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CHARLES PAUGH v. NATIONWIDE INSURANCE COMPANY (04/03/80)

filed: April 3, 1980.

CHARLES PAUGH, ADMINISTRATOR
v.
NATIONWIDE INSURANCE COMPANY, APPELLANT. JOHN RUSIDOFF V. NATIONWIDE INSURANCE COMPANY, APPELLANT



No. 1229 April Term 1978, No. 1230 April Term 1978, Appeal from the Judgments of the Court of Common Pleas of Butler County at C.P. Nos. 78-1451 and 78-1452, Civil Division-Law.

COUNSEL

Lee C. McCandless, Butler, for appellant.

Jerome M. Libenson, Butler, for appellees.

Spaeth, Van der Voort and Watkins, JJ. Watkins, J., dissents.

Author: Spaeth

[ 278 Pa. Super. Page 110]

This is an appeal from an order confirming awards in a common law arbitration.

On June 20, 1973, Carolyn Rusidoff was driving her car, which was insured by appellant, Nationwide Insurance Company, south on Route 38 toward Butler, Pennsylvania. In the car with Mrs. Rusidoff were her husband, John Rusidoff, who was sitting in the front seat, and her sister, Joyce Arlene Paugh, sitting in the back seat. A tractor-trailer proceeding in the opposite direction struck a deer, propelling

[ 278 Pa. Super. Page 111]

    it through the windshield of the Rusidoff car. The deer struck John Rusidoff on the head, next struck Joyce Paugh, and then went out the rear of the car. As a result, Joyce Paugh was killed and John Rusidoff was injured.

In May 1974, appellee Charles Paugh, as administrator of the estate of Joyce Paugh, and appellee John Rusidoff filed, respectively, a wrongful death and survival action and a personal injury action against DeBolt Transfer, Inc., alleging, inter alia :*fn1

2. Defendant is a Pennsylvania Corporation, with its place of business at 335 E. 7th Avenue, Homestead, Allegheny County, Pennsylvania.

3. At all times material to this action, defendant was an ICC and PUC certificated motor carrier of property and operated in and served the area between Butler, Pennsylvania and Berwick, Pennsylvania.

6. At all times material to this action, defendant owned and operated a truck tractor trailer, license no: CJ81925, driven by Don Mignogna, who was then and there in the course of and within the scope of his employment.

7. At all times material to this action, defendant owned and operated a truck tractor trailer license no: TC19182, driven by J. Whitmoyer, who was then and there in the course of and within the scope of his employment.

8. On June 20, 1973, defendant's tractor trailer, driven by J. Whitmoyer, entered the Pullman Standard Plant in Butler, Pennsylvania, at 6:32 A.M. Defendant's tractor trailer was loaded with forty-four (44) Rwy. Car Finished Axles, consigned to Berwick Forge & Fabricating, W. Ninth Street, Berwick, Pennsylvania pursuant to a bill of lading, shipper's

[ 278 Pa. Super. Page 112]

    no: 2557. Defendant's driver departed the Pullman Standard premises at 8:19 A.M. on June 20, 1972.

9. On June 20, 1973, defendant's tractor trailer, driven by Don Mignogna, entered the Pullman Standard Plant in Butler, Pennsylvania at 6:54 A.M. Defendant's tractor trailer was loaded with forty-eight (48) Rwy. Car Finished Axles, consigned to Berwick Forge & Fabricating, W. Ninth Street, Berwick, Pennsylvania, pursuant to a bill of lading, shipper's no: 2558. Defendant's driver departed the Pullman Standard premises at 8:19 A.M. on June 20, 1973.

10. On or about June 20, 1973, at about 8:30 A.M., plaintiff's decedent was a passenger in the rear of the automobile of Carolyn Rusidoff, which was proceeding south on Route 38 from Hooker, Pennsylvania, to Butler, Pennsylvania, when one of defendant's tractor trailers proceeding north on the aforesaid Route 38 negligently struck a deer causing it to be propelled into and through the windshield of the Rusidoff automobile, striking plaintiff's decedent's head. Said deer continued its flight through the rear window of plaintiff's automobile. This impact caused serious injury, pain and suffering, all of which resulted in the damage and death of plaintiff's decedent [in the Rusidoff complaint: . . . in the damage to the plaintiff].

The complaints were consolidated for trial, and on February 17, 1976, a jury returned a verdict on both complaints for the defendant DeBolt Transfer, Inc., "with reservations, due to the evidence provided." The judgments entered on the verdicts were appealed to this court, and on December 2, 1977, we held that the verdicts were so ambiguous as to be insufficient to represent verdicts, and we therefore ordered a new trial. Rusidoff v. DeBolt Transfer, Inc., 251 Pa. Super. 208, 380 A.2d 451 (1977).

In the meantime, on October 6, 1976, appellees instituted the present arbitration proceeding against Nationwide. Condition No. 8 of Nationwide's policy provided for arbitration

[ 278 Pa. Super. Page 113]

    if any person making a claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the ...


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