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Home My WebLink About01-521 CivilJAMES BROWN, PLAINTIFF V. GARY ZIMMERMAN, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0521 CIVIL TERM IN RE: LIMITED TORT ISSUE OPINION AND ORDER OF COURT Bayley, J., December 16, 2003:-- Plaintiff, James Brown, filed a complaint against defendant, Gary M. Zimmerman, seeking damages for alleged negligence in an automobile accident on August 12, 1999. Defendant filed new matter, averring that on the date of the accident plaintiff was insured with limited tort coverage. Plaintiff, who lives in Harrisburg, Dauphin County, was insured by American States Preferred Insurance Company, of Indianapolis, Indiana, on a policy effective November 11, 1998, and renewed from March 9, 1999 to September 9, 1999.4 The Declarations for the coverage and the renewal set forth "LIMITED TORT." The Motor Vehicle Financial Responsibility Law (MVFRL), at 75 Pa.C.S. Section 1705(a), provides for an election of tort options as to financial responsibility requirements: (1) Each insurer, not less than 45 days prior to the first renewal of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance described in subsections (c) and (d). The notice shall be a standardized ~ The agent was Insurance World, Inc., of Linglestown, Dauphin County. 01-0521 CIVIL TERM form adopted by the commissioner and shall include the following language: A. "Limited Tort" Option--The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of "serious injury" as set forth in the policy or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this "limited tort" option is $. Additional coverages under this option are available at additional cost. B. "Full Tort" Option--The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of- pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverage as required by law under this "full tort" option is $ Additional coverages under this option are available at additional cost. C. You may contact your insurance agent, broker or company to discuss the cost of other coverages. D. If you wish to choose the "limited tort" option described in paragraph A, you must sign this notice where indicated below and return it. If you do not sign and return this notice, you will be considered to have chosen the "full tort" coverage as described in paragraph B and you will be charged the "full tort" premium. I wish to choose the "limited tort" option described in paragraph A. (Emphasis added) Named Insured Date E. If you wish to choose the "full tort" option described in paragraph B, you may sign this notice where indicated below and return it. However, if you do not sign and return this notice, you will be -2- 01-0521 CIVIL TERM considered to have chosen the "full tort" coverage as described in paragraph B and you will be charged the "full tort" premium. (Emphasis added) Named Insured Date The Declarations in the coverage at issue provide: "SUBJECT TO FORMS AND ENDORSEMENT... AU-19 PA (0790) TORT INFORMATION NOTICE." No notice under either 1705(a)(1 ) D or E was signed by the insured and returned to American States Preferred Insurance Company. Section 1705(A)(3) of the MVFRL provides: If a named insured who receives a notice under paragraph (1) does not indicate a choice within 20 days, the insurer shall send a second notice. The second notice shall be in a form identical to the first notice, except that it shall be identified as a second and final notice. If a named insured has not responded to either notice ten days prior to the renewal date, the named insured and those he is empowered by this section to bind by his choice are conclusively presumed to have chosen the full tort alternative. All notices required by this section shall advise that if no tort election is made, the named insured and those he is empowered to bind by his choice are conclusively presumed to have chosen the full tort alternative. Any person subject to the limited tort option by virtue of this section shall be precluded from claming liability of any person based upon being inadequately informed. In Donnelly v. Bauer, 720 A.2d 447 (Pa. 1998), the Supreme Court of Pennsylvania stated: This sole issue in these consolidated appeals is whether the Motor Vehicle Financial Responsibility Law ("MVFRL") requires that an individual, who applies for an original insurance policy after July 1, 1990, be provided with a specific form which contains premium information for both the full and limited tort options. While we find that the plain language of the MVFRL requires an individual purchasing an original insurance policy after July 1, 1990 to receive such premium information, we nevertheless affirm the order of the Superior Court because the -3- 01-0521 CIVIL TERM MVFRL fails to provide a remedy to an individual who does not receive this information. (Footnote omitted.) Unlike the facts in Bonnelly, there is a remedy in the MVFRL where the insured has not returned to the insurer a signed notice under either Section 1705(a)(1) D or E. It is a conclusive presumption that the insured chose a full tort option. Section 1705(A)(3). Accordingly, any entry to the contrary in the Declarations in the coverage is not controlling. See Lucas v. Progressive Causality Insurance Company, 680 A.2d 873 (Pa. Super. 1996), alloc, denied, 693 A.2d 589 (Pa. 1997). Therefore, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2003, IT IS ORDERED that plaintiff's claim is not subject to limited tort coverage. By the Court, Marc F. Greenfield, Esquire Suite 180 230 South Broad Street Philadelphia, PA 19102 For Plaintiff Jefferson J. Shipman, Esquire 320-E Market Street Harrisburg, PA 17101 For Defendant Edgar B. Bayley, J. -4- 01-0521 CIVIL TERM :sal -5- JAMES BROWN, PLAINTIFF V. GARY ZIMMERMAN, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0521 CIVIL TERM IN RE: LIMITED TORT ISSUE ORDER OF COURT AND NOW, this day of December, 2003, IT IS ORDERED that plaintiff's claim is not subject to limited tort coverage. By the Court, Edgar B. Bayley, J. Marc F. Greenfield, Esquire Suite 180 230 South Broad Street Philadelphia, PA 19102 For Plaintiff Jefferson J. Shipman, Esquire 320-E Market Street Harrisburg, PA 17101 For Defendant :sal