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DOROTHY H. HARTLEB v. OHIO CASUALTY INSURANCE COMPANY (10/01/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 1, 1982.

DOROTHY H. HARTLEB, ADMINISTRATRIX OF THE ESTATE OF PHILIP HARTLEB, DECEASED,
v.
THE OHIO CASUALTY INSURANCE COMPANY, APPELLANT. BETSY L. WHITE, ADMINISTRATRIX OF THE ESTATE OF HAROLD MAYOROS, DECEASED, JOHN MAYOROS AND NORMA MAYOROS, HIS WIFE, V. THE OHIO CASUALTY GROUP OF INSURANCE COMPANIES, APPELLANT. DOROTHY H. HARTLEB, ADMINISTRATRIX OF THE ESTATE OF PHILIP HARTLEB, DECEASED, APPELLANT, V. OHIO CASUALTY INSURANCE COMPANY

No. 525 Pittsburgh, 1981, No. 526 Pittsburgh, 1981, No. 552 Pittsburgh, 1981, Appeal from the Orders of the Court of Common Pleas, Civil Division, of Erie County at Nos. 3495-A-1979 and 8919-A-1980.

COUNSEL

William J. Schaaf, Erie, for Ohio Casualty, appellant in Nos. 525 and 526 and appellee in No. 552.

John Quinn, Erie, for Hartleb, appellant in No. 552 and appellee in Nos. 525 and 526.

William T. Jorden, Meadville, for White, appellees in No. 526.

Brosky, Cirillo and Popovich, JJ.

Author: Popovich

[ 305 Pa. Super. Page 233]

This is a consolidated appeal which involves the question of whether proof of dependency is a prerequisite to recovery of work loss or survivors' benefits under the No-Fault Motor Vehicle Insurance Act. Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp.1980-81). The trial court granted summary judgment in favor of both plaintiffs-appellees on the work loss issue and in favor of the defendant-appellant on the survivors' benefits issue. We affirm in part and reverse in part.

The facts in the instant case were set forth by the trial court in the following manner:

The two cases were filed against appellant, the Ohio Casualty Insurance Company. In Hartleb, the plaintiff's decedent died as a result of injuries sustained in an auto accident. At the time of his death, the decedent was twenty-seven years of age and single. Decedent is survived by his mother, the administratrix of the estate, and four sisters. It is conceded that neither his mother nor his sisters were dependent upon the decedent for support.

In White, the plaintiff's decedent also died as a result of an automobile accident. The decedent's parents are handicapped and decedent contributed $60.00 per month towards their support but it was stipulated that they were not dependent upon the decedent.

In both cases, the plaintiffs initially requested payment of survivors' benefits and work loss benefits pursuant to the insurance policies written by the defendant company and in effect at the time of the decedents' deaths. However, the plaintiff in White has since withdrawn her demand for survivors' benefits and now challenges only the defendant's refusal to pay work loss benefits. Defendant has refused payment on the grounds that work loss benefits are payable only to dependent survivors of the deceased and, in each instance, it has been stipulated that the decedents' survivors were not dependents. The trial court granted the work loss benefits but denied the survivors' loss benefits. Final judgments

[ 305 Pa. Super. Page 234]

    were entered in the amount of $15,000.00 plus interest at 18% as work loss benefits in each case, and judgment was entered in appellant's favor on the survivors' loss issue. This consolidated appeal thus followed.

The issues before this Court are controlled by our recent decisions in Chesler v. Government Employees Insurance Company, 302 Pa. Super. 356, 448 A.2d 1080 (1982) and in Freeze v. Donegal Mutual Insurance Company, 302 Pa. Super. 344, 447 A.2d 999 (1982). In Chesler, this Court addressed the question of whether the mother of a decedent who was not financially dependent on the decedent at the time of death could collect survivor's loss benefits under section 103 of the No-Fault Insurance Act.*fn1 This Court concluded that the mother was entitled to such benefits when it stated the following:

"We hold today that the word ' dependent ' contained in the definition of 'survivor' in Section 103 of the No-Fault Act, does not modify the entire subsection, i.e. the words 'child, parent, brother, sister,' but was intended by the General Assembly to modify only the word immediately preceding it -- 'relative.' Because the lower court erred in arriving at a different reading of the Act its order denying appellant the survivor's loss benefits she sought must be reversed."

[ 305 Pa. Super. Page 235]

    defining 'work loss,' the No-fault Act nowhere mentions survivor or survivors; thus, no showing of 'dependency' is necessary.*fn* See Heffner v. Allstate Insurance Co., supra, 265 Pa. Super. [181] at [187], 401 A.2d [1160] at 1162-1163 ("Historically, the courts of this Commonwealth have routinely . . . found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature or the intendment of an insurance policy, we should err in favor of coverage for the insured.' (Quoted with approval in Allstate Insurance Co. v. Heffner, supra, 491 Pa. [447] at [455], 421 A.2d [629 at] 633)). Moreover, appellant-Roger Miller does not request the Court to award the 'work loss' benefits to him as a survivor. Rather, Mr. Miller, in his capacity as duly appointed administrator, seeks to secure such benefits on behalf of his parents' estates. Surely, such estate has suffered a 'loss' as that term is defined in the No-fault Act.*fn** 40 P.S. § 1009.103. Consequently, in conclusion, we hold that the decedents' estates are entitled to recover 'work loss' benefits of the deceased victims under the No-fault Act, without first having to establish 'dependency' upon the deceased victims as a sine qua non to recovery.

[ 305 Pa. Super. Page 237]

    thirty-one days each for accumulating all such claims received within each such period, in which case such benefits are overdue if not paid within fifteen days after the close of each such period. If reasonable proof is supplied as to only part of a claim, but the part amounts to one hundred dollars $100) or more, benefits for such part are overdue if not paid within the time mandated by this paragraph. An obligation for basic loss benefits for an item of allowable expense may be discharged by the obligor by reimbursing the victim or by making direct payment to the supplier or provider of products, services, or accommodations within the time mandated by this paragraph. Overdue payments bear interest at the rate of eighteen per cent (18%) per annum . . . ." (emphasis added)

According to appellant, "the work loss benefits should be payable over a fifteen-month period and any interest penalty should be calculated from the date in which such monthly payment is due" since the No-Fault Act indicates that "'work loss' benefits are to be provided by the insurance company up to a monthly maximum of $1,000 with a total maximum of $15,000. 40 P.S. Section 1009.202(b)".*fn4 Brief for appellant at 11. (Citation omitted). Appellant, however, ignores subsection (b)(2) which provides for work loss "up to a total amount of fifteen thousand dollars $15,000.00." Under the circumstances of this case, we conclude that the trial court did not err when it awarded the 18%

[ 305 Pa. Super. Page 239]

    interest payment because, obviously, there was no chance that the deceased victim would return to work.

The trial court refused to award appellees' attorney's fees since it concluded that appellant's "refusal to pay the claims was based on good faith regarding a legitimate issue of law." Trial Court's Opinion at 2. Our review of this issue also leads us to the conclusion that the trial court did not abuse its discretion. The recent case law, Freeze, Chesler, and Miller, lends credence to the trial court's ruling.

The orders granting partial summary judgments are affirmed in part and reversed in part, and the case is remanded to compute the damages to which the survivors of decedent, Philip Hartleb, are entitled.


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