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KIRSCH v. NATIONWIDE INS. CO.

February 18, 1982

Urban J. KIRSCH, individually and as Administrator of the Estate of Kenneth Kirsch, Deceased, Plaintiff,
v.
NATIONWIDE INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: WEBER

We have before us another case involving the intricacies of the Pennsylvania No-Fault Act.

Decedent, Kenneth Kirsch, died as a result of a two car collision in Northeast Township on November 30, 1980. At the time of his death, Kenneth was 19 years of age, and resided with his parents who, together with a sister, have survived him. Decedent's father, Urban J. Kirsch, plaintiff herein, was the owner of the vehicle driven by Kenneth at the time of his death.

 Plaintiff's complaint initially made claims for survivor's loss benefits and work loss benefits, neither of which had been paid by defendant. Plaintiff has since withdrawn his claim for survivor's loss benefits, conceding that decedent was not providing support for any member of his family and plaintiff, therefore, does not fall within the statutory definition of a "survivor" entitled to recover.

 The parties have filed cross-motions for summary judgment on two remaining issues. First, whether a parent of a dependent child is entitled to recover work loss benefits and second, whether the No-Fault Act allows the "stacking" of benefits where the plaintiff has a single insurance policy covering two vehicles.

 The first question, whether parents of a dependent child are entitled to recover work loss benefits is a question currently in controversy in the Pennsylvania courts. In Allstate Insurance Co. v. Heffner and Pontius v. United States Fidelity and Casualty Co., 491 Pa. 447, 421 A.2d 629 (1980), the Pennsylvania Supreme Court held that work loss benefits were payable as a result of the death of the insured. The remaining question was whether these benefits were payable only to statutory survivors, requiring proof of dependency, as is necessary to recover survivor's loss benefits.

 The second issue involves the propriety of "stacking" of no-fault benefits. Plaintiff insured two separate vehicles under one insurance policy issued by the defendant. An additional premium was paid for the coverage of the second vehicle. Plaintiff alleges that since two vehicles were covered by this policy, plaintiff is allowed double recovery of no-fault benefits, amounting to $ 30,000 in work loss benefits. Although it has been stipulated that decedent's wage loss would exceed $ 30,000, defendant claims that the terms of the Act do not permit such "stacking" of no-fault benefits.

 In support of its claim to cumulative benefits plaintiff draws an analogy to uninsured motorist coverage in which Pennsylvania courts have allowed stacking in cases where one policy covered two or more vehicles. Marchese v. Aetna Casualty Insurance Co., 284 Pa.Super. 579, 426 A.2d 646 (1981); Sones v. Aetna Casualty Insurance Co., 270 Pa.Super. 330, 411 A.2d 552 (1979). These cases have allowed stacking based upon public policy and legislative intent to provide protection to innocent victims from injuries caused by the negligence of irresponsible drivers. Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 395, 241 A.2d 112 (1968). Plaintiff alleges that the public policy behind the Uninsured Motorist Act is the same as that underlying the No-Fault Act. Therefore stacking of no-fault benefits should similarly be permitted.

 This argument fails, however, because the analogy to the Uninsured Motorist Act is faulty. The Uninsured Motorist Act was enacted specifically to provide coverage to innocent victims of negligent acts of uninsured third parties. The Act was not intended to limit causes of action against tortfeasors, but to assure recovery where tortfeasors are financially unable to pay any judgment awarded. The Act does not place any statutory maximum on the amount of coverage any individual insured can obtain, only the minimum amount of coverage each insurance policy must provide.

 The No-Fault Act, on the other hand, has an entirely different purpose. The No-Fault Act provides for a specific amount of possible recovery to be awarded to victims of motor vehicle accidents, regardless of fault. This arrangement allows for prompt compensation to victims. However, once the statutory ceilings are exceeded, the negligent party is still liable for any further damages caused by his actions. The cause of action against the faulty driver is not limited at this point. Furthermore, the very fact that, unlike the Uninsured Motorist Act, the No-Fault Act does contain statutory ceilings in the amount of recovery indicates an intent to limit the amount of no-fault recovery under the statute. In the Harleysville case, the Pennsylvania Supreme Court, in their decision to allow stacking of uninsured motorist benefits stated:

 
The purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers. The amount of the coverage to be afforded by the uninsured motorist feature of the policy is set by the statute, but nowhere, explicitly or implicitly, does the act place a limit on the total amount a victim may recover if he suffers a loss resulting from the negligence of an uninsured motorist. (emphasis added) 429 Pa. at 395, 241 A.2d 112.

 The court notes that there are no Pennsylvania appellate court decisions on this specific issue. *fn1" In support of their contention that stacking of no-fault benefits should be permitted, plaintiffs direct our attention to the recent Philadelphia opinion, Wilson v. Keystone Insurance Co., No. 3822 November Term, 1979, decided May 7, 1981. ...


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