The opinion of the court was delivered by: Bonnie Brigance Leadbetter, President Judge
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION BY PRESIDENT JUDGE LEADBETTER
The Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from the order of the Court of Common Pleas of Philadelphia County, which ordered SEPTA to pay first party medical benefits and uninsured motorist benefits to N. Morning Cloud Jones-Molina, and found that the Pennsylvania Financial Responsibility Assigned Claims Plan (Plan) had no liability to Jones- Molina. We reverse and remand for the entry of judgment against the Plan.
The facts of this case are not in dispute. On February 14, 2005, Jones- Molina was on the way to visit her sister, a trip that involved both the use of a SEPTA bus and a SEPTA trolley. She took the Route 52 bus to the corner of 49th Street and Woodland Avenue, Philadelphia, where, after having purchased a transfer ticket, she disembarked, intending to transfer to the Route 11 trolley. Once off the bus, Jones-Molina walked about five feet to the corner, waited for the light to change, and then began crossing the street. In the intersection she was struck by an unidentified, and presumably uninsured, vehicle.
Jones-Molina brought an action in common pleas against the Plan, seeking first party and uninsured motorist benefits. The Plan joined SEPTA as an additional defendant and, at trial, asserted that, while transferring, Jones-Molina remained a legal "occupant" of a SEPTA vehicle, and that SEPTA was therefore liable to Jones-Molina under the terms of its self-insurance. Furthermore, the Plan argued that because it is the insurer of last resort, SEPTA was primarily and solely liable for Jones-Molina's injuries. SEPTA argued that Jones-Molina was not the occupant of one of its vehicles at the time she was struck, and that it had sovereign immunity from suits of this sort. Common pleas ruled against SEPTA on both the occupancy and sovereign immunity issues, finding SEPTA, and not the Plan, liable to Jones-Molina.
SEPTA appealed to this court. The Plan, as an appellee, supports common pleas' decision. Jones-Molina, also an appellee, argues that the judgment against SEPTA should be affirmed, but that if it is reversed, the Plan should be held liable. We first evaluate SEPTA's liability, and then that of the Plan.
SEPTA is a self-insured entity as defined by the Motor Vehicle Financial Responsibility Law (MVFRL).*fn1 See 75 Pa. C.S. § 1787. As a self- insurer, SEPTA is required to provide up to $5000 in first party benefits and $15,000 in uninsured motorist coverage. Id.; 75 Pa. C.S. §§ 1711, 1774. Both types of coverage apply to the occupants of the insured vehicle.*fn2 While our Supreme Court has not interpreted the meaning of the word "occupant" in the statutory provisions at issue, it has developed a four-part test to determine who qualifies as an "occupant" as the term is used in private vehicle insurance policies. Our Supreme Court has held that a person will be considered to be occupying a vehicle if:
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.
Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 336, 473 A.2d 1005, 1009 (1984). Under this test, it is not necessary for a person to be physically inside the vehicle to be considered an occupant. In Contrisciane, a driver had been in a minor traffic accident and had walked nearly one hundred feet from his automobile to talk to a police officer on the scene when he was struck and killed by an uninsured driver. The court noted that:
During this time decedent's fiance remained in the car, obviously anticipating the continuance of their journey. At all times decedent was engaged in transactions essential to his continued use of the vehicle, and it was only because of the mandated requirements of the statute and the police officer that decedent found himself physically out of contact with his vehicle. Finally, it was the use of the vehicle which precipitated the whole unfortunate series of events.
Id. at 336, 473 A.2d at 1009. Thus, our Supreme Court found the decedent remained an occupant of the vehicle at the time he was hit because he remained "vehicle oriented," and therefore his estate was entitled to benefits under the terms of the insurance policy covering the vehicle.*fn3
This court has adopted and expanded the Contrisciane factors in the self-insurance context and found that a passenger transferring buses remains an occupant of the bus during the transfer. Adeyward-I v. Pa. Fin. Responsibility Assigned Claims Plan, 648 A.2d 589 (Pa. Cmwlth. 1994) [affirming and adopting Adeyward v. Se. Pa. Transp. Auth., 26 Phila. Co. Rptr. 382 (1993)]. In AdeywardI, a SEPTA passenger was found to remain an occupant of a SEPTA bus when, after disembarking from one bus, he was hit by an unidentified driver while crossing the street with the intent to transfer to a second bus.
A straightforward application of Adeyward-I to the facts of this case would appear to mandate that we find Jones-Molina, who, like the passenger in Adeyward-I, had disembarked from one bus and was crossing the street to board a second SEPTA vehicle when she was struck, remained the occupant of a SEPTA vehicle.*fn4 However, we ordered en banc argument in this case to review the holding in Adeyward-I, to determine whether it correctly applied our Supreme Court's decision in Contrisciane.
We first note that the factual scenario in both Adeyward-I and the case now before us, in which a bus passenger is struck by an uninsured motor vehicle while crossing the street with the intent to transfer to another vehicle, is distinct from the facts in Contrisciane in a number of important ways. Unlike Contrisciane, in which the decedent had left his vehicle and planned on returning to that same vehicle, the injured party in Adeyward-I had left the bus on which he had been riding, with no intention to return, although he was, of course, intending to board a second bus. In addition, the decedent in Contrisciane was required to exit his vehicle due to his legal duty to cooperate with the officer on the scene, whereas the injured party in Adeyward-I was not mandated to exit the bus, although it was necessary to complete his journey. At the time he was struck, the injured party in Adeyward-I, like Jones-Molina, was engaged in an activity indistinguishable from any other pedestrian crossing the street, whereas the decedent in Contrisciane was in a position unique to those who have been involved in automobile accidents. Thus it is significant that interpretation of an automobile ...