Holland Ex Rel. Holland v. Marcy

CONCURRING STATEMENT BY

HUDOCK, J.:

¶ 1 I reluctantly join in the result reached by the majority. The language of the statute in question which binds all occupants of a vehicle to the tort option elected by the “named insured”, does by its very terms seem to limit the effect of this subsection to insureds, which presupposes the existence of an insurance policy. In the present case, there was no policy in effect at the time of the accident and Section 1705(a)(5), which compels an election of limited tort responsibility where there is no coverage, seems to apply only to an “owner”. Since the minor passengers in the car were not owners, the result reached by the majority, I believe, is correct. "

¶ 2 I disagree with the majority, however, that the result herein does not reward irresponsible parents, who in violation of the law, do not carry liability insurance. I agree with Commonwealth Court in Hames, 696 A.2d at 883, that the result here affords greater rights to minor children whose parents flout the law by not buying insurance than to children of more responsible parents who purchase liability insurance, but who choose the limited tort option.

¶ 3 The Mother-Appellant in the present case is a case study in insurance irresponsibility. A policy with Dairyland Insurance Co. was cancelled on February 13, 1997, for non-payment of premium. In that policy, Mother selected the limited tort option. A policy was then procured with State Farm Insurance Co., on June 2, 1997, and again Mother selected the limited tort option. That policy was cancelled on July 19,1997, because Mother’s driver’s license had been suspended on November 1, 1995. After being notified that her insurance had been cancelled, Mother allowed the car to be driven. Now, her irresponsibility is being rewarded by giving her children greater protection than she had chosen when she had insurance coverage.

¶ 4 It is no answer to this injustice, as the majority suggests, that parents in this situation will not necessarily be better off than parents who display more responsibility because the irresponsible parents subject themselves to criminal prosecution and risk loss of family assets if they are found to be at fault in an accident. The fact remains that the children of irresponsible parents will have greater protection when the fault lies with a third party-all vyithout the parents paying for such increased protection.

¶ 5 While I join in the majority’s disposition, I suggest the legislature correct this injustice by amending the statute to make clear that one who operates a motor vehicle without Lability insurance is deemed to select a limited tort option for herself and for all occupants of the vehicle.