Williams v. Geico Government Employees Insurance

Justice TODD,

concurring.

I concur in the result reached by the majority. The Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) expressly sets forth a remedial public policy to promote the recovery of damages for innocent victims of accidents by mandating that insurers offer uninsured motorist (“UM”) and underinsured motorist (“UIM”) protection to insureds. 75 Pa.C.S.A. § 1731(a). Prior decisional law, while somewhat distinguishable on the facts from the situation before us, has upheld a “regularly used, non-owned car” exclusion similar to that at issue in this appeal in light of our Commonwealth’s public policy supporting cost containment as expressed in the MVFRL. Burstein v. Prudential Prop. and Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204 (2002). Finally, there exists a compelling public policy in our Commonwealth in favor of protecting the men and women who serve our citizenry as emergency first responders. When faced with the tension between or among important, yet divergent, policy concerns, I am compelled to conclude that it is the General Assembly who must act and not this Court. I write separately to express my views with regard to these competing policies, and, more importantly, to encourage the General Assembly to revisit these coverage questions, with an eye towards greater protection of our Commonwealth’s emergency first responders.

The question before our Court is whether this exclusion of UIM coverage is viola-tive of the public policy of our Commonwealth. As a general proposition, a court must give plain meaning to an insurance contract’s clear and unambiguous language unless to do so would be contrary to a clearly expressed public policy. Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 563, 711 A.2d 1006, 1008 (1998) (citing Antanovich v. Allstate Ins. Co., 507 Pa. 68, 76, 488 A.2d 571, 575 (1985)). As we indicated in Eichelman, public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. 551 Pa. at 563, 711 A.2d at 1008. Indeed, “[i]t is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring [that the contract is against public policy].” Id. (quoting Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941)) (emphasis added). Due to the inherently amorphous *1212nature of the concept of public policy, “there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy ... Only dominant public policy would justify such action.” 551 Pa. at 563, 711 A.2d at 1008 (emphasis added).

The MVFRL requires insurers to offer UM and UIM coverage to their insureds, and waiver of such coverage must be accompanied by signed statutorily-defined rejection forms. 75 Pa.C.S.A. § 1731(a), (c.l). Thus, by this mandate, the General Assembly has articulated a remedial public policy that promotes the recovery of damages for innocent victims of accidents from motorists who cannot adequately compensate such victims for their injuries. While the offer of such coverage is required, the purchase of UM/UIM coverage is optional. In the matter before us, we observe that GEICO limited the breadth of UM/UIM coverage by inserting certain exclusions into its policies. In particular, although State Trooper Williams purchased UIM coverage on his personal automobile policy, the policy contained a regular use exclusion which operates to preclude the UIM coverage he seeks herein. See Majority Opinion at 1197.

There also exists a public policy favoring cost containment that served as the foundation of the General Assembly’s 1990 amendments to the MVFRL and our decision in Burstein. We reasoned that this policy functioned to prevent insureds from receiving “gratis” coverage. 570 Pa. at 185, 809 A.2d at 208. Additionally, it worked to protect insurers from insuring unknown and uncompensated risks. Ultimately, our Court concluded in Burstein that voiding the regular use exclusion in automobile insurance policies would frustrate the public policy concern regarding increasing the costs of automobile insurance. Id.

Nevertheless, since the turn of the 20th century, our legislature and courts have accorded special protections to emergency first responders, which confirms our Commonwealth’s public policy by safeguarding their rights as they endeavor to protect and serve our communities and our citizens. Indeed, our law is replete with examples of such special protections. The Heart and Lung Act, 53 P.S. § 637, enacted in 1935, provides full salary for temporary disability by certain emergency personnel.1 Similarly, the 1915 Workmen’s Compensation Act, 77 P.S. § 27.1(m.l), and the 1939 Occupational Disease Act, 77 P.S. § 413, provide special protection to first responders injured in the course of *1213their employment. These provisions impose a presumption that certain occupational diseases which occur during the course and scope of employment are work related, due to the unique hardships and challenges such workers face. Thus, based upon these laws, exemplifying the special status emergency first responders hold in our Commonwealth, I have no difficulty in concluding that there exists a longstanding and compelling public policy in favor of protecting the health and safety of Pennsylvania’s emergency first responders.

While I acknowledge that our Court in Burstein found that cost containment was the “dominant” and “overarching” public policy underlying the MVFRL, 570 Pa. at 184 n. 3, 809 A.2d at 208 n. 3, I join those Justices who eschew the mantra of cost containment — used by various courts to rotely limit the rights of insureds — in favor of a recognition of other equally important policies and goals that are foundational to the MVFRL, such as the remedial objectives of the statute and the coverage rights of insureds.

Accordingly, in the matter sub judice, we are faced with multiple significant policies — a remedial public policy to promote the recovery of damages for innocent victims of accidents, cost containment, and the protection of the health and safety of our Commonwealth’s emergency first responders. The strain between and among these valid policies is palpable, as the policy of protection of emergency first responders through the receipt of UIM benefits is in direct conflict with the principle of reducing automobile insurance costs.

As that is the case, I conclude it is the members of the General Assembly, and not the Justices of this Court, who must act to definitively resolve the tension between the remedial policy underlying the statute, the laudable goal of cost containment in automobile insurance, and the compelling policy of protecting the men and women who serve our citizenry each day from undercompensation when they are the innocent victims of accidents involving uninsured or underinsured motorists. In my view, emergency first responders should not be subjected to the consequences of driving a vehicle without UIM coverage in light of the intent of the MVFRL and the public policy in favor of protecting these brave men and women. Therefore, I urge the General Assembly to consider measures to ensure that these public servants are not vulnerable to inadequate compensation for injuries incurred in the performance of their critical duties — by, for example, requiring that public employers purchase UM/UIM coverage for emergency first responders in their employ, or mandating that automobile insurers be barred from excluding UM/UIM coverage for emergency first responders.

Justice McCAFFERY joins this concurring opinion.

. The majority’s suggestion that this statute was solely designed to "protect the municipality rather than the responder,” Majority Opinion at 10, is overstated and belied by our prior decisions which acknowledge mixed purposes for the passage of the Heart and Lung Act. See, e.g., Camaione v. Borough of Latrobe, 523 Pa. 363, 366-67, 567 A.2d 638, 640 (1989) ("[W]e have emphasized that this remedial legislation provides compensation for police who suffer temporary incapacity or disability in the performance of their work. The guarantee of uninterrupted income during periods of temporary disability has been cited as an attraction for service in the police force and one that assures a reasonably speedy return to full active duty.”); Heath v. Pa. Bd. of Prob. and Parole, 869 A.2d 39, 44 (Pa.Cmwlth.2005) (”[W]e note that the purpose of the Heart and Lung Act is to provide a full salary, not compensation, to employees in certain dangerous occupations who have been injured on the job and who are expected to recover and return to work in the foreseeable future.”); City of Pittsburgh v. WCAB (Wiefling), 790 A.2d 1062, 1066 (Pa.Cmwlth.2002) ("The purpose of the Heart and Lung Act is to provide important public safety personnel with full compensation while disabled from an injury which occurs in the performance of duty.”).