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CHARLES JAMES HOWE v. HARLEYSVILLE INSURANCE COMPANIES (04/22/83)

filed: April 22, 1983.

CHARLES JAMES HOWE
v.
HARLEYSVILLE INSURANCE COMPANIES, APPELLANT



No. 7 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Luzerne County, No. 12199 of 1977.

COUNSEL

Alexander Kerr, Harleysville, for appellant.

Joseph F. Saporito, Pittston, for appellee.

Brosky, Wieand and Cirillo, JJ.

Author: Wieand

[ 313 Pa. Super. Page 66]

Is a motor vehicle occupant who sustains injuries when struck by a hunter's errant bullet entitled to benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act?*fn1 The trial court held that such an injury was included within the Act's protection, entered judgment in the amount of

[ 313 Pa. Super. Page 67]

$1,957.92, and awarded attorney's fees in the amount of $800.00. We reverse.

The facts are not in dispute. On December 4, 1976, Charles James Howe was a passenger in a jeep owned and operated by his father, James B. Howe, Jr. The vehicle was insured by Harleysville Mutual Insurance Co., Inc.*fn2 Howe sustained injury when a hunter mistakenly believed the jeep was a deer and shot at it. His aim was better than his judgment. The bullet pierced the door of the jeep and lodged in Howe's leg. Howe sought benefits under the No-fault Act. When his claim was denied by Harleysville, he commenced an action in assumpsit. When the case was heard without a jury, the parties stipulated the facts. The court ruled in favor of Howe; Harleysville's exceptions were denied by the court en banc; and judgment was entered. This appeal followed.

Basic loss benefits under the No-fault Act are available to "an individual who suffers injury arising out of the maintenance or use of a motor vehicle." 40 P.S. ยงยง 1009.201, 1009.103. The focus of our inquiry, therefore, is whether appellee's injuries arose out of the use of an automobile. We have recently considered this issue in several factually analogous cases and have concluded that "while the causal connection need not rise to the level of proximate causation, for purposes of coverage under the No-fault Act there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle." Schweitzer v. Aetna Life and Casualty Co., 306 Pa. Super. 300, 303, 452 A.2d 735, 737 (1982). See also: Erie Insurance Exchange v. Eisenhuth, 305 Pa. Super. 571, 451 A.2d 1024 (1982); Rife v. State Farm Mutual Automobile Insurance Co., 304 Pa. Super. 359, 450 A.2d 720 (1982). The legislative scheme contained in the No-fault Act is to provide, at reasonable cost, a

[ 313 Pa. Super. Page 68]

    statewide system of protection and compensation for individuals injured as a result of motor vehicle accidents, irrespective of fault. This purpose cannot reasonably be construed to encompass protection for injuries which are totally unconnected with an insured vehicle or so remotely connected therewith that the role of the vehicle has been merely incidental.

In Schweitzer v. Aetna Life and Casualty Co., supra, the plaintiff sustained injuries when she was pulled from her vehicle and assaulted by the operator of a motorcycle. She contended that her injuries, although intentionally inflicted by a third party, arose from the use or maintenance of a motor vehicle and that she was, therefore, a "victim" within the meaning of the No-fault Act. This court disagreed, stating that "[a]n unprovoked, intentional physical assault upon the driver of an automobile is not within the scope of the protection contemplated by the legislature, ...


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