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AETNA CAS. & SUR. CO. v. NATIONWIDE MUT. INS. CO.

June 15, 1979

AETNA CASUALTY AND SURETY COMPANY, Plaintiff,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: HERMAN

MEMORANDUM

This is an action brought by Aetna Casualty and Surety Company (Aetna), Plaintiff, against Nationwide Mutual Insurance Company (Nationwide), Defendant, with jurisdiction based upon diversity pursuant to 28 U.S.C. § 1332. The dispute arises out of an automobile accident and the denial of coverage by Defendant Nationwide to its insured William E. Cunnard.

 FINDINGS OF FACT

 1. Nationwide issued a policy of liability insurance to William E. Cunnard, an adult residing at R.D. # 5, Mechanicsburg, Pennsylvania, Policy No. 59-058879, in September of 1970.

 2. The Nationwide policy, on or after June 9, 1970, described as the automobile insured under the policy, a 1960 Plymouth Sedan.

 3. Cunnard purchased a 1958 Pontiac on or about August 14, 1970 from a private owner. He registered the car in his name and paid sales tax on that date.

 4. The 1958 Pontiac was never identified as an insured automobile under the Nationwide policy, nor did Cunnard notify Nationwide of its purchase.

 5. Before Cunnard purchased the 1958 Pontiac, he had had mechanical difficulties with the 1960 Plymouth; it had "gone out", and had valve and transmission problems and he felt he could not trust it to go anywhere.

 6. When Cunnard bought the 1958 Pontiac he needed to have work done on it to get it running and have it inspected.

 8. Cunnard stopped driving the Plymouth before he got the Pontiac going, and had a co-worker at Capital Products take him to work during this time. At no time material to this action did Cunnard have more than one vehicle which was operable.

 9. Cunnard had the needed repairs done to the 1958 Pontiac and secured a current state inspection for that vehicle.

 10. Cunnard began driving the 1958 Pontiac on October 14, 1970 and stopped driving the 1960 Plymouth in October, 1970, before he began driving the 1958 Pontiac.

 11. Cunnard allowed the state inspection sticker on the 1960 Plymouth to expire on October 31, 1970.

 12. Cunnard continued to drive the 1958 Pontiac until December 6, 1970 and did not drive the 1960 Plymouth after early October.

 13. On December 6, 1970 while Cunnard was driving the 1958 Pontiac, he was involved in a collision with a 1967 Ford owned by Carl I. Lisenbach, on the Trindle Road (Rt. 641) in Silver Springs Township, Cumberland County.

 14. The accident occurred when the Cunnard vehicle crossed the center line of the two-lane highway and collided with the Lisenbach vehicle. From the facts of the accident, a prima facie claim of negligence lay against Cunnard.

 15. Carl Lisenbach and Nadine Blocker, a passenger in his car, were both seriously injured in the accident.

 16. Carl Lisenbach and his 1967 Ford vehicle were insured by Aetna Casualty and Surety Company under a policy of insurance. Said policy provided uninsured motorist coverage, in accordance with Pennsylvania law, with limits of $ 10,000. The Aetna policy also provided similar coverage for a second vehicle owned by Lisenbach, a 1965 Mercury.

 17. After the accident Cunnard was in a body cast for eight weeks.

 18. A claims adjuster for Nationwide, Paul J. Herb, visited Cunnard in the Carlisle hospital on December 14, 1970 to take a statement from Cunnard about the accident. Cunnard told the adjustor that he was driving the 1958 Pontiac and not the 1960 Plymouth at the time of the accident.

 19. Cunnard was in pain and under sedation at the time the adjustor took the statement from him in the hospital on December 14, 1970.

 20. The adjustor wrote out a statement which he had Cunnard sign but which Cunnard did not and could not read. At the time of the statement Cunnard told the adjustor that the Plymouth had a noisy rear end and that was the reason he took it out of service.

 21. Cunnard signed the statement which indicated that both cars were inspected and that he had run the Plymouth. Although Nationwide's adjustor was told by Cunnard at the time the statement was taken that Cunnard had taken the 1960 Plymouth out of service, he failed to record that fact in the statement.

 22. It was not true that the 1960 Plymouth was currently inspected and that he had ...


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