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EBERHART ET UX. v. NATIONWIDE MUTUAL INSURANCE COMPANY (03/29/76)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 29, 1976.

EBERHART ET UX., APPELLANTS,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY

Appeal from judgment of Court of Common Pleas of Westmoreland County, No. 2825 of 1974, in case of Brad Eberhart and Debra Eberhart, his wife v. Nationwide Mutual Insurance Company, a corporation.

COUNSEL

David J. Millstein, with him Millstein and Hoehler, for appellants.

Carl E. Fisher, with him Robinson, Fisher, Long & Rigone, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 238 Pa. Super. Page 560]

This is an appeal from the order of the court below granting the defendant-appellee's motion for judgment on the pleadings. When ruling on a defendant's motion for judgment on the pleadings, the complaint, the answer containing new matter, and the reply to new matter shall be considered.*fn1 Herman v. Stern, 419 Pa. 272, 276 n. 1, 213 A.2d 594, 596 n. 1 (1965). Further, as this Court stated in Kroiz v. Blumenfeld, 229 Pa. Superior Ct. 194, 197, 323 A.2d 339, 340 (1974):

"The standards for determining whether a judgment on the pleadings should be allowed are clear. . . . All of the opposing party's well pleaded facts must be accepted as true. Bata v. Central Penn National Bank, 423 Pa. 373, 224 A.2d 174 (1966); Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965). A judgment on the pleadings should be granted only when a case is free from doubt and a trial would be a fruitless exercise. Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972)." (Emphasis in original).

Applying these standards to the instant case, we conclude that this was not a proper case for the entry of judgment on the pleadings in favor of the defendant.

[ 238 Pa. Super. Page 561]

The pleadings disclose a primary issue of fact which, when resolved in favor of the non-moving party, the plaintiffs-appellants, Kroiz v. Blumenfeld, supra, makes judgment on the pleadings inappropriate.

The facts as disclosed by the pleadings may be summarized as follows: The defendant issued an automobile insurance policy to the plaintiff Brad Eberhart; the policy taking effect on September 7, 1973. On or about May 31, 1974, the plaintiffs were injured in a one-car accident in Westmoreland County, as a result of which they incurred medical expenses. The plaintiffs made repeated demands upon the defendant for payment of these medical expenses; these demands were refused.

The plaintiffs filed a Complaint in Assumpsit in which they averred, inter alia :

"3. On or about September 7, 1973, Plaintiff Brad Eberhart purchased from Defendant a policy of automobile insurance (Policy No. 61P082-312), which policy, among other coverages, provided for payment of medical expenses arising from automobile accidents as follows :

To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devices and necessary ambulance, hospital, professional nursing and funeral services.

A true and correct copy of the relevant*fn2 part of the policy is attached hereto as Exhibit A*fn3 and incorporated as though fully set forth herein.

[ 238 Pa. Super. Page 562]

"4. The policy of insurance additionally provides that the medical payments as set forth above were to be payable as follows:

To or for each Insured who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from, or through being struck by, an automobile."

Printed Record at 3a-4a. (Emphasis added).

In its Answer to the plaintiffs' Complaint in Assumpsit the defendant averred in response to the above cited paragraphs:

"3. Denied. The Defendant issued to the Plaintiff, Brad Eberhart, Automobile Policy No. 61P082-312 providing coverage only for property damage liability, bodily injury liability, and uninsured motorist pursuant to the North Carolina Automobile Insurance Assigned Risk Plan, pursuant to an application made to Sunny Land Insurance Agency, Inc., C. J. Horning, broker. It is further denied that the Exhibit A attached to the Complaint is a true and correct copy of the relevant part of the policy. On the contrary, the portion attached as Exhibit A to Plaintiffs' Complaint is a standard printed form covering contract provisions for all coverages offered by the Defendant while specific coverage of the particular contract with the insured are [sic] set out in the declarations and made a part of the contract with the insured and which Plaintiff has omitted. The said declarations as well as a complete copy of the policy is attached hereto and marked Exhibit 1 together with a copy of the application which is also attached hereto and marked Exhibit 2.

4. Denied. The declarations are expressly part of the insurance contact [sic] and specifically fail to provide coverage for medical payments. It is further averred that the Plaintiff, Brad Eberhart, in his application

[ 238 Pa. Super. Page 563]

    for insurance expressly declined to have medical payment coverage."*fn4

Printed Record at 7a-8a. (Emphasis added).

Therefore, the plaintiffs attached, pursuant to Pa.R.C.P. 1019(h), see n. 2 supra, what they averred to be the relevant part of the insurance policy in issue, and pleaded that the policy provided for coverage of medical expenses. The defendant denied this and attached, pursuant to Pa.R.C.P. 1019(h) (the writing upon which a defense is based), see n. 2 supra, the entire insurance policy. The defendant urges that the insurance policy must be read in its entirety and, when so read, the declaration in the policy establishes that the plaintiffs' coverage is limited to property damage, bodily injury liability, and uninsured motorist coverage.

The defendant's position that an insurance policy must be read in its entirety in order to determine the intention of the parties is, as a matter of law, unassailable. Smith v. Cassida, 403 Pa. 404, 169 A.2d 539 (1961). However, as the pleadings now stand, it has not been established that the policy attached as an exhibit by the defendant is the policy that was issued to the plaintiff, Brad Eberhart. The defendant did not plead New Matter in its Answer. The plaintiffs have not admitted the authenticity

[ 238 Pa. Super. Page 564]

    of the defendant's exhibit. See Ruhe v. Kroger Company, 425 Pa. 213, 228 A.2d 750 (1967). Fundamentally, the lower court cannot read the insurance policy in its entirety in order to gather therefrom the intent of the parties, see Smith v. Cassida, supra, until it is established that the policy before the court is the policy issued to the plaintiff, Brad Eberhart.*fn5 The plaintiffs have averred that the relevant part of their policy provides for medical expense coverage. The defendant denies this. In ruling on a defendant's motion for judgment on the pleadings ". . . all facts plead by the plaintiff which are relevant and material must be accepted as admitted even though denied." Aughenbaugh v. North American Refractories Company, 426 Pa. 211, 213, 231 A.2d 173, 175 (1967) (citations omitted). Taking the plaintiffs' averment, to-wit, Exhibit A is the relevant part of the policy and Exhibit A provides for medical expense coverage, as admitted, on the record before us it is impossible for us to find a case which is clear and "free from doubt." Kroiz v. Blumenfeld, supra.*fn6

[ 238 Pa. Super. Page 565]

Judgment reversed and the case remanded with a procedendo.

Disposition

Judgment reversed and case remanded with a procedendo.


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