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EVA TUBNER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (11/30/82)

filed: November 30, 1982.

EVA TUBNER, ADMINISTRATRIX OF THE ESTATE OF JERRY AMEY, DECEASED,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT



No. 1272 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, Allegheny County, at No. G.D. 79-33877.

COUNSEL

Charles J. Duffy, Jr., Pittsburgh, for appellant.

Mark B. Aronson, Kenneth W. Behrend, Pittsburgh, for appellee.

Cavanaugh, Montemuro and Van der Voort, JJ.

Author: Montemuro

[ 307 Pa. Super. Page 209]

The instant appeal concerns a question of wage loss benefits under the No-Fault Motor Vehicle Insurance Act. 40 P.S. § 1009.101 et seq.

The uncontested facts of the case are as follows:

Jerry Amey, a recent high school graduate, was seriously injured in a motor vehicle accident on October 3, 1977. He remained unconscious for months. On March 20, 1978, his mother, appellee herein, filed application in his name for basic loss benefits, wage benefits being one part of the demand.

On April 3, 1978, appellant insurance company acknowledged the right of the comatose victim to wage loss benefits. On May 17, 1978 the victim died. On May 25, 1978 appellee was appointed administratrix of her son's estate, and on June 15, 1978 she received $2,643.84 for wage loss benefits from appellant. This sum represented the amount owing to the deceased from the date of the accident to the date of his death. Appellant, however, has refused to issue further benefits up to the maximum of $15,000 which appellee seeks under the policy terms and the Act.

Appellee filed a Motion for Summary Judgment on the pleadings on February 11, 1980. Thereafter the parties stipulated to continue any argument on the matter until the case of Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980) should be decided by the Supreme Court.

In September of 1980, the Supreme Court decision in Heffner was published. That case rejected an argument

[ 307 Pa. Super. Page 210]

    that "survivor's loss benefits" and "work loss benefits" overlapped "in that each includes that portion of the deceased's income as would have been contributed to support his family and dependents" and thus would represent a double recovery if both were permitted to the widow in that case. The companion case, argued with Heffner and bearing the same citation, Pontius v. United Fidelity and Guaranty Co., also concerned benefits for a spouse of a deceased victim; however, in that case the bereaved husband sued in the capacity of administrator of the estate. The Superior Court opinion in the Pontius matter was unreported and was based solely upon the Heffner opinion. The Supreme Court treatment of Pontius was also sketchy. ...


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