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ETEVENIA SALVADO v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY (05/22/81)

filed: May 22, 1981.

ETEVENIA SALVADO, MARIA DELUZ SALVADO, STELLA MONTEIRO, JUDITE MONTEIRO AND LUCRETIA MONTEIRO, A MINOR, APPELLANTS,
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY



No. 942 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 4126 June Term, 1979.

COUNSEL

Barbara E. Sarkin, Philadelphia, for appellants.

Patrick G. McDonald, Philadelphia, for appellee.

Price, Wieand and Hoffman, JJ. Price, J., files a concurring and dissenting opinion.

Author: Wieand

[ 287 Pa. Super. Page 306]

This is an appeal from a summary judgment entered by the trial court in favor of the appellee insurer on the grounds that appellants' claims for benefits under the Pennsylvania No-Fault Insurance Act were barred by the statute of limitations.

On February 29, 1976, Maria DeLuz Salvado, Stella Monteiro, Judite Monteiro and Lucretia Monteiro, a minor, were passengers in a motor vehicle operated by Etevenia Salvado and insured by the appellee, Prudential Property and Casualty Insurance Company. As a result of the vehicle accident occurring that day, the driver and the passengers received injuries for which claims were made to the appellee insurer for benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. ยง 1009.101 et seq. These claims were paid in full. The last payment of benefits was made on November 18, 1976. On April 27, 1979, for the first time, claims for additional benefits were made to appellee on behalf of appellants. Appellee denied the claims because they were made more than two years after the last, prior payment of benefits. The instant action in assumpsit was then commenced.

Section 106(c)(1)*fn1 of the No-Fault Act establishes a limitation of actions as follows:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits . . . by either the same or another claimant, may be commenced not later than two years after the last payment of benefits. (Emphasis added.)

[ 287 Pa. Super. Page 307]

This limitation would seem to bar the present action by appellants for additional benefits. There are no circumstances alleged or appearing of record that would allow the adult appellants to commence an action for additional benefits under the No-Fault Act more than two years after all claims had been paid. It is argued, however, that the statute of limitations was tolled for Lucretia Monteiro, who was thirteen years of age at the time of the accident, because of her minority. If this is correct, then the claim on her behalf should not have been terminated summarily.

Section 106(c)(5)*fn2 of the No-Fault Act is controlling. It provides as follows:

If a person entitled to no-fault benefits is under a legal disability when the right to bring an action for the benefits first accrues, the period of his disability is not a part of ...


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