Paugh v. Nationwide Ins. Co.
| Decision Date | 03 April 1980 |
| Citation | 420 A.2d 452,278 Pa.Super. 108 |
| Parties | Charles PAUGH, Administrator v. NATIONWIDE INSURANCE COMPANY, Appellant. John RUSIDOFF v. NATIONWIDE INSURANCE COMPANY, Appellant. |
| Court | Pennsylvania Superior Court |
Argued April 10, 1979.
Lee C. McCandless, Butler, for appellant.
Jerome M. Libenson, Butler, for appellees.
Before SPAETH, VAN der VOORT and WATKINS, JJ.
This is an appeal from an order confirming awards in a common law arbitration.
On June 20 1973, Carolyn Rusidoff was driving her car, which was insured by appellant, Nationwide Insurance Company, south on Route 38 toward Butler, Pennsylvania. In the car with Mrs. Rusidoff were her husband, John Rusidoff, who was sitting in the front seat, and her sister, Joyce Arlene Paugh, sitting in the back seat. A tractor-trailer proceeding in the opposite direction struck a deer, propelling it through the windshield of the Rusidoff car. The deer struck John Rusidoff on the head, next struck Joyce Paugh, and then went out the rear of the car. As a result, Joyce Paugh was killed and John Rusidoff was injured.
In May 1974 appellee Charles Paugh, as administrator of the estate of Joyce Paugh, and appellee John Rusidoff filed, respectively, a wrongful death and survival action and a personal injury action against DeBolt Transfer, Inc., alleging, inter alia : [1]
2. Defendant is a Pennsylvania Corporation, with its place of business at 335 E. 7th Avenue, Homestead, Allegheny County, Pennsylvania.
3. At all times material to this action, defendant was an ICC and PUC certificated motor carrier of property and operated in and served the area between Butler, Pennsylvania and Berwick, Pennsylvania.
6. At all times material to this action, defendant owned and operated a truck tractor trailer, license no: CJ81925, driven by Don Mignogna, who was then and there in the course of and within the scope of his employment.
7. At all times material to this action, defendant owned and operated a truck tractor trailer license no: TC19182, driven by J. Whitmoyer, who was then and there in the course of and within the scope of his employment.
8. On June 20, 1973, defendant's tractor trailer, driven by J. Whitmoyer, entered the Pullman Standard Plant in Butler, Pennsylvania, at 6:32 A.M. Defendant's tractor trailer was loaded with forty-four (44) Rwy. Car Finished Axles, consigned to Berwick Forge & Fabricating, W. Ninth Street, Berwick, Pennsylvania pursuant to a bill of lading, shipper's no: 2557. Defendant's driver departed the Pullman Standard premises at 8:19 A.M. on June 20, 1972.
9. On June 20, 1973, defendant's tractor trailer, driven by Don Mignogna, entered the Pullman Standard Plant in Butler, Pennsylvania at 6:54 A.M. Defendant's tractor trailer was loaded with forty-eight (48) Rwy. Car Finished Axles, consigned to Berwick Forge & Fabricating, W. Ninth Street, Berwick, Pennsylvania, pursuant to a bill of lading, shipper's no: 2558. Defendant's driver departed the Pullman Standard premises at 8:19 A.M. on June 20, 1973.
10. On or about June 20,1973, at about 8:30 A.M., plaintiff's decedent was a passenger in the rear of the automobile of Carolyn Rusidoff, which was proceeding south on Route 38 from Hooker, Pennsylvania, to Butler, Pennsylvania, when one of defendant's tractor trailers proceeding north on the aforesaid Route 38 negligently struck a deer causing it to be propelled into and through the windshield of the Rusidoff automobile, striking plaintiff's decedent's head. Said deer continued its flight through the rear window of plaintiff's automobile. This impact caused serious injury, pain and suffering, all of which resulted in the damage and death of plaintiff's decedent (in the Rusidoff complaint: . . . in the damage to the plaintiff).
The complaints were consolidated for trial, and on February 17, 1976, a jury returned a verdict on both complaints for the defendant DeBolt Transfer, Inc., "with reservations, due to the evidence provided." The judgments entered on the verdicts were appealed to this court, and on December 2, 1977, we held that the verdicts were so ambiguous as to be insufficient to represent verdicts, and we therefore ordered a new trial. Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Super. 208, 380 A.2d 451 (1977).
