dissenting.
I concur with the majority that “the law of the District of Columbia governing PIP coverage and PIP benefits is the controlling law in this case.” Majority Op. at 247. I dissent from the majority’s construction of the District of Columbia Code and specifically from the holding that “nothing in [§ 35-2105] or any other sections of the District of Columbia Code indicates that an insurer may deny a timely filed PIP claim because the claimant is pursuing a third party tort action.” Majority Op. at 250.
*255PIP under District of Columbia law is a separately purchased optional form of insurance. The PIP statute replaced part of the District of Columbia no-fault law. The District of Columbia PIP optional insurance provides for generous payments — all medical expenses and all loss of wages. The relevant PIP election section provides as follows:
§ 35-2105. Lawsuit restriction and opportunity for arbitration under optional insurance.
(a) A victim shall notify the personal injury protection insurer within 60 days of an accident of the victim’s election to receive personal injury protection benefits.
(b) A victim who elects to receive personal injury protection benefits may maintain a civil action based on liability of another person only if:
(1) The injury directly results in substantial permanent scarring or disfigurement, substantial and medically demonstrable permanent impairment which has significantly affected the ability of the victim to perform his or her professional activities or usual and customary daily activities, or a medically demonstrable impairment that prevents the victim from performing all or substantially all of the material acts and duties that constitute his or her usual and customary daily activities for more than 180 continuous days; or
(2) The medical and rehabilitation expenses of a victim or work loss of a victim exceeds the amount of personal injury protection benefits available.
(c) Nothing in subsection (b) of this section shall prevent the survivors of a victim whose death arises out of the maintenance or use of a motor vehicle from maintaining a civil action based on the liability of another person for the loss and noneconomic loss resulting from the victim’s death regardless of whether the victim had previous to his or her death elected to receive personal injury protection benefits.
(d) The insurer must notify any identifiable victim in writing of the 60-day election period.
*256(e) The 60-day election period may be extended upon the mutual written agreement of the victim and the insurer.
(f) If a victim is incapacitated or in some other way unable to make the election, it may be made by the next closest relative, or if there is no relative, an individual taking responsibility for the victim’s affairs. (Emphasis added).
I read this statute as prohibiting double recovery. It provides that an accident victim eligible for PIP benefits has an option to either elect the certainty of PIP benefits or elect the uncertainty of a civil suit against the tortfeasor. These are separate mutually exclusive options. One exception to this general rule is found in subsection (b)(1) of § 35-2105, which allows very seriously injured victims (these plaintiffs admittedly do not meet this statutory criteria) to collect PIP and then still file suit, but in that instance, the statute gives the insurance company the right to recover the PIP payment made to the victim if the victim is successful in the tort suit. § 35-2111(d). That is the reason why the insurance policy in the instant case contains the “subrogation and reimbursement provision” discussed in the majority opinion. Majority Op. at 248-249. That policy provision is by its own terms only applicable where the injured person receiving PIP “has a right to recover damages from another.” The statutory exception allowing seriously injured victims to both claim PIP benefits and file a tort suit is not applicable to the plaintiffs in the instant case, but that statutory provision is the reason why the majority may be incorrect in stating that the insurance contract’s subrogation provision is “flatly inconsistent” with Nationwide’s contentions in the instant case. Majority Op. at 249.
The majority opinion apparently makes the incorrect assumption that the District of Columbia Council intended the word “elect” to be synonymous with the word “claim.” The statute does not give an accident victim the right to claim (demand as a right) PIP. The statute gives an accident *257victim the right to elect (choose or select) PIP as an alternative to a tort claim suit. “Elect” has a very specific meaning. See Firemen’s Benevolent Ass’n v. City Council of City of Santa Ana, 168 Cal.App.2d 765, 336 P.2d 273, 276 (1959) (“The terms ‘elect’ and ‘election’ [when used in a statute] mean to make a choice between two alternatives.”); Exchange Bank & Trust Co. v. Pure Ice & Cold Storage Co., 415 S.W.2d 897, 900 (Tex.1967) (“In general, an election [when used in a statute] means the obligation to choose between two inconsistent or alternative rights.”). In Bierce v. Hutchins, 205 U.S. 340, 27 S.Ct. 524, 51 L.Ed. 828 (1907), Justice Holmes defined “election” as follows:
“Election is simply what its name imports; a choice, shown by an overt act, between two inconsistent rights, either of which may be asserted at the will of the chooser alone.”
Id. at 346, 27 S.Ct. at 525, 51 L.Ed. at 833.
