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BEHROOZ NAZER v. SAFEGUARD MUTUAL ASSURANCE COMPANY (12/29/81)

filed: December 29, 1981.

BEHROOZ NAZER, APPELLANT,
v.
SAFEGUARD MUTUAL ASSURANCE COMPANY



No. 747 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division, Civil Section of Philadelphia County at Nos. 808 January Term 1979.

COUNSEL

Michael L. Levy, Philadelphia, for appellant.

Robert M. Silverman, Philadelphia, did not file a brief on behalf of appellee.

Spaeth, Cavanaugh and O'Kicki,*fn* JJ. O'Kicki, J., files a dissenting opinion.

Author: Spaeth

[ 293 Pa. Super. Page 386]

This appeal is from an order sustaining preliminary objections and dismissing an action against an automobile insurance carrier for violation of the Unfair Insurance Practices

[ 293 Pa. Super. Page 387]

Act, Act of July 22, 1974, P.L. 589, No. 205, 40 P.S. § 1171.1 et seq. The lower court held that the complaint did not state a cause of action. We affirm.

Appellant's automobile was destroyed in an accident with an automobile driven by one Victor Rozier, who was driving with the permission of Thomas Rozier, appellee's insured. Appellee initially rejected appellant's claim, but when appellant brought suit against the Roziers, appellee offered him $1,000 for the value of his automobile. Appellant refused the offer, and the case went to arbitration. The arbitrators awarded appellant $1,200, which was the amount he had paid for his automobile two months before the accident, and was the amount he had demanded. Rather than paying the award, appellee appealed, spending, according to appellant's figures, approximately $275 in order to do so.

Appellant then commenced this action in trespass directly against appellee, alleging that its handling of his claim, including the initial complete rejection of the claim and the appeal from arbitration, constituted violations of various provisions of the Unfair Insurance Practices Act. In his complaint appellant asked for "judgment against the defendant in an amount in excess of $10,000 for [the] expenses, costs and attorneys [sic] fees incurred in [the underlying automobile accident litigation] and in punitive damages for the wilful violation of the Unfair Insurance Practices Act." Appellee filed preliminary objections to the complaint. In sustaining the objections and dismissing the complaint, the lower court held that the Unfair Insurance Practices Act does not confer rights on private parties, and that the only remedies provided by the Act are those which the Insurance Commissioner is authorized to pursue. Slip op. at 3.

[ 293 Pa. Super. Page 388]

Appellant's theory on appeal, expressed in his brief, Brief for Appellant at 2, 5, and repeated at oral argument, is that the Unfair Insurance Practices Act states the public policy of Pennsylvania, and that violation of that policy gives rise to a common law cause of action. However attractive this argument might otherwise be, it has been foreclosed by the Supreme Court in D'Ambrosio v. Pennsylvania Page 388} National Mut. Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981), where the Court held that the sanctions provided by the Act were not to be supplemented by a judicially created cause of action.

The relief sought by appellant -- judgment in excess of $10,000 -- is not what the Act provides as penalties for its violation. 40 P.S. § 1171.11. Appellant's suit may therefore not be viewed as an attempt by a private party to enforce the Act, and it is unnecessary for us to consider ...


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