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DEJESUS v. LIBERTY MUTUAL INSURANCE COMPANY (07/02/70)

decided: July 2, 1970.

DEJESUS, APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1961, No. 2834, in case of Epifanio DeJesus v. Liberty Mutual Insurance Company.

COUNSEL

Norman Shigon, for appellant.

Edward W. Madeira, Jr., with him James T. Giles, and Pepper, Hamilton & Scheetz, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Roberts joins in this dissenting opinion.

Author: Jones

[ 439 Pa. Page 181]

On February 15, 1960, Epifanio DeJesus was injured while in the course of his employment with Frank S. Nelson & Company, Inc. In 1962, he initiated an action in trespass against his employer's insurance carrier, Liberty Mutual Insurance Company (Liberty). Liability was asserted on the basis of an alleged duty arising out of the loss prevention service and safety counseling which Liberty offered to its policyholders. On November 15, 1966, this Court found that DeJesus had failed to state a cause of action, and affirmed the lower

[ 439 Pa. Page 182]

    court's order dismissing the complaint in trespass. DeJesus v. Liberty Mut. Ins. Co., 423 Pa. 198, 223 A.2d 849 (1966).

On January 30, 1962, DeJesus had also initiated an action in assumpsit against Liberty by filing a writ of summons in the Court of Common Pleas of Philadelphia County. This action lay dormant for five and one-half years, while DeJesus pursued his trespass action, until June 26, 1967, when Liberty served DeJesus with a rule to file a complaint. A complaint was filed three weeks after the rule, and an amended complaint was filed on December 26, 1967. The crux of the complaint, as amended, was that Liberty had contractually bound itself to Frank S. Nelson & Co. to offer, institute and establish safety procedures, that DeJesus was a third-party beneficiary to the contract, that DeJesus had relied upon Liberty's promise, that by reason of Liberty's failure to properly perform its promise, the risk of harm to DeJesus was increased, and, finally, that DeJesus was injured due to such an increased risk of harm.

Relying upon Brown v. Travelers Ins. Co., 434 Pa. 507, 254 A.2d 27 (1969) (hereinafter cited as "Brown"), the trial court granted Liberty's motion for summary judgment. This appeal followed.

In Brown, we held that a workmen's compensation insurance carrier is included within the term "employer" as used in Section 303 of the Workmen's Compensation Act, which reads as follows: "Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided, in article three of this act. Such agreement shall bind the employer and his personal representatives, and

[ 439 Pa. Page 183]

    the employe, his or her wife or husband, widow or widower, next of kin, and other dependents." Act of June 2, 1915, P.L. 736, art. III, § 303, as amended, 77 P.S. § 481. (Emphasis added) Thus, we found that the insurance carrier shares the employer's immunity from common law liability. 434 Pa. at 517, 254 A.2d at 31. The sole question ...


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