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FIREMAN'S FUND INSURANCE COMPANY v. NATIONWIDE MUTUAL INSURANCE COMPANY AND ERNEST CLARK (08/05/