Appeal from the Order of September 9, 1983, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3766 November Term, 1982.
Walter S. Jenkins, Philadelphia, for appellant.
Marvin I. Lessin, Philadelphia, for appellee.
Cavanaugh, Beck and Tamilia, JJ.
[ 344 Pa. Super. Page 285]
The issue presented is whether an insurance carrier may apply its insured's coordination of benefits election under Section 203(b) of the Pennsylvania No-fault Motor Vehicle Insurance Act ("No-Fault Act")*fn1 to a non-relative who is injured while a passenger in the insured's motor vehicle and who is covered under a private health and accident insurance plan. The appellant asserts that to allow recovery results in a windfall to a passenger in an insured motor vehicle.
At the time of the accident in question, appellee was a passenger in a motor vehicle owned by Joan Sommers and insured by Prudential Property and Casualty Insurance Company (Prudential). Since appellee neither owned an automobile nor resided with anyone who owned an automobile, appellee was not personally covered by any automobile liability insurance. Appellee was, however, covered under a private health and accident insurance plan. After the accident, appellee sought to recover no fault benefits from appellant Prudential, the insurer of the automobile in which appellee had been injured. Prudential contested its liability for appellee's claim because prior to the accident, Prudential's insured (Ms. Sommers) had elected to coordinate benefits pursuant to Section 203(b) of the No-Fault Act. Thereafter,
[ 344 Pa. Super. Page 286]
appellee filed a motion for summary judgment which the court granted on the issue of liability. Appellant appeals bringing into question this issue of first impression. We conclude that the trial court's grant of summary judgment was proper.
The parties agree that there is no dispute as to any material fact and that the matter was ripe for summary judgment. Pa.R.C.P. No. 1035; Woytek v. Benjamin Coal Co., 300 Pa. Super. 397, 446 A.2d 914 (1982). The disposition of the controversy turns upon the interpretation of Section 203(b) of the No-Fault Act. As the insurer of the Sommers vehicle, appellant Prudential is designated by Section 204(a)(3) of the No-Fault Act, 40 P.S. § 1009.204(a)(3) as the source of payment of basic loss benefits to appellee. The owner of the Sommers vehicle, however, under Section 203(b) elected to make her automobile liability insurance coverage secondary to other medical coverage for payment of basic loss benefits. Appellant contends that appellee is bound by the election made by the owner of the car and that it is not obligated to pay appellee's basic loss benefits because appellee carried private health insurance. Appellee contends that Sommers' election under Section 203(b) does not bind her because appellee is not a named insured under Sommers' policy of automobile liability insurance.
The issue necessitates interpretation of Section 203(b):
The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of ...