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GLENN W. SMILEY v. OHIO CASUALTY INSURANCE CO. (01/07/83)

filed: January 7, 1983.

GLENN W. SMILEY, ADMINISTRATOR OF THE ESTATE OF SANDRA L. SMILEY, DECEASED, GLENN W. SMILEY, IN HIS OWN RIGHT, BETTY S. SMILEY AND GLENN DOUGLAS SMILEY, APPELLANTS AT NO. 628
v.
OHIO CASUALTY INSURANCE CO., APPELLANT AT NO. 629



Nos. 628-629 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, of Fayette County, Civil Action Law, at No. 33 of 1980 G.D.

COUNSEL

William M. Radcliffe, Pittsburgh, for appellants (at No. 628) and for appellees (at No. 629).

Stephen Paul McCloskey, Washington, for appellant (at No. 629) and for appellee (at No. 628).

Hester, Beck and Van der Voort, JJ. Beck, J., files a concurring opinion. Hester, J., files a concurring and dissenting opinion.

Author: Van Der Voort

[ 309 Pa. Super. Page 250]

This is a No-fault auto insurance case arising out of the death of Sandra L. Smiley, who was killed in an automobile accident in Fayette County on July 30, 1978. She survived the accident by approximately two (2) hours, during which time she was removed by ambulance to a local hospital. On December 5, 1978, Ohio Casualty Insurance Company, hereinafter the insurer, reimbursed the estate of the deceased victim in the sum of $695 for ambulance and hospital bills and $1,500 for funeral expenses.

Sandra was survived by her father Glenn W. Smiley, her mother, Betty S. Smiley, and a brother, Glenn Douglas Smiley, hereinafter the claimants. On January 7, 1980, the claimants filed an assumpsit action against the insurer in the Court of Common Pleas of Fayette County for work loss benefits on behalf of Glenn W. Smiley as administrator of his daughter's estate or, alternatively, on behalf of the father, mother, and brother, as survivors of the deceased victim.

On July 24, 1980, the Complaint was amended to include a claim by the three family members for survivor's benefits. On both counts, the claimants ask for interest at the rate of 18% per anum for the period of delay in payment beyond the statutory deadline for payment, 40 P.S. § 1009.106(a),*fn1 and for allowance of a reasonable attorney's fee. The insurer filed a responsive answer denying liability for either work loss or survivor's benefits, and later pleaded the statute of limitations as a bar to recovery on both counts, and moved for judgment on the pleadings.

In support of it's motion for judgment on the pleadings, the insurer took the deposition of Glenn W. Smiley, the father of the deceased victim. He testified that Sandra had lived at home with her parents, had been a full time teacher with the Albert Gallatin School District, that she had paid no rent to her parents, but had contributed money from time to time for household items and incidentals, had occasionally

[ 309 Pa. Super. Page 251]

    helped her brother pay for maintenance items on his car, and might have helped pay for his college education, although there had been no understanding with her about such help.

The lower court accepted the testimony of Sandra's father as true, and concluded that, while the deceased victim provided occasional assistance to the claimants, she was by no means actually supporting either her parents or her brother, and that none of them was dependent on her.

In ruling upon a motion for summary judgment, the record is to be examined in the light most favorable to the nonmoving party, Hankin v. Mintz, 276 Pa. Super.Ct. 538, 540, 419 A.2d 588 (1980); and summary judgment is to be allowed only if the pleadings and depositions show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law, Pa.R.C.P. 1035(b).

In light of these guidelines, the lower court sustained the eligibility of Sandra's estate to recover work loss benefits, but ruled that the claim was barred by § 1009.106(c)(2) of the No-fault Act because the action had not been brought within one year after death.

The court denied the claim for survivor's benefits, because the uncontradicted testimony of Sandra's father established that none of her family had been dependent on her at the time of her death. The court rejected the contention that it was sufficient to establish the daughter's probable financial contributions to the claimants in future years.

The court also ruled that the claim for work loss benefits bore interest at the rate of 18% per anum for the period of delay in payment, but that the allowance of attorney's fees depended upon a showing of bad faith by the insurer, and was an issue inappropriate for determination on summary judgment. The court concluded by dismissing the Complaint, and both the claimants and the insurer have appealed.

[ 309 Pa. Super. Page 252]

The insurer contends that an estate can only recover work loss benefits if one or more of the beneficiaries of the estate are survivors of the deceased victim who were financially dependent upon the victim at the time of her death.

A work loss benefit is not a form of survivor's benefit, but is in the nature of reimbursement to the estate of the deceased for income he or she would probably have earned but for the accident. 40 P.S. § 1009.103.

Survivor's benefits, by way of distinction, are what a survivor might reasonably have expected to receive from the victim in money or services, had the victim not ...


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