The statute does not require a claim within 60 days — it requires an election within 60 days. The plaintiffs themselves recognized this. They recognized also that if they filed an “election” of PIP benefits under District of Columbia law they would lose their right to file the tort suit. Plaintiffs tried to avoid any election, which the majority allows them to do, and thereby receive cumulative, instead of alternative, relief. In the 60-day letter to the insurance company, the plaintiffs’ attorney claimed PIP benefits as well as the right to sue in tort, stating:
“Please be advised that this is a Maryland automobile accident and Maryland law applies in this case and therefore my clients are not required to make any D.C. election. Rather, they are filing for PIP benefits available under this policy of insurance and paid for by the insured. They are asserting a Maryland liability claim against the responsible driver.”
Counsel was incorrect in his choice of law assumption, and by refusing to make the required 60-day “election ” under District of Columbia law, I believe the plaintiffs lose their right to PIP benefits. It seems clear that plaintiffs’ letter *258to Nationwide was not an election to accept PIP in lieu of a tort claim. Indeed, if plaintiffs made any election, it would seem that their primary “election” was to file a tort suit against Chelliah. They indicated that was their intent and that they were not making an “election” of PIP benefits in lieu of the tort suit. Chelliah apparently accepted the fact that plaintiffs elected a tort liability suit rather than PIP benefits because he never claimed that there was any PIP election, which may have barred plaintiffs’ tort suit against him. Even if we do not conclude that plaintiffs’ letter was an election to sue in tort in lieu of PIP benefits, we clearly cannot construe the letter as an election to take PIP benefits in lieu of a tort suit. The “election” required in order to obtain PIP benefits was simply never made.
Plaintiffs’ failure to elect is further evidenced by their declaration. The first six counts were their tort claims against Chelliah and the second six counts were their PIP claims against Nationwide. That suit reinforces the fact that there was no “election” of PIP benefits. Plaintiffs never denied that they failed to make an “election” of PIP benefits. In fact, they refused to make an election because of their erroneous belief that Maryland, not District of Columbia, contract and insurance law was applicable.
Plaintiffs seem to acknowledge that applicable District of Columbia law and the insurance endorsement do require an election, which they have refused to make, but they argue Maryland should not enforce that requirement either because the tort occurred in Maryland or because enforcement of District of Columbia insurance contract law would violate Maryland’s public policy. In their appellate brief, plaintiffs characterize the action of the trial court as follows:
“By granting summary judgment in favor of Appellee Nationwide, the trial court ruled that Appellants’ claim for PIP/No Fault benefits is governed by the District of Columbia Code 35-2105 (1988 Repl. Vol.), which requires an injured party to elect between making a claim for PIP *259benefits and pursuing a common-law tort action against a third party.” (Emphasis added).
The brief goes on to state:
“By forcing an injured party to elect between such causes of action, the District of Columbia statute clearly affects the injured parties’ substantive rights.
******
District of Columbia Code Sec. 35-2104, on the other hand, is an ‘optional’ PIP statute, thus affording an insured the option of obtaining any one or combination of coverage set forth in the statute. D.C.Code Sec. 35-2104(a)(2) (1988 Repl. Vol.). Hence, District of Columbia benefits are alternative and not cumulative.
Therefore, the Court has an even more compelling reason for overriding the lower court’s application of the lex loci contractus doctrine than had the court in Hart. [Hart v. Allstate Insurance Co., 83 Md.App. 642, 577 A.2d 373 (1990)]. Certainly the Maryland legislature has made it abundantly clear that a victim of a car accident in Maryland should not be forced to elect between personal injury protection benefits and a third-party tort claim, and, in so doing, the legislature has expressed the importance of Maryland’s public policy in this instance. Hence, both the remedy for PIP benefits and also the right to assert a personal injury claim are cumulative in Maryland. Accordingly, to apply the applicable optional D.C. PIP/No Fault law to the instant case in light of the then existing mandatory Maryland PIP law would be contrary to public policy. Appellee’s contract Endorsement should be void as a matter of Maryland public policy.”
Indeed, even after the trial judge ruled that, because there was no effective election of PIP, plaintiffs were limited to their tort suit, the trial judge still gave plaintiffs the option of either electing PIP or continuing with the tort suit. The plaintiffs again failed to make that election. The colloquy went as follows:
*260“THE COURT: They [Nationwide] are not going to pay you any money. I just ruled they don’t have to pay you any money. You have elected to sue in tort.
[Plaintiff's Attorney]: Nationwide doesn’t have to pay period.
THE COURT: Period, that is right. Proceed with your action. Now, you could drop your case.
[Plaintiff’s Attorney]: I could drop my P.I.P. case.
THE COURT: You could drop your case against Mr. Chelliah and get your P.I.P. benefits, that is your choice.
