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NATIONWIDE MUTUAL INSURANCE COMPANY v. EALY (03/24/72)

decided: March 24, 1972.

NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT,
v.
EALY



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1970, No. 1614, in case of Nationwide Mutual Insurance Company v. Arthur S. Ealy, Dolores Ealy, husband and wife and Arthur S. Ealy and Dolores Ealy as parents and natural guardians of minors David Ealy, Donna Ealy and Jacqueline Ealy.

COUNSEL

Cosmos J. Reale, for appellant.

J. Cris Soich, with him Stokes, Lurie & Tracy, for appellees.

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

Author: Jacobs

[ 221 Pa. Super. Page 139]

This appeal involves a construction of Pennsylvania's uninsured motorist law, Act of August 14, 1963, P. L. 909, as amended, 40 P.S. § 2000. Specifically, we are called upon to decide whether insurance companies operating in Pennsylvania may contractually divide their uninsured motorist coverage of an insured into non-cumulative policies attaching separately to the insured's individual automobiles. Appellant, Nationwide Mutual Insurance Co., contends that the coverage may be so divided, while appellees, the Ealys, take the position that the above-cited act entitles them to cumulate the individual coverages on each of their automobiles.

[ 221 Pa. Super. Page 140]

The present appeal arises out of an automobile accident between the appellees and an uninsured motorist. The appellees, who suffered bodily injuries as a result of the accident, filed a claim with appellant seeking compensation for their injuries in excess of $20,000. At the time of the accident five separate policies of insurance issued by appellant were in effect, covering each of the five vehicles owned by appellee Arthur Ealy, the principal named insured. Each policy insured against an accident with an uninsured motorist and provided for coverage of all the appellees as relatives resident in the same household as Arthur Ealy. The coverage limit provided in each of the policies was $10,000 for any one person and $20,000 for any one accident, in accordance with the minimum standards set by law.

Each of the five policies named one of Ealy's five vehicles as the insured vehicle in the policy, and each policy expressly excluded from uninsured motorist coverage the other vehicles owned by Ealy. Notwithstanding this contractual language, appellees argued below that the above-cited uninsured motorist act permits them to cumulate the individual coverages in each of the policies, affording them a total possible coverage of $100,000 for any one accident. Appellant, on the other hand, contended that appellees' coverage was limited to the $20,000 specified in the policy on the one automobile belonging to Ealy which was actually involved in the accident.

The lower court entered a declaratory judgment in favor of appellees, declaring that they were entitled to recover on all five insurance policies to the extent of the damages they sustained or the combined limits of coverage of the policies, whichever amount is the lesser.

The relevant portion of the uninsured motorist law provides as follows: "No motor vehicle liability policy

[ 221 Pa. Super. Page 141]

    of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time . . . under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages ...


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