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NATIONWIDE MUTUAL INSURANCE COMPANY v. JAMES P. WALTER (08/21/81)

filed: August 21, 1981.

NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT,
v.
JAMES P. WALTER, THOMAS W. MACNEEL, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, TERRY L. FETTER, RICHARD J. RESTIFO AND WILLIAM MEYERS, T/A, BUCKS COUNTY IMPORTS



No. 2496 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 73-10051.

COUNSEL

William T. Renz, Doylestown, for appellant.

Frederick E. Smith, Jr., Philadelphia, did not file a brief on behalf of Walter, appellee.

Richard Giannini, Jr., Doylestown, for MacNeel, appellee.

Glenn D. Hains, Morrisville, for State Farm, appellee.

Thomas F. J. MacAniff and Kenneth R. Williams, Doylestown, for Fetter, appellee.

Joseph V. Restifo, Philadelphia, did not file a brief on behalf of Restifo, et al., appellees.

Spaeth, Hester and Cavanaugh, JJ.

Author: Cavanaugh

[ 290 Pa. Super. Page 131]

Appellant, Nationwide Mutual Insurance Company, filed a petition under the Declaratory Judgment Act, Act of June 18, 1923, P.L. 840, § 1, as amended, 12 P.S. § 831 et seq. to have the court construe certain clauses in a policy of insurance issued by appellant to James P. Walter, one of the appellees before this Court. Following a hearing before Judge Ludwig an adjudication and decree nisi were filed. The court found that Nationwide Mutual Insurance Company was obligated under the automobile liability insurance

[ 290 Pa. Super. Page 132]

    policy issued to James P. Walter to defend and protect James P. Walter, Terry L. Fetter, Thomas W. MacNeel, Richard J. Restifo, and William Meyers, individually and trading as Bucks County Imports, in regard to an automobile accident which occurred on October 7, 1972. Appellant's exceptions to the adjudication and decree nisi were dismissed and following entry of final decree appellant has filed an appeal with this Court.

The automobile insurance policy issued by the appellant to Mr. Walter contains two clauses which were involved in the proceedings under the Declaratory Judgment Act. The first clause under consideration in the policy contained the following omnibus clause:

To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership, maintenance or use, including loading and unloading, of the described automobile because of:

(2) bodily injury, sickness, disease or death of any person except for liability under any workmen's compensation law. Those entitled to protection under these Coverages c(1) and c(2) are (a) the Policyholder; (b) any resident of the same household; and (c) any person or organization legally responsible for the use of the described automobile, provided the actual operation or (if he is not operating) the other actual use thereof is with the permission, expressed or implied, of the Policyholder or his spouse is such a resident.

The insurance policy also contained the following exclusionary provision which was set forth in the ...


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