Edward D. Foy, Jr., Richboro, for appellant.
Frederick Ely Smith, Doylestown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 520]
This case arises on appeal from a summary judgment dismissing with prejudice two counts of a complaint sounding in assumpsit. The basis of the assumpsit counts is an alleged contractual obligation of The Home Insurance Company, appellee, to defend a personal injury action in which
[ 253 Pa. Super. Page 521]
appellant was a co-defendant and to pay the resulting judgment against her. Appellant's complaint also contained two counts sounding in trespass arising out of the same circumstances. They were also dismissed on an earlier motion but no appeal was taken.
The facts are these: on April 3, 1969, Gloria Paiano, the appellant, while accompanied by her minor son, John, was the operator of an automobile owned by her husband, Frank Paiano. She collided with a vehicle owned by Elmer E. Foulk as a result of which her son sustained certain injuries. A lawsuit was thereafter brought by Frank Paiano on behalf of himself and his son, John, against Elmer Foulk who was insured against this claim. Gloria Paiano, appellant herein, was joined by Foulk as an additional defendant.
Frank Paiano carried liability insurance with The Home Insurance Company, appellee herein. The policy contained an exclusion from bodily injury liability (Coverage A) which provided --
"This policy does not apply: (J) to bodily injury to (1) the named insured (Frank Paiano) or (2), if a resident of the same household as the insured, the spouse (Gloria Paiano), or any parent, son (John) or daughter of the insured . . ." (identifying names inserted)
Gloria Paiano, appellant and wife of the insured, called upon the insurance company to defend her. The insurance company refused on the basis of the above quoted exclusion.
A verdict was returned for $4,000 in favor of the son and $1,000 for the father. Judgment was entered against both defendants in favor of the injured son and his father. The insurance company, after receiving proper notice, again disclaimed coverage and refused to contribute the appellant's share of the joint judgment.
Subsequently Foulk instituted a separate action against the appellant for contribution and a judgment was entered ...