Pennsylvania Medical Society Liability Insurance v. Commonwealth, Medical Professional Liability Catastrophe Loss Fund

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority overrules the preliminary objection of the Commonwealth of Pennsylvania, Medical Professional Liability Catastrophe Loss Fund (CAT Fund) to Count I of the petition for review filed by the Pennsylvania Medical Society Liability Insurance Company (Insurance Company). The CAT Fund’s objection is that, contrary to Count I, the CAT Fund is not obligated to pay or defend any claim for the Insurance Company under section 605 of the Health Care Services Malpractice Act1 (Act) because the CAT Fund did not receive a written request from the Insurance Company within the requisite 180-day period. In overruling the CAT Fund’s preliminary objection, the majority holds that section 702(c) of the Act2 negates the 180-day written request requirement in section 605 of the Act.3 For the reasons that follow, I do not agree with this holding.

In 1976, the General Assembly rewrote section 702(c) of the Act to provide as follows:

(c) The basic coverage insurance carrier or self-insured provider shall promptly notify the director of any case where it reasonably believes that the value of the claim exceeds the basic insurer’s cover*1273age or self-insurance plan or falls under section 605 .... Failure to so notify the director shall make the basic coverage insurance carrier or self-insured provider responsible for the payment of the entire award or verdict, provided that the fund has been prejudiced by the failure of notice.

40 P.S. § 1301.702(c) (emphases added), Historical and Statutory Notes. At the same time, the General Assembly rewrote section 605 of the Act to provide, “In the event that any claim is made against a health care provider ... more than four years after the breach of contract or tort occurred ..., such claim shall be defended and paid by the [CAT Fund].... ” See 40 P.S. § 1301.605, Historical and Statutory Notes. Thus, under the 1976 amendments to the Act, if an insurer’s or self-insured’s failure to give prompt notice of a section 605 claim did not prejudice the CAT Fund, the CAT Fund was responsible for defense and payment of the claim.

In 1996, the General Assembly amended section 605 of the Act to add the 180-day written request requirement.

In the event that any claim is made against a health care provider ... more than four years after the breach of contract or tort occurred ..., such claim shall be defended and paid by the fund if the fund has received a written request for indemnity and defense within 180 days of the date on which notice of the claim is given to the health care provider or his insurer.

40 P.S. § 1301.605 (emphasis added), Historical and Statutory Notes. The majority’s holding gives no effect to the 1996 amendment. Indeed, the majority’s holding reflects the 1976 version of sections 702(c) and 605 of the Act. However, it makes no sense that the General Assembly would add the 180-day requirement without intending to change the obligation of a health care provider or insurer under section 605 of the Act. Indeed, I submit that the majority’s holding is contrary to several of the rules of statutory construction.

Section 1921(a) of the Statutory Construction Act of 1972 states, “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions,” so that no provision is mere surplusage. 1 Pa.C.S. § 1921(a). Section 1922(2) of the Statutory Construction Act of 1972 states that, in ascertaining the intention of the General Assembly, we presume that the General Assembly “intends the entire statute to be effective and certain.” 1 Pa.C.S. § 1922(2). The majority’s construction of section 605 of the Act violates these rules because it does not give effect to the 180-day written request requirement.

The majority’s holding also violates section 1921(b) of the Statutory Construction Act of 1972, which states, “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). The language of section 605 contains no ambiguity with respect to the 180-day written request requirement. Section 605 provides that the CAT Fund will defend and pay a section 605 claim if the fund receives a written request for indemnity and defense within the 180-day period. 40 P.S. § 1301.605. The majority’s holding disregards these clear and unambiguous words.

The majority’s holding also violates section 1933 of the Statutory Construction Act of 1972, which states:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions *1274shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933 (emphasis added). Here, section 702(c) of the Act is a general provision relating to the typical case where the CAT Fund is responsible for claims that exceed the basic insurer’s coverage. 40 P.S. § 1301.702(c). Section 605 of the Act is a special provision relating to the unusual case where a claim is filed more than four years after the breach of contract or tort occurred. 40 P.S. § 1301.605. In those special cases, the General Assembly requires a written request to the CAT Fund within 180 days of the date when the claim was known to the healthcare provider or insurer. 40 P.S. § 1301.605. Because the General Assembly did not enact section 702(c) of the Act later than the 180-day written request requirement, that requirement should prevail as an exception to the general rule.

For all of these reasons, I would sustain the CAT Fund’s preliminary objection to Count I of the petition for review.4

Judge LEADBETTER joins in this dissent.

. Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.605, repealed by, Act of March 20, 2002, P.L. 154.

. 40 P.S. § 1301.702(c), repealed by, Act of March 20, 2002, P.L. 154.

.The majority's analysis indicates its conclusion that section 702(c) of the Act controls the outcome in this case. (See majority's op. at 1269-70.) Thus, the majority completely ignores the 180-day written request requirement in section 605 of the Act.

. It is important to note that, in Count I of its petition for review, the Insurance Company seeks both payment of the section 605 claim and the cost of defending the claim. However, section 702(c) of the Act, the basis for the majority’s holding, pertains only to the CAT Fund’s obligation to pay a claim; section 702(c) has nothing to do with the CAT Fund's duty to defend a claim. It is section 702(d) of the Act, ignored by the majority, that governs the CAT Fund’s responsibility to provide a defense to a claim.

(d) The basic coverage insurance carrier or self-insured provider shall be responsible to provide a defense to the claim, including defense of the fund, except as provided for in section 605. In such instances where the director has been notified in accordance with subsection (c), the director may join in the defense and be represented by counsel.

40 P.S. § 1301.702(d). To the extent that the majority fails to address section 702(d) of the Act, the majority has not fully disposed of the CAT Fund’s preliminary objection to Count I.