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JANICE A. RITTNER EXECUTRIX ESTATE ERNEST RITTNER v. AETNA LIFE & CASUALTY INSURANCE COMPANY (12/30/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: December 30, 1982.

JANICE A. RITTNER EXECUTRIX OF THE ESTATE OF ERNEST RITTNER, DECEASED, AND JANICE A. RITTNER, TRUSTEE AD LITEM, APPELLEE,
v.
AETNA LIFE & CASUALTY INSURANCE COMPANY, APPELLANT

No. 2317 Philadelphia, 1981, Appeal from the Order dated August 3, 1981, Court of Common Pleas, Philadelphia County, Civil Division, at No. 3714, December Term, 1980.

COUNSEL

Nancy J. Gellman, Philadelphia, for appellant.

Carol Nelson Shepherd, Philadelphia, for appellee.

McEwen, Johnson and Watkins, JJ.

Author: Johnson

[ 309 Pa. Super. Page 115]

Appellant insurance company [Aetna] appeals from that part of an order of the trial court which awards appellee [Mrs. Rittner] work loss benefits and interest at the statutory rate of 18%, under the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn1 The trial court's decision was based on this court's decision in Heffner v. Allstate Insurance Co., 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980), which held that a widow was entitled to recover the work loss benefits which her husband would have recovered if he had been permanently injured in the motor vehicle accident which took his life.

Mr. Rittner was killed on December 20, 1978, when the car he was driving was struck by another. Our decision in Heffner was filed April 12, 1979. Mrs. Rittner's petition for

[ 309 Pa. Super. Page 116]

No-fault benefits was filed on December 22, 1980. In that petition, counsel for Mrs. Rittner averred that reasonable proof of the fact and amount of loss was supplied to Aetna on or about February 1, 1979.*fn2 In her petition Mrs. Rittner sought payment of funeral expenses, survivor's loss, work loss, attorney's fees, interest and costs. Subsequently the claim for funeral expenses and survivor's loss was honored by Aetna. But Aetna denied the work loss benefits*fn3 on the ground that the decision in Heffner should not be applied retroactively. The trial court awarded the funeral expenses, survivor's loss benefits, work loss benefits and interest at the statutory rate of 18%, but denied the request for attorney's fees and costs.*fn4

Aetna's argument in the consolidated appeal*fn5 is based on the assertion that Heffner should not be applied retroactively. We have this day decided, in Baker v. Aetna Casualty & Surety Co., 309 Pa. Super. 81, 454 A.2d 1092 (1982), that our decision in Heffner should be applied retroactively. Mrs. Rittner is therefore entitled to recover work loss benefits as provided for by the No-fault Act and by her husband's insurance policy with Aetna.

The order of the trial court awarding work loss benefits together with interest at the rate of 18% is affirmed.*fn6


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