No. 73 Pittsburgh, 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 80-21406
Richard James Schubert, Pittsburgh, for appellants.
Stephen R. Mlinac, Pittsburgh, for appellee.
Brosky, Johnson and Montgomery, JJ.
[ 314 Pa. Super. Page 147]
This appeal involves another dispute concerning the proper construction of provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act. Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq. The Plaintiff-Appellants instituted their action as individual "survivors" of the deceased Walter Ostronic, and also as administrators of his estate, seeking to recover benefits
[ 314 Pa. Super. Page 148]
which were purportedly due from the Defendant-Appellee Insurance Company of North America. The lower court granted a defense motion for summary judgment, ruling that the No-fault Act permitted the Defendant insurer to set off or recover any benefits claimed in this action by the Appellants, leaving no genuine issue of material fact to be determined at trial.*fn1
The pertinent facts underlying this dispute are not in dispute. Walter Ostronic died on September 5, 1979, as the result of injuries he suffered in an automobile accident. At the time of the accident, the decedent was the owner, operator, and sole occupant of the only vehicle involved in the collision. No insurance policy was in existence covering the victim and his car at the time of the accident. When a claim for benefits was filed, it was assigned to the Appellee under the assigned claim provisions of the No-fault Act.*fn2 The Appellants sought to recover so-called "basic loss benefits", which are defined in Section 103 (40 P.S. § 1009.103) as follows:
"'Basic loss benefits' means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to property. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle."
The Appellee refused to pay the basic loss benefits sought by the Appellants, and the instant action was thereafter
[ 314 Pa. Super. Page 149]
filed by them in the lower court, seeking to compel the payments.
The Appellee has maintained in the lower court, and again on this appeal, that the Appellants may not recover the claimed basic loss benefits because they are merely representing the decedent's estate, from which the Appellee is entitled, in turn, to recover any benefits paid. In this regard, the insurer relies upon Section 501 of the Act (40 P.S. § 1009.501) which in relevant part, states:
"The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate."*fn3
The lower court accepted this reasoning. It held that the decedent's estate should not obtain basic loss benefits which it was in due course obligated to return to the obligor insurer under Section 501. The lower court noted that the insurer enjoyed an absolute right to recover back from an uninsured motorist any sums paid to the "insured" party. The court reasoned that since the uninsured owner remains ultimately liable to reimburse the obligor where third parties are involved, his estate should not benefit where the uninsured decedent's death triggers the claim for the benefits in issue. The court determined that the legislature did not intend that the estate be paid benefits when it immediately became obligated to pay the benefits back to the assigned claim insurer.
The Appellants offer several contentions in support of this appeal. First they contend that the lower court failed to recognize the dichotomy in their claims, and to thereby distinguish between those offered by them as ...