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GARRETT HIERS v. KEYSTONE INSURANCE COMPANY (12/30/82)

filed: December 30, 1982.

GARRETT HIERS, JR. ADMINISTRATOR OF THE ESTATE OF GARRETT HIERS, III
v.
KEYSTONE INSURANCE COMPANY, APPELLANT



No. 2264 Philadelphia, 1981, Appeal from the Judgment dated August 20, 1981 Court of Common Pleas, Delaware County, Civil Action, at No. 79-15885.

COUNSEL

David J. Otis, Media, for appellant.

Kathleen Bilotta, King of Prussia, for appellee.

Johnson, Watkins and Lipez, JJ.

Author: Johnson

[ 308 Pa. Super. Page 289]

The order appealed from awarded appellee work loss benefits plus interest and costs, under the Pennsylvania No-fault Motor Vehicle Insurance Act,*fn1 and dismissed that part of appellee's petition which had requested attorney's fees.*fn2

The facts of the case, taken in part from the excellent opinion of Judge Rita PRESCOTT for the court of common pleas, are as follows. Appellee is the administrator of his son's estate. The son died on October 7, 1978, at the age of 29, as a result of injuries sustained in a motor vehicle accident. The decedent's motor vehicle was insured by the appellant insurance company [Keystone].

The action was commenced on September 28, 1979, but following a petition for extension of time pending the decision of our supreme court in Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), the petition for no-fault benefits at issue in this case was actually filed on January 15, 1981. Keystone had been first advised of the loss on November 16, 1978, and presented with a claim for no-fault benefits on September 26, 1979. Keystone denied the claim, but ultimately paid funeral expenses on April 11, 1979.

[ 308 Pa. Super. Page 290]

The court of common pleas granted the petition with respect to the work loss benefits, interest and costs, but denied a claim by appellee for attorney's fees.

Appellant insurance company's argument, in the court below and before this court, is that because appellee, as father and administrator of his son's estate, was not dependent on his son, he is not entitled to work loss benefits. As in the court below, this argument fails.

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), this court held that a widow was entitled to recover the work loss benefits which her husband would have received if he had been permanently injured in the accident. When the Heffner case came before our supreme court, it was consolidated with Pontius v. United States Fidelity and Guaranty Co., No. 80 March Term, 1978, Pa. Super.Ct., where the plaintiff was the administrator of a decedent's estate. Neither the issue of the distinction between an individual as a survivor and the victim's estate, nor the issue of dependency, appears to have been before the court in the Pontius and Heffner cases when the supreme court treated both claimants equally in determining that survivors of deceased victims were entitled to recover both survivor's loss and work loss benefits under the No-fault Act.

This court was however confronted with the proper claimant issue in Freeze v. Donegal Mutual Insurance Co., 301 Pa. Super. 344, 447 A.2d 999 (1982). In Freeze the claimant was the administrator of the estate of his son, an eleven year old child, who was struck and killed by an automobile while sled-riding. In Freeze this court en banc, per President Judge CERCONE, with HESTER, J., dissenting, ruled ...


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