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HOME INS. CO. v. MONACO

November 10, 1975

THE HOME INSURANCE COMPANY
v.
ANN L. MONACO And CARL J. SANTORO, Administrator d.b.n.c.t.a. of the Estate of Louis Monaco, Jr., Deceased



The opinion of the court was delivered by: DITTER

 On August 5, 1972, defendant Ann L. Monaco sustained severe personal injuries while riding as a passenger in an automobile owned and operated by her husband, Louis Monaco, Jr., when the vehicle collided with a bridge abutment on Township Line Road in Plymouth Township, Montgomery County, Pennsylvania. Mr. Monaco died the following day of injuries he suffered in the crash. Defendant instituted a trespass action in the Court of Common Pleas of Montgomery County, Pennsylvania, against Carl J. Santoro, Administrator d.b.n.c.t.a. of her late husband's estate, to recover for her injuries. Plaintiff thereafter filed the instant petition pursuant to 28 U.S.C. ยง 1332 for a declaratory judgment *fn1" that it has no obligation to compensate Mrs. Monaco for her bodily injuries.

 At the time of the accident, plaintiff, the Home Insurance Company, insured defendant's husband for all sums which he would become legally obligated to pay as damages because of bodily injuries arising out of the ownership, maintenance, and use of his automobile, and stated that "the Company shall have the right and duty to defend any suit alleging such bodily injury and seeking damages which are payable under the terms of this policy . . ." Also included in the contract was an exclusion, however, which provided:

 
This policy does not apply:
 
* * * *
 
. . . to bodily injury to (1) the Named Insured, or (2) if a resident of the same household as the Insured, the spouse or any parent, son or daughter of the Insured:
 
* * * *

 Plaintiff contends that the above provision is lawful in the Commonwealth of Pennsylvania, *fn2" and that since the defendant was the insured's wife, living with him in the same household, protection for her injuries is excluded from the policy and plaintiff has no duty either to defend the trespass action in Common Pleas Court or to pay any judgment obtained there by her. Defendant asserts, however, that the exclusion is ambiguous, subject to more than one interpretation, must be strictly construed against the plaintiff, and in any event, does not bar a recovery by Mrs. Monaco because she brought her action as the widow of the insured and not as his wife.

 Neither my research nor the briefs of the parties has disclosed a Pennsylvania case exactly on point. Accordingly, I must predict how the Supreme Court of Pennsylvania would decide the question presented here. See Costello v. Schmidlin, 404 F.2d 87 (3d Cir. 1968); Davis v. Smith, 126 F. Supp. 497 (E.D. Pa. 1954), affirmed, 253 F.2d 286 (3d Cir. 1958).

 At the outset, it is plain that Pennsylvania, like several other states, *fn3" gives effect to automobile liability policies excluding from coverage members of the insured's family or household. *fn4" See Great American Ins. Co. v. State Farm Mut. Ins. Co., 412 Pa. 538, 194 A. 2d 903 (1963); Puller v. Puller, 380 Pa. 219, 110 A. 2d 175 (1955). "The well known reason for the exclusion clause . . . is that it is intended as a protection against collusive claims." Id. at 223, 110 A. 2d at 178. Citing the proposition that "[when] the policy behind a rule no longer exists, the rule itself should disappear," Johnson v. Peoples First National Bank & Trust Co., 394 Pa. 116, 120, 145 A. 2d 716, 718 (1958); Kaczorowski v. Kalkosinski, 321 Pa. 438, 443, 181 A.2d 729 (1936), plaintiff argues that the danger of collusive claims against the insurer ceased upon the death of the insured, and the policy underlying the exclusion clause should not be given effect.

 Although initially this argument may have some degree of appeal, a careful examination of the Pennsylvania case law discloses that on at least two occasions that state's highest court has upheld the validity of exclusions worded almost identically to the provision here in situations where no possibility of collusion among family members existed. In Great American Ins. Co. v. State Farm Mut. Auto. Ins. Co., supra, Robert Stauffer, Jr., was riding as a passenger in a car owned by his father, and driven by a friend, Harold B. Dick. Stauffer and his parents brought suit against Dick, an additional insured under the terms of the policy, for injuries he sustained while Dick was driving the car. Although Dick was not a member of the Stauffer household, the Court upheld the policy exclusion denying coverage "to the insured or any member of the family of the insured residing in the same household as the insured." *fn5"

 In Patton v. Patton, 413 Pa. 566, 198 A. 2d 578 (1964), the automobile of the insured, John D. Patton, was being driven with his permission by George Derr, an additional insured under the policy. Mrs. Patton and Mrs. Derr, passengers in the car, were injured in an accident. They instituted separate trespass actions against the operator of the vehicle which collided with the Patton vehicle, and in each action, Patton and Derr were joined as additional defendants. At trial, the jury returned verdicts in each action against Patton and Derr and judgments in favor of Mrs. Patton and Mrs. Derr, respectively, were entered. Mrs. Patton disclaimed any interest to enforce her judgment against her husband, and Mrs. Derr acted likewise with respect to Mr. Derr. In view of the disclaimers neither case presented a situation in which one excluded member of the family was suing another. The Court, however, gave effect to the policy exclusion as it was written, permitted recovery by Mrs. Derr against Patton, since there was no family relationship between them, but denied recovery against the insurance company by Mrs. Patton against Derr, since Mrs. Patton was a member of the household of the named insured, her husband. *fn6" Finally, in a case which, although not emanating from Pennsylvania, involved a markedly similar factual situation to the case at bar, State Farm Mut. Ins. Co. v. Ward, 340 S.W. 2d 635 (Mo. 1960), where the insured died on the date of the accident, the court held that the exclusionary provision was enforceable as to his widow's claim. Accordingly, I am persuaded that Pennsylvania courts would apply the exclusion clause even though the possibility of collusion has probably been eliminated by the insured's death. *fn7"

 Defendant next asserts that because she is no longer the spouse of the insured, the failure of the insurer to include the word "widow" in the exclusionary clause creates an ambiguity which must be interpreted in her favor. While it is true that exceptions to general liability are to be strictly construed against the insurer, Frisch v. State Farm Fire & Cas. Co., 218 Pa. Super. 211, 214, 275 A. 2d 849, 851, allocatur refused, 218 Pa. Super. 1x (1971); Celley v. Mutual Benefit Health & Accident Ass'n, 229 Pa. Super. 475, 324 A. 2d 430 (1974), an insurance policy nevertheless is a contract which stands on no different basis than any other contract, Blair v. Berkshire Life Ins. Co., 429 F.2d 996 (3d Cir. 1970), and a court may not raise a doubt or ambiguity where none exists, Brunner v. McCullough, 216 F. Supp. 496 (E.D. Pa. 1963); Burdsall v. Mutual of Omaha Ins. Co., 207 Pa. Super. 228, 217 A. 2d 789 (1966). Moreover, where a term in an insurance policy is ambiguous and the intention of the parties therefore cannot be discerned from the contract, the court may attempt to arrive at a construction which seems reasonable and in accord with the parties' apparent ...


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