A Pennsylvania man may pursue an uninsured motorist claim against his employer’s insurer, the state Superior Court has ruled, deciding that a “jetter” attached to the claimant’s work van was an attached trailer and therefore a “motor vehicle.”
The decision, originally an unpublished memorandum opinion that became citable law after plaintiffs counsel moved for publication, reverses a Philadelphia Court of Common Pleas judge, who decided that plaintiff George Barnes was neither “occupying” the vehicle nor “vehicle-oriented” when he was struck by an unidentified driver. The judge granted summary judgment in favor of Westfield Insurance Co., Barnes’ employer’s insurer.
According to the court’s opinion, Barnes was using the hose from a “high-powered jetter,” attached to his work van through a tow rig, to unblock a clogged pipe at a Northeast Philadelphia Wawa convenience store when he was hit by the car.
The panel in Barnes v. Keller relied upon a 1989 Superior Court decision in which the court ruled that a tractor trailer is a motor vehicle under the state Motor Vehicle Financial Responsibility Law.
“The record reflects that [Barnes] was engaged in work that required using the jetter, which as noted above was attached to a van and could be construed as a motor vehicle, at the time he was struck,” Judge Jacqueline O. Shogan wrote for the panel. “[H]e was in close proximity to the vehicle at the time he was struck; he was using the hose attached to the jetter — a process essential to the use of the vehicle and which required him to be vehicle-oriented.”
Therefore, there were genuine questions of fact regarding whether Barnes could collect uninsured motorist benefits.
Westfield’s policy with Barnes’ employer, McGovern Inc., defines occupying as “‘upon, getting in, on, out or off,’” according to the opinion.
The long-standing state Supreme Court standard for occupying a vehicle requires the following prongs all be met: There is a causal relation or connection between the injury and the use of the insured vehicle; the person claiming coverage must be in a “reasonably close geographic proximity” to the insured vehicle, even though the person doesn’t have to be touching it; the person must be “vehicle-oriented” (as opposed to highway- or sidewalk-oriented); and the claimant must be “engaged in a transaction essential to the use of the vehicle at the time.”
The trial court, according to the panel’s opinion, said Barnes only cleared the geographic proximity hurdle.
The case originally made news because the trial judge, Philadelphia Court of Common Pleas Judge Allan L. Tereshko, did not disclose that his wife, Heather Tereshko, was working in Post & Schell’s professional liability department at the time that Post & Schell was representing the defendant in Barnes.
That came in October, when Superior Court Judge Anne E. Lazarus, a former colleague of Allan Tereshko’s on the Philadelphia Court of Common Pleas, said in her published concurring opinion that “two significant ethical issues” arose from Tereshko’s failure to disclose his wife’s employer.
The majority’s opinion, however, was published late last month after Barnes and his counsel moved for publication, according to the docket.
Barnes’ counsel, Joseph J. Aversa of Aversa & Linn in Philadelphia, could not be reached for comment.
Allan C. Molotsky of Post & Schell represented Westfield and could not be reached.
The panel, which was rounded out by Senior Judge William H. Platt, relied on the court’s decision in Callahan v. Federal Kemper Insurance, a 1989 case, in overturning the trial court’s grant of summary judgment.
“This court has previously stated that ‘there is no question that an unattached trailer is not a motor vehicle,’” Shogan said, quoting Callahan.
Continuing to borrow from the Callahan court’s wording, Shogan noted: “‘Likewise, there is no question that a truck tractor is a motor vehicle. The problem however, arises when that trailer is attached to a truck tractor which is then operated as one unit. The code does not specify whether the resulting ‘tractor trailer’ is a motor vehicle or not.’”
Shogan went on to note that the Callahan court identified the purpose of the MVFRL as being to provide broad coverage to the policyholder; in order to do so, the MVFRL is to be liberally interpreted, the court said.
Barnes argued a jetter falls under the category of tractor trailer and the panel unanimously agreed.
At the time of the accident, Barnes was working for McGovern as a field services technician.
The question was whether uninsured motorist benefits provided under McGovern’s motor vehicle insurance policy with Westfield would cover Barnes’ injuries because Barnes was “vehicle-oriented” to the cargo van, which was towing the jetter — a portable unit used in clearing drains.
According to the opinion, Barnes telephoned his employer after realizing he needed a “pump truck,” as opposed to the jetter, to clear the train. His employer told him to see what he could do with the jetter while he was waiting for the pump truck. He was attempting to feed the hose from the jetter into the pipe when he was struck by the unidentified vehicle, the opinion said, quoting the trial court’s recitation of the facts.
Barnes apparently also sued a man named Warren G. Keller as the driver of the vehicle, but the trial court opinion said the parties dismissed him at a settlement conference after discovery taken suggested Keller was incorrectly identified as the driver of the vehicle.
(Copies of the 14-page opinion in Barnes v. Keller, PICS No. 20-2052, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •