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Burke v. Elliott

decided: September 7, 1979.

KIM L. BURKE, JEFFREY L. BURKE AND ROSEMARY DUNFEE, APPELLEES
v.
BARBARA W. ELLIOTT, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil No. 78-0091)

Before Aldisert, Van Dusen and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

This diversity case is based on a pedestrian's cause of action for personal injuries at the intersection of Delaware and Pennsylvania no-fault laws. The issue is whether the plaintiff can recover her medical expenses and loss of wages in a Delaware tort action stemming from an automobile accident in that state. The plaintiff actually received reimbursement for her expenses under the terms of her own Pennsylvania no-fault insurance policy, but would have been eligible for a less generous amount under defendant motorist's Delaware policy. Eligibility under Delaware law, however, results in a pro tanto bar from recovery in a negligence action in that state. Because the accident occurred in Delaware, the forum state, which is loyal to Lex loci delicti, we conclude that its statute should apply. Accordingly, the trial judge's ruling that the plaintiff could recover all her expenses will be vacated and the case remanded for determination of the amount which must be deducted from the judgment in her favor.

Plaintiff Kim Burke, a Pennsylvania resident, received severe injuries when struck by an automobile owned and operated by the defendant, a Delaware resident. Her husband, Jeffrey, and a companion, Rosemary Dunfee, were also injured, though far less seriously. Though the appeal includes all three claims, it is the case of Kim Burke which is the focus of concern in this court. At trial in the United States District Court for the District of Delaware, plaintiff claimed $43,156.91 in medical expenses and lost wages. The defendant objected on the ground that plaintiff had received this amount under her own insurance policy written in compliance with the Pennsylvania no-fault law and, additionally, because the Delaware statute prohibited recovery of sums which a victim was entitled to receive under Delaware's no-fault law. The court overruled the objections and submitted the claim for expenses to the jury, which awarded a total of $450,000 to the plaintiff.

The injury occurred on September 16, 1977, as plaintiff was walking through a parking lot on her way to a restaurant. The defendant, driving under the influence of alcohol, backed into the plaintiff, trapping her under the car. The auto continued its course, dragging the plaintiff across three lanes of the adjacent roadway until she struck a raised concrete medial barrier which dislodged her from the undercarriage of defendant's car. Defendant then left the scene of the accident, but was apprehended soon thereafter.

A partial list of plaintiff's injuries includes a ruptured bladder, a fracture of the pelvis, a fractured femur, a lacerated liver, part of which had to be removed, fractured ribs, pulmonary contusion, facial palsy, and infections of various parts of her body. She received extensive hospital treatment and is left with permanent impairments, including the probability that she will not be able to bear children.

The trial judge ruled that evidence of medical expenses and lost earnings would be admissible, based on his understanding that the plaintiff was not eligible for benefits under the Delaware no-fault law and that the payments under her Pennsylvania policy were irrelevant under Delaware's collateral source rule. Defendant conceded that she did have a liability policy in effect which included the no-fault coverage required by the Delaware statute.

The Delaware no-fault statute, enacted in 1971, is characterized as an "add-on" type, that is, it provides for certain payments to the victim of an automobile accident regardless of negligence while retaining the traditional tort system for recovery. Clark & Waterson, "No-Fault " In Delaware, 6 Rut.-Cam.L.J. 225, 225 (1974). The statute, Del.Code tit. 21, § 2118(a)(2)c (Cum.Supp.1977), includes among those entitled to its protection, occupants of motor vehicles and "any other person injured in an accident involving such motor vehicle." "The coverage required . . . shall apply to pedestrians only if they are involved in accidents within the State . . . ." Id. § 2118(a)(2)e. As a pedestrian, therefore, the plaintiff was eligible for the benefits provided by the defendant's no-fault coverage for medical expenses and lost wages.

The benefits conferred by the statute, however, are offset by another section providing that

"(a)ny person Eligible for benefits . . . is precluded from pleading or introducing into evidence in an action for damages against a tort-feasor those damages for which compensation is available . . . whether or not such benefits are actually recoverable." Id. § 2118(g) (emphasis supplied).

The wording of the statute thus clearly limits the evidence on damages which a plaintiff may introduce in an automobile accident case, and the Delaware trial courts have so construed that language. See Webster v. State Farm Mutual Automobile Insurance Co., 348 A.2d 329, 332 (Del.Super.1975); DeVincentis v. Maryland Casualty Co., 325 A.2d 610, 612 (Del.Super.1974); Cf. Nationwide Insurance Co. v. Rothermel, 385 A.2d 691 (Del.1978). The basic limits of the policy required by the statute applicable to an accident of the type litigated here would be $10,000. If defendant's policy had optional higher limits, then additional amounts would be payable and hence excluded as recoverable damages in a tort action.*fn1

Were this a case involving only Delaware insurance policies, its disposition would be relatively simple. A complicating factor was introduced, however, by the plaintiff's decision to claim no-fault benefits as an insured under her policy written pursuant to the Pennsylvania no-fault law. Under the coverage mandated by the Pennsylvania statute, plaintiff was reimbursed in full for her medical expenses of $33,855.85 and for 90% Of her lost wages totaling $9,301.06.

Unlike the Delaware statute, the Pennsylvania No-Fault Motor Vehicle Insurance Act abolishes tort liability, with certain exceptions, when an accident occurs within the state. Pa.Stat.Ann. tit. 40, § 1009.301 (Purdon Supp.1978). Pedestrians are covered and if they are insured under a Pennsylvania auto policy, may receive benefits for an accident arising out of state. Id. § 1009.201(b). The insurance carrier which pays minimum basic benefits may not subrogate against a tortfeasor, Id. § 1009.111, and a victim may not prove or recover losses which have been reimbursed under the no-fault provisions. Zagari v. Gralka, 264 Pa.Super.Ct. 239, 399 A.2d ...


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