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CAROL TYLER v. INSURANCE COMPANY NORTH AMERICA AND AUCH INTER-BORO TRANSIT COMPANY. APPEAL INSURANCE COMPANY NORTH AMERICA (01/21/83)

filed: January 21, 1983.

CAROL TYLER
v.
INSURANCE COMPANY OF NORTH AMERICA AND AUCH INTER-BORO TRANSIT COMPANY. APPEAL OF INSURANCE COMPANY OF NORTH AMERICA



No. 1400 Philadelphia, 1981, Appeal from Judgment entered in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 927 December, 1980

COUNSEL

James C. Haggerty, Philadelphia, for appellant.

Harvey Voron, Philadelphia, for Tyler, appellee.

Jay L. Edelstein, Philadelphia, for Auch, appellee.

Wieand, Beck and Hoffman, JJ.

Author: Wieand

[ 311 Pa. Super. Page 27]

When an uninsured passenger is struck by a motorcycle upon disembarking from a bus and before reaching the shoulder, is the insurance carrier for the bus company a proper source of basic loss benefits under Section 204 of the Pennsylvania No-fault Motor Vehicle Insurance Act?*fn1 The

[ 311 Pa. Super. Page 28]

    trial court held that it was not a proper source and directed that basic loss benefits be paid by Insurance Company of North America (hereinafter I.N.A.), the designated carrier under the assigned claims plan. I.N.A. appealed. We reverse.

On June 1, 1980, Carol Tyler was a passenger on a bus owned by Auch Inter-Boro Transit Company (hereinafter Auch) which had been chartered to transport a gospel choir from Germantown High School in Philadelphia to the site of a concert in New Jersey. On the return trip, the bus driver was asked by a trip chaperone to stop and discharge several passengers at the intersection of Limekiln Pike and Cheltenham Avenue in Philadelphia. Carol Tyler was one of those passengers. As she stepped from the bus, which had stopped approximately five feet from the shoulder of the road, she was struck by a motorcycle which was passing the bus on the right side.

On the date of the accident, neither Carol Tyler nor any member of her household owned an automobile or had applicable no-fault insurance coverage. Auch's no-fault insurance carrier denied responsibility for no-fault benefits on grounds that Carol Tyler had been a pedestrian at the time she was struck. I.N.A. was thereafter designated as the servicing insurance company under the assigned claims plan, but it, too, denied responsibility. The instant action followed.*fn2 The trial court found that Carol Tyler had taken "three or four steps toward the nearest shoulder of the road" and concluded, therefore, that she was not alighting from the bus when struck but was, rather, a pedestrian.

That Carol Tyler was a "victim" entitled under Section 201 of the No-fault statute, 40 P.S. ยง 1009.201, to basic loss benefits is conceded. Clearly, she sustained injuries arising out of the "maintenance and use of a motor vehicle." This phrase, by definition, includes ...


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