No. 2940 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 1928 November Term, 1978.
Alan Dion, Philadelphia, for appellant.
Richard C. Angino, Harrisburg, for appellee.
Hester, Cavanaugh and DiSalle,*fn* JJ.
[ 294 Pa. Super. Page 425]
The sole issue for our determination in this case may be stated as follows: Where an insured has received reimbursement for all of his medical expenses and lost earnings under the personal injury protection coverage contained in his no-fault insurance policy, may an arbitrator also make an award for the same medical expenses and lost earnings in addition to an award for pain and suffering as part of the insured's recovery under the uninsured motorist coverage?
In this case the appellee, Barbara Saunders, was insured by the appellant, State Farm Insurance Company. The policy contained personal injury protection under the nofault coverage and uninsured motorist coverage. According to appellant's brief, the appellee paid two premiums, one for personal injury coverage and one for uninsured motorist coverage. The appellee was injured in a motor vehicle accident and the appellant paid her $2,478.00 for medical expenses and lost earnings under the personal injury protection
[ 294 Pa. Super. Page 426]
within the no-fault provisions of the policy. The parties agreed to the appointment of an arbitrator, A. Arthur Hanamirian, Esquire, with respect to a dispute under the uninsured motorist coverage. Following a hearing the arbitrator awarded the appellee $9,987.00 representing an award of $7500.00 for pain and suffering and $2,487.00 for medical expenses and lost earnings. The court below denied the insurance carrier's petition to modify the arbitrator's award and granted the appellee's petition to confirm the award.
The policy issued by the appellant to the appellee provided for no-fault coverage and stated:
We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by accident resulting from the maintenance or use of a motor vehicle as a vehicle:
The policy also contained uninsured motorist coverage which stated:
We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
With respect to the uninsured motorist coverage the policy contained a set-off clause which stated the following:
2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:
a. by or for any person or organization who is or may be held legally liable for the bodily injury to the insured;
b. for bodily injury under liability, or no-fault coverages; or
[ 294 Pa. Super. Page 427]
Our first determination is whether the set-off provision in the uninsured motorist coverage is valid. A similar set-off provision in the uninsured motorist section was found to be invalid by a unanimous panel in Brader v. Nationwide Page 427} Mutual Insurance Company, 270 Pa. ...