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ANGELA M. HAYES v. ERIE INSURANCE EXCHANGE (03/21/80)

filed: March 21, 1980.

ANGELA M. HAYES, APPELLANT,
v.
ERIE INSURANCE EXCHANGE



No. 455 April Term, 1979, Appeal from the Order Dated May 3, 1979, in the Erie County Court of Common Pleas, Civil Division at No. 1886 - A - 1976.

COUNSEL

Joseph A. Yochim, Erie, for appellant.

T. Warren Jones, Erie, for appellee.

Price, Cavanaugh and Watkins, JJ.

Author: Watkins

[ 276 Pa. Super. Page 425]

This is an appeal from the order of the Court of Common Pleas of Erie County, Civil Division, wherein the court below fixed the interest rate at 6% on the payment due appellant rather than the 18% claimed under Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. Sec. 1009.101 et seq. at Section 106; and refused her attorney's fees under Section 107.

On January 6, 1976, appellant had parked her car on State Street in Erie and walked to the corner and when she attempted to cross the street she was struck by appellee's insured. Appellant did not have insurance on her vehicle as required by the No-Fault Act.

A claim was filed with appellee for medical expenses and wage loss benefits which was denied and appellant was instructed to seek compensation under the assigned claims plan. Suit was brought in assumpsit and appellee was found liable for said payments, and after appeal to this Court, that determination was affirmed but counsel fees were denied. Hayes v. Erie Insurance Exchange, 261 Pa. Super. 171, 395 A.2d 1370 (1978).

In the Hayes case this court held although the appellant's vehicle was uninsured, in violation of No-Fault Motor Vehicle Insurance Act, she was entitled to recover basic loss benefits from the insurer of the vehicle involved in the

[ 276 Pa. Super. Page 426]

    accident and was not limited to the more restrictive benefits under the assigned claims plan. 40 P.S. Para. 1009.204(a)(4, 5). This court held:

"In the instant case, it is significant that appellee has nowhere sought to attribute bad faith to the insurer's decision to deny the claim. It is also significant that appellant's determination to deny the claim was communicated to appellee on April 15, 1976. This was less than a year after the effective date of the Act and prior to the opinion of this Court in Schimmelbusch v. Royal-Globe Insurance Company [247 Pa. Super. 28, 371 A.2d 1021 (1977)], supra. Moreover, as appellant argued before this Court, appellee was herself in violation of the No-Fault law. It was she who had failed to obtain the mandated insurance coverage for her own automobile. Appellant perceived that by allowing appellee's claim it would be assuming a responsibility which the Legislature had intended to place in the first instance upon appellee's own insurance carrier. See: 40 P.S. Para 1009.204(a)(2). By failing to obtain the required coverage, appellant contended, appellee would be able to shift this burden and defeat the plan for priority of payments established by the Legislature. Although we have rejected appellant's interpretation of the statute, the issue created thereby was novel and not without substance.

"Under these circumstances, the trial court properly refused to enter an order awarding to appellee an attorney's fee. The record did not permit a conclusion that appellant's denial of ...


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