holding that a consortium claim was “beyond the scope” of the Plaintiff’s insurance plan because it did not “extend coverage to individuals who have not suffered a ‘bodily injury’”
How later courts described this case
- holding that a consortium claim was “beyond the scope” of the Plaintiff’s insurance plan because it did not “extend coverage to individuals who have not suffered a ‘bodily injury’”
Written by the judges who cited it.
The opinion
DEL SOLE, Judge,
dissenting:
I must dissent from the majority’s holding that the Assigned Claims Plan [Plan] of the Motor Vehicle Financial Responsibility Act [MVFRL] 75 Pa.C.S.A. § 1701 et seq., does not provide coverage for emotional trauma suffered by a husband who witnesses his wife’s fatal auto accident.
The majority relies on section 1752 of the MVFRL which states that a person is eligible to recover benefits from the Plan if that person is injured as a result of a motor vehicle accident. Then the majority points to section 1702 in which injury is defined as “accidently sustained bodily harm to an individual and that individual’s illness, disease or death resulting therefrom.” Finally, the majority, relying on Needleman, supra, which holds that the No-Fault Act precludes coverage for emotional trauma because bodily harm does not include psychological or emotional harm suffered because of a motor vehicle accident, concluded that *346 Appellant is not a person who can recover under the Plan. For a variety of reasons I disagree with this analysis.
Initially, I would note that the MVFRL combined first party benefits, uninsured motorist benefits and assigned claims benefits in the same legislation. Subchapter C of the MVFRL, pertaining to uninsured motorist benefits states in pertinent part that, “uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles.” (42 Pa.C.S.A. § 1731(b)) (emphasis added).
We held in Pirches v. General Accident Insurance Co., 354 Pa.Super. 303 , 511 A.2d 1349 (1986), in construing a former version of the Uninsured Motorist Act now found in the MVFRL, and which contained similar language to the MVFRL, 1 that the phrase “legally entitled to recover” is ambiguous, requiring it to be construed in a manner most favorable to the insured, so as to effect its object and promote justice. We stated that unless there are present, strong legal or equitable considerations to the contrary, we are required to construe the Uninsured Motorist Act to find coverage. Id., 354 Pa.Super. at 313 , 511 A.2d 1349 , (citations omitted). We also held, citing Zagari v. Gralka, 264 Pa.Super. 239 , 399 A.2d 755 (1979), that absent explicit language abolishing a certain type of tort liability, (in the case of Zagari , consortium), statutes are not presumed to make changes in rules or principles of common law. Pirches, supra, 354 Pa.Super. at 315 , 511 A.2d 1349 .
Because there was no explicit language in the Uninsured Motorist Act excluding recovery for consortium, and because the purpose of the act was to protect innocent victims from irresponsible, uninsured drivers, that in order to effec *347 tuate the Act’s object and promote justice, George Pirches was entitled to recover uninsured motorist benefits for loss of consortium when his wife was injured in an automobile accident.
Although we agree with the majority that the basic formula for defining consortium is loss of the spouse’s “services”, the harm done to the spouse claiming loss of consortium includes emotional or mental harm. Certainly persons are not required to prove that they suffered physical disability, disease or death, as the result of the negligent physical injury to their spouse in order to recover under a claim of loss of consortium.
We have recognized that a claim of loss of consortium arises as a right from the “marriage relationship which the husband and wife have respectively to the society, companionship, and affection of each other in their life together.” Burns v. Pepsi-Cola Metropolitan Bottling, 353 Pa.Super. 571 , 510 A.2d 810 (1986) (emphasis added) (citation omitted). Furthermore, our supreme court has stated that the word “services”, “implies whatever of aid, assistance, comfort, and society the wife would be expected to render to, or bestow upon her husband ...” Kelley v. Mayberry Township, 154 Pa. 440, 447 , 26 A. 595, 597 (1893), (citation omitted) (emphasis added).
Today we would substitute for the old fashioned words “comfort”, “companionship” and “society” such phrases as “emotional support”, “psychological compatibility”, or “social relations”, but clearly the damages recovered for the loss of these attributes of marital life, normally claimed in an action for loss of consortium, are damages recovered for emotional or mental injuries or harms.
Thus, when we held in Pirches that Mr. Pirches was “legally entitled” to recover for bodily injury, we held that he was entitled to recover uninsured motorist benefits for mental or emotional injury. Given that, (1) consortium claims were not specifically exempted from coverage in the statute, (2) a cause of action for loss of consortium is an action in tort which may be maintained under the law of *348 this Commonwealth, and (3) uninsured motorist benefits were coextensive with those benefits recoverable under law, Mr. Pirches was legally entitled to recover for loss of consortium under the Uninsured Motorist Act.
I would hold that the same reasoning applies here as regards to Section E of the MVFRL concerning the Assigned Claims Plan. Section E provides that an eligible claimant who “has no other source of applicable uninsured motorist coverage and is otherwise entitled to recover in an action in tort from a party who has failed to comply with this chapter may recover for losses or damages suffered as a result of the injury,” up to a maximum of $5,000 for medical benefits. 75 Pa.C.S.A. §§ 1753-1754. This section clearly indicates that if a claimant has no other source of uninsured motorist benefits, then that claimant’s entitlement to benefits from the Plan is identical to the claimant’s rights to recover in an action in tort.
In construing an older version of the Assigned Claims Plan, the supreme court stated in Tubner v. State Farm Mutual Insurance Co., 496 Pa. 215 , 436 A.2d 621, 623 (1981) that “[ajssigned insurers are obligated precisely as if they had issued basic loss insurance policies,” and, “[b]e-cause a claimant under the assigned claims plan is covered as if he had obtained a policy of basic loss insurance, his right to uninsured motorist benefits cannot be distinguished from that of holders of valid insurance policies.” Id., 496 Pa. at 220 , 436 A.2d at 623 n. 13.
The parties have stipulated that the other driver, Mr. Madison, was negligent and that his negligence was more than 50% the cause of the accident. Therefore, under Sinn v. Burd, 486 Pa. 146 , 404 A.2d 672 (1979), Mr. Jackson would be entitled to recover for his emotional distress from the tortfeasor, and the Plan would be obligated to provide uninsured motorist benefits to Mr. Jackson who has no other source of uninsured motorist benefits.
Apart from the explicitly enumerated exceptions in the Plan, (see § 1753), and the dollar limitations in the amount of the recovery, there is no basis in the MVFRL for distin *349 guishing between the scope of uninsured motorist coverage for private policies in Subchapter C and assigned claims coverage in Subchapter E. Without an explicit exception, we can not presume that the MVFRL made changes in the principle of law found in Sinn v. Burd, allowing for recovery for the negligent infliction of emotional distress. As Tubner teaches, the scope of the victim’s right to recovery from an uninsured motorist who may recover under a private policy is no different than the right to recover uninsured benefits under the Plan.
The Majority relies on this court’s holding in Needleman v. Liberty Mutual Fire Insurance Co., 352 Pa.Super. 288 , 507 A.2d 1233 (1986), which construed the words “bodily harm” in the “No-Fault” Act. The majority states that the General Assembly would not have retained the definition of bodily injury in the MVFRL that was found in the earlier “No-Fault” Act, if they wanted to extend coverage to mental or emotional harm, (page 6). It quotes the language in 1 Pa.C.S. § 1922(4), “when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.” (emphasis added).
However, the Needleman decision was decided two years after the MVFRL was passed and the “No-Fault” Act was repealed. Therefore, we may not use the rule of statutory construction cited above because the MVFRL was not passed subsequent to the Needleman decision and the General Assembly did not have the benefit of Needleman when it passed the MVFRL. It would be unwarranted to conclude that by using the term “bodily harm”, the General Assembly intended to exclude recovery for mental or emotional injury under the MVFRL. Indeed, it could just as readily be concluded that had the General Assembly had the benefit of this decision, they would have changed the definition of injury in the MVFRL.
Because, unlike the Majority, I do not believe that our court’s construction of the term “bodily harm” in Needle- *350 man is controlling in the instant case, and because I believe that given the context of the MVFRL and the the pre-1984 cases which liberally interpreted the provisions of the laws providing assigned claims and uninsured motorist coverage to protect victims of motor vehicle accidents, I would find that Mr. Jackson may recover under Section E of the MVFRL for the emotional trauma he suffered when he witnessed his wife’s fatal auto accident.
. The former Uninsured Motorist Act, (40 Pa.C.S.A. § 2000(a)), states in pertinent part that motor vehicle liability insurance is provided, "for the protection of persons insured thereunder who are legally entitled to recover damages from owners and operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom ..."