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PHYLLIS FOX v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY (06/03/83)

filed: June 3, 1983.

PHYLLIS FOX
v.
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, APPELLANT. PHYLLIS FOX, APPELLANT, V. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY



No. 3124 Philadelphia 1981, No. 3217 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 79-20210.

COUNSEL

James J. Oliver, Norristown, for appellant (at No. 3124) and for appellee (at No. 3217).

Roger Joseph Harrington, Philadelphia, for appellant (at No. 3217) and for appellee (at No. 3124).

Hester, Johnson and Popovich, JJ.

Author: Popovich

[ 314 Pa. Super. Page 561]

Appellee, Phyllis Fox, instituted an action in assumpsit against appellant, State Automobile Mutual Insurance Company, (hereinafter referred to as the Insurance Company), for personal injury protection (P.I.P.) benefits under a policy issued by appellant pursuant to the Pennsylvania Nofault Motor Vehicle Insurance Act.*fn1 Appellant, while admitting the facts, denied coverage. The trial court granted summary judgment in favor of appellee, holding that she was a "victim" within the meaning and intent of the Nofault Act and, therefore, entitled to recover on the insurance policy. However, the court below denied appellee's claim for attorney's fees, finding that the position taken by appellant in denying coverage was incorrect but not frivolous. Both parties have appealed from the trial court's disposition of the case. Finding no error below, we affirm the order in question.

The following facts were agreed to by the parties for the purposes of the summary judgment motion: On February 25, 1979, at approximately 1:15 a.m., Mrs. Phyllis Fox was in bed in a second floor bedroom at her residence in Red Hill, Pennsylvania. Mrs. Fox's 16 year old daughter and two of her daughter's girlfriends were asleep in the ground floor livingroom. At about that time, a motor vehicle

[ 314 Pa. Super. Page 562]

    driven by James A. King, Jr., crashed into the side of the home and came to rest in the livingroom. Upon hearing the crash, which sounded to her like an explosion, Mrs. Fox, fearing for the childrens' safety, immediately arose from bed, started down the steps to the livingroom, tripped over debris which had been thrown onto the steps by the crash, fell and was injured.

The Insurance Company relies on Dull v. Employers Mutual Casualty Co., 278 Pa. Super. 569, 420 A.2d 688 (1980), in support of its argument that a person who trips over debris left by an automobile accident should not be entitled to no-fault insurance benefits from his own carrier. In Dull, the party seeking recovery from his no-fault carrier parked his car at a lake, got out, and began to remove a boat from the car roof. As he was standing behind the car unloading the boat, he fell because of the condition of the land and sustained injuries. This Court analyzed the relevant No-fault Act provisions:

"Section 201 of the No-fault Act, 40 P.S. § 1009.201, provides in part: 'If the accident resulting in injury occurs in this Commonwealth, any victim . . . is entitled to receive basic loss benefits in accordance with the provisions of this act.' The No-fault Act defines 'victim' as 'an individual who suffers injury arising out of the maintenance or use of a motor vehicle . . . .' 40 P.S. § 1009.103. The No-fault Act further states:

'Maintenance or use of a motor vehicle' means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. ...


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