Truitt v. United Services Auto. Asso.
| Decision Date | 07 April 1983 |
| Docket Number | 80-3179-CD |
| Citation | 29 Pa. D. & C.3d 470 |
| Parties | Truitt v. United Services Automobile Association |
| Court | Pennsylvania Commonwealth Court |
Petition for declaratory judgment.
Joseph E. Breman, for plaintiffs.
Joseph P. Green, for defendant.
On January 13, 1978, Deborah A. Truitt, plaintiff above-named, was severely injured while a passenger in a motor vehicle operated by her husband, Gale C. Truitt, Plaintiff above-named, when said vehicle was struck by an automobile owned by Delores J. Goodman and operated by James M. White. The insurance carrier for White paid to plaintiffs its policy limits of$ 15,000 and the insurance carrier for Goodman paid to plaintiffs its policy limits of $ 50,000. Plaintiffs allege the actual damages sustained by Deborah A. Truitt are far in excess of the total amount recovered and seek therefore to recover an additional sum under the Underinsured Motorist Coverage contained in plaintiffs' insurance policy with defendant above-named.
Defendant refuses payment under said underinsured motorist portion of the policy claiming that under the terms thereof defendant is not responsible for further payment.
The terms of the policy relied upon by defendant define an underinsured motor vehicle as:
" a land vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage."
And further, said policy provides:
The limits of liability under the underinsured motorist provision of plaintiffs' policy provided payment of $ 25,000 for each person with a maximum of$ 50,000 for each accident, and defendant now claims that under the set-off provisions of the policy no further payments are due. Plaintiffs, through this action, seek a declaratory judgment to have this court declare the set-off provision in the insurance policy void, unenforceable and against public policy and to further declare that defendant may not reduce the amounts payable to plaintiffs under the underinsured motorist provision by the amount of any recovery paid or payable by a third party tortfeasor. This court disagrees with plaintiffs' position.
Both plaintiffs and defendant agree that there is no existing appellate court decision in Pennsylvania interpreting the underinsured motorist coverage clauses of insurance policies with regards to the issue of set-off provisions also contained therein. Plaintiffs rely on the rationale of the Superior Court as contained in Brader v. Nationwide, 270 Pa.Super 258, 411 A.2d 516 (1980) and as followed in Saunders v. State Farm Insurance Company, 440 A.2d 538 (1982). In both of these cases the Superior Court held as a general rule of law that set-off provisions similar to the one contained in the instant policy were invalid when contained in insurance policies delineating uninsured motorist coverage. In the instant case we are dealing however, with the underinsured motorist clause of the policy and the Courts are fairly consistent in holding that uninsured insurance coverage and underinsured insurance coverage are not the same. See White v. Concord Mutual Insurance Company, 442 A.2d 713 (1982); Commonwealth v. Barnes & Tucker, 9 Pa.Commw. 1, 303 A.2d 544 (1973); and Prudential Property and Casualty Company v. Pont, 489 F.Supp. 9 (E. D. Pa. 1979). This court has no difficulty in...
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