Appeal from order of Court of Common Pleas of Butler County, March T., 1962, No. 64, in case of Loretta Anthony v. Nationwide Mutual Insurance Company.
H. Ray Pope, Jr., with him Carmen V. Marinaro, for appellant.
R. L. McCandless, with him Lee C. McCandless, and McCandless & McCandless, for appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.
[ 205 Pa. Super. Page 17]
Plaintiff, Loretta Anthony, a passenger in an automobile operated by Charlotte Sherman, sustained injuries when the Sherman car collided with a car operated by Robert Boyer. Nationwide Mutual Insurance Company, the defendant, had issued a policy to Mrs. Sherman and her husband which contained a family coverage provision under which the company agreed to pay hospital and medical expenses up to $2,000 and disability benefits of $5 a day for 180 days to any passenger injured in a car owned or operated by the Shermans, without reference to negligence.
The policy provided that there should be no liability to anyone who "(1) failed to execute and deliver a complete release of the liability of the Company and the Insured within fifteen months of the date of the accident". The accident occurred August 26, 1958, and Nationwide received no release of liability from Mrs. Anthony by November 26, 1959, the end of the fifteen month period. The question raised by this appeal is whether Nationwide waived the fifteen month limitation period as to the execution of a release by its tender
[ 205 Pa. Super. Page 18]
of a check to Mrs. Anthony on December 5, 1959, twelve days after the limitation period had expired.
In November, 1958, Mr. and Mrs. Anthony brought a negligence action against Boyer. Boyer joined Mrs. Sherman as an additional defendant. On September 21, 1959, some two months before the expiration of the limitation period, the plaintiff's attorney wrote to defendant stating that there had been mistrials in the Boyer suit in June and September, and asking for an extension of time for delivery of the release until the conclusion of that suit. Throughout the ensuing correspondence, the defendant refused to execute an extension agreement, taking the position that the policy did not contemplate giving a claimant the right to recover both under the liability coverage if Mrs. Sherman was found negligent and also under the family coverage provision. The company continued to maintain this position in a letter sent November 23, 1959, three days prior to the expiration of the limitation period.
On November 30, 1959, after the expiration of the limitation period, the plaintiff's attorney wrote to the defendant that he had the executed release available for it. On December 5, 1959, when there was still the possibility of a jury verdict in favor of the plaintiff against Mrs. Sherman the defendant's agent called on the attorney and tendered a check for $2900, requesting delivery of the executed release. The attorney stated that the release would not be delivered until after the verdict in the Boyer suit and returned the check to the defendant's agent.
On December 15, 1959, Mrs. Anthony and her husband obtained verdicts in their suit against Boyer in the amounts of $17,538 and $5,789.25, respectively. The jury found in favor of Mrs. Sherman, the additional defendant. The verdicts against ...