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JOSEPH BROWN v. TRAVELERS INSURANCE COMPANY (08/15/86)

filed: August 15, 1986.

JOSEPH BROWN, APPELLANT,
v.
TRAVELERS INSURANCE COMPANY, APPELLEE



Appeal from the Order Entered September 6, 1984 in the Court of Common Pleas of Philadelphia County, Civil No. 658 April Term 1984.

COUNSEL

Joseph Grossman, Philadelphia, for appellant.

David M. McCormick, Philadelphia, for appellee.

Cirillo, President Judge, and Cavanaugh,*fn* Brosky, Wieand, Olszewski, Del Sole, Montemuro, Beck and Tamilia, JJ. Montemuro, J., files concurring statement. Brosky, J., files dissenting opinion.

Author: Olszewski

[ 355 Pa. Super. Page 536]

This matter comes before this en banc panel on appeal from an order of the lower court granting appellee's motion for judgment on the pleadings. The relevant events giving rise to this plea occurred on June 10, 1983, when appellant, Joseph Brown, the owner-operator of an uninsured motor vehicle was involved in an accident with another uninsured motorist. Appellant alleges that he was totally without fault in causing the accident. Since neither motor vehicle was insured at the time of the accident, appellant submitted his claim for basic loss and uninsured motorist benefits under the assigned claims plan of the Pennsylvania No-fault Motor Vehicle Insurance Act (hereinafter the Act or the No-fault Act).*fn1 Appellee, Travelers Insurance Company, was designated the assigned claims insurer, but refused to honor the claim for uninsured motorist benefits.*fn2 Consequently, appellant commenced an action against appellee, but on a motion by the latter party, the lower court dismissed the complaint. The court reasoned that since appellant failed to maintain the coverage mandated by section 104(a) of the Act,*fn3 he was not an "innocent victim" entitled

[ 355 Pa. Super. Page 537]

    to recover uninsured motorist benefits under Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981). Moreover, the court refused to award these benefits to appellant inasmuch as he ultimately was liable under section 501 of the Act for all payments made on his behalf. Appellant now challenges this decision and contends that he is entitled to receive uninsured motorist benefits for the following reasons: (1) the Pennsylvania Supreme Court, in Tubner and Modesta v. Southeastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), guarantees all innocent victims the right to receive uninsured motorist benefits under the assigned claims plan; (2) neither the Uninsured Motorist Act, 40 P.S. Sec. 2000, nor section 601 of the No-fault Act expressly prohibits an uninsured owner-operator from acquiring uninsured motorist benefits; and (3) an uninsured owner-operator should not be denied these benefits merely because the insurer has a right to reimbursement under section 501 of the Act. We will address these arguments seriatim.

[ 355 Pa. Super. Page 538]

Undoubtedly, this Court is no stranger to that piece of legislation which was enacted to cure the inadequacies of a prior system of insurance which distributed justice and compensated injuries based upon a fault finding process. While in retrospect, it now may be easy for us to condemn the system which was intended to be the panacea for the problems of the pre-No-fault era, nevertheless, it should not be forgotten that the Act embodied many noble goals. With its advent, the Act not only afforded accident victims the certainty of knowing that their losses would be covered by their own insurance, but it also suppressed the disparities of an arbitrary recovery system. In addition, the Act eliminated the need for jury trials in establishing liability, thereby avoiding the excessive costs of litigation and the lengthy delays in compensating and restoring accident victims. See Comment, Whose Fault is No-fault? The Pennsylvania Page 538} No-fault Motor Vehicle Insurance Act, 41 U.Pitt.L.Rev. 27 (1979). See also Shrager & Applebaum, The Pennsylvania No-fault Motor Vehicle Insurance Act: Constitutional Analysis, 48 Temp.L.Q. 475 (1975).

Notwithstanding these carefully articulated intentions, the Act was riddled with many problems.*fn4 Yet, despite these inadequacies, we are certain that the legislators never intended an uninsured owner-operator to recover uninsured motorist benefits under the assigned claims plan. Moreover, when this Court was before confronted with the same issue, it decided that an uninsured owner-operator of a motor vehicle may not recover uninsured motorist benefits from an assigned claims plan insurer. Johnson v. Travelers, 343 Pa. Super. 560, 495 A.2d 938 (1985); Aagesen v. The Travelers Companies, 346 Pa. Super. 45, 498 A.2d 1363 (1985).

Now, in defense of his position, appellant argues that the Pennsylvania Supreme Court in Tubner not only established the rights of all uninsured victims of motor vehicle accidents to receive uninsured motorist benefits under the assigned claims plan, but it also reaffirmed this position in Modesta and limited it to exclude from coverage only those uninsured owner-operators who cause accidents. We disagree with these interpretations.

In Tubner, the Court was presented with the problem of deciding whether the administratrix of the victim's estate would be allowed to recover both basic loss and uninsured

[ 355 Pa. Super. Page 539]

    motorist benefits under the assigned claims plan. It is significant to our analysis that the victim who was injured in an uninsured automobile was himself an uninsured passenger.*fn5 Although it did not become an explicit part of the Tubner Court's decision, it is noteworthy that the victim was uninsured, not for the reason that he willfully or negligently failed to maintain his own automobile insurance, but simply because he did not own an automobile, and therefore was not obliged to maintain the compulsory no-fault coverage. See also Drusak v. Insurance Company of North America, 340 Pa. Super. 205, 489 A.2d 914 (1985) (pedestrian who was struck by a motorcycle was entitled to recover uninsured motorist benefits, as well as "basic loss" benefits, under the assigned claims plan); Prudential Property & Casualty Insurance Company v. Falligan, 335 Pa. Super. 195, 484 A.2d 88 (1984) (uninsured pedestrians who were injured after being struck by uninsured motorists were ...


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