motorist coverage." Id., 355 Pa.Super. at 513, 513 A.2d at 1040.
In the more recent decision of Eads v. Port Authority of Allegheny County, 8 D. & C. 4th 661 (1990) Judge R. Stanton Wettick, Jr., the esteemed common pleas jurist from Allegheny County, held that under the PMVFRL a self insured must provide underinsured motorist coverage. In Eads, the plaintiff suffered injuries while riding a bus operated by defendant, a self insured entity. The defendant argued that the PMVFRL did not require self insureds to provide underinsured motorist coverage. The court relied upon the Modesta decision for its holding that defendant had to provide underinsured motorist coverage and that for it to find otherwise would tie the benefits an injured party could receive to the method of insuring a vehicle chosen by its owner. Id. at 663.
The Pennsylvania Supreme Court stated in Modesta that the approval of self insurance status by the Department of Transportation operates in the same way as an insurance policy because it indicates that the automobile owner will comply with the insurance laws and that the owner has financial resources at least in the amount required by statute to cover judgments against itself. 503 Pa. at 445; 469 A.2d at 1024. The decisions of the Pennsylvania courts dictate that self insureds like Automate must assume the responsibilities assumed by other insurers. Thus, I find that section 8371 applies to defendants' conduct.
b. Waiver of Uninsured Motorist Benefits
Automate's motion to dismiss also addresses whether Gavaghan waived her right to recover uninsured motorist benefits from it because she first recovered $ 175,000 in uninsured motorist benefits from Reliance, pursuant to her own insurance policy. Automate relies upon 75 Pa. Cons. Stat. Ann. Section 1733 for its assertion that Gavaghan's recovery from Reliance, the secondary or excess carrier prevents her from recovering from Automate, the primary source of uninsured motorist benefits. Section 1733 provides in part that when multiple policies apply, ". . . payment shall be made in the following order of priority:
(1) A policy covering a motor vehicle occupied by the injured person at the time of the accident.
(2) A policy covering a motor vehicle not involved in the accident with respect to which the injured person is insured. . . ."
Section 1733 of the PMVFRL prioritizes the recovery of uninsured motorist benefits when multiple insurance policies apply to an insured event. However, it does not preclude an insured from seeking benefits from the primary source of recovery when the secondary source pays its benefits first. According to the Pennsylvania Superior Court's decision in Wolgemuth v. Harleysville Mut. Insur. Co., 370 Pa.Super 51, 535 A.2d 1145, 1151 (Pa.Super. 1988), alloc. den. 520 Pa. 590, 551 A.2d 216 (1988), section 1733 governs priority of recovery but does not control a party's entitlement to recover. In light of this decision and the policy in this state for liberal construction of the PMVFRL,
I deny Automate's motion to dismiss Count I of Gavaghan's complaint.
c. Limitation of Uninsured Motorist Benefits
Automate's motion to dismiss also asks me to limit Gavaghan's claim for uninsured motorist benefits to $ 15,000, the amount of uninsured motorist coverage provided by Automate as required by the PMVFRL.
I will not consider Automate's request to limit damages at this stage of the case, rather, I deny Automate's motion to dismiss without prejudice to Automate to raise and expand upon this issue of limiting Gavaghan's recovery of uninsured motorist coverage in accordance with Fed.R.Civ.P. 56.
In conclusion, I hold that: (1) section 8371 applies to defendants' conduct occurring after the statute's enactment date; (2) section 8371 applies to actions for uninsured motorist benefits brought under the PMVFRL and to defendants' conduct even though they are self insured; (3) Gavaghan did not waive her right to seek uninsured motorist benefits from defendants; and (4) Automate's request to limit Gavaghan's uninsured motorist benefits to $ 15,000 is denied without prejudice to Automate to raise this issue in
accordance with Fed.R.Civ.P. 56.
AND NOW, this 3rd day of December, 1992, upon consideration of defendants' Replacement Rent-A-Car, Inc. and Automate Auto Rental, Division of Agency Rent-A Car's, motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6) and the supporting and opposing memoranda, it is ORDERED as follows:
1. Defendants' motion to dismiss count I of plaintiff's complaint is denied, Defendants' request to limit plaintiff's uninsured motorist benefits to $ 15,000 is denied without prejudice to defendants to raise this issue in accordance with Fed.R.Civ.P. 56.
2. Defendants' motion to dismiss count II of plaintiff's complaint is granted pursuant to plaintiff's withdrawal of count II and count II of plaintiff's complaint is hereby dismissed with prejudice.
3. Defendants' motion to dismiss count III of plaintiff's complaint is denied.
ANITA B. BRODY, J.