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THOMAS ANFUSO v. ERIE INSURANCE GROUP (11/19/82)

filed: November 19, 1982.

THOMAS ANFUSO, ADMINISTRATOR OF THE ESTATE OF NICOLE MARIE ANFUSO, DECEASED
v.
ERIE INSURANCE GROUP, APPELLANT



NO. 1376 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Lehigh County, at No. 80-C-349.

COUNSEL

Michael P. Shay, Bethlehem, for appellant.

Glenn D. McGogney, Allentown, for appellee.

Spaeth, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 306 Pa. Super. Page 569]

The issue in this case is whether the estate of a nine year old child who was killed in an automobile accident is entitled to recover work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. 1009.101, et seq.

The facts are not in dispute. Nicole Marie Anfuso, a nine-year-old girl, was struck and killed by a motor vehicle on August 22, 1979, while operating her bicycle on Middletown Road in Bethlehem, Pennsylvania. Erie Insurance Group, the appellant herein, had issued a policy of automobile insurance to Thomas Anfuso, father of the child and appellee herein, which provided benefits pursuant to the requirements of the Pennsylvania No-Fault Act. The appellee was appointed administrator of his daughter's estate. In that capacity, he demanded payment from the appellant of work loss benefits of $15,000 because of the death of his daughter. The appellant denied liability and refused payment. The appellee then petitioned for a Declaratory Judgment that, as the administrator of his daughter's estate, he was entitled to recover work loss benefits on her behalf. The Court below issued a Declaratory Judgment to that effect, but without determining the amount of those benefits because of lack of evidence on the issue. A Court en banc dismissed appellant's Exceptions and entered the Declaratory Judgment as the final judgment of the Court below.

The appellant has appealed from that ruling, contending: (1) that a nine-year-old child who has never been a member of the labor force would not be entitled to recover for work loss under the No-Fault Act; and, (2) even if she were so entitled, her estate may not recover such compensation on her behalf. We cannot accept either conclusion.

It is the appellant's argument that had the victim been permanently injured rather than killed, she would not have been entitled to work loss benefits because she obviously had no record of earnings in the work force, and her entry into the work force could not have taken place for at least seven

[ 306 Pa. Super. Page 570]

    years after the accident. It is appellant's position that this time lapse would have deprived her of the right to work loss benefits because it would be beyond any of the time periods allowed by the No-Fault Act for the filing of an action to recover benefits. 40 P.S. 1009.106(c).

This argument confuses the limitations on the period within which an action may be filed with the accrual period within which income would presumably have been earned had the accident not intervened. The accrual period, while not defined in the Act, is defined in the Insurance Department regulations as "the number of weeks or fractions of weeks the victim sustains loss of income". 31 PA. Code 66.1-205(a)(2). The accrual period of work loss for the child in this case would be her entire work-life expectancy, which can be actuarialy calculated. The fact that her work life could not have begun for at least seven years after the accident is no barrier to a suit for work loss benefits if the suit is filed within the period mandated by Section 106(c) of the No-Fault Act. The time limitations of Section 106(c) apply to the filing of a suit, but have no relevancy to the time period within which the child would have been in the work force.

The fact that the victim had never entered the work force prior to her fatal accident is no deterrent to the calculation of a work loss benefit. Freeze v. Donegal Mutual Insurance Co., 301 Pa. Super.Ct. 344, 447 A.2d 999 (1982). Section 205 of the No-Fault Act provides formulas for determining work loss benefits of a victim whether regularly employed, seasonably employed, or unemployed. The Section also provides that in the absence of a showing that income earned would have been some other amount, the income of one ...


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