Pistorius v. Travelers Insurance

CIRILLO, Judge,

dissenting:

I respectfully dissent, primarily because I interpret the No-Fault Act as being narrower in scope than does the majority here today.

Dirt bikes 1 are recreational vehicles, not motor vehicles, because they cannot be licensed under the Motor Vehicle Code due to their lack of certain safety features. 40 P.C.S. § 1009.103. Thus, in an ordinary one vehicle accident involving only a dirt bike, the No-Fault Act is inapplicable entirely, and the rider receives no insurance benefits. However, by my Brethren’s analysis of 40 P.C.S. § 1009.103, a dirt bike rider can receive benefits if he collides with a motor vehicle, because in such instance he has been injured through the “maintenance or use of a motor vehicle.”

In contrast, a motorcycle is a motor vehicle, so it would initially seem that motorcycle riders would come within the ambit of the No-Fault Act. However, by statutory provision, 40 P.C.S. 1009.301(a)(6), motorcycles are specifically *536excluded from the Act despite their motor vehicle status. The exclusion is total; even when a motorcyclist is injured by a collision with some other motor vehicle, he is denied basic loss benefits.

The question is obvious: Why not subject dirt bikers to the same sweeping exclusion that faces motorcyclists? The majority reasons that the motorcycle exclusion, like the rest of the No-Fault Act, applies only to motor vehicles; since a dirt bike is not a motor vehicle, the exclusion cannot apply. In my view, this perceived distinction between motorcycles and dirt bikes is irrelevant and contrary to the obvious legislative intent in denying coverage to motorcycles.

It is true that, strictly speaking, a dirt bike is not a motor vehicle because it cannot be licensed under the Motor Vehicle Code. However, in cases such as this, it should not necessarily follow that a dirt bike cannot be a motorcycle. To hinge the allowance of insurance benefits upon whether the bike at issue is licensed under the Vehicle Code ignores an important fact: riders of dirt bikes (and other recreational vehicles) frequently take to the open road in disregard of their machines’ lack of those safety features required by the Code.

The No-Fault Act itself lacks a definition of “motorcycle”; we may therefore look to the meaning given the term in the Statutory Construction Act, 1 P.C.S. §§ 1921-1991. See e.g., Habecker v. Nationwide Insurance Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982). A motorcycle is defined in the Act as “any vehicle of the bicycle or tricycle type operated by any type of internal combustion motor.” This broad definition no doubt foresaw many variations on the motorcycle theme, including the dirt bike here at issue.2 Indeed, *537in Myers v. State Farm Mutual Automobile Insurance Co., 348 Pa.Super. 539, 502 A.2d 676 (1985), filed even date herewith, we rely upon this very definition in holding that a “moped” can be considered a motorcycle. I fail to see why the definition is not controlling in this case as well.

A commonsense comparison of motorcycles and dirt bikes further supports the conclusion that they are one and the same, particularly when viewed in the light of the legislature’s rationale behind the denial of benefits to motorcycle operators. Quite simply, motorcyclists do not reap the benefits of the No-Fault Act because they have chosen a means of transportation considerably more dangerous than the more common automobile; rather than spread this more dramatic risk of loss among all insureds, it is incumbent upon each motorcyclist to recover losses on his own through traditional tort avenues. Samsel v. The Travelers Indemnity Company, 295 Pa.Super. 188, 441 A.2d 412 (1982); Singer v. Sheppard, 464 Pa. 386, 346 A.2d 897 (1975). In view of the legislature’s practical consideration of the dangerous nature of these machines, the majority’s cited distinctions between motorcycles and dirt bikes pale in comparison to their one overriding similarity: both require the operator to perch himself atop an engine capable of dramatic acceleration, exposed to the world and stripped of the protection afforded by steel doors and a roof. To the unlucky rider who is hurdled through the air when his bike collides with a less frail object, it makes little difference whether his machine was licensed under the Vehicle Code. Just as a rose by any other name is still a rose, a motorcycle better suited for trails than for highways is nonetheless a motorcycle.

Of course, holding that a dirt bike is but a specific type of motorcycle is the most fluid means of assuring that all such dangerous vehicles are denied No-Fault basic loss benefits. However, even were I to agree with my Brethren that motorcycles and dirt bikes are different in some significant *538way, I cannot agree that a dirt bike rider injured in a collision with a motor vehicle is entitled to benefits under Section 1009.103. The operator of a licensed, roadworthy motorcycle must take it upon himself to recover for any injuries sustained; I fail to see why the rider of a dirt bike, who should not be on the road to begin with, must not be similarly bound. By today’s decision, the dirt bike rider who stays on the trails is patently denied coverage (as he should be), but his more daring counterpart can take to the highway secure in the knowledge that a collision with a motor vehicle will trigger the receipt of No-Fault benefits.

The majority feels compelled towards this anamoly by the language in Section 1009.103 which dictates coverage for “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” In my view, this provision must not be contorted to provide a windfall for those who carelessly place recreational vehicles into the flow of traffic. I would apply the provision only to pedestrians and those who are injured by their own maintenance or use of a motor vehicle. Under the circumstances, I cannot agree that being struck by a motor vehicle amounts to the maintenance or use of one.

However, I must point out that my position speaks only to those instances in which a dirt bike is involved in an accident on the highway, because it is only then that the dirt bike rider is improperly placed in a more advantageous position than the motorcyclist by today’s decision. In other words, I do not here address any “worst case scenario” wherein a motor vehicle somehow goes off the highway and injures a dirt bike rider who is properly keeping his machine off the road. I would have no difficulty placing the injured biker in such instance in the same shoes as an innocent pedestrian, such as to allow the recovery of benefits. Cf., 40 Pa.C.S. § 1009.204(c)(4); Prudential Property & Casualty Ins. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984); Schimmelbusch v. Royal-Globe Ins. Co., 247 Pa.Super. 28, 371 A.2d 1021 (1977).

*539A practical reading of the No-Fault Act does not allow a dirt bike rider to be put in a more advantageous position than the operator of a properly licensed motorcycle. I would affirm the trial court.

OLSZEWSKI and TAMILIA, JJ., join this dissenting opinion.

. The term "trail bike” is often used in place of “dirt bike”. Any difference between the two is irrelevant to this analysis.

. Other states have adopted an equally realistic interpretation. See Life & Casualty Insurance Co. of Tennessee v. King, 37 Ala.App. 435, 71 So.2d 121 (1953), cert. denied, 260 Ala. 699, 71 So.2d 124 (1954); Standifer v. Inter-Ocean Insurance Co., 37 Ala.App. 393, 69 So.2d 300 (1953); Navarra v. Central National Insurance Co., 232 So.2d 28 (Fla.Dist.Ct.App.1970); Valdes v. Prudence Mutual Casualty Co., 207 So.2d 312 (Fla.Dist.Ct.App-1968); Labove v. Traders & General Insur*537ance Co., 219 So.2d 614 (La.App.1969); Labracio v. Northern Insurance Co., 66 N.J.Super. 216, 168 A.2d 682 (1961).