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Pedestrians injured by automobiles are not bound by limited tort coverage, a unanimous Pennsylvania Supreme Court has ruled. The court in L.S. v Eschbach ruled that limited tort coverage only applies to motor vehicle drivers and occupants, not “innocent pedestrians” who happen to get injured by automobiles, even if they elected the limited tort option when purchasing auto insurance. The justices refused to extend limited tort coverage to pedestrians because Section 1705 of the Motor Vehicle Financial Responsibility Law is “silent with regard to pedestrians.” “We believe that neither the plain language of the statute nor the express legislative intent support a statutory interpretation of Section 1705 that restricts the right of recovery of a pedestrian based upon his or her limited tort election,” Justice Sandra Schultz Newman wrote for the court. “Currently the plain language of Section 1705 discusses only drivers and passengers of motor vehicles. It is completely silent as to pedestrians. “As such, this court must refrain from expanding the purview of Section 1705 to limit a pedestrian’s right of recovery.” Newman said there were significant public policy reasons to avoid applying limited tort coverage to pedestrians. Ruling any other way would interfere with the legislative goals of the MVFRL — lowering insurance costs while encouraging coverage, she said. “In particular, restricting an innocent pedestrian’s right of recovery based upon a provision in his or her automobile insurance policy would do little to promote financial responsibility,” she said. According to the opinion, the case arose in 1997 when the plaintiff, identified in the opinion only as “L.S.” a seventh-grade student, exited her school bus and attempted to cross an intersection. After getting off the bus, L.S. crossed one lane of traffic, but then was struck as she tried to cross the opposing lane of traffic. The opinion said that she suffered “multiple contusions, abrasions, and fractures.” L.S. resided with her mother at the time, who owned a vehicle insured with State Farm and had selected the limited tort option, the opinion said. L.S. and her mother sued the driver of the school bus, Brenda Lowery, and the owner of the bus company, David Eschbach Jr. Inc. (According to a footnote in the opinion, the drivers involved in the accident “are no longer parties to the present litigation.”) According to the opinion, the defendants filed a motion for summary judgment, arguing that because L.S. lived with her mother, she was bound by the limited tort option — and since she had not suffered a “serious injury,” she was not entitled to noneconomic damages. L.S. countered by saying that because she was a pedestrian and not an operator or occupant of a motor vehicle, the limited tort option shouldn’t apply to her. The trial judge ruled in favor of the defendants. On appeal, the Superior Court affirmed, ruling the language in Section 1705 regarding injuries “in a motor vehicle accident” applied to pedestrians as well as drivers and passengers. However, Newman said that Superior Court Judge Justin M. Johnson dissented based on the lack of any explicit language in Section 1705 mentioning pedestrians. According to Newman, Johnson also had concerns that the Superior Court’s decision would “deter” people from selecting limited tort coverage and “undermine the MVFRL’s efforts to reduce the costs of motor vehicle insurance.” On appeal, the state Supreme Court apparently agreed with much of Johnson’s dissent. Newman said pedestrians were “noticeably absent” from Section 1705′s statutory language. She said the idea of binding people to limited tort coverage even when they’re not driving or riding in a motor vehicle was problematic. “If a consumer’s election of the limited tort alternative was meant to bind pedestrians, then the consumer must be properly notified so that he or she could make an informed decision,” Newman said. “As presently worded, however, Section 1705 fails to inform insurance consumers that their election of the limited tort alternative could potentially limit their right of recovery if they are injured as a pedestrian.” There was nothing in the language of Section 1705 to suggest the Legislature intended to include pedestrians, she said. “Therefore, based upon the sound statutory construction principle expression unis est exclusion alterius (the express mention of one meaning in a statute implies the exclusion of other meanings), we must refrain from judicially expanding Section 1705 to imply that the General Assembly intended to incorporate pedestrians within the purview of the MVFRL,” Newman said. Like Johnson, Newman also expressed public policy concerns with including pedestrians under the scope of Section 1705. “Because Section 1705 is silent with regard to pedestrians, it would be inappropriate for this court to link the recovery rights of an innocent pedestrian with a system designed to reduce the increasing cost of motor vehicle insurance,” she said. Newman said that because L.S. didn’t suffer her injuries as the result of driving or riding in a motor vehicle, her right of recovery shouldn’t be “restricted by her mother’s election of the limited tort alternative.” L.S.’s attorney, Richard Low of Herr & Low of Lancaster, Pa., said he was pleased with the decision. He said he had been optimistic after arguing the case before the state Supreme Court. “The issue has been out there a long time,” he said. “There have been a couple of common pleas court decisions on the issue, but I guess it’s surprising that it’s taken 15 years since the passage of the MVFRL to have this issue decided by the Supreme Court.” Low said the ruling was important because consumers are never told when they select limited tort that it will apply to situations other than when they’re driving or riding in motor vehicles. “People really don’t know what they’re getting,” he said. Attorneys for the defendants could not be reached for comment at the time this story was filed.

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