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Pittsburgh — Lawyers in a personal injury action sparred yesterday before the state Supreme Court over whether the “deemed election” of limited tort under Pennsylvania law extends to the children of the car owner who allowed her auto insurance policy to lapse in 1997. While neither party in Holland v. Marcy has disputed that the vehicle owner’s lapse in insurance has bound her to the limited tort option under Section 1705(a)(5) of the Motor Vehicle Financial Responsibility Law, the two sides view the effect of that deemed election very differently. Joanna K. Budde, representing appellant Edward H. Marcy, likened the appellee’s deemed choice to an actual election of limited tort, arguing that the statute uses interchangeably the terms “elect,” “deemed to have chosen” and “otherwise bound by” to describe a tort election. Accordingly, Budde argued, if Theresa L. Holland’s deemed election of limited tort is akin to an actual election, her tort choice would apply to her children. But Anthony J. Sciarrino, the Hollands’ attorney, said one cannot link a vehicle owner with a named insured under the MVFRL, for this amounted to the creation of a fictitious policy. While Budde argued that this concept is recognized under the MVFRL, Sciarrino said there is no statutory authority to create such a legal fiction. Section 1705 may limit Holland’s tort rights, he said, but the court cannot “visit the sins of the parent on their children.” Joel and Heather Holland were injured in an accident in August 1997 in a vehicle owned by their mother and driven by their father, according to court documents. Joel suffered a laceration to his forehead, leaving a permanent scar. He also suffered cervical strain and sprain. Heather, meanwhile, suffered cervical strain and sprain, contusions to her face and recurrent nosebleeds. Theresa Holland initiated suit on her children’s behalf against Marcy, the driver allegedly at fault in the accident, court papers said. After an Erie County judge dismissed the case, finding the Holland children’s injuries not serious enough to override a deemed limited tort election, the Hollands appealed. In a divided en banc ruling, the Superior Court reinstated the case, concluding that only the owner of an uninsured, registered vehicle may be “deemed” to have chosen the limited tort option for allowing insurance to lapse on a vehicle. The ruling departed from the Commonwealth Court’s 1997 decision in Hames v. Philadelphia Housing Authority, in which the court did visit the sins of the parent on her children. In that case, the court held that children, injured in a vehicle owned by their mother, who had allowed the vehicle’s policy to lapse, were bound by the mother’s deemed election of limited tort. The Superior Court in Holland opted rather to follow its own precedent — the 1998 decision in Ickes v. Burkes, in which the court declined to hold the plaintiff to the deemed limited tort option of her husband, who allowed insurance to lapse on his vehicle. The appellate split on this issue was one factor prompting Supreme Court review. In arguments yesterday, Budde, an attorney at Knox McLaughlin Gornall & Sennett in Erie, tried to make the case that the language of Section 1705 puts a deemed election of limited tort on equal ground with an actual election. Several justices, however, challenged her on this point by confronting her with the absence of an insurance contract. Putting forward several hypothetical scenarios, Justice Russell M. Nigro observed that a parent who does not own a car is afforded full tort rights because no tort option has been made under an insurance contract. What distinguishes the present case from such a situation, he asked, given that in both circumstances, there is no insurance contract? Budde said that in this case there is an uninsured, registered vehicle on the road. “But it is the contract that restricts the insured,” Nigro said, noting that the MVFRL only requires that a motorist insure himself, while the actual insurance policy establishes the parameters. Budde retorted that Section 1705(a)(5) does not say that an uninsured car owner is “bound” by a limited tort option but rather that one is “deemed to have chosen” the option. This implicit election must apply to all other insureds, as well, she argued. Without an insurance contract, Chief Justice Ralph J. Cappy interjected, how does Theresa Holland become a named insured in this case? “You have to look at the statute in its entirety,” Budde said, noting that Section 1705 uses interchangeably terms such as “elect,” “deemed to have chosen” and “otherwise bound by” to describe tort election. Responding to the argument that this interpretation visits the sins of the parent on the children, Budde said parents often make choices for their children, including tort election. Constructing Section 1705 to say that because there is no insurance contract, the children of an uninsured parent should be afforded full tort rights “would give children of the uninsured more rights than children of the insured,” Budde said. But, Justice Max Baer said, aren’t there inconsistencies like this throughout the MVFRL. “You keep coming back to this absurd result [argument]. but it seems equally absurd that a 5-year-old who runs out in front of a vehicle is controlled by whether or not his parents drive.” Those are different scenarios, Budde said, involving people who are “not trying to break the law on the one hand and trying to reap the benefits on the other.” While the court seemed more amenable to the Hollands’ position, at least one justice saw logic in the argument that Section 1705(a)(5) creates a fictitious policy under which a vehicle owner, whose insurance lapses, is limited in his tort option. Justice J. Michael Eakin jumped on Sciarrino’s metaphor that this idea of a fictitious policy — which was first raised in a dissenting opinion by Superior Court Judge Mary Jane Bowes — sprung spontaneously from the judge’s mind. Eakin said that in order for a vehicle owner to be deemed to have chosen a limited tort option, the statute must create a fictitious policy to effect such a choice. Sciarrino, an attorney at Erie’s Swensen Perer & Kontos, disagreed, saying this was an issue of statutory construction rather than policy interpretation. “To be binding on anybody but the owner, there has to be a policy,” he said. Responding to other arguments raised by Budde, Sciarrino said a person cannot choose a tort option without an insurance policy in which to do so. Linking a vehicle owner with an “insured,” as it is defined in the MVFRL, cannot be done without creating a legal fiction. Justice Ronald D. Castille, toward the end of the argument, put his own confusion on the table when he asked if Marcy is at fault, why there is any question as to why the Holland children’s tort rights are limited. After Sciarrino said it is a question of a tort option, Castille, recognizing his own bewilderment, said, “This questioning is making me dizzy.”

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