Himmelright v. U.S. Fidelity & Guar. Co.

• Decision Date: 28 April 1986
• Citation: 508 A.2d 594,352 Pa.Super. 517
• Parties: Arzula S. HIMMELRIGHT, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
• Court: Pennsylvania Superior Court

Page 594

508 A.2d 594

352 Pa.Super. 517

Arzula S. HIMMELRIGHT, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.

Superior Court of Pennsylvania.

Argued Dec. 16, 1985.

Filed April 28, 1986.

[352 Pa.Super. 518] Constance P. Brunt, Harrisburg, for appellant.

Craig A. Stone, Harrisburg, for appellee.

Before WIEAND, OLSZEWSKI and WATKINS, JJ.

WIEAND, Judge:

The sole issue in this appeal is whether the action brought by the appellant, Arzula S. Himmelright, to recover post-mortem work loss benefits on behalf of her deceased husband pursuant to Pennsylvania's No-fault Motor Vehicle Insurance Act ¹ was barred by the statute of limitations contained in the No-fault Act. The trial court determined that Himmelright's claim was time barred and entered summary judgment in favor of appellee, United States Fidelity & Guaranty Company (USF & G). We affirm.

The decedent, David H. Himmelright, was killed in an automobile accident on August 15, 1976. He had purchased no-fault insurance coverage from USF & G, which had issued a policy pursuant to the Act. His widow made a claim for survivor's loss and funeral expenses, and these were paid by USF & G. However, the insurer denied liability when the widow made a subsequent demand for work loss benefits. The present action for work loss benefits was commenced on April 23, 1984 by filing a praecipe for writ of summons. This was followed by the filing of a complaint on June 8, 1984. USF & G then moved for summary judgment on the ground that Himmelright's action was barred by the four year statute of limitations contained in the No-fault Act. After argument, the trial court granted the motion. This appeal followed.

"In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party's pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law." Craddock v. Gross, 350 Pa.Super. 575, ---, 504 A.2d 1300, 1301 (1986) quoting Lookenbill v. Garrett, 340 Pa.Super. 435, 439, 490 A.2d 857, 859 (1985); Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983). See: Pa.R.C.P. 1035(b).

An action to recover post-mortem work loss benefits, to be timely, must in any event be commenced within four years after the date of the fatal accident giving rise to the claim. See: 40 P.S. § 1009.106(c)(1). Appellant concedes that nearly eight years elapsed between the date of her husband's death and the commencement of the present action for work loss benefits. She argues that her action was not time-barred, however, because the period of limitations had been tolled by a previously filed class action for work loss benefits. The class action, she contends, included the claim for work loss benefits resulting from her husband's death. That action, Nye v. Erie Insurance Exchange, No. 5349-S-1979 (Dauphin Cty.), was instituted on November 15, 1979. It was brought against thirty-one insurance companies, including USF & G, on behalf of "all previously employed Pennsylvania residents who were insured by any of the defendants under No-Fault insurance coverage and who sustained a fatal injury within the past two years...." (emphasis added).

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