Heller v. Pennsylvania League of Cities & Municipalities

*167Justice SAYLOR,

dissenting.

The majority acknowledges that the workers’ compensation exclusion in the underinsured (“UIM”) motorist provisions of the PennPRIME Trust Liability Coverage Document does not contradict any express provision of the Motor Vehicle Financial Responsibility Law (“MVFRL”) or the Workers’ Compensation Act. See Majority Opinion at 154, 32 A.3d at 1221. Nevertheless, the majority deems the exclusion void as against public policy, based on a finding that the Borough paid a premium for UIM motorist coverage, coupled with the conclusion that the enforcement of the exclusion would render the purchased coverage illusory and confer a windfall on PennPRIME. See id. at 155-59, 32 A.3d at 1222-24. In this regard, the majority posits that the UIM coverage is intended to protect employees, but, for employees injured the course of their employment in automobile accidents by underinsured motorists, PennPRIME UIM coverage will always be supplanted by workers’ compensation. See id. at 159-60, 32 A.3d at 1224-25. I have several differences with this assessment.

First, there is no evidence of record concerning the amount of the premium allocable to UIM coverage. In challenging a contractual provision on public policy grounds, Appellants bear a heavy burden of proof. See, e.g., Generette v. Donegal Mut. Ins. Co., 598 Pa. 505, 522, 957 A.2d 1180, 1190 (2008). Nevertheless, they have not supported their position with concrete evidence necessary to make an intelligent assessment. In particular, without information as to the amount of the premium paid, it is impossible to determine its appropriateness relative to the value conferred by the coverage.1

The majority avoids addressing the abstractness of its position through a finding that no value was provided, see Majori*168ty Opinion at 155-59, 32 A.3d at 1222-24, so that even a negligible premium would appear to be unjustified. Facially, however, the coverage applies to non-employees in government vehicles, see PennPRIME Trust Liability Coverage Document, at 32, R.R. at 51a (defining “Covered Party” to include “[ajnyone else occupying a Covered Auto”), and to employees using the vehicles in circumstances in which workers’ compensation would not be applicable.

The majority nonetheless discounts the fact of coverage to non-employees, baldly indicating that the policy is intended to protect employees (albeit coverage facially extends to non-employees in government vehicles), see id. at 161-62, 32 A.3d at 1225, and refusing to speculate as to the use of Borough vehicles in circumstances which would not implicate workers’ compensation. In this respect, the majority reasons: “Our analysis is limited to the factual circumstances under which Heller was injured while driving his work vehicle in the course and scope of his employment.” Id. at 159, 32 A.3d at 1224.

I realize that we continue to stress that the public policy exception is applied on a case-by-case basis. However, this does not translate into a mandate to ignore the coverage an insurance policy provides in every case in which exclusions operate to foreclose coverage. No exclusion could survive such a perverse analysis. Here, it seems to me, broadly speaking, that the PennPRIME Trust Liability Coverage Document ensures that some form of coverage is provided to those injured by underinsured motorists while traveling in local government vehicles, with the workers’ compensation operating as the primary protection, and the UIM coverage serving as a failsafe. In the absence of evidence that the premium paid by the Borough does not reflect the value of this sort of extension of protection, I cannot join in the majority’s characterization of the insurance as illusory or in its finding of a windfall.2

*169Judicially voiding clear contractual provisions should be the exception rather than the rule. By continuing, however, to favorably entertain abstract arguments by litigants in this arena, we invite more of the same. Furthermore, the direction is away from what, in my view, is the soundest judicial approach — that is — to rely on the Legislature and the administrative agency it has selected to make any necessary adjustments to insurance contracts prospectively where, as here, the policy considerations are mixed.

The facts and circumstances of this case provide another strong reason to decline Appellants’ invitation to intrude into the PennPRIME Trust insurance arrangement. The UM/ UIM coverage provided by PennPRIME is an integrated aspect of a coordinated risk scheme administered by a nonprofit trust organized as a group liability coverage pool for Pennsylvania municipal entities. See PennPRIME Trust Liability Coverage Document, R.R. at 20a-72a.

Municipal liability coverage pooling is a specialized, statutorily-authorized arrangement by which local government entities may join together to obtain insurance coverage and participate in the management of that coverage. Here, PennPRIME Trust represents a collective body in which the Borough maintains an interest. With regard to the automobile insurance component of such risk management schemes, there is obviously a smaller group of members to share risks than in broader-scale commercial insurance arrangements. Thus, assuming the portion of the premium allocable to UIM insurance was calculated (as it should have been) with the workers’ compensation exclusion in mind, the judicial disapproval of that exclusion is likely to have a very substantial impact on future premiums and other interests of participating municipalities.

In summary, in the setting of a pooled risk management arrangement, the relationship between premiums and coverage is far too complex to be assessed on a record as barren as this one.3

*170The majority also posits that the “evolution of the MVFRL reflects a clear legislative intent to place the burden for the payment of benefits on the tortfeasor or the UM/UIM carrier where a third-party causes a work-related injury.” Id. at 161, 32 A.3d at 1225. Curiously, the majority derives this “clear intent,” in part, from amendments removing a prohibition against offsetting UM/UIM coverage by workers’ compensation benefits. See id. at 160-62, 32 A.3d at 1225-26.

In the automobile insurance arena, the General Assembly has been engaged in reordering payment responsibilities, under the MVFRL, of medical, workers’ compensation, disability, automobile insurance, and other carriers, incurred as a result of motor vehicle accidents. The objective is to maintain affordable premiums while ensuring carriers will continue to provide coverage, and the adjustments seem to favor the segment of the insurance industry which, at any given time, appears least able to redress losses without impacting premiums or financial viability. In such a landscape, I fail to discern any overarching public policy in terms of where the burden should fall, other than in the express direction of the General Assembly. Here, the majority concedes there simply is no such direction. See id. at 154, 32 A.3d at 1221. Moreover, there is particularly none relative to non-profit pooled risk management schemes implemented for the sake of local governments.

Chief Justice CASTILLE joins this dissenting opinion.

. In response, the majority observes that the precise amount of the premium allocated to the UIM coverage was evidence within PennPRIME’s knowledge and control. See Majority Opinion at 158 n. 22, 32 A.3d at 1223-24 n. 22. While this would appear to be true, there is no suggestion that the information would not have been available to Appellants-as the parties bearing the burden of proof-via discovery or even less formally. Moreover, the majority does not explain how PennPRIME's understanding of its premium structure alters the straightforward allocation of the burden of proof to Appellants.

. Again, the majority’s reasoning suggests an allocation of the burden of proof to Appellee, contrary to the established standard under which the challenger bears the burden. See, e.g., Generette, 598 Pa. at 522, 957 A.2d at 1190.

. In its rejoinder, the majority indicates that PennPRIME does not argue that its status as a municipal liability pool weighs against invali*170dating the exclusion. See Majority Opinion at 158 n. 21, 32 A.3d at 1223 n. 21. As I read the brief, however, PennPRIME does, in fact, so argue. See, e.g., Brief for Appellees at 9 ("Furthermore, public policies supporting cost containment and consumer flexibility are heightened by the Borough’s status as a local agency and its decision to purchase UIM coverage (from a municipal pool) that included the subject exclusion.”); id. at 17 (contending that "the Borough’s status as a public employer is particularly relevant”).