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DIMARTINO v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (06/12/63)

June 12, 1963

DIMARTINO
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT.



Appeal, No. 69, Oct. T., 1963, from judgment of Court of Common Pleas of Delaware County, June T., 1962, No. 3110, in case of Benito DiMartino v. State Farm Mutual Automobile Insurance Company. Judgment affirmed.

COUNSEL

George J. McConchie, with him Cramp and D'Iorio, for appellant.

Alexander A. DiSanti, with him Berman, Richard & Brian, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 201 Pa. Super. Page 143]

OPINION BY WOODSIDE, J.

The question here is whether the defendant insurance company agreed in its policy of insurance to pay the plaintiff's medical expenses incurred as the result of an injury suffered when a truck struck a wall which fell upon and injured the plaintiff.

The insurance company contracted to pay the plaintiff's reasonable expenses incurred for necessary medical expenses for bodily injury "caused by accident, while occupying or through being struck by the owned automobile, or any other land motor vehicle or trailer not operated on rails or crawler treads..."

It is stipulated that the "plaintiff was injured when a tractor trailer backed into a wall near which he was working, causing the wall to collapse upon him. He was not touched by the vehicle, and the accident did not occur on a public highway."

The insurance company contends that it is not liable because the plaintiff was not struck by the motor vehicle. The court below thought otherwise and entered judgment for the plaintiff. The defendant appealed.

The case presents a narrow and close question. We have found no Pennsylvania case which gives us any guidance. We have examined a number of cases from other jurisdictions. The majority of these construing policy provisions similar to the one before us hold an injured insured need not show actual physical contact between the vehicle and the injured.

The courts are not unanimous on this point. At least two cases support the appellant's position that the policy does not cover the injury here sustained. In Metropolitan Casualty Ins. Co. of New York v. Curry, 24 So. 2d 316, 317 (Fla. 1945), the Supreme Court of Florida said that the provision "'being struck by an automobile which is in ...


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