Wade Clark Mulcahy LLP

In Jones-Molina v. Southeastern Pennsylvania Transportation Authority, 29 A.3d 73 (Pa. Commw. Ct. 2011), the Commonwealth Court of Pennsylvania addressed whether a passenger on a SEPTA bus remained an “occupant” of the bus for insurance coverage purposes after being struck by an unidentified motorist upon exiting the bus to board a SEPTA trolley.

Jones-Molina originally brought an action in the Court of Common Pleas against the Pennsylvania Financial Responsibility Assigned Claims Plan (“Plan”) for first-party and uninsured motorist benefits. The Plan joined SEPTA, arguing that SEPTA should cover Jones-Molina’s injuries since she was still technically an occupant of a SEPTA vehicle. SEPTA contended that Jones-Molina was not physically on a SEPTA vehicle at the time of the accident and invoked sovereign immunity. The Court of Common Pleas sided with the Plan, finding against SEPTA on both the sovereign immunity and occupancy issues.

SEPTA appealed to the Commonwealth Court, which reviewed the occupancy issue. The Commonwealth Court referenced the Pennsylvania Supreme Court’s four-part test to determine whether a person is considered to be occupying a vehicle:

1. There must be a causal relation or connection between the injury and the use of the insured vehicle.

2. The person asserting coverage must be in reasonably close geographic proximity to the insured vehicle, though they need not be touching it.

3. The person must be vehicle-oriented rather than oriented toward the highway or sidewalk.

4. The person must be engaged in an activity essential to the use of the vehicle at the time. (Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 336, 473 A.2d 1005, 1009 (1984)).

Under this test, physical presence inside the vehicle is not required to be considered an occupant. In Contrisciane, a driver, who had left his vehicle and walked nearly 100 feet to speak with a police officer, was struck and killed by an uninsured driver. The Pennsylvania Supreme Court held that the driver met the requirements to be considered an occupant of his vehicle despite not being physically inside it.

However, the Commonwealth Court distinguished Contrisciane from the present case. In Contrisciane, the driver presumably intended to return to his vehicle after speaking with the officer. In contrast, Jones-Molina did not intend to return to the SEPTA bus; she was preparing to board another vehicle. The court found no material difference between someone intending to transfer to a different mode of transportation (like a taxi or PATCO subway) and someone briefly attending to an errand before proceeding to a second bus, or even simply crossing the street. The court concluded that a passenger struck while crossing the street should not be treated differently from a normal pedestrian.

As Jones-Molina was not considered an occupant of the SEPTA bus, the Commonwealth Court reversed the lower court’s decision and remanded for entry of judgment in favor of SEPTA and against the Plan.