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BRACK v. ALLSTATE INS. CO.

November 26, 1986

Brian J. Brack, Plaintiff,
v.
Allstate Insurance Company, Defendant



The opinion of the court was delivered by: NEALON

 Chief Judge William J. Nealon

 Plaintiff filed a complaint on January 13, 1986, seeking a declaratory judgment that defendant is obligated to pay benefits pursuant to an insurance policy issued or renewed by defendant in September, 1984. By Memorandum and Order dated September 4, 1986, the court held plaintiff's Motion for Summary Judgment in abeyance noting that subject matter jurisdiction may be lacking. By stipulation of counsel dated September 24, 1986, the parties agreed that this court had jurisdiction as diversity of citizenship existed between the parties. By Order dated October 1, 1986, the court granted the parties seven (7) days to submit a copy of the policy of insurance in question to the court. The policy was submitted on October 7, 1986. On October 14, 1986, the court again required the parties to submit supplemental briefs concerning the applicability of the Pennsylvania No-Fault Act (No-Fault Act) or the subsequently enacted Motor Vehicle Financial Responsibility Law. In addition, the parties were directed to specifically refer to portions of the policy in support of their positions. The parties filed supplemental briefs on November 3, 1986. Accordingly, this matter is ripe for disposition. For the reasons set forth below, plaintiff's Motion for Summary Judgment will be granted.

 DISCUSSION

 The issue in this case is whether the injury sustained by plaintiff is a compensable injury within the meaning of a policy of insurance issued by defendant to plaintiff's mother. Plaintiff maintains that he is entitled to coverage under the policy because the accident occurred and arose out of the operation of a motor vehicle within the meaning of the insurance policy and Pennsylvania law. On the other hand, defendant avers that plaintiff is not entitled to recover benefits under the policy held by his mother because his injury did not arise from the maintenance or use of an automobile. The first issue the court must decide is whether the No-Fault Act or the Motor Vehicle Financial Responsibility Law applies in this case.

 The notes to § 1701 of the Motor Vehicle Financial Responsibility Law provide that the law applies to insurance policies issued or renewed on or after the effective date of the Act. See 75 Pa. Cons. Stat. Ann. § 1701 (Purdon 1986). The effective date of the law is October 1, 1984. Accordingly, the Motor Vehicle Financial Responsibility Law would apply only if the policy of insurance in question was issued or renewed on or after October 1, 1984.

 It is undisputed that the accident in this case occurred on December 29, 1984. See Document 9 of the Record at para. 4. While the parties agree that the policy of insurance was in full force and effect on December 29, 1984, the issuance or renewal date of the policy was not set forth. For this reason, the court required supplemental briefs in its Order dated October 14, 1986.

 In his supplemental brief, plaintiff indicates that the policy in question was issued in September, 1984. Defendant agrees, indicating, however, that the policy was renewed on September 22, 1984. As defendant indicates, subsequent renewal of the policy occurred in March of 1985 and, at that time, the terms of the Motor Vehicle Financial Responsibility Law were written into the policy. See Document 21 of the Record at 2. Although plaintiff argues that the Motor Vehicle Financial Responsibility Law became effective on its date of passage as to all policies then in effect which did not contain language contradictory to the Act, see Document 20 of the Record at 1, the court finds that by its express terms the Motor Vehicle Financial Responsibility Law applies only to policies issued or renewed after October 1, 1984. Since the policy here was issued or renewed in September, 1984, the court must apply the Pennsylvania No-Fault Act. *fn1"

 The parties apparently agree that resolution of this issue should be determined based on the applicable case and statutory law as the policy provisions provide no additional guidance. That is, the policy provisions track applicable law and no further additions or restrictions are imposed by the policy. See Document 21 of the Record at 2.

 Recovery of no-fault benefits in this case depends on whether the injury can be said to have arisen out of the "maintenance or use" of a motor vehicle. See The Pennsylvania No-Fault Motor Vehicle Insurance Act § 1:4.2 at 62 (1979). Indeed, the No-Fault Act provides that "victims" are entitled to receive basic loss benefits in accordance with the Act for injuries resulting from accidents occurring in Pennsylvania. "'Victim' is defined . . . as 'an individual who suffers injury arising out of the maintenance or use of a motor vehicle.'" See Schenk v. Ohio Casualty Insurance Co., 346 Pa. Super. 42, 44, 498 A.2d 1361, 1362 (1985). Maintenance or use of a motor vehicle is defined to mean maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Id. In this regard, the parties have submitted a joint statement of facts as to which there was no dispute. Those facts reveal the following.

 On December 29, 1984, Brian J. Brack incurred various injuries while performing tasks as a sub-contractor for Robert Green, t/a B & G Carpentry, at the premises of Kane Warehousing, Inc (Kane). At the time of the accident, plaintiff was an insured under the terms of a policy of automobile insurance issued to his mother by defendant. On that date, at the instruction of Robert Green, plaintiff was standing on a scaffolding erected to receive and put in place a frame in the window of Kane. The wooden frame was being hoisted to plaintiff's position on the scaffolding by means of a rope and pulley. One end of the rope was attached to the wooden frame, while the other end of the rope was tied to the side of Robert Green's truck. To effect the hoisting of the wooden frame to plaintiff's position on the scaffolding, Robert Green drove the truck, to which one end of the rope was attached, away from the scaffolding. While Robert Green was operating his truck to accomplish this task, the wooden frame struck the scaffolding, causing plaintiff to fall to the ground thereby incurring his injuries. See Document 9 of the Record.

 Under applicable provisions of the No-Fault Act, there must be some connection, more than mere chance or happenstance, between the injury sustained and the insured vehicle. See Document 10 of the Record at 2 (citing Schweitzer v. Aetna Life and Casualty Co., 306 Pa. Super. 300, 452 A.2d 735 (1982)). In cases involving the scope of the clause "arising out of the ownership, maintenance or use", the Pennsylvania Supreme Court has held that the required connection between the accident and the vehicle need not rise to the level of proximate causation, but that "but for" causation is enough to satisfy the policy provision. See Allstate Insurance Co. v. Sentry Insurance, 563 F. Supp. 629 (E.D. Pa. 1983), aff'd, 729 F.2d 1445 (3d Cir. 1984) (citing Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961)). As the Pennsylvania Superior Court noted, "'but for' causation, i.e., a cause and result relationship, is enough to satisfy this provision of the policy." Schweitzer v. Aetna Life and Casualty Co., supra, at 303, 452 A.2d at 737.

 In this case, the court finds that there is a sufficient causal connection between the use of the truck in question and plaintiff's injuries to warrant a finding of coverage. This comports with the general policy of construing the No-Fault Act liberally in favor of extending coverage to an insured. See Cerrato v. Holy Redeemer Hospital, 342 Pa. Super. 551, 493 A.2d 728 (1985) (under No-Fault Act court should construe the act liberally in favor of extending coverage to an insured); Acands, Inc. v. Aetna Casualty & Surety Co., 764 F.2d 968 (3d Cir. 1985).


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