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NATIONWIDE MUTUAL INSURANCE COMPANY v. INSURANCE COMPANY NORTH AMERICA (07/08/83)

filed: July 8, 1983.

NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT,
v.
INSURANCE COMPANY OF NORTH AMERICA



No. 2356 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil No. 79-13176-11-1.

COUNSEL

Robert A. Naragon, Doylestown, for appellant.

Frederick E. Smith, Philadelphia, for appellee.

Spaeth, Rowley and Van der Voort, JJ.

Author: Rowley

[ 316 Pa. Super. Page 128]

This is an appeal from a declaratory judgment entered in favor of Appellee Insurance Company of North America (hereafter "INA"), holding that Appellant Nationwide Mutual Insurance Company (hereafter "Nationwide") is the primary insurance carrier responsible for the payment of benefits under the circumstances of this case. We reverse and remand with directions to enter declaratory judgment in favor of Nationwide.

[ 316 Pa. Super. Page 129]

On October 27, 1977, Nancy Bauder, an insured of INA, delivered her 1974 Volkswagon Dasher to Sutton Auto Service of Newtown, Pennsylvania, for the purpose of having it repaired. John J. Sutton, the owner of Sutton Auto Service, permitted Mrs. Bauder to borrow a 1962 Ford Falcon station wagon for the day, anticipating that the repairs on her car would be completed by the following day. The Falcon was insured under a policy of insurance written by Nationwide and issued to "Sutton Auto Service." Later that day, while Mrs. Bauder was driving the Falcon, she was involved in an accident with a motorcycle near a shopping center in Doylestown, Pennsylvania. Both the driver and the passenger of the motorcycle were injured.

As a result of the accident, the driver and passenger of the motorcycle filed suit against Mrs. Bauder and Sutton Auto Service. The defendants thereupon called upon their respective insurers, the parties herein, to defend the trespass suit. The two insurers have at all times recognized that one or the other of them is primarily liable under their policies of insurance, but they disagree as to which insurer that is. Because no agreement could be reached, Nationwide filed a petition for declaratory judgment on November 13, 1979, seeking a declaration of the rights and liabilities of the insurers. Nationwide argues that its policy excludes coverage under the circumstances; INA contends on the other hand that it owes only a duty to provide coverage in excess of the limits of the policy issued by Nationwide and that Nationwide is the primary insurer.*fn1

The parties submitted the case to the court on the pleadings, briefs and depositions of the two insureds. The trial court entered an order on August 10, 1981, granting declaratory judgment in favor of INA. This appeal followed.

[ 316 Pa. Super. Page 130]

In its opinion, the trial court properly sets forth and analyzes the policy issued to Mrs. Bauder by INA as follows:

Section A of the policy is captioned "Bodily Injury and Property Damage Liability Coverage" and provides ...


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