In the meantime, on October 6, 1976, appellees instituted the present arbitration proceeding against Nationwide. Condition No. 8 of Nationwide's policy provided for arbitration
if any person making a claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the Insured, or do not agree as to the amount payable hereunder . . .
Section II (d) of the policy defined an "uninsured automobile" as
an automobile which causes bodily injury to an Insured arising out of physical contact of such automobile with the Insured or with an automobile which the Insured is occupying at the time of the accident, provided:
(1) there cannot be ascertained the identity of either the operator or owner of such "hit-and-run automobile" . . .
In the arbitration proceeding it was appellees' position that they could not identify the driver of the tractor-trailer truck that struck the deer, propelling it through the windshield of the Rusidoff automobile and killing Joyce Paugh and injuring John Rusidoff. At the first hearing before the arbitrators Mrs. Rusidoff testified that after impact, she saw two tractor-trailer drivers pull off the road, inspect one of the trailers, and then return to their vehicles and leave the scene of the accident. She then testified:
The other witnesses at the first hearing were the state trooper who investigated the accident, and the ambulance driver who answered a call to go to the scene. The ambulance driver was not asked, and did not say, anything about the identity of the truck driver. The trooper read into evidence a statement that Mrs. Rusidoff had given him, in which she had said, "There was a man that stopped and I told him of the trucks and he went after it." (4/5/77 N.T. 7) The trooper then testified:
Q. Okay. This man she referred to did come back and gave you a license number; is that correct?
A. That is correct, sir.
Q. It did not tie in with anyone who was at the scene at time time (sic); is that right?
A. That is correct.
Q. And you followed through on other leads in your investigation, but were never able to identify the vehicle that she talked about; is that correct?
A. That is correct.
At the second hearing before the arbitrators John Rusidoff testified, but his testimony concerned only the injuries he had suffered in the accident. The balance of the evidence at the second hearing was offered by Nationwide. This evidence was intended to show that Nationwide should not be held liable because: in its view of the facts, "there was no contact whatsoever between the hit and run automobile and the insured or the insured vehicle" (6/7/77 N.T. 25); no negligence had been shown on the part of the alleged hit and run vehicle; and no proof of loss had been filed. Immediately after the second hearing, the arbitrators, with one arbitrator dissenting, entered an award of $10,000 to appellee Paugh, as administrator of the estate of Joyce Paugh, and $7,500 to appellee Rusidoff.
On June 15, 1977, Nationwide filed a petition to set aside the awards. While this petition was pending, Nationwide learned by way of the Atlantic Advanced Reports dated January 20, 1978, of this court's decision in Rusidoff v. DeBolt Transfer, Inc., supra. On March 23, 1978, Nationwide filed a second petition to set aside the awards. The petition cited this court's decision in Rusidoff v. DeBolt Transfer, Inc., supra, and attached as exhibits a copy of the Paugh and Rusidoff complaints against DeBolt, which have been quoted above. The petition then alleged: that the complaints disclosed that appellees, as claimants before the arbitrators, "did know the identity and ownership of the vehicle involved and, hence, it was not an unidentified vehicle"; that appellees' claim "was purposely, and wilfully and fraudulently presented (to the arbitrators) as a hit and run case and as if the identity of both the operator and owner of the other vehicle was not known when, in fact, all parties, including (appellees) and the attorney, had either sworn to or certified to the identity of the other vehicle in the proceedings in Allegheny County (when the complaints were filed) some three years before;" and that the arbitrators "lacked jurisdiction to hear and decide the case" since on the "true facts" it was not an uninsured motorist claim. Record at 38a-39a.
On May 30, 1978, the lower court heard testimony on Nationwide's petitions to set aside the awards, and on July 20, 1978, the court dismissed both petitions. In its opinion, the court stated:
The burden was not on Paugh in the hearing before the Board of Arbitrators to establish that decedent had not been involved in a hit and run accident. That was Paugh's position. Paugh proved a hit and run accident, and under the terms of the uninsured motorist clause the Board of Arbitrators made an award to Paugh. Paugh committed no fraud on either Nationwide or the Board of Arbitrators. Nationwide simply failed to refute the testimony offered by Paugh that there had been a hit-and-run accident. If Nationwide had been aware of the action against DeBolt and had offered the record in that case, the Board of Arbitrators could properly have reached the same result.
(Slip...
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