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FILASETA v. PENNSYLVANIA THRESHERMEN AND FARMERS' MUTUAL INSURANCE COMPANY (03/23/67)

decided: March 23, 1967.

FILASETA
v.
PENNSYLVANIA THRESHERMEN AND FARMERS' MUTUAL INSURANCE COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of Lehigh County, April T., 1963, No. 105, in case of Michael C. Filaseta et al. v. The Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company.

COUNSEL

Alan M. Black, with him Efron & Black, for appellant.

Edmund G. Hauff, with him Dower, Huston & Cahn, for appellees.

Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Watkins, J.

Author: Watkins

[ 209 Pa. Super. Page 324]

This is an appeal from the judgment of the Court of Common Pleas of Lehigh County entered on a verdict in favor of the appellees, Michael C. Filaseta and Rocco Filaseta, the plaintiffs below, and against The Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, the appellant, in the amount of $2154.32; and from the denial by the court below of motions for a new trial and for judgment n.o.v.

On July 16, 1958, the insurance company issued an insurance policy to Michael C. Filaseta, one of the appellees, which provided liability coverage for a 1949 Studebaker truck and a 1948 Studebaker truck for a term of one year. Automobile coverage was also provided for a newly acquired vehicle if it qualified under the following language of the policy: "(4) Newly Acquired Automobile -- an automobile, ownership of which is acquired by the named insured or his spouse if (1) it replaces an automobile owned by either and covered by this policy . . .".

The 1949 Studebaker truck was used by the insured, a masonry contractor, for the purpose of hauling scaffolding, lumber and tools. While being so used in June 23, 1959, it broke down on the turnpike and had to be towed to a garage. The insured then borrowed a 1953 Chevrolet truck in order to continue his business. This truck was used for the same purpose for which the

[ 209 Pa. Super. Page 325]

Studebaker was used. Subsequently, the insured bought the Chevrolet truck, receiving the title on July 11, 1959.

On July 14, 1959, while being driven by Rocco Filaseta, one of the appellees, in the course of his employment by his brother Michael Filaseta, the Chevrolet truck was involved in an accident. As a result of the accident trespass actions against both appellees were brought in Lehigh and Montgomery counties. When notified, the insurance company refused to defend the actions on behalf of its insured. The insured employed an attorney and the claims were settled for a total sum of $1554.32. The present action was instituted by the insured to recover that sum and also the amount which the appellees were required to pay as counsel fees. The jury gave the insured a verdict in the amount of $2154.32.

At the time the accident occurred the 1949 Studebaker truck was still undergoing repairs. After it was damaged it was never used in the insured's business as the record is clear that the work that it did perform was performed by the Chevrolet truck. The only time the Studebaker truck was operated was in order to bring it from the garage where the repairs were made to the service station where it was put up for sale. It was in the same week of the accident to the Chevrolet truck that the repairs were completed and the insured took possession of it and placed it on the service station lot where a "For Sale" sign was placed on the truck. It remained there until sold two months later for fifty dollars.

On July 11, 1959, the same day he received title to the Chevrolet the insured called the broker who handled his insurance and left instructions with the broker's secretary that the Chevrolet truck was to be added to his coverage. This was not done until the termination of the policy on July 16, ...


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