Holland Ex Rel. Holland v. Marcy

CONCURRING AND DISSENTING OPINION BY

BOWES, J.:

¶ 11 believe that the majority’s interpretation of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1701, et seq., is contrary to our legislature’s intent, and I respectfully dissent. I would instead affirm the trial court’s decision that the minors in this case are bound by the limited tort option. However, I find that there is a genuine issue of material fact as to whether Joel Holland’s facial scarring is a permanent serious disfigurement and would reverse and remand for a jury to decide whether Joel can recover for his injuries.

¶ 2 This litigation involves an automobile accident in which the two minor plaintiffs, Joel Holland and Heather Holland, were injured while riding in an uninsured automobile owned by their mother and operated by their father. The issue before this *1094Court is whether the aforesaid minors are bound by the limited tort option.

¶ 8 The goal of judicial interpretation of legislation is to ascertain and give effect to the legislative intent. 1 Pa.C.S. § 1921(a). Legislative intent is discerned by certain established principles promulgated by the legislature. 1 Pa.C.S. §§ 1901-1978. Several of the precepts outlined in those statutory enactments are pertinent herein. First, when the words of a statute are clear and unambiguous, they are not to be disregarded. 1 Pa.C.S. § 1921(b). In those situations when the words of a statute are not explicit, legislative intent may be garnered by considering the mischief the statute seeks to remedy and the objective of the statute. 1 Pa.C.S. § 1921(c)(3), (4). In determining legislative intent, we presume that the General Assembly did not intend a result that is absurd or unreasonable. 1 Pa.C.S. § 1922(1). Finally, statutes or parts of statutes are to be construed in pari materia. 1 Pa.C.S. § 1932.

¶ 4 These principles militate in favor of finding that the minor plaintiffs are bound by the limited tort option. The statutory provision critical to our analysis, 75 Pa. C.S. § 1705(a)(5), provides, “An owner of a currently registered private passenger motor vehicle who does not have financial responsibility shall be deemed to have chosen the limited tort option.” (emphasis added). Next, 75 Pa.C.S. ' § 1705(b)(2) states, “The tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy.” A “named insured” is an individual identified by name as an insured in a policy of private passenger motor vehicle insurance. 75 Pa.C.S. § 1705(f). Finally, an “insured” is defined in relevant part as “a minor in the custody of either the named insured or relative of the named insured.” 75 Pa.C.S. §§ 1702,1705(f).

¶ 5 Based on the fact that the minors’ mother in this case had no insurance, the majority concludes there is no policy under which she is a named insured. The majority continues that since the minors did not own an uninsured vehicle and since they are not named insureds or insureds under any other policy, under 75 Pa.C.S. § 1705(b)(3), they are not precluded from maintaining an action for non-economic loss or economic loss sustained in a motor vehicle accident that is the fault of another person.

¶ 6 I believe that the majority overlooks the significance of the statutory language that an uninsured owner of a registered vehicle is “deemed to have chosen” the limited tort option. This choice of words expresses the legislature’s intent to provide for the fictionalized creation of an insurance policy under which the uninsured owner of a vehicle has affirmatively selected the limited tort option.

¶ 7 Pursuant to the MVFRL, only a “named insured” under an insurance policy can choose a tort option. By indicating that an uninsured automobile owner is considered to “have chosen” the limited tort option, the legislature intended the uninsured vehicle owner to be treated like a named insured under an insurance policy.

¶ 8 When read in pari materia, 75 Pa. C.S. § 1705(a)(5) and § 1705(d) support such an interpretation of the MVFRL. Section 1705(a)(5) provides that the uninsured owner is deemed to “have chosen” the limited tort option, whereas section 1705(d) states that each person who is “bound by” the limited tort option shall be precluded from instituting a suit under certain limited circumstances. If the legislature intended 75 Pa.C.S § 1705(a)(5) to be restricted only to the owner of the uninsured vehicle, it would have employed *1095narrower language as can be found in 75 Pa.C.S § 1705(d) where it utilized the phrase “bound by” rather than “have chosen.” By stating that the uninsured owner of a vehicle is deemed to “have chosen” the limited tort option, the legislature intended a more expansive interpretation than the majority endorses. Clearly, this language evinces an intent by the legislature to create the legal fiction6 of an insurance policy where the uninsured owner of a vehicle stands in the shoes of a named insured.

