The vague and ambiguous nature of the limited tort statute has left us with a series of scenarios where tort status isn’t black-and-white. One of the more common, and oft-debated such conundrums surrounds the “Additional Driver” (or “Additional Insured”) listed on an insurance policy. While the insurance companies try to impose limited tort status on these “additional drivers”, we plaintiff’s lawyers know that only a “named insured” is subject to the tort election. Yet the debate goes on.
Fortunately, our Courts have made a clear distinction between a “named insured” and an “additional driver”, shielding many of our clients from limited tort. So, if you happen to meet a Motion for Summary Judgment on this issue, be prepared to fight the carrier with this three (3) point guide to defending your “additional driver” client from limited tort.
1. LIMITED TORT ELECTION ONLY APPLIES TO A “NAMED INSURED”
The statutory language in a tort election form speaks only to a “named insured.” Headed with the phrase “NOTICE TO NAMED INSURED,” the form notifies only the “named insured” that tort election affects “your right and the right of members of your household.” It crucial to understand that a limited tort election only applies to two (2) types of plaintiffs: i) a “named insured” on the policy, or ii) a resident relatives of a “named insured” on the policy which is defined in the policy itself. Nothing about the statutory language affects any other person, not even the other drivers listed on the policy. A non-owner/non-resident relative “additional driver” is free the policyholder’s tort selection.
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2. AN “ADDITIONAL DRIVER” IS NOT A “NAMED INSURED”
So what exactly is a “named insured”? When hearing a case on this exact issue, the Superior Court explained that, “[a] plain reading of the definition of “named insured” in Section 1705(f) yields that only one identified by name as an insured on the policy is, in fact, a ‘named insured.’”McWeeney v. Estate of Strickler, 61 A.3d 1023 (Pa. Super. 2013). A “named insured” is only the person(s) identified as such on the policy.
Believe it or not, this narrow definition of “named insured” was actually first recognized by the Pennsylvania Insurance Commissioner himself. The Commonwealth Court affirmed the Insurance Commissioner’s determination that “[t]he General Assembly did not intend … the term `named insured’ to include those other persons who are listed as additional insureds in an endorsement or merely listed as additional drivers of the insured vehicle.” Erie Insurance Co. v. Insurance Dept., 705 A.2d 937 (Pa. Cmmw. Ct. 1997). The insurance companies themselves have even conceded that an “additional driver” is not to be considered an “insured.”
At the end of the day, the definition is very simple and very narrow. It is only a person specifically identified as a “named insured” on the policy. It is not an additional driver, a permissive driver, or anyone else for that matter. And only that particular person is bound by the policy’s tort selection.
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3. 75 Pa.C.S. § 1705 TRUMPS POLICY LANGUAGE
Don’t be fooled by the carriers’ attempt to usurp the statutory definition of “named insured.” You may often find that insurance policies expand the scope of “named insured” to include all persons named on the policy, even an “additional driver.” Fortunately, the Courts have shut this down, consistently holding that between policy language and the statute, 75 Pa.C.S. § 1705 controls. Echoing the Supreme Court (in Prudential Property and Cas. Ins. Co. v. Colbert) the McWeeney Court held that “stipulations in a contract of insurance in conflict with, or repugnant to, statutory provisions must yield to the statute and are invalid[…]” The insurance companies cannot use their own policy language to re-define who is bound by a limited tort election. As long as 75 Pa.C.S. § 1705 is in effect, your “additional driver” client will not be punished by the limited tort selection of her non-resident relative policyholder.
Do not concede that your client is limited tort simply because her name appears somewhere on a limited tort policy. 75 Pa.C.S. § 1705 is a complex law that provides as many protections for our clients as it does impediments. Your “additional driver” client may be well protected.
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