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ELIZABETH MIDBOE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (07/08/81)

decided: July 8, 1981.

ELIZABETH MIDBOE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY



No. 78 January Term, 1979, Appeal from Order of Superior Court at No. 854 October Term, 1978, affirming Order of Court of Common Pleas, Civil Division, of Lehigh County, at No. 6 June Term, 1977 - Equity.

COUNSEL

Thomas J. Calnan, Jr., Allentown, for appellant.

James J. McCabe, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., filed an Opinion in Support of Affirmance in which Roberts and Flaherty, JJ., join. Nix, J., filed an Opinion in Support of Reversal. Larsen, J., filed an Opinion in Support of Reversal in which Kauffman, J., joined.

Author: Per Curiam

[ 495 Pa. Page 351]

ORDER

The Court being equally divided, the Order of the Superior Court is affirmed.

Opinion IN SUPPORT OF AFFIRMANCE

O'BRIEN, Chief Justice.

This appeal is from an order of the Superior Court, affirming an order of the Court of Common Pleas, Lehigh County, which granted a demurrer of appellee, State Farm Mutual Automobile Insurance Company, to the complaint of appellant, Elizabeth Midboe, on behalf of herself and others similarly situated.

On December 18, 1976, appellant's son, Carl Midboe, an eighteen-year-old high school senior, was killed in an automobile accident. Appellant filed a claim with appellee for "survivor's loss" benefits under her No-Fault insurance policy. Appellee refused payment on the claim because appellant was not dependent upon the deceased for support at the time of his death. Appellant then filed a class action on her behalf and for others similarly situated, alleging that the insurance policies in question were in contravention of the expressed intention of the Legislature which passed the

[ 495 Pa. Page 352]

Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn1 Appellant thus sought reformation of the applicable insurance policies for both her and all the members of the class. Appellee filed preliminary objections in the nature of a demurrer to the complaint and also alleged that the complaint was not a proper class action. The Court of Common Pleas, Lehigh County, sustained appellee's demurrer and, because of that disposition, did not rule on the propriety of the class action. The Superior Court affirmed. Midboe v. State Farm Mutual Automobile Insurance Co., 261 Pa. Super. 447, 395 A.2d 991 (1978). This Court granted appellant's petition for allowance of appeal and this appeal followed.

The sole issue presented instantly is one of statutory interpretation. The No-Fault Act provides:

"'Survivor' means:

"(A) spouse; or

"(B) child, parent, brother, sister or relative dependent upon the deceased for support." 40 P.S. § 1009.103 (Supp. 1980-81).

A determination must be made whether the phrase "dependent upon the deceased for support" modifies only "relative" or whether that phrase modifies all of the antecedents contained in subsection (B). Appellant admitted in her original complaint that at the time of her son's death she was not dependent upon her son for support. Appellant, however, argues that a child, parent, brother or sister need not show such dependency. Appellant further admits that under the definition of "survivor" contained in her insurance policy with State Farm, she does not qualify as a "survivor". The policy states:

"Survivor means:

"(1) a spouse;

"(2) a child, parent, brother, sister or relative who was dependent on the insured at the time of the insured's death." (emphasis in original).

[ 495 Pa. Page 353]

Appellant argues that the definition of survivor contained in the policy is contrary to the definition of survivor intended by the Legislature in the No-Fault Act. As appellant believes that no limitations on coverage may be imposed by State Farm or other insurance companies that are not authorized by the No-Fault Act, and since appellant believes that State Farm's definition is such a limitation, she argues that the policy must be reformed to define survivor as the Legislature, in her view, intended.

The Legislature has codified the primary rule of statutory construction, stating:

"The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly."

Act of November 25, 1970, P. L. 707, No. 230, repealed and reenacted, Act of December 6, 1972, P. L. 1339, No. 290, 1 Pa.C.S.A. § 1921(a). This rule, however, is oft easier to state than to apply; as a result, the Statutory Construction Act*fn2 and other principles of statutory construction must be utilized to ascertain the Legislature's intent.

Appellant advances several reasons, some of which are based on the Statutory Construction Act, why her perception of the Legislature's intention should be adopted. While the arguments are well made, I nonetheless believe the Legislature intended that a child, parent, brother or sister, as well as any other relative, must ...


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