Nos. 111, 122, 123, 124 and 125 April Term, 1977, Appeal From the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. 3642 July Term, 1972.
Daniel M. Berger, Pittsburgh, with him Michael P. Malakoff, Pittsburgh, for appellant at No. 111, and appellee at Nos. 122, 123, 124, and 125.
George M. Weis, Pittsburgh, with him Weis & Weis, Pittsburgh, for appellant at Nos. 122, 123, 124, and 125, and appellee at No. 111.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents. Watkins, former President Judge, and Hoffman and Van der Voort, JJ., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 574]
Plaintiff brought this class action on behalf of all persons insured with the defendant insurance company whose uninsured motorist coverage payments had been reduced by set-offs equal to amounts paid by the company under medical payments coverage. The class excepted those whose claims were barred by the statute of limitations.
A clause customarily included in the insurance policies issued by defendant allows payments under uninsured motorist coverage to be reduced by payments under medical coverage. Plaintiff contends that this clause is void as it is repugnant to the Act of August 14, 1963, P.L. 908, Sec. 1, as amended December 19, 1968, P.L. 1254, No. 397, Sec. 1, effective January 1, 1969, 40 P.S. 2000. Section (a) of the Act reads as follows.
"No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with
[ 259 Pa. Super. Page 575]
respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of "The Vehicle Code, act of April 29, 1959 (P.L. 58). (75 P.S. Sec. 1421) under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom."
Plaintiff had uninsured motorist coverage in the amount of $10,000, the minimum required under the former Vehicle Code, 75 P.S. 1421 (1971), and medical payments coverage of $2,000. His individual claim was based on injuries his ten-year-old son received when he was struck by an uninsured motorist while riding a mini-bike. Plaintiff incurred medical bills in the amount of $2,321.75 as a result of the accident. He received an arbitration award of $5,000.00 under his uninsured motorist coverage. Neither party took an appeal from the arbitration proceedings.
Defendant offered him a check for $5,000.00 in return for a release of all his other claims arising from the same accident. Plaintiff believed that the release might bar his claim for reimbursement under the medical payment provision of his policy. He believed himself entitled to $5,000.00 plus reimbursement of medical bills to the extent of his medical payments coverage. Accordingly, he declined to accept the check or sign the release, but instead brought an action in assumpsit for the total amount he believed defendant owed him.
Defendant's first response to the assumpsit complaint was to file preliminary objections to the case proceeding as a class action. The objections were overruled; the lower court held that there was a common question ...