Windrim v. Nationwide Mutual Insurance

602 A.2d 1356, 412 Pa. Super. 155, 1992 Pa. Super. LEXIS 268

• Court: Superior Court of Pennsylvania
• Decided: February 12, 1992
• Docket: 02900
• Status: Published

Opinions

HOFFMAN, Judge:

Nationwide Insurance Company (“Nationwide”) appeals from the order of the Court of Common Pleas of Philadelphia County compelling uninsured motorist arbitration and invalidating an automobile insurance policy provision which excludes uninsured motorist benefits to a person operating his own uninsured car at the time of the accident. For the following reasons, we affirm.

On December 3, 1989, while driving his own automobile, appellee, Allen Windrim, was involved in an accident. As a result of the accident, he sustained injury. At the time of the accident, Windrim was the sole owner and operator of his automobile but carried no insurance on it. Consequently, he sought Uninsured Motorist Coverage from Nationwide, alleging that he was insured pursuant to his mother’s policy with Nationwide because he was a resident relative of his mother’s household. Nationwide refused coverage, citing the exclusionary provision in appellee’s mother’s policy which provides, in relevant part:

[t]his Uninsured/Underinsured Motorists insurance does not apply as follows ...

4. It does not apply to bodily injury suffered while occupying or from being hit by a vehicle owned by you or a relative living in your household, but not insured for Uninsured or Underinsured Motorists coverage under this policy.

Appellee then filed a motion to compel uninsured motorist arbitration, contending that the aforementioned provision was invalid under the Uninsured Motorist Act, 40 Pa.S.A. § 2000.¹ Nationwide filed a response in which it included a counterclaim seeking a declaratory judgment on the issue of the validity of its policy provision. The trial court granted appellee’s motion and ordered arbitration. In addition, the court dismissed appellant’s counterclaim and declared the exclusionary provision invalid on the basis of Banks v. State Farm Mutual Automobile Insurance Co., 216 Pa.Super. 162, 264 A.2d 197 (1970), in which this court invalidated an almost identical provision on the ground that it was repugnant to the Uninsured Motorist Act. Nationwide then timely appealed to this court.

Initially we note that an order compelling arbitration is ordinarily considered interlocutory and thus, nonappealable. Gardner v. Prudential Ins. Co., 332 Pa.Super. 358, 481 A.2d 654 (1984). However, the order sub judice not only compelled arbitration, but also dismissed Nationwide’s counterclaim for declaratory relief. Both our Supreme Court and this court have held that an order dismissing a counterclaim is appealable. See Commonwealth v. Orsatti, 448 Pa. 72, 75-76, 292 A.2d 313, 315 (1972) (order sustaining preliminary objections to defendant’s counterclaim in an amount in excess of plaintiff’s claim is appeal-able); Zivitz v. Centennial Road Properties, 328 Pa.Super. , 81 n. 1, 476 A.2d 462, 463 n. 1 (1984) (order sustaining preliminary objections and dismissing counterclaim is appealable because it puts defendant out of court as far as the counterclaim is concerned even though validity of plaintiffs claim is still undetermined). Because the trial court in its order and subsequent opinion, in effect, precluded Nationwide from litigating its claim, we find that the order is appealable. Thus, we can proceed to the merits of this case.

Nationwide contends that the trial court’s reliance on Banks, supra, is misplaced because after the enactment of the Uninsured Motorist Act and the Banks decision, the Motor Vehicle Financial Responsibility Law (“MVFRL”) was enacted. The clear intent and policy behind the MVFRL, Nationwide argues, is to prevent uninsured motorists from using public highways by denying them insurance benefits. This represents a change in legislative intent and policy from that underlying the Uninsured Motorist Act, Nationwide contends, and thus, in light of the change, an exclusionary provision such as the one placed in appellee’s mother’s policy is now valid. We disagree.

In Banks v. State Farm Mutual Automobile Ins. Co., supra, appellant, Carol Erb Banks, sought recovery of uninsured motorist benefits on behalf of her deceased husband, Paul, who had been killed when the motorcycle he was riding was struck by an uninsured motorist. State Farm denied benefits on the basis that the policy covering the deceased’s automobile contained an exclusionary provision which prohibited the payment of uninsured motorist benefits if, at the time of accident, the insured was occupying a motor vehicle owned by him but not insured. Here, Paul had not obtained insurance on his motorcycle, thereby making the exclusionary provision applicable. However, this court struck down the exclusionary provision on the ground that it was repugnant to the Uninsured Motorist Act. We based our holding on the legislative history underlying the Act which revealed that the legislators expressly rejected an exclusionary provision identical to the one in State Farm’s policy. Thus, we held that it was the intention of the legislators not to deny uninsured motorist benefits to owner/operators of uninsured vehicles.

Recently, in the case of Henrich v. Harleysville, 403 Pa.Super. 98, 588 A.2d 50 (1991), this court discussed the legislative intent underlying the MVFRL in regard to providing an uninsured motorist with uninsured motorist benefits. In Henrich, Elizabeth Henrich was injured when the uninsured automobile in which she was a passenger struck a tree. Elizabeth, herself the owner of an uninsured automobile, sought uninsured motorist benefits under her father’s automobile policy, under which she was covered. Harleysville, who issued her father’s policy, refused payment on the grounds that Elizabeth was the owner of an uninsured vehicle and § 1714 of the MVFRL prohibited the payment of any insurance benefits to an owner of an uninsured vehicle.² This court rejected Harleysville’s argument, holding that § 1714 only precludes an uninsured motorist from receiving first party benefits, which as defined by the statute, did not include uninsured motorist benefits. We determined that nowhere in the MVFRL does it state that an uninsured owner of a vehicle is precluded from receiving uninsured motorist benefits. Furthermore, we applied the maxim “expressio unius est exclusio alterius,” (“the mention of one thing in a statute implies the exclusion of others not expressed”), to conclude that it was not the legislators’ intent to bar uninsured owners from recovering uninsured motorist benefits.

Considering our holding and analysis in Henrich, we find no change from the legislative intent underlying the Uninsured Motorist Act to that underlying the MVFRL. The legislative intent underlying both is to ensure owners/operators of uninsured vehicles receive uninsured motorist benefits. Accordingly, our holding in Banks is still controlling and thus, the provision in appellant’s policy which precludes an insured from obtaining uninsured motorist benefits if the insured is the owner of an uninsured automobile is invalid.³ Consequently, we affirm the trial court’s order compelling arbitration.

Affirmed.

POPOVICH, J., files a Dissenting Opinion.

1 . Section 2000(a) states:

[n]o motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners and operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death therefrom____

40 Pa.S.A. § 2000(a).

2 . Section 1714 of the MVFRL, entitled "Ineligible Claimants,” states: An owner of a currently registered motor vehicle who does not have financial responsibility or an operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle, motorized pedalcycle or like type vehicle required to be registered under this title cannot recover first party benefits.

75 Pa.C.S.A. § 1714.

"First-party benefits” are defined in 75 Pa.C.S.A. § 1702 as "medical benefits, income loss benefits, accidental death benefits and funeral benefits.” 75 Pa.C.S.A. § 1702.

3 . We note that if it is the intent of the legislature to deny benefits to owners of registered vehicles who do not obtain insurance, see Allen v. Erie Ins. Co., 369 Pa.Super. 6, 534 A.2d 839 (1987), then it would be appropriate to amend 75 Pa.C.S.A. § 1714 to preclude uninsured coverage and other coverages as well as first party benefits.