¶ 9 The majority focuses on the silence of the MVFRL concerning application of the limited tort option to the spouse and minor children of the uninsured owner, but it ignores the fact that if the legislature intended only the uninsured owner of a vehicle to “be bound” by the limited tort option, it simply would have said so. This it did not do, and I therefore conclude that the legislature did not intend the result reached by the majority.

¶ 10 Consequently, I believe the minor children of the uninsured person, in the persona of a named insured under a fictional policy of insurance, are bound by the tort option selected by the named insured, that is, the limited tort option. See 75 Pa.C.S §§ 1705(d) and (f)(2). Undeniably, the minors at issue clearly fall within the statutory definition of insureds as minors in custody of their mother. See 75 Pa.C.S. § 1702.

¶ 11 This interpretation alleviates the mischief sought to be remedied by the statute and fulfills its objective. The MVFRL was amended in 1990 due to concerns over the increasing costs of automobile insurance and the increasing number of uninsured motorists, and these legislative concerns express the public policy that we must advance when interpreting the statutory provisions of the MVFRL.7 *1096Rump v. Aetna Casualty and Surety Co., 551 Pa. 339, 710 A.2d 1093 (1998); see also Lewis v. Erie Insurance Exchange, 568 Pa. 105, 793 A.2d 143 (2002). Thus, the MVFRL should be construed to avoid rewarding motorists who intentionally neglected to purchase insurance. McClung v. Breneman, 700 A.2d 495 (Pa.Super.1997).

¶ 12 I am duly mindful that a concomitant purpose of the MVFRL is to provide coverage for injured parties. However, the result I reach in no way interferes with that purpose because my conclusion does not preclude recovery; it limits recovery. The majority suggests that such a reading of the statute punishes the children for the sins of the parent. This simply is not so. Even though these minors’ parents failed to exercise financial responsibility by purchasing insurance, their children are not precluded from recovering against a negligent tortfeasor if their injuries are serious. Their recovery is simply limited to the same extent as those parents who have exercised financial responsibility yet chosen the limited tort option.

¶ 13 To allow unlimited recovery to the child of a parent who has placed no money into the premium pool, but to limit recovery to the child of a parent who has paid into that pool but elected the limited tort option does not comport with our obligation to interpret this Act in light of its dual and equally important objectives. Placing the child of an uninsured vehicle owner in a better position than the child of a parent who has chosen to exercise financial responsibility does not advance the legislative goals of the MVFRL. Regardless of the specter of criminal prosecution raised by the majority, its decision today produces an unreasonable result that is contrary to legislative intent, the applicable cannons of statutory construction, and common sense.

¶ 14 Having determined that the limited tort option applies, the question remains whether the minors herein meet the threshold for recovery under that option. Appellants concede that Heather did not sustain serious injury but contend that Joel did. A review of the record indicates that Joel sustained a vertical scar down his forehead that stops just above his eyebrow.

¶ 15 Our Supreme Court has held that the determination of whether a plaintiff has suffered serious injury must be made by a jury unless the evidence, taken in the light most favorable to the plaintiff, is such that reasonable minds could not differ on the conclusion that the plaintiffs injury was not serious. Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). Section 1702 of the MVFRL defines serious injury as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” The issue in this case is whether permanent serious disfigurement occurred. Although there is an absence of Pennsylvania appellate authority on whether a single scar can constitute permanent serious disfigurement, guidance can be found in case law interpreting similar language in a New Jersey statute.

