The opinion of the court was delivered by: Judge Vanaskie
This declaratory judgment action seeks a determination of Plaintiff's entitlement to first party wage loss benefits under a policy issued by Defendant, State Farm Mutual Automobile Insurance Co. ("State Farm"). While proceeding on an interstate highway, on February 20, 2005, Plaintiff's vehicle was hit by a rock thrown by an adolescent. The rock broke through Plaintiff's windshield, and hit his right arm, resulting in serious and permanent injury. At the time of the incident State Farm had issued to Plaintiff an automobile insurance policy which provided first party wage loss benefits in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1701 et seq. Plaintiff made a claim for wage loss benefits, which State Farm denied because Plaintiff's "injury did not arise out of the maintenance or use of a motor vehicle." (July 22, 2006 Letter, Dkt. 32, at 132.)*fn1 Because Plaintiff's injury did not arise out of the maintenance or use of a motor vehicle, but instead, was caused by an intervening act committed by a third-party, State Farm's Motion for Summary Judgment will be granted, and Plaintiff's cross-motion will be denied.
On February 20, 2005, Plaintiff, Terry McCleester, was driving a Peterbilt truck with a flatbed trailer on Interstate 81 North near Scranton, Pennsylvania when a rock, approximately the size of a brick, was thrown from an overpass by an adolescent boy. (Defendant's Statement of Undisputed Material Fact ("DSUMF"), Dkt. 19, at ¶¶ 1-2.)*fn2 The rock broke through the windshield of the truck and struck Plaintiff's arm, breaking it. (Id. at ¶ 3.) At the time of the incident, Plaintiff was working in the scope of his duty as a truck driver. (Id. at ¶ 4.) Consequently, workers' compensation benefits were applicable, paid, and continue to be paid. (Id. at ¶ 5.)
At the time of his injury, Plaintiff had a personal automobile policy issued by State Farm. (Id. at ¶ 6.) The income loss benefit provision of the policy "was provided in accordance with and subject to the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1701, et seq." (Id. at ¶ 7.) Plaintiff's policy also included an income loss benefit clause which provides reimbursement of eighty percent (80%) of income, after a five-day waiting period, up to $1,000 per month for a maximum total of $15,000. (Id. at ¶ 8.) The income loss benefit is in excess of workers compensation benefits and provides: "These coverages are excess over, but shall not duplicate, any amount paid or payable to or for the insured under any workers' compensation law." (Id. at ¶ 9.) Based upon Plaintiff's "pre-accident income, the terms of his policy, and the length of his disability, defendant concedes that the amount of income loss benefits at issue in this case is the full policy limit of $15,000." (Id. at ¶ 10.) The terms of Plaintiff's policy provide that income loss benefits will be paid "with respect to bodily injury to an insured arising out of the maintenance or use of a motor vehicle." (Id. at ¶ 11.) The policy, however, does not define "maintenance" or "use." (Id.)
Plaintiff's "claim for excess loss of income benefits was first asserted to State Farm by means of a letter dated March 9, 2006, some 12 months after the date of loss, from Ms. Janie Lamberton, paralegal for Mr. McCleester's attorney, to Mr. Dennis Guld of State Farm." (Id. at ¶ 12.) The letter stated: "'As per our recent telephone conversation, you indicated that Mr. McCleester may be eligible for wrap around wage loss. Please forward the necessary paperwork to my attention if there is coverage for Mr. McCleester." (Id.) On March 21, 2006, the description of the incident given to State Farm was that Plaintiff had been struck by a rock thrown by kids from an overpass and that Plaintiff had been operating a work truck and was "on the job" when he was injured. (Id. at ¶ 13.)
"On March 24, 2006, Ms. Kate Mullen of State Farm issued to James Munley, Esquire, Mr. McCleester's attorney, a reservation of rights letter based upon a question of whether Terry McCleester's injuries arose out of the maintenance and use of a motor vehicle." (Id. at ¶ 24.) Two months later, on May 30, 2006, Mr. Charles Graham of State Farm wrote a letter to Mr. Munley asking for Mr. McCleester's statement in order to resolve the coverage issue. (Id. at ¶ 25.) Plaintiff's counsel did not respond to either letter, resulting in State Farm issuing a second reservation of rights letter on June 7, 2006. (Id. at ¶ 26.) On June 14, 2006, Plaintiff's counsel, James Munley, refused the request for a statement. (Id.)
Plaintiff's claim was denied on July 22, 2006, based upon the version of the facts "available to State Farm, by means of a letter . . . which stated that Mr. McCleester's claim did not arise 'out of the maintenance or use of a motor vehicle.'" (Id. at ¶ 27.) In part, the letter stated: "'As Mr. McCleester has not been available to provide State Farm with a statement, our decision was based upon the facts as reported. Mr. McCleester was struck by a rock thrown from a [sic] overpass.'" (Id.) "On December 20, 2006, Ms. Janice Reavy of plaintiff's counsel's office advised by letter that Mr. McCleester has received worker's compensation benefits and is requesting the difference between his actual loss of gross income and the payments received from the worker's compensation carrier." (Id. at ¶ 28.) Dennis Guld, of State Farm, responded to Ms. Reavy's letter on January 8, 2007, and referenced State Farm's prior letter denying the claim for excess benefits. (Id. at ¶ 29.) Other than the above-referenced correspondence, Defendant avers that "[n]o other information was submitted to State Farm prior to litigation to show that Mr. McCleester's injuries arose out of the maintenance or use of a motor vehicle." (Goldstein Aff., Dkt. 32, at 120.)
When questioned about the incident on September 26, 2008, the adolescent who threw the rock stated that, "goofing with the cars" on I-81 was part of what he was up to when he and his friend were throwing rocks into the road. (Sept. 26, 2008, Joseph Dep., Dkt. 26, at 8.) The adolescent stated he never meant to hurt anyone, but admitted that he and his friend were messing with the cars on the highway, not so much to hit them, but just messing around. (Id. at 7.)*fn3
The adolescent's story has changed over time. In an earlier interview transcribed on April 5, 2005, the adolescent stated that he was walking down the road and one of his friends wanted to throw rocks over the trees by the side of the road. (Joseph Dep., Dkt. 24, at 5.) The adolescent stated that his friend Ryan threw a rock and then he threw the rock that hit the truck.
(Id.) He stated that he knew the highway was there and could see the highway through the trees, but was simply trying to see who could get the rocks over the trees. (Id. at 7, 10.)
On November 21, 2007, Plaintiff filed a three count complaint in the Court of Common Pleas of Luzerne County seeking damages stemming from breach of contract and violation of Pennsylvania's bad faith law, 42 Pa. C.S.A. § 8371, and a declaration that the subject policy provides first party wage loss benefits. On January 1, 2008, State Farm removed the action to this Court pursuant to diversity jurisdiction, 28 U.S.C. § 1332. Discovery was completed and on October 15, 2008, Defendant filed a Motion for Summary Judgment and Plaintiff filed a Cross Motion for Summary Judgment. (Dkts. 18 & 22.) The motions have been fully briefed and are ripe for review.