[Plaintiff's Attorney]: I know it is a Maryland accident and a District of Columbia policy, and there is nothing in that District of Columbia Code that says it has any impact beyond the confines of the District of Columbia.”
Plaintiffs clearly made no election of PIP. They contend they have the right to both receive PIP benefits and also to maintain a tort lawsuit.1 The majority agrees, based on what I perceive is a misreading of the District of Columbia statute.
I am not alone in my view that the District of Columbia statute § 35-2105 contains two mutually exclusive options. Either the eligible injured victim “elects” PIP within 60 days and forfeits the right to sue the tortfeasor or, if the victim does not “elect” the PIP option, the right to sue the tortfeasor is retained, but the right to PIP is lost (with one exception previously discussed that is not relevant in the instant case).
In Dimond v. District of Columbia, 792 F.2d 179 (D.C.Cir.1986), the court said:
“Prior to oral argument in this case, the District of Columbia City Council substantially amended the 1982 No-Fault Insurance Act. These amendments have made no-fault insurance coverage optional. The amendments *261also greatly alter the prior restrictions on tort suits for recovery of noneconomic losses arising out of automobile accidents. Only victims who have elected to receive the optional no-fault personal injury protection benefits will ever be statutorily barred from maintaining a tort action based on another person’s responsibility for an auto accident.” (Emphasis in original).
Id. at 184.
John R. Fonseca, in the 1991 Supplement to his Automobile Insurance and No-Fault Law, § 18:4.1, at 494, summarizes the District of Columbia PIP law as follows:
“An accident victim who is covered by PIP benefits has 60 days after the accident to decide whether he or she wants to received PIP benefits. Victims who elect to receive PIP benefits cannot maintain a civil action based on the liability of another person unless the injury results in:
—Substantial permanent scarring or disfigurement [etc.]”
Another indication that the majority is incorrect in stating that “nothing in these or any other sections of the District of Columbia Code indicates that an insurer may deny a timely filed PIP claim because the claimant is pursuing a third party tort action” is found in a footnote by the District of Columbia Court of Appeals. In Lee v. District of Columbia, 559 A.2d 308 (D.C.1989), the court said:
“In 1985, D.C. Law 6-104, § 2(d), modified this provision. Under present law, an accident victim may elect to sue in tort rather than receive personal injury protection benefits, regardless of the amount of medical expenses caused by the accident. 32 D.C. Reg. 7245, 7249 (1986).”
Id. at 309 n. 1.
Turning to the insurance contract’s PIP endorsement in the instant case, none of the plaintiffs were parties to the insurance contract; nevertheless, they are entitled to elect PIP benefits under that insurance contract and in accor*262dance with the § 35-2105. The PIP endorsement in the instant case states:
“PERSONAL INJURY PROTECTION COVERAGE
This coverage provides Personal Injury Protection options in accordance with the District of Columbia Compulsory No-Fault Motor Vehicle Insurance Act of 1982, as amended in 1985 (the Act). The options and limits which you have selected are shown on your Declarations.”
The PIP endorsement also clearly reflects the fact that PIP insurance premiums are computed based on the assumption that, except for severely injured accident victims where the PIP insurance carrier will be subrogated, the insurance industry will either have to bear the cost of PIP benefits or defend and/or pay tort liability claims, but not both. The PIP endorsement specifically states:
“Section 6 [35-2105] of the Act places limitations on a person’s right to sue for damages. The premium for the policy reflects these limitations. If a court declares any of these limitations unenforceable we have the right to recompute the premium.”
I would enthusiastically echo the majority’s statement that “[a]s shown by the findings, the substantive provisions of the statute, and the cases, the legislative body intended to encourage contractual no-fault PIP claims and to restrict tort lawsuits.” Majority Op. at 252. The legislative body accomplished its purpose by requiring a choice for non-seriously injured tort victims like the plaintiffs in the instant case. They must choose either the certainty of recovering their medical expenses and loss of wages through PIP benefits or choose the uncertainty of a tort lawsuit, but not both.
Permitting these plaintiffs to both “claim” PIP benefits and simultaneously pursue their tort lawsuit does not foster the purpose of the statute; it thwarts the purpose of the statute. Although our decision resolves this statutory interpretation issue for the litigants in the instant case, we will have to await the final decision on the construction of *263this District of Columbia statute which will ultimately be made by the District of Columbia courts.
I respectfully dissent.
. Following the court’s ruling on the motion for summary judgment, plaintiffs were successful in their tort claims against Chelliah. The jury rendered judgments in favor of the individual plaintiffs in amounts ranging from $112.00 to $9,095.00.