Kosor v. Harleysville Mut. Ins. Co.

• Decision Date: 24 July 1991
• Citation: 407 Pa.Super. 68,595 A.2d 128
• Parties: Nicholas KOSOR and Beverly Kosor, his Wife v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellant.
• Court: Pennsylvania Superior Court

Page 128

595 A.2d 128

407 Pa.Super. 68

Nicholas KOSOR and Beverly Kosor, his Wife v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellant.

Superior Court of Pennsylvania.

Argued April 24, 1991.

Filed July 24, 1991.

David L. Robinson, Greensburg, for appellant.

John M. O'Connell, Jr., Greensburg, for appellees.

Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.

CAVANAUGH, Judge:

The issue before us is whether the court below properly entered judgment on the pleadings in favor of the plaintiffs, Nicholas Kosor and Beverly Kosor, his wife (the appellees), and against Harleysville Mutual Insurance Company (the appellant). The judgment directed payment under appellees' insurance policy of medical expenses and replacement services which had already been paid in full under the personal injury protection provisions of a separate insurance policy. The judgment also awarded interest at the rate of eighteen (18%) percent per year from October 29, 1983.

Nicholas Kosor purchased a personal auto insurance policy No. FAB 04-79-84 from the appellant which provided personal injury protection under the Pennsylvania No-Fault Insurance Law then in effect. ¹ Under the policy, the insureds named were Nicholas Kosor and Beverly Ann Kosor. The policy insured a vehicle individually owned by Mr. Kosor.

Niksu, Inc., a business corporation which was wholly owned by the Kosors, purchased a business auto policy to cover a vehicle owned by Niksu, Inc. The policy was in effect from January 1, 1982 to January 1, 1983, and the named insured was Niksu, Inc. Both policies were issued by the appellant and both contained provisions for personal injury protection benefits under the No-Fault Act.

On July 5, 1982, the vehicle owned by Niksu, Inc. was being operated by Mr. Kosor and was involved in an accident. Mrs. Kosor was a passenger in the automobile at the time.

The appellees made claims against Harleysville Mutual Insurance Company under the personal injury protection clauses of both policies, claiming identical benefits under each policy. Harleysville paid in full all of the bills for medical services and replacement services under the policy issued to Niksu, Inc. but refused to pay the same benefits under the policy issued to Mr. Kosor. The appellees acknowledged that their medical expenses and replacement services had been paid by Harleysville under the business auto policy but contended they should be reimbursed for the identical expenses under the personal auto policy issued to Mr. Kosor. Harleysville paid $21,466.25 medical expenses for Mr. Kosor and replacement services of $14.00, and medical expenses of $4,557.44 for Mrs. Kosor and replacement services for her in the amount of $114.00.

The pleadings in the court below consist of a complaint in assumpsit, answer and new matter filed by appellant and reply to new matter filed by appellees. The appellant filed a motion for judgment on the pleadings and subsequently the appellees filed a similar motion. Appellees' motion for judgment on the pleadings was granted and the court entered judgment in favor of Mr. Kosor in the amount of $21,480.25 and Mrs. Kosor in the amount of $4,674.44, plus interest in the amount of eighteen (18%) percent per year from October 29, 1983. From this order of September 6, 1990, by Ambrose, J., Harleysville Mutual Insurance Company has appealed to this court.

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. A motion for judgment on the pleadings is similar to a demurrer. Karns v. Tony Vitale Fireworks Corporation, 436 Pa. 181, 259 A.2d 687 (1969). It may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986); Groff v. Pete Kingsley Building, Inc., 374 Pa.Super. 377, 543 A.2d 128 (1988). In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings & Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983). The scope of review on an appeal from the grant of judgment on the pleadings is plenary. We must determine if the action of the court below was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Keystone Automated Equipment Co. v. Reliance Insurance Co., 369 Pa.Super. 472, 535 A.2d 648 (1988).

