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HERBY EICHELBERGER v. VIVIAN LEE WARNER V. LEROY C. RICE (09/04/81)

filed: September 4, 1981.

HERBY EICHELBERGER
v.
VIVIAN LEE WARNER V. LEROY C. RICE, ADMINISTRATOR OF THE ESTATE OF DAVA C. RICE, DECEASED, V. VALLEY MUTUAL INSURANCE COMPANY AND FEDERAL KEMPER INSURANCE COMPANY. APPEAL OF FEDERAL KEMPER INSURANCE COMPANY. HERBY EICHELBERGER V. VIVIAN LEE WARNER, APPELLANT, V. LEROY C. RICE, ADMINISTRATOR OF THE ESTATE OF DAVA C. RICE, DECEASED, V. VALLEY MUTUAL INSURANCE COMPANY AND FEDERAL KEMPER INSURANCE COMPANY



No. 247 March Term, 1979, No. 248 March Term, 1979, Appeals from the Order of the Court of Common Pleas, Civil Division, Perry County, at No. 76-1201.

COUNSEL

David C. Eaton, Harrisburg, for appellant (at No. 247) and for appellee (at No. 248).

Allen H. Smith, Wrightsville, did not file a brief on behalf of Eichelberger, appellee.

Clyde W. McIntyre, Harrisburg, for appellant (at No. 248) and for appellee (at No. 247).

Leroy C. Rice, appellee, in pro. per.

William A. Addams, Carlisle, for Valley Mutual, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., dissents.

Author: Cercone

[ 290 Pa. Super. Page 271]

This case initiated in an unfortunate traffic accident in which one person was killed and two were injured. One of those injured was Herby Eichelberger, who filed a cause of action against Vivian Lee Warner, the driver of one of the two vehicles. Warner joined as additional defendant Leroy C. Rice, administrator of the estate of Dava C. Rice, deceased, who operated the second vehicle and was killed in this accident. The jury found in favor of Eichelberger and against both defendants. Warner paid the full amount of the award to Eichelberger and took an assignment of the judgment. At the time of the accident, Dava Rice was carried under two insurance policies -- a homeowner's policy issued by Valley Mutual Insurance Company and an automobile insurance policy issued by Federal Kemper Insurance Company. Warner praeciped for a writ of execution against both insurers and subsequently filed a motion for summary judgment against both insurers as garnishees. The court below granted Warner's motion for summary judgment against Federal Kemper and denied summary judgment against Valley Mutual. From this ruling Vivian Warner and Federal Kemper appeal. Valley Mutual filed a brief as appellee. The essential issue in this appeal is whether one, or both insurance policies cover the liability of Rice. We conclude that based on the particular facts of the instant case, Rice was covered under both insurance policies, and we, therefore, affirm in part and reverse in part the lower court's decision.

The instant case presents the following facts: On November 3, 1974, Dava Rice was driving her automobile in which her sister, Linda Junk, was a passenger. The two women were traveling south on Route 34 near Carlisle, Pennsylvania,

[ 290 Pa. Super. Page 272]

    when their vehicle stopped for an unknown reason, although Linda believed that it had run out of gas. Dava parked the car as far to the right side of the road as it would go without hitting the guardrail. However, the berm was not wide enough to accommodate the entire car leaving it partly on the highway. The two women then walked to a gas station and returned a short time later with a can of gas. Two "good samaritans", Brian Magaro and Herby Eichelberger, stopped to see if they could be of assistance. Immediately prior to the accident, all four persons were generally assembled at the rear of the Rice vehicle. While the two men were doing this, Dava Rice was standing slightly on the highway behind her vehicle with her back to oncoming southbound traffic. At that moment a car driven by Vivian Lee Warner was traveling in the southbound lane and was approaching the Rice car. According to Warner's testimony, when she was approximately two car lengths from the Rice vehicle, and about to pass the disabled Rice vehicle, Dava Rice suddenly stepped backwards and to her left, placing her in front of the right front headlight of the oncoming Warner vehicle. Warner struck Rice, who was a few feet from her car, and lost control of her vehicle running into the rear of the Rice automobile. Dava Rice was killed, Brian Magaro sustained serious injuries, Herby Eichelberger was also injured although less seriously and Linda Junk escaped unharmed.

At trial the jury found both Warner and Rice to have been negligent, and this verdict is not now disputed. Rather, we are asked in this appeal to construe the provisions of two insurance policies held by Rice.

We first turn our attention to the relevant provisions of the automobile policy held with Federal Kemper. In this ...


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