Schimmelbusch v. Royal-Globe Ins. Co.

• Decision Date: 31 March 1977
• Citation: 371 A.2d 1021,247 Pa.Super. 28
• Parties: Ruth SCHIMMELBUSCH, Appellee, v. ROYAL-GLOBE INSURANCE CO., Appellant.
• Court: Pennsylvania Superior Court

371 A.2d 1021

247 Pa.Super. 28

Ruth SCHIMMELBUSCH, Appellee, v. ROYAL-GLOBE INSURANCE CO., Appellant.

Superior Court of Pennsylvania.

March 31, 1977

Argued Sept. 17, 1976.

Arthur Silverblatt, Wilkes-Barre, for appellant.

John G. Swatkoski, Wilkes-Barre, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge.

The appellee was an uninsured driver of an uninsured car who suffered serious injuries in an automobile collision with a car owned by County Hauling, Inc. and insured by appellant insurance company. The accident occurred on August 7, 1975, and was within the grace period allowed for procurement of no-fault insurance under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 4o P.S. 1009.101 et seq.

Appellee has instituted an action in assumpsit against appellant insurance company charging that it is responsible fo the payment of the benefits to an injured party which are provided by the No-Fault Act. Appellant filed preliminary objections in the nature of a demurrer on the grounds that the complaint failed to state a cause of action against appellant because appellee's recourse for payment was to the Assigned Claims Plan established under Section 108 of that Act instead of against appellant. Claims under the Assigned Claims Plan are allocated equitably among all insurance companies licensed in Pennsylvania to write auto insurance. The benefits payable to appellee will be the same in either event inasmuch as appellee's uninsured status was within the grace period for obtaining insurance and, therefore, not subject to any deductions as would have been the case had appellee's uninsured status been a violation of the Act.

The court below dismissed appellant's preliminary objections but amended its original order to include a certificate to the effect that in the opinion of the court its order involved a controlling question of law as to which there was substantial ground for a difference of opinion and that an immediate appeal from the order might materially advance the ultimate determination of the matter. An immediate appeal to this court followed.

This action is one of first impression. It presents for determination an interpretation of Section 204(a)(4) of the No-Fault Act which, in context, reads:

'(a) Applicable security.--The security for the payment of basic loss benefits applicable to an injury to:

'(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee's employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;

'(2) an insured is the security under which the victim or deceased victim is insured '(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;

'(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and

'(5) any other individual is the applicable assigned claims plan.

'(b) Multiple sources of equal property.--If two or more obligations to pay basic loss benefits apply equally to an injury under the priorities set forth in subsection (a) of this section, the obligor against whom a claim is asserted first shall process and pay the claim as if wholly responsible. Such obligor is thereafter entitled to recover contribution pro rata from any such obligor for the basic loss benefits paid and for the costs of processing the claim. If contribution is sought among obligors responsible under paragraph (4) of subsection (a) of this section proration shall be based on the number of involved motor vehicles.'

The meaning of subparagraphs (1), (2) and (3) of subsection (a) is quite clear. They establish categories and priorities as between insurers responsible for payment of benefits. Subparagraph (1) puts such responsibility on the insurer of a motor vehicle of an employer when the victim is an employee or a member of his family who is using the car at the time of the accident. If a claimant carries insurance subparagraph (2) directs that the claim must be presented to that insurer. If the claimant is uninsured but in an insured vehicle at the time of the accident, subparagraph (3) directs that the claim be submitted to that insurer.

The application of subparagraph (4) is in dispute. It directs 'an individual who is not an insured or the driver or other occupant of a motor...