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An injured policyholder in a car covered by the full tort option may not be denied full tort benefits simply because he owns another uninsured vehicle, the Superior Court said. In Progressive Halcyon Insurance Co. v. Kennedy, Progressive Halcyon argued that Anthony Kennedy should receive limited tort benefits under Section 1705(a)(5) of the Motor Vehicle Financial Responsibility Law, which states that someone who does not have financial responsibility “shall be deemed to have chosen the limited tort alternative,” according to the opinion. Even though Kennedy was driving a car with full tort coverage at the time of the accident, Progressive argued that he was not financially responsible because he owned and registered another uninsured car, according to the opinion. Senior Judge John T. J. Kelly Jr. said Progressive’s interpretation would have an “absurd” result. “The purpose of the MVFRL was to address rising insurance costs by encouraging motorists to purchase insurance and to deny unlimited protection to those who did not choose full tort coverage,” he said. “Application of [Progressive's] reasoning to a motorist who has actually bought and paid for full tort coverage on the vehicle involved in the accident fails signally to fulfill the purpose of the statute.” Kelly’s opinion further defined the reach of the Pennsylvania Supreme Court’s 2005 decision in Swords v. Harleysville Insurance Companies. Swords said that owners of registered but uninsured vehicles are ineligible for first-party benefits when they are injured in an accident in another vehicle. That ruling was based on the language of Section 1714 of MVFRL, which states that a claimant is ineligible for first-party benefits if he or she “does not have financial responsibility.” Kelly questioned whether Swords changes previous interpretations of Section 1705 that have allowed an injured party to recover full tort benefits even if he or she has an uninsured vehicle. He said it does not change those interpretations in this case because Swords barred the recovery of first-party benefits, not any “damages for injuries sustained as a result of automobile accidents.” The court pointed to other cases, like the 2003 Pennsylvania Supreme Court opinion in Hoffman v. Troncelliti, which have ruled that coverage is determined by the policy of the car in the accident. Hoffman, Kelly said, reaffirmed the 1994 Superior Court case Berger v. Rinaldi, which determined that the policy coverage on the vehicle involved in the accident was what determined the applicable coverage. In Berger, Swords and Hoffman, the claimants were all in an accident in a car that they did not own that had full tort coverage. Kelly said that Kennedy had an even stronger case because he was trying to get the full tort coverage benefits of his own policy for which he paid. Kennedy had a 1997 Ford and a 1989 Toyota that had full tort coverage under Progressive’s policy. He also had a 1986 Nissan that was not insured under any policy, according to the opinion. He was driving the Ford in January 2004 when he got into an accident. He said an unknown vehicle swerving into his lane caused the accident, according to the opinion. Kennedy had sought both first-party benefits and uninsured motorist benefits, and when they were denied, the case went to the Philadelphia Common Pleas Court. Judge Howland W. Abramson granted Progressive’s motion for summary judgment on the first-party benefits claim and denied its motion for summary judgment on the uninsured motorist claim, according to the opinion. Progressive appealed to the Superior Court, and Kennedy did not appeal the denial of first-party benefits. Michael A. Mullen of Fine & Staud in Philadelphia represented Kennedy at the trial and on appeal. He said that because of Swords, it is “old law in Pennsylvania” that owning an uninsured car prohibits someone from receiving first-party benefits. He said Progressive was trying to expand that interpretation to include the uninsured motorist coverage. Mullen said the decision will protect the rights of insureds who paid for certain coverage. “It guarantees full tort coverage for people who pay for full tort coverage for the car that they are in,” he said. Kimberly A. Boyer-Cohen and Eric R. Brown of Marshall Dennehey Warner Coleman & Goggin represented Progressive. Boyer-Cohen said she had no comment on the opinion. Judges Michael T. Joyce and Jack A. Panella joined Kelly on the panel. (Copies of the 10-page opinion in Progressive Halcyon Insurance Co. v. Kennedy, PICS No. 06-1296, are available from The Legal Intelligencer . Please refer to page 10 for ordering information.) •

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