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TAPSCOTT v. DAIRYLAND INS. CO.

November 9, 1987

Michael A. Tapscott, Plaintiff
v.
Dairyland Insurance Company, Defendant



The opinion of the court was delivered by: GASCH

 Oliver Gasch, United States District Judge.

 On August 31, 1985, plaintiff and his motorcycle collided with an uninsured motorist in Hyattsville, Maryland. As a consequence of this accident plaintiff suffered severe injuries that required extensive medical treatment and rehabilitation. Defendant is the carrier of an insurance policy issued for plaintiff's motorcycle in March 1984. Pursuant to the "Personal Injury Protection" endorsement to that policy, defendant paid to plaintiff $ 39,487.52 for his medical expenses and $ 9,085.52 for his lost wages. In addition, defendant paid $ 10,000 to plaintiff as uninsured motorist benefits.

 Subsequent to these payments, defendant discovered that Prudential Insurance Co. had paid plaintiff's medical expenses under a a health and hospitalization policy provided by plaintiff's employer. Plaintiff admits that Prudential made such payments and that not all of the $ 39,487.52 paid by defendant was used to pay medical expenses. Consequently, defendant has refused to make further payments under the motorcycle insurance policy and demands that plaintiff reimburse to defendant the entire portion of the $ 39,487.52 that was not used for medical expenses.

 In the course of reviewing plaintiff's policy after the above payments were made, defendant also discovered that plaintiff had never paid any premiums for uninsured motorist protection. *fn1" Consistent with this discovery, defendant notes that plaintiff's motorcycle insurance application lists a premium for "Liability Only" and not for "Uninsured Motorists." However, in the last scene of this comedy of errors, defendant noticed that plaintiff had not signed the "Uninsured Motorists Coverage Rejection Statement" in his application for motorcycle insurance. In light of these facts, defendant also claims that plaintiff must disgorge the $ 10,000 paid to him as uninsured motorists benefits.

 The foregoing facts are undisputed, and neither party has filed a statement of disputed factual issues as contemplated by Local Rule 108(h). A review of the parties' briefs on these motions, however, reveals that there is a factual dispute as to whether defendant expressly offered or explained uninsured motorist protection to plaintiff. Plaintiff claims that defendant did neither. Moreover, plaintiff reports a conversation with an unidentified agent of defendant in which the agent allegedly admitted that uninsured benefits were owed to plaintiff because he did not sign the Rejection Statement. Defendant neither admits nor denies these allegations but merely contends that whether it offered or explained the coverage is completely irrelevant.

 The Parties' Arguments

 In its Motion for Partial Summary Judgment, defendant argues that Personal Injury Protection ("PIP") coverage under the District of Columbia No-Fault Insurance Act ("No-Fault Act"), D.C. Code Ann. § 35-2104 (Supp. 1987), may be used only to pay medical and rehabilitation expenses, lost wages, and funeral expenses. Defendant insists that it is entitled to be reimbursed by plaintiff for the portion of the PIP medical benefits that plaintiff admits he did not use for the designated purpose. To permit plaintiff a double recovery of medical expenses, argues defendant, is contrary to the District Council's goal in establishing a no-fault insurance system. If the Council had intended to allow double recovery of such expenses, it would have expressly provided for them.

 Plaintiff responds that the Council's intent to allow double recovery for medical expenses under PIP and a private health insurance plan is clear from the provisions of the No-Fault Act. Since the Act expressly requires that PIP benefits be reduced by any amounts recovered from certain other insurance programs, not including private health insurance. id. § 35-2110(b) (Supp. 1985), plaintiff argues that the Council obviously intended to allow double recovery in all other circumstances. Further, plaintiff infers from a 1986 amendment to the No-Fault Act, D.C. Law 6-96, § 2(e), 32 D.C. Reg. 7245 (1986), codified at D.C. Code Ann. § 35-2106(g) (Supp. 1987)), which absolutely precludes double recovery of PIP expenses, that no amendment would have been necessary if double recovery were not previously permissible.

 As to the uninsured motorist benefits, defendant simply contends that the payment was erroneous. Since plaintiff did not pay premiums for the coverage, he was not entitled to receive the benefits and, therefore, defendant argues that it should be reimbursed for the full $ 10,000. Plaintiff insists that under the No-Fault Act defendant was required to offer uninsured motorist protection, that it failed to do so, and that the coverage should be implied as a matter of law into the policy. Alternatively, plaintiff argues that his failure to sign the "Uninsured Motorists Coverage Rejection Statement" constitutes acceptance of the coverage. Guarding against the Court's rejection of these two legal arguments, plaintiff substitutes the Rule 108(h) statement with a single paragraph in his brief urging that his entitlement to the benefits should not be decided on summary judgment because there are genuine factual issues as to whether the coverage was offered or explained to him and whether he accepted or rejected the coverage.

 DISCUSSION

 Last year this Court "set sail upon the 'uncharted waters' of the District of Columbia no-fault law." See Johnson v. Cumis Insurance Society, Inc., 624 F. Supp. 1170, 1172 (D.D.C. 1986) (Gasch, J.). Since that time the local courts have done little exploration of those waters. *fn2" Thus, this Court once again finds itself cast upon these waters asked to chart a course without the aid of local decisions. The task is made more difficult by the fog that settles over legal waters in the absence of useful or accessible legislative history. *fn3"

 The Court's task is made no easier by the parties' briefs. Neither plaintiff nor defendant offers a consistent or well-supported interpretation of the No-Fault Act. Indeed, defendant's arguments as to double recovery of PIP benefits and plaintiff's right to uninsured motorist benefits are contradictory. In several instances, the parties read the Act to impose certain requirements but do not cite any provision of the Act in support of that interpretation.

 Were Motorcycles Subject to the Provisions of the No-Fault Insurance Act at the Time of Plaintiff's Accident ?

 Before considering the issues expressly raised by the parties in these cross-motions for summary judgment, the Court must first address a perplexing definitional ambiguity in the No-Fault Act. See Atwell v. Merit Systems Protection Board, 216 U.S. App. D.C. 114, 670 F.2d 272, 286 (D.C. Cir. 1981) (court must reconcile contradictory statutory language with legislative purpose). Two provisions of section 35-2102 are involved:


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