred as the husband forced his wife into the driver's seat of
their automobile and then pushed her across the seat to the
passenger's side. Id. at 463 n.1. The court refused to
interpret the incident as resulting from the use of a motor
vehicle "since it is not clear in this instance that entering or
loading the vehicle caused the injuries." Id. at 465. The court
then explained that: A lay person's consideration of this factual situation . . . would probably produce a conclusion that any damages awarded [the couple] would not result from the use of an automobile by them, but from the wanton use of a gun. We believe that the proper legal conclusion should be the same.
Id. at 466 (quoting slip op. of trial court). The sentiments expressed in Bakaric convey our view of
the present case. Pennsylvania law makes clear that "maintenance
or use of a motor vehicle" requires causation. The court must
determine the "instrumentality used to cause the injury." Spisak
v. Nationwide Mut. Ins. Co., 478 A.2d 891, 893 (Pa. Super. 1984).
A layman would understand that the instrumentality used to cause
12 the injury in the case at bar was the substance on the surface of
the parking lot. The cause of Hilpl's injury was the fact that
he slipped on grease, and all the clever arguments of skilled
legal advocates cannot alter this central event. It was "mere
fortuity" that Hilpl was still partially in his car when he
slipped. Pecorara, 596 A.2d at 240. Causation, however,
requires more than "mere happenstance." Roach, 550 A.2d at 1349.
IV.
We therefore conclude that the Supreme Court of
Pennsylvania would hold that an individual who slips on grease
from a nearby kitchen when he steps on the ground while alighting
from his automobile has not been injured as a result of
maintenance or use of a motor vehicle. Consequently, § 1720 of
the Pennsylvania Motor Vehicle Financial Responsibility Law will
not apply, and Liberty Mutual retains its subrogation lien. We
will reverse the decision of the district court.
13 U.S. Underwriters Ins. Co. v. Liberty Mutual Ins. Co.
SLOVITER, Chief Judge, Dissenting.
The issue is whether the Supreme Court of Pennsylvania, which had a long
of protecting the recovery of damages for injuries incurred by the drivers and occu
of automobiles, would have permitted the workers' compensation carrier in this case
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 P
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
motor vehicle." See 75 Pa. Cons. Stat. Ann. § 1720 (1984). The driver in this cas
Robert Hilpl, was injured while alighting from the vehicle when he slipped and inju
himself by landing on the vehicle. I believe that under these facts the Supreme Co
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,
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 ve
including, incident to its maintenance or use as a vehicle, occupying, entering int
alighting from it." (Emphasis added). The MVFRL continues to use the phrase "maint
or use" but does not define it. Thus, the strongest argument for the majority's po
is that there is no longer language explicitly covering alighting from a vehicle in
new law's reference to the "maintenance or use" of the vehicle.
However, there is no legislative history to indicate that by enacting the
the Pennsylvania legislature intended to exclude accidents occurring when a person
2 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 legislativ
intent is unclear. Significantly, Pennsylvania intermediate courts have looked to
statutes and case law interpreting these statutes to determine whether an injury "a
out of the maintenance or use of a motor vehicle." See, e.g., Alvarino v. Allstate
Co., 537 A.2d 18 (Pa. Super. Ct. 1988) (analyzing prior statute and case law to det
that dog bite did not arise out of use of motor vehicle); Roach v. Port Authority o
Allegheny County, 550 A.2d 1346 (Pa. Super. Ct. 1988) (analyzing prior statute and
law to determine that injury resulting from fight on bus did not arise out of use o
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"
vehicle at the time of the accident. Lucas-Raso v. American Manufacturers Ins. Co.
A.2d 1, 4 (Pa. Super. Ct. 1995). I do not understand the majority to dispute that
was an "occupant" of his car at the time of the accident. See Tyler v. Insurance C
N. Am., 457 A.2d 95, 97 (Pa. Super. Ct. 1983) (person alighting from vehicle still
occupant); Frain v. Keystone Ins. Co., 640 A.2d 1352, 1357 (Pa. Super. Ct. 1994) (e
vehicle is transaction essential to its use). It follows that Hilpl was "using" hi
vehicle when he was injured.
In Lucas-Raso, upon which the majority relies, the court found no "use" b
case is distinguishable. When the plaintiff fell in a parking lot it was not while
was alighting but while she was walking around her car with the intent of entering
She did not come into any contact with the vehicle in the course of her fall, and i
indeed stretch "maintenance or use" language to encompass "intended use." In contr
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:
3 Q. Where was your weight? Was your weight on your feet at that poi you rose from the seat?
A. No. My weight was still on -- my butt was still, like, in the c my feet went out from under me. You know, if you could only picture know, you're getting out of the car and getting out of it front ways you have all of this and you're inching out and your feet go out fro underneath of you, like that (Witness indicating), and then you come and boom.
Q. So when your back hit the rocker panel -- what you mean by the r 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.
Q. Okay. Now, when you came down, did you come down on to that roc 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?
Q. After your back hit that portion, what did your body do?
A. I slid down on the ground.
App. at 194.
4 The majority appears to base its decision that Hilpl was not "using" his
when he was in the process of alighting from it and injured himself on the car's ro
panel on the fact that the car didn't cause the injury. While it may be true that
ultimate cause of Hilpl's injury was the grease left on the parking lot which he ca
contact with, there seems to be no dispute that his injuries resulted from his phys
contact with a portion of the car as he was exiting from it.
The majority concedes that under Pennsylvania law the causal connection r
is not proximate cause; "but for" causation is sufficient. See Alvarino, 537 A.2d
21 ("but for" causation is sufficient as long as there is connection greater than m
happenstance between injuries sustained and insured vehicle). That "but for" causa
evident in this case. But for the manner in which Mr. Hilpl exited his car, and bu
the fact that he landed on the rocker panel of his car, this accident would not hav
happened. Thus, Mr. Hilpl's accident and injuries were directly related to his use
car. It is not helpful to speculate whether a different accident might have happen
he slipped on a slippery substance elsewhere in the parking lot. Thus, I belie
Pennsylvania courts would hold that Hilpl was vehicle oriented, because he was stil
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.