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MICHAEL TOTER v. SARA E. KNIGHT (06/06/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: June 6, 1980.

MICHAEL TOTER, APPELLANT,
v.
SARA E. KNIGHT

No. 472 October Term 1979, Appeal from the Order in the Court of Common Pleas of Bucks County, Civil Action-Law at No. 78-117-04-2.

COUNSEL

Charles J. Conturso, Morrisville, for appellant.

Charles McIlhinney, Doylestown, for appellee.

Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Spaeth

[ 278 Pa. Super. Page 548]

This appeal arises from an order sustaining preliminary objections and dismissing an amended complaint in trespass.

The allegations of the amended complaint may be summarized as follows. On September 9, 1976, appellant was operating an automobile in Bucks County and collided with

[ 278 Pa. Super. Page 549]

    an automobile operated by appellee. At the time of the accident, appellant was a resident of New Jersey, and his automobile was registered in that state. Appellee was a resident of Pennsylvania, and her automobile was registered here. The collision occurred as a result of appellee's negligence, and caused appellant physical injuries for which appellant has or will incur medical expenses exceeding $200.00, "exclusive of hospital expenses, x-rays and other diagnostic medical expenses," and also caused appellant physical pain and mental anguish. The complaint further alleged that under Pennsylvania law, appellant's right to sue on account of these injuries was to be determined by the law of the state of his domicile, i. e., New Jersey, and that under section 6A-8 of the New Jersey Automobile Reparation Act, N.J.S.A. § 39: 6A-8 (1973), a victim of an automobile accident has the right to sue in tort whenever the cost of medical treatment, exclusive of x-rays, hospital bills, and other diagnostic expenses exceeds $200.

On February 22, 1978, appellee filed preliminary objections to the amended complaint, which the lower court sustained on February 14, 1979. The lower court believed that appellant's action was barred by section 301(a) of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.301(a) (1979-80 Supp.), which provides:

Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that

(5) A person remains liable for damages for non-economic detriment if the accident results in:

(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750).

[ 278 Pa. Super. Page 550]

The lower court held that appellant had not met this $750 threshold requirement, since the amended complaint alleged that appellant's medical expenses were in excess of only $200.*fn1

Section 110(c)(2) of the Pennsylvania No-Fault Act, 40 P.S. § 1009.110(c)(2) (1979-80 Supp.), provides:

The right of a victim or of a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim. If a victim is not domiciled in a state, such right to sue shall be determined by the law of the state in which the accident resulting in injury or damage to property occurs.

This provision has been criticized as being "impossible of interpretation or execution." Barrett, Pennsylvania No-Fault Motor Vehicle Insurance Act: Practice Under the Act 102 n. 51 (Pa. Bar Institute 1975). We do not find it all that obscure. The provision embodies two choice-of-law principles:

[ 278 Pa. Super. Page 5511]

) The right of the victim of a motor vehicle accident to sue in tort shall be determined by the law of his domicile; and 2) if the victim is not domiciled in a state, the victim's right to sue shall be determined by the law of the state in which the accident occurred. The first principle applies to this case, for the amended complaint alleges that appellant was domiciled in New Jersey at the time of the accident. It therefore follows the appellant's right to sue must be determined by the law of New Jersey, not Pennsylvania, and it further follows that appellant's action in not barred by section 301(a).

In holding that appellant's action was barred, the lower court found an irreconcilable conflict between sections 110(c)(2) and 301(a). The lower court emphasized that under section 301(a) "[t]ort liability is abolished with respect to any injury that takes place in this State," and that the words "any injury" necessarily encompass injuries by non-residents. While we concede that section 301(a) might have been more tightly drafted, we nevertheless reject the assertion that it is in irreconcilable conflict with section 110(c)(2).

Section 301(a) provides that "[t]ort liability is abolished" only "with respect to any injury that takes place in this State in accordance with the provisions of this act." The phrase "in accordance with the provisions of this act" modifies the verb "is abolished," and by incorporating all the other provisions of the no-fault act, indicates the extent to which tort liability is abolished. As one of the "provisions of th[e] act," Section 110(c)(2) explicitly preserves the right of a non-resident to sue in tort in this Commonwealth, provided that his action is maintainable under the law of his domicile. Sections 301(a) and 110(c)(2) are therefore not in conflict, but are rather complementary provisions that function as a unit.

