Appeal, No. 226, March T., 1963, from judgment of Court of Common Pleas of Westmoreland County, Jan. T., 1962, No. 763, in case of George Lovering, Sr. and Ethel Lovering v. Erie Indemnity Company, attorney in fact for subscribers at Erie Insurance Exchange. Judgment affirmed; reargument refused December 12, 1963.
Daniel J. Snyder, with him Avra N. Pershing, Jr., and Pershing, Snyder and Ciarimboli, for appellant.
Ned J. Nakles, for appellees.
Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The plaintiffs in this case, George Lovering and Ethel Lovering, his wife, carried an insurance policy which provided that in the event the insured were injured in an automobile accident, the insurance company (Erie Indemnity) would pay them "any uncollectible valid legal claim" (up to $20,000) as the result of damages suffered at the hands of a "financially irresponsible uninsured" motorist.
On December 9, 1960, the Loverings, while in their automobile, were injured through the alleged negligence of another motorist, Theodore Burns. They brought a trespass action in the Court of Common pleas of Westmoreland County against Burns who failed to appear at the ensuing trial. The Trial Court,
sitting non-jury, entered verdicts in the sums of $24,500 in favor of George Lovering and $18,000 in the name of Ethel Lovering. A writ of execution issued against Burns and, after service by the sheriff, a return was made of "No Goods." By discovery proceedings it was ascertained that Burns was uninsured, financially irresponsible and judgment proof.
The Loverings asked for indemnity under the "Innocent Victim" clause of their policy but the insurance company refused payment. They accordingly filed an assumpsit action against Erie Indemnity for $20,000. The insurance company filed an answer containing new matter in which it averred that the conditions of the policy had not been met by the plaintiffs.
It was stipulated in the policy, as conditions precedent to recovery, that the insured had to "prosecute his claim to a final contested judgment in a Court of Record against all known persons who might reasonably be considered to be responsible for his damages and have execution on the same rendered unsatisfied ..."
Both parties, the plaintiffs and the insurance company, respectively, moved for judgment on the pleadings. The court entered judgment in the amount of $20,000 for the plaintiffs, and the company has appealed. It contends, inter alia, that the Loverings did not win a "final contested judgment" in their lawsuit against Burns, in the meaning of the policy, since Burns did not appear in court to defend himself. It must be stated at the outset in this connection that the Loverings did not obtain their verdict against Burns because of the latter's absence from court; ...