Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1970, No. 1299, in re The Travelers Insurance Company v. Hartford Accident and Indemnity Company.
Robert J. Murphy, with him Thomas W. Murphy, Joseph J. Murphy, Harris I. Weisbord, and Murphy, Dougherty, Murphy & Murphy, for appellant.
Joseph F. Ricchiutti, with him Liebert, Short, Fitzpatrick & Lavin, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J.
[ 222 Pa. Super. Page 547]
Appellant, Travelers Insurance Company, appeals from the dismissal of its action in assumpsit to recover the sum of $2039.23 plus interest and costs. Suit was brought in the Court of Common Pleas of Philadelphia against appellee Hartford Accident and Indemnity Company. The background of this action follows.
On October 2, 1958, Herman C. Lehman, an employee of Welding Engineers, Inc., was injured while allegedly acting within the course and scope of his employment. Subsequently, appellant, indemnity carrier for Welding Engineers, Inc., paid $2039.23 in compensation benefits and medical expenses on Lehman's behalf pursuant to the Pennsylvania Workmen's Compensation Act. The injured employee, Lehman, brought a third-party suit for personal injury in the State of
[ 222 Pa. Super. Page 548]
Michigan against alleged tort-feasors Mitts and Merrill Company, a Michigan corporation and appellee's assured, and Standard Pressed Steel Co. of Jenkintown, Pennsylvania. The case proceeded to trial resulting in a hung jury. On November 9, 1965, before the case was retried, Lehman and both defendants entered into a "Consent Judgment" for $9000.00 exclusive of interest and costs. On the same date, Lehman executed a "Satisfaction of Judgment".
On or about April 28, 1961, appellant had advised appellee of its claim to be subrogated to Lehman's interest in the Michigan suit in accordance with the Pennsylvania Workmen's Compensation Act*fn1 to the extent
[ 222 Pa. Super. Page 549]
of the compensation benefits and medical expenses furnished to Lehman. Representatives of appellant and appellee continued to exchange correspondence concerning this case for the next several years. The record indicates that appellant even made its office file on the matter available to appellee. However, during this time, appellant failed to contact Lehman or his attorney. Appellant also failed to intervene in the Michigan action against Mitts and Merrill Company, Inc. et al., in order to protect its subrogation rights.
After the "Consent Judgment" was entered into, appellant made demand on appellee for $2039.23, the amount paid to Lehman. The demand was rejected. Appellant filed its action in assumpsit against appellee. On appeal from an arbitration panel's finding for appellee, the court below, sitting without a jury, dismissed the suit on the grounds that the "Consent Judgment" in Michigan barred any recovery by appellant in the present action. We ...