Moreover, even if we could find a conflict between sections 110(c)(2) and 301(a), section 110(c)(2) would nevertheless prevail under the principle that "[w]henever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be

[ 278 Pa. Super. Page 552]

    construed, if possible, so that effect may be given to both." 1 Pa.C.S.A. § 1933 (1964-78 Supp.). To hold that all non-residents must meet the requirements of section 301(a) in order to sue in tort in Pennsylvania would be to nullify section 110(c)(2), for then there would be no situation in which section 110(c)(2) could operate. To apply section 110(c)(2) to non-residents and limit the effect of section 301(a) to residents, however, is to give meaning and effect to both provisions.

Finally, even were we to agree with the position taken by the lower court, that an irreconcilable conflict existed between sections 110(c)(2) and 301(a), still section 110(c)(2) would prevail under the principle that "[i]f the conflict between [ ] two provisions is irreconcilable, the special provisions [sic] shall prevail and shall be construed as an exception to the general provision." 1 Pa.C.S.A. § 1933 (1964-78 Supp.); Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975); Paxon Maymar, Inc. v. Pa. Liquor Control Bd., 11 Pa. Commw. 136, 312 A.2d 115 (1973). Section 301(a), abolishing tort liability with respect to any injury that occurs in the Commonwealth, is a general provision; section 110(c)(2), preserving the right to sue in tort for a limited class of persons (domiciliaries of other states) is a narrow, or special, provision, specifically addressed to the situation present in this case.*fn2

We do not share the lower court's belief that the Legislature could not have reasonably granted non-residents the right to sue in tort in situations where residents were denied the right.

To understand the policies that might have prompted the Legislature to enact section 110(c)(2), the provision

[ 278 Pa. Super. Page 553]

    should be read in conjunction with section 110(c)(1), 40 P.S. § 1009.110(c)(1) (1979-80 Supp.), which provides:

The basic loss benefits available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurred. If there is no such state no-fault plan in effect or if the victim is not domiciled in any state, then basic loss benefits available to any victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance, if any, in effect in the state in which the accident resulting in injury occurs.

Thus, section 110(c)(1) expresses two general rules governing the rights of a non-resident to recover basic loss benefits when the non-resident is injured in a motor vehicle accident in this state. If the non-resident is domiciled in a state that has in effect a state no-fault plan for motor vehicle insurance, the non-resident is denied the benefits available under Pennsylvania's No-Fault Act and is remitted to the benefits available under the plan of his home state. If the non-resident is domiciled in a state that does not have in effect a state no-fault plan, or if the non-resident is not domiciled in any state, then he is entitled to the basic loss benefits provided under Pennsylvania's No-Fault Act.*fn3 However, no

[ 278 Pa. Super. Page 554]

    matter which of these rules pertains, under section 110(c)(2) the non-resident always retains the tort remedies that are available under the law of his home state.

The fairness of this statutory scheme has been defended on the following grounds:

First, it [the statutory scheme] is more consistent with contemporary treatment of conflict of laws problems by the Pennsylvania courts. If a Pennsylvania court has jurisdiction over a controversy, it will look first to Pennsylvania law, including its conflicts provisions. Pennsylvania generally accepts the Restatement Second view on conflicts of law, which looks to "significant contacts" of the parties involved in the controversy. In any case, a significant "contact" which the court will consider is the party's domicile. But, more importantly, in a no-fault

[ 278 Pa. Super. Page 555]

    context it may be the critical contact. As earlier described in this text, the rules of priority establish the general rule that benefits are paid by tracking the victim's insurance coverage, not the motor vehicle policy. Although there may be commendable policy considerations in a view which pays benefits to any victim of a Pennsylvania accident, it is clear that principal interest is on the part of the victim's state. It is there that the victim could be relegated to "relief" or "welfare" rolls, or where he may be eligible for some state-mandated government program for treatment or rehabilitation. Additionally, motor vehicle insurance is traditionally the business of state-of-domicile regulation. After all, the potential accident victim anticipates in the first instance that he must comply with, and will receive benefits under his insurance policy.

Secondly, this interpretation is not inconsistent with the history of the Pennsylvania Act. As stated above, the pertinent provisions of the Pennsylvania No-Fault Act were taken virtually verbatim from the proposed national act, S-354. The national act was based upon the assumption that it or similar no-fault acts (i. e. complying with minimum federal standards) would be adopted by all of the states. Domiciliaries of each state would look to the first party benefits available under their own state's no-fault plan. Again, this would comport with the expectations of the parties who would receive certain benefits contracted for in exchange for premiums paid. Although the underlying assumption of uniformity broke down because of the failure of many states to enact no-fault plans, the Pennsylvania Act had already provided for such an eventuality in Section 110(c)(1). The general rule there stated is clear: "Basic loss benefits available to any victim . . . shall be determined pursuant to the provisions of the state no-fault plan . . . in effect in the state of domicile of the victim."