¶ 16 In Falcone v. Branker, 135 N.J.Super. 137, 342 A.2d 875 (1975), the Superior Court of New Jersey employed a sound analysis for determining when a scar constitutes permanent serious disfigurement for purposes of its statutory equivalent to the limited tort option of the MVFRL.8 *1097The Court examined case law regarding the definition of permanent serious disfigurement in the workers’ compensation area and concluded that to fall within that definition, the scar must impair the symmetry or appearance of the plaintiff such that he is unsightly, misshapen, imperfect, or deformed in some manner. The Court also opined that a facial scar that mars to such an extent as to attract attention would be a serious disfigurement. According to the Falcone court, whether a disfigurement fulfills the statutory definition is determined by the following objective factors: the scar’s appearance, coloration, existence and size. It noted, however, that a scar that becomes progressively less apparent with time would not be permanent. See also Hammer v. Township of Livingston, 318 N.J.Super. 298, 723 A.2d 988 (1999).

¶ 17 In the present case, the scar is reddish and transcends Joel’s forehead vertically. It certainly would attract attention. Applying the factors enumerated in Falcone, the scar is significant enough to create a jury question as to whether it constitutes permanent serious disfigurement.

¶ 18 Hence, I agree with the majority’s conclusion that Joel is entitled to a jury trial but would have the jury determine whether Joel has sustained permanent serious disfigurement and whether he can recover under the limited tort option. I would affirm as to Heather.

¶ 19 JOHNSON and LALLY-GREEN, JJ. join.

. The legislature is fully empowered to and often employs legal fictions, as do the courts. See, e.g., Commonwealth v. Iafrate, 527 Pa. 497, 594 A.2d 293 (1991) (examining legal fiction that a person reaches a given age on the day preceding the anniversary of his birth); In re Deed of Trust of Rose Hill Cemetery Ass’n, 527 Pa. 211, 590 A.2d 1 (1991) (discussing legal fiction created by legislature that corporation is a legal entity separate and distinct from its shareholders); Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986)(legal fiction of constructive possession in drug cases).

. The situation that lead to the 1990 amendments to the MVFRL in which full tort and limited tort were incorporated was detailed in a noted work entitled Pennsylvania Motor Vehicle Insurance, which states, in part:

The main problem that precipitated the movement to repeal the No-Fault Act in 1984 was rising insurance costs. Ironically, reducing insurance rates was one of the promises of the No-Fault Act, but the reality was that No-Fault benefit insurance premiums increased 875% between July 1975 and September 1982.... [I]n 1984, the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), which took effect on October 1, 1984, replaced the No-Fault Act. The primary concerns in repealing the No-Fault Act were the spiraling costs of automobile insurance and the resultant increase in the number of uninsured motorists. The objective of the MVFRL was to provide broad coverage to assure the financial integrity of the policy holder. In fact, curtailing the spiraling cost of automobile insurance and protecting the public against loss caused by negligent motorists are the two most frequently mentioned reasons for the passage of the MVFRL.... By 1988 automobile insurance rates in Pennsylvania were the fifth highest in the country. In fact, insurance premiums were so high in Philadelphia that the number of uninsured operators was labeled as ‘staggering.’ Some alleged causes of the ‘insurance crisis’ were rising health care costs, uninsured motorists, lack of strict enforcement standards against driving under the influence, and proliferation of lawsuits.

(Citations omitted). Ronca, J.R.; Sloane, L.A.; Lutz, D.L.; Shollenberger, T.A.; and Mundy, J.F.2001 at §§ 1.1, 1.2. Pennsylvania Motor Vehicle Insurance: An Analysis of the *1096Financial Responsibility Law, Second Edition (2001 Revision).

. Although the New Jersey statute's wording provides that a plaintiff must suffer permanent "significant” disfigurement, the Falcone *1097court actually applied a case wherein the issue was whether the injured party suffered permanent "serious” disfigurement, concluding that the terms "significant” and "serious” were virtually synonymous.