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DARLENE E. FOLMAR v. HARTFORD ACCIDENT & INDEMNITY CO. (09/27/76)

decided: September 27, 1976.

DARLENE E. FOLMAR, ADMINISTRATRIX OF THE ESTATE OF ROBERT LEE FOLMAR, DECEASED, AND ELSIE J. NITTINGER, ADMINISTRATRIX OF THE ESTATE OF RAYMOND L. NITTINGER, JR., DECEASED, APPELLANTS,
v.
HARTFORD ACCIDENT & INDEMNITY CO., APPELLEE



COUNSEL

Ambrose R. Campana, Williamsport, for appellants.

Arthur Silverblatt, Wilkes-Barre, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Van Der Voort

[ 242 Pa. Super. Page 351]

There are two issues in this case, one being did the plaintiffs present sufficient evidence to warrant submitting to the jury the question of whether or not an automobile was "non-owned"; the other being are the plaintiffs estopped from asserting their claims as third party beneficiaries.

On September 2, 1966, Aaron D. Shaffer, Jr., (Shaffer, Jr.) was involved in a collision which caused the deaths of the plaintiffs-decedents on that date. William H. Liddic, (Liddic) the step-father of Shaffer, Jr., (with whom said Shaffer, Jr., lived) had a contract of automobile liability insurance with the Hartford Accident & Indemnity Co.,

[ 242 Pa. Super. Page 352]

(Hartford) the appellee. The appellants entered suit against Shaffer, Jr., and on May 28, 1968, received a verdict in their favor in the amount of $23,125.00. Judgment on that verdict was entered on August 13, 1968.

In the meantime, on July 11, 1968, Shaffer, Jr., sued Hartford in the Court of Common Pleas of Lycoming County claiming damages resulting from the said verdicts against him in the total sum of $28,125.00. Hartford contested this suit and defended on the grounds that the insurance policy did not provide coverage for Shaffer. The Court of Common Pleas of Lycoming County agreed and entered summary judgment against Shaffer, Jr.

On July 7, 1972, the appellants issued a Writ of Attachment Execution on the original lawsuit and served Hartford as garnishee. Appellee Hartford also contested this action on the grounds that as a result of the order of October 27, 1970, when summary judgment was entered against Shaffer, Jr., it owed them nothing. Therefore there was no fund in the hands of Hartford which appellants could attach. Appellants appealed this to our Court and we affirmed at 232 Pa. Super. 22, 332 A.2d 821 (1974).

Subsequent to our decision appellants instituted this action against Hartford claiming as third party beneficiaries under the insurance contract. After trial before a judge and jury a verdict was returned for the plaintiffs in the amount of $23,000.00. Appellee moved for a judgment n. o. v., which motion the trial court granted and entered judgment for the appellee notwithstanding the verdict. This appeal followed.

The insurance policy in question contained the following provisions with respect to what ...


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