A third consideration concerns the policies underlying the No-Fault Act. Is the policy of the Act to provide for all persons injured in Pennsylvania, or to provide for all

[ 278 Pa. Super. Page 556]

Pennsylvanians injured in motor vehicle accidents? As already noted, the basic intent of the Act is to provide basic loss benefits to Pennsylvanians injured in motor vehicle accidents, and to any other persons injured in Pennsylvania who would not otherwise be provided for. The contrary interpretation (that, under Section 201, [of the Pennsylvania No-Fault Act] all persons injured in Pennsylvania are entitled to Pennsylvania no-fault benefits) could result in a boon for a person from a no-fault state who is injured in Pennsylvania, and a drain on the Pennsylvania insurance system in order to provide benefits to out-of-state residents who pay no insurance premiums in this jurisdiction.

Pennsylvania Trial Lawyers Assoc., The Pennsylvania No-Fault Motor Vehicle Insurance Act, § 1:16.3 at 131-32 (Shrager ed. 1979) (footnotes omitted).

See also American Bar Assoc., Automobile No-Fault Insurance: A Study by the Special Committee on Automobile Insurance Legislation 60-62 (February 1978); Kozyris, No-Fault Automobile Insurance and the Conflict of Laws -- Cutting the Gordian Knot Home-Style, 1972 Duke L.J. 331, 389-403.

By adopting choice-of-law principles that direct a court to look to the law of the victim's domicile in determining the victim's right to basic loss benefits and his right to sue in tort, the Legislature has ensured that the reasonable expectations of every victim in an automobile accident in this Commonwealth will be fulfilled. If the victim is a non-resident who is domiciled in a state that has its own no-fault act, he is completely excluded from the benefits provided under Pennsylvania's No-Fault Act, but he keeps the right to recover the benefits that are due to him under the no-fault plan in effect in his home state, and also the right to maintain a tort action in accordance with the laws of that state. The non-resident thus gets no more and no less coverage for his losses than the coverage he would have received had the accident occurred in his home state, which is to say that the non-resident and the Pennsylvania resident

[ 278 Pa. Super. Page 557]

    are treated alike, both recovering according to the law of their respective domiciles.

Admittedly, the possibility exists that a non-resident who is domiciled in a state that has not passed a no-fault act may receive liberal treatment under section 110(c)(1), (2). Under section 110(c)(1), such a non-resident may participate in the benefits available under the Pennsylvania act regardless of his fault in causing the accident, while still retaining, under section 110(c)(2), his right to sue in tort under the laws of his home state. Nevertheless, the Legislature might have concluded that public policy requires that a non-resident injured in a motor vehicle accident in this state always be guaranteed basic loss benefits under a no-fault plan. It should also be remembered that the Legislature might have been persuaded that any generally-worded choice-of-law provision should be capable of ready application to a large number of cases, even if in a particular case some inequity might result. As one commentator has stated: "The purpose of no-fault laws is, to a large extent, the simplification of automobile accident administration. That simplification, for interstate cases governed and administered under state and not national laws, will be totally lost unless the statute is completely clear, in each forum state, as to just how the extrastate aspects of each case are to be handled." Leflar, Choice-of-Law Statutes, 44 Tenn.L.Rev. 951, 966-67 (1977) (footnote omitted). See also Kozyris, No-Fault Insurance and the Conflict of Laws -- An Interim Update, 1973 Duke L.J. 1009.

The order of the lower court is reversed.*fn4

CAVANAUGH, Judge, dissenting:

Appellant, Michael Toter, a resident of New Jersey, was involved in a motor vehicle accident in Bucks County, Pennsylvania, on September 9, 1976. Appellee, Sara E. Knight,

[ 278 Pa. Super. Page 558]

    was the operator of the other vehicle involved in the accident. As a result of the accident, appellant filed a complaint in trespass against appellee in Bucks County alleging personal injuries and that he incurred medical expenses "in excess of $200.00."*fn1 Appellee filed preliminary objections in the nature of a demurrer on the grounds that the appellant failed to meet the tort liability requirements set forth in the Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn2 The court below sustained appellee's preliminary objections and appellant has filed an appeal to this Court. This Court has reversed the order of the court below and I dissent.*fn3

On appeal, the sole question for our determination is whether the appellant's right to bring an action in trespass is controlled by the Pennsylvania No Fault Insurance Act which provides that medical expenses must exceed $750.00 exclusive of diagnostic x-rays costs and rehabilitation costs in order to sue in tort, or the New Jersey No Fault Insurance Act which has a lower threshold of $200.00, exclusive of hospital expenses, x-rays, and other diagnostic medical expenses.*fn4

[ 278 Pa. Super. Page 559]

In Pennsylvania, the No-Fault Insurance Statute provides in part:

Tort liability

(a) Partial abolition -- Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle except that:

(5) A person remains liable for damages for non-economic detriment if the accident results in:

(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100.00) is in excess of seven hundred fifty dollars ($750.00) . . . Act of July 19, 1974, P.L. 489 § 301, 40 P.S. § 1009.301.

Reading the above provision alone, I would have no difficulty in deciding that medical services (exclusive of diagnostic x-ray costs and rehabilitation costs) must exceed the threshold amount of $750.00 before an action in tort could be commenced in Pennsylvania for injuries suffered in an accident which occurred in this State. However, the statute also provides in Section 110 as follows:

The right of a victim or of a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim. 40 P.S. 1009.110(c)(2).

[ 278 Pa. Super. Page 560]

Appellant contends that under this section of the Pennsylvania No-Fault Statute, we must look to the law of New Jersey to determine the applicable threshold amount to commence an action in tort.

This contention ignores the clear language of § 301 of the Pennsylvania No-Fault Act which abolishes tort liability "with respect to any injury that takes place in this State" unless medical expenses exceed $750.00 exclusive of diagnostic x-ray costs and rehabilitation costs.

The court below found an irreconcilable conflict between § 110 and § 301 of the Pennsylvania No-Fault Statute. I would not go this far. However, I believe that in order for a person domiciled outside of Pennsylvania to sue tort in Pennsylvania for injuries resulting from an accident which has occurred in Pennsylvania, the medical expenses must exceed $750.00 as provided for in § 301 of the Pennsylvania No-Fault Statute.

In construing a statute, every provision must be given effect. Statutory Construction Act, Act of November 25, 1970, P.L. 707, 1 Pa.C.S.A. § 1921, City of Wilkes-Barre v. Ebert, 22 Pa. Commw. 356, 361, 349 A.2d 520, 522 (1975). We should not ignore the threshold of medical expenses in the Pennsylvania Statute merely because New Jersey has a lower threshold. If the legislature intended that the medical threshold was to be $750.00 only if the accident victim was domiciled in Pennsylvania, it could have so stated. On the contrary, it used unambiguous language to abolish tort liability with respect to any accident occurring in Pennsylvania where medical expenses do not exceed $750.00, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars.

I have considered the findings of the legislature which found that an insurance law which "eliminates the need to determine fault except when a victim is very seriously injured " is a comprehensive and fair system of insurance. Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.102 (emphasis added). New Jersey apparently does not require injuries to be as serious as does Pennsylvania in order to bring an

[ 278 Pa. Super. Page 561]

    action in tort to recover for injuries. I do not intend to equate the seriousness of an injury with medical expenses resulting from the injury, but our legislature has determined that if medical expenses do not exceed $750.00 (exclusive of certain costs) the injury is not serious enough to result in a trespass action based on tort.

The Pennsylvania Code, in its discussion of § 110 of the No-Fault Act states: "If a nonresident is involved in an accident in the Commonwealth, he will receive benefits as provided under his state of domicile no-fault plan. If his state of domicile has no such plan, or if the nonresident has no state of domicile, then he will receive benefits as provided under the Commonwealth no-fault plan." Title 31 Pa. Code § 66.1-110(c)(1)(b). The Pennsylvania Code is silent with respect to the situation where the nonresident's state of domicile has a lower threshold of medical expenses than does the State of Pennsylvania.

I do not believe that § 110 and § 301 of the No-Fault Statute are irreconcilable. However, if they are irreconcilable, then under the Statutory Construction Act, § 301 would prevail over § 110. The Statutory Construction Act of November 25, 1970, P.L. 707, 1 Pa.C.S.A. § 1934 provides that when clauses of the same statute are irreconcilable, the last clause in order of position shall prevail. I am convinced that the legislature having unequivocally abolished tort liability in cases where an accident occurs in Pennsylvania and medical expenses do not exceed $750.00 did not intend to reinstate such liability where the victim happens to be domiciled outside of the Commonwealth and the state of the victim's domicile permits an action in tort even though medical expenses are less than $750.00. Such a conclusion would not only be contrary to the unambiguous language of § 301 of the statute, but also contrary to the express intent of the legislature as set fourth in the no-fault statute to allow actions in tort only where the victim is very seriously injured.

I would affirm the order of the court below.


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