The pleadings in this case are sketchy at best. Neither the appellees, whose complaint in assumpsit is based on the insurance policies, nor the appellant, whose defense is based on the same policies, attached copies of the policies to the pleadings. However, the appellant attached copies of the policies to its petition for reconsideration and application for leave to amend filed after the opinion of the court below en banc was filed, which application was denied.

The complaint states that Mr. Kosor purchased policy No. FAB 04-79-85 and paid the premium, and policy BA-OX-44-48 was purchased by Niksu, Inc., which paid the premium. However, in the "Motion for Judgment on the Pleadings" filed by appellees, it is incorrectly stated that "the plaintiffs [appellees herein] allege that they purchased two policies of insurance from the Harleysville Mutual Insurance Company ..." Appellees also incorrectly state at page 2 of appellees' brief: "The court en banc correctly found, based upon the pleadings filed, that appellees purchased two policies of insurance from the appellant ... Both appellees were named as insured persons under both policies in question ..."

In fact, the plaintiffs, Mr. and Mrs. Kosor did not purchase both policies, but only the personal auto insurance policy. Niksu, Inc. purchased the business auto insurance policy. The court below did not find that the plaintiffs purchased both policies but stated at page 2 of its slip opinion: "Defendant, however, made payments to each plaintiff for medical and replacement services only under the policy purchased by the corporation." (Emphasis added)

The appellees have argued, subsequent to filing the complaint, that they purchased both policies. The mere fact that they were the sole stockholders in Niksu, Inc. does not obfuscate the fact that appellees were separate and distinct from the corporation. A corporation is an independent entity even where stock ownership is vested in one individual. Sweeney v. Commonwealth of Pennsylvania, 120 Pa.Cmwlth.Ct. 591, 549 A.2d 1001 (1989); Kaites v. Commonwealth of Pennsylvania, Department of Environmental Resources, 108 Pa.Cmwlth.Ct. 267, 529 A.2d 1148 (1987). ²

Two separate policies were issued by Harleysville as there were different insureds with separate insurable interests. Mr. Kosor owned one vehicle and Niksu, Inc. owned a different vehicle. The No-Fault Insurance Act then in effect provided at 40 Pa.S. § 1009.104:

§ 1009.104. Required motor vehicle insurance

(a) Security covering a motor vehicle.--Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth ...

The owner or any other person may provide security covering a motor vehicle by a contract of insurance with an insurer or by qualifying as a self-insurer or as an obligated government.

Neither Mr. Kosor nor Niksu, Inc. could lawfully operate their respective vehicles without separate policies. Appellees have inaccurately argued at page 3 of their appellate brief, "As the appellees paid two full premiums, they were thus entitled to be paid benefits under each policy." As noted above, Mr. Kosor purchased only one policy which he had to do to lawfully operate his vehicle in Pennsylvania.

The No-Fault statute itself militates against payment of double benefits under two policies issued to different insureds wherein it states:

It is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

The court below in granting the appellees' motion for judgment on the pleadings compared the matter sub judice to a person having separate life insurance policies on his life stating:

If that individual dies, his beneficiary under each policy receives the amount stated in the policy. Both the life insurance policies in that situation and the automobile insurance policies in this case provide benefits to the insured or his beneficiary in exchange for the payment of premiums.

The analogy is inappropriate. A life insurance policy is a contract between an insurance company and the insured. See, O'Donnell v. Independence Life & Accident Insurance Co., 229 Pa.Super. 259, 323 A.2d 387 (1974). Benefits under each life insurance policy are paid in accordance with the terms of the contract. Such a policy is not mandated by the legislature as was insurance under the No-Fault Act. No one seriously contends that an individual may not obtain more than one policy of insurance on his life and that the designated beneficiaries would not be entitled to the proceeds in accordance with each contract of insurance. In the instant case, the policies issued were mandated by the No-Fault Insurance Act as far as the personal injury protection clauses were concerned.

On the issue of the propriety of entering judgment on the pleadings in favor of the appellees we must deal with the anamalous situation that neither the appellant nor the appellees attached copies of the insurance policies involved to the pleadings. However, copies...