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CAROL JEAN WALLS v. CITY PITTSBURGH. APPEAL AMERICAN MOTORISTS INSURANCE COMPANY (10/30/81)

filed: October 30, 1981.

CAROL JEAN WALLS
v.
CITY OF PITTSBURGH. APPEAL OF AMERICAN MOTORISTS INSURANCE COMPANY



No. 643 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. G.D. 77-13454.

COUNSEL

S. Asher Winikoff, Pittsburgh, for appellant.

Joseph M. Zoffer, Pittsburgh, for Walls, appellee.

Joseph A. Fricker, Jr., Assistant City Solicitor, Pittsburgh, did not file a brief on behalf of City, appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Lipez

[ 292 Pa. Super. Page 20]

Appellee Carol Jean Walls was injured when, as a result of the negligent driving of an uninsured motorist,*fn1 the bus

[ 292 Pa. Super. Page 21]

    she was operating was diverted into a pothole in a street owned and maintained by the City of Pittsburgh (Pittsburgh). Walls sought recovery of her damages by filing a claim under her uninsured motorist insurance carried by appellant American Motorists Insurance Company (American), and by commencing the instant action against Pittsburgh alleging negligent roadway maintenance. An arbitration panel awarded Walls ten thousand dollars from American. Walls then signed an agreement drafted by American and containing, inter alia, the following:

This agreement is not intended to release any claim of action for damages against the owner or operator or any persons, firms or corporations responsible for the operation of the said uninsured automobile. It is further agreed that [American] shall be entitled [,] to the extent of such payment, to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery against any person or organization legally responsible for causing the injury or death on account of which said payment is made, and all such rights of recovery shall be held in trust for the benefit of [American]. The undersigned agrees to do whatever is necessary to secure, and to do nothing to prejudice, such rights.

(Emphasis added.) Walls subsequently settled with Pittsburgh for fifty thousand dollars. American sought to intervene, asserting that, since Pittsburgh was a "person or organization legally responsible for causing the injury on account of which" American had paid Walls, ten thousand dollars of the settlement was due American under the agreement. The court below denied American's petition to intervene.

Examined without external reference, the agreement supports American's position. The language of the contract unambiguously grants American the right to recover monies it had paid an injured insured under uninsured motorist coverage from any money received in settlement ...


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