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HomeMy WebLinkAbout00-2672 civilRICHARD A. CABAN, Plaintiff Vo CHARLES ETHERTON, JR. and CRESSLER TRUCKING, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 2000-2672 CIVIL TERM IN RE- DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMNEDED COMPLAINT BEFORE: BAYLEY, GUIDO, JJ.. AND NOW, this ORDER OF COURT day of DECEMBER, 2000, for the reasons set forth above, defendants' Preliminary Objections are GRANTED in part and DENIED in part. Paragraph 9(d) of the second amended complaint is stricken. In all other respects Preliminary Objections are DENIED. Defendants are directed to file an answer within twenty (20) days. By the Edward E. Guido, J. James M. DeSanto, Esquire For the Plaintiff Thomas A. Lang, Esquire For the Defendants 'sld RICHARD A. CABAN, Plaintiff Vo CHARLES ETHERTON, JR. and CRESSLER TRUCKING, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · : : -NO. 2000-2672 CIVIL TERM : IN RE' DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE' BAYLEY, GUIDO, JJ, OPINION AND ORDER OF COURT Plaintiff commenced this action by complaint on May 1, 2000. Defendants responded with preliminary objections. Plaintiff has since filed two amended complaints, neither of which resolved the preliminary objections to defendants' satisfaction. Currently before us are defendants' preliminary objections to plaintiff's second amended complaint. The issues raised are as follows: (1.) Should certain paragraphs of the complaint be stricken for failure to conform to Pa. R.C.P. 1019(a)? (2.) Should plaintiff's claim for interest, costs and attorney fees pursuant to § 1797 and § 1798 of the Pennsylvania Motor Vehicle Financial Responsibility Lawi (hereinafter "PMVFRL") be dismissed for lack of standing? The parties have briefed and argued their respective positions. This matter is now ready for disposition. I 75 Pa. C.S.A. § 1797 and § 1798 2000-2672 CIVIL TERM FACTI JAL BACKGROUND This case arises out of a collision between a truck operated by Defendant Etherton and a bicycle operated by plaintiff. Defendant Etherton was employed, and the truck he was operating was owned, by Defendant Cressler Trucking. At the time of the accident, plaintiff neither owned a motor vehicle nor lived in a household where someone else owned a motor vehicle. Therefore, he must look to the i,~surcr o£ ~he. t;'ac4 for payn:cnt o£t,.iz 5.,:st part), benefits.2 Defendant Cressler Trucking was self insured. DISC[ISSION Failure to comply with Pa. R.C.P. 1019(a).. Defendants have asked us to strike several subparagraphs of the complaint. They contend that those subsections do not conform to Pa. Rule of Civil Procedure 1019(a) which requires that "the material facts on which a cause of action.., is based shall be stated in a concise 'and summary form." The language in dispute is as follows' 9. The negligence, recklessness, and carelessness of the Defendants, jointly and severally consisted of the following: · · · c. Careless and reckless operation of their motor vehicle; d. Failing to exercise due care and caution under the circumstances; · · · h. Operating their vehicle in violation in the applicable local ordinances and the statutes of the Commonwealth of Pennsylvania, including, but not limited to those statutes pertaining to careless driving; · · · 1. Violations of the pertinent provisions of the Pennsylvania Vehicle Code, including, but not limited to those provisions pertaining to careless driving; 2 75 Pa. C.S.A. § 1713(a)(4),'complaint paragraph 22. 2000-2672 CIVIL TERM Defendants base their objections on the oft cited case of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). We have reviewed the briefs of the parties as well as the cases cited therein. We are satisfied that none of the above language needs to be stricken except for that contained in paragraph 9(d). The allegation of"(f)ailing to exercise due care and caution under the circumstances" is virtually identical to the objectionable language contained in Connor and has been stricken by this 3 Court in the past. Legal standing. Count II of the second amended complaint contains a claim for first party benefits against Defendant Cressler. As part of the claim, plaintiff seeks to recover costs, interest and attorney fees pursuant to 75 Pa. C.S.A. {}{} 1797 and 1798. Defendant Cressler contends that plaintiff has no standing to maintain a claim under those particular sections. The source of first party benefits is governed by Section 1713 of the PMVFRL which provides as follows: {} 1713. Source of benefits (a) General rule.-(A) person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority: (1) For a named insured, the policy on which he is the named insured. (2) For an insured, the policy covering the insured. (3) For the occupants of an insured motor vehicle, the policy on that motor vehicle. (4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident. 75 Pa. C.S.A. {} 1713. See Kitzmiller, et al v. Riverton Consolidated Water Company, 38 Cumb. L.J. 33, 34 (1987). 2000-2672 CIVIL TERM Since plaintiff was not an insured under any other automobile policy, the parties agree that his claim for first party benefits against defendant Cressler must be based upon Section 1713(a)(4). Defendant Cressler contends that attorney fees, interest, and costs are recoverable under the PMVFRL only where a insured-insurer relationship exists. Since no such policy existed between it and plaintiff, it argues that he has no standing to claim those i:cn~s. We disagree. Claim under § 1798. Section 1798(b) of the pMVFRL provides as follows: Unreasonable refusal to pay benefits.- In the event an insurer is found to have acted with no reasonable foundation in refusing to pay the benefits enumerated in subsection (a) when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended. 75 Pa. C.S.A. § 1798(b). The clear language of the act allows for the imposition of attorney fees and interest against an "insurer." It contains no requirement that the claimant be an "insured." While the word "claimant" is used numerous times throughout section 1798, the word "insured" does not appear at all. Defendant Cressler cites the case of Williams v. Tuck, 397 Pa. Super. 213,579 A.2d 1332 (1990) for the proposition that an insured-insurer relationship must exist before attorney fees may be recovered under Section 1798(b). The Williams case stands for no such proposition. The holding of the court was that a claimant under the assigned claims plan could not take advantage of the interest and attorney fees provisions of Section 1798(b). However, defense counsel ignores the clear language of the Court 2000-2672 CIVIL TERM stating that Section 1798(b) is available to those whose claim, like plaintiff's, is based upon Section 1713 of the PMVFRL. As the Court stated' Section 1713 of the MVFRL creates the following priority system to determine the source of first party benefits for a person who suffers injury arising out of the maintenance or use of a motor vehicle: (1) For a named insured, the policy on which he is the named insured. (2) For an insured, the policy covering the insured. (3) For the occupants of an insured motor vehicle, the policy on ~,a~ motor vckiclc. (4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident .... 270 Pa.C.S. {} 1713. Where an insurer fails to pay first party benefits required under this subchapter to an eligible claimant, attorneys fees may be recoverable under 75 Pa. C.S. § 1798. 579 A.2d at 1334. While the above language is dicta, we choose to follow it. Claim under § 1797. Defendant's attack on plaintiff's standing to claim attorney fees, interest and costs under Section 1797 is two fold. In the first instance, it claims that those items are available only pursuant to "an appeal from the decision of a peer review organization to the Court of Common Pleas." 4 It also argues that an insured-insurer relationship must exist before those items may be claimed. Defendant's first argument is wholly without merit. Section 1797(b)(4) provides in relevant part' ... (a)n insured may challenge before a court an insurer's refusal to pay for past or furore medical treatment or rehabilitative services or merchandise, the reasonableness or necessity of which the insurer has not challenged before a PRO. 4 Defendants' brief, p. 8. 2000-2672 CIVIL TERM 75 Pa. C.S.A. § 1797(b)(4) (emphasis added). The language of that section clearly allows for court review without a decision by a peer review organization. Section 1797(b)(6) goes on to prOvide that in the event of a court determination in favor of the insured, the insurer must pay interest and attorney fees. Defendants' second argument is more problematic. Sections 1797(b)(4) and (6) use the terms "insured" and "insurer" rather than "claimant." The question is whether that language precludes plaintiff from availing himself of those sections. We think not. We believe that plaintiff can fairly be classified as an "insured" within the meaning of the statute. The cost containment provisions of Section 1797 are applicable to (A) person or institution providing treatment, accommodations, products or services to an injured person for an injury covered by liability or uninsured and underinsured benefits or first party medical benefits, including extraordinary medical benefits, for a motor vehicle described in Subchapter B 1 (relating to motor vehicle liability insurance first party benefits)... 75 Pa. C.S.A. § 1797(a) (emphasis added). Section 1713(a)(4) is contained in "Subchapter B." Therefore, we are satisfied that plaintiff's status as a claimant under Section 1713 allows him to avail himself of the remedies made available in Section 1797, including Sections 1797(b)(4) and (6). To hold otherwise would be to hold that the entire peer review process contained in Section 1797 would be inapplicable to those numerous situations in which a claim for first party benefits is made other than through an insurance policy purchased by the claimant or a family member. This interpretation would be contrary to the public policy as articulated by our appellate courts: 2000-2672 CIVIL TERM The intent of the General Assembly in enacting the MVFRL, of which § 1797(a) is a part, was to reduce the rising cost of purchasing motor vehicle insurance. Motorists Ins. Companies. v. Emig, 444 Pa. Super. 524, 664 A.2d 559, 566 (1995). "The enactment of the MVFRL reflected the legislature's concern for the spiraling cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways." Paylor v. Hartford Ins. Co., 536 Pa. 583,587 640 A.2d 1234, 1235 (1994). The primary cost saving mechanism to reduce insurance premiums was the medical cost containment provisions of {} 1797 of the Act. e e · This legislative concern for the increasing cost of insurance is the public policy that is to be advanced by statutory interpretation of the MVFRL. Paylor, 536 Pa. at 587, 640 A.2d at 1235. Pittsburgh Neurosurgery Assoc. V. Danner, 733 A.2d 1279, 1282 (Pa. Super. 1999.) We do not believe that a policy of insurance must exist between an "insured" and "insurer" as a precondition to an award of counsel fees and costs under Section 1797(b)(6). Therefore, we will dismiss this portion of defendant's preliminary objections. ORDER OF COURT AND NOW, this 18TM, day of DECEMBER, 2000, for the reasons set forth above, defendants' Preliminary Objections are GRANTED in part and DENIED in part. Paragraph 9(d) of the second amended complaint is stricken. In all other respects Preliminary Objections are DENIED. Defendants are directed to file an answer within twenty (20) days. By the Court, James M. DeSanto, Esquire Thomas A. Lang, Esquire /s/Edward E. Guido Edward E. Guido, J.