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MARLIN E. WIEST v. EAZOR EXPRESS (02/25/83)

filed: February 25, 1983.

MARLIN E. WIEST, APPELLANT,
v.
EAZOR EXPRESS, INC., MERCHANTS MUTUAL INSURANCE COMPANY AND ERIE INSURANCE EXCHANGE. MARLIN E. WIEST V. EAZOR EXPRESS, INC., MERCHANTS MUTUAL INSURANCE COMPANY AND ERIE INSURANCE COMPANY. APPEAL OF EAZOR EXPRESS, INC., & MERCHANTS MUTUAL INSURANCE COMPANY



COUNSEL

F. Shipman, Harrisburg, for Wiest, appellant (at No. 129) and appellee (at No. 136).

Jered Larue Hock, Harrisburg, for Eazor Express, Inc., appellant (at No. 136) and appellee (at No. 129).

Cavanaugh, Cirillo and Hoffman, JJ.

Author: Cavanaugh

[ 311 Pa. Super. Page 129]

Appellant, Marlin E. Wiest, was operating a tractor-trailer on the Indiana Toll Road in St. Joseph's County, Indiana, on March 1, 1976. At that time he was employed by Eazor Express, Inc., one of the appellees herein. The appellant was involved in an accident with another tractor-trailer

[ 311 Pa. Super. Page 130]

    owned by Cedar Rapids Steel Transport, referred to hereinafter as CRST. As a result of the accident the appellant was seriously injured. He negotiated a settlement with CRST and from this fund the appellees sought to recover by way of subrogation the amounts paid to the appellant by appellees under the Workmen's Compensation Act.

The appellant filed a petition for declaratory judgment naming Eazor Express, Inc., Merchants Mutual Insurance Company, Inc., Mutual Insurance Company and Erie Insurance Exchange as respondents. The petition requested the court below to interpret the Pennsylvania No-Fault Motor Act as follows:

(1) That the Act is applicable to the subject accident and Petitioner is entitled to Basic Loss Benefits;

(2) That security for the payment of Basic Loss Benefits is the insurance coverage on the vehicle operated by Petitioner, which insurance coverage was with Eazor and Merchants; in the alternative, if it is determined that the insurance coverage on the vehicle is not the security for the payment of Basic Loss Benefits, then the security was the insurance policy issued to Petitioner by Erie under which Petitioner was insured; and

(3) That Eazor and Merchants have no rights of subrogation against proceeds from a settlement effectuated between Petitioner and the insurance carrier for CRST.

The court below denied the petition and our appeal is limited to Paragraph (3) of the petition set forth above since the appellant has been paid in full all of the basic loss benefits he is entitled to and has agreed that the issues raised in Paragraphs (1) and (2) above are moot.

The primary issue raised on appeal is whether Eazor Express, Inc. and Merchants Mutual Insurance Company have subrogation rights in the settlement between appellant and CRST to the extent that the appellees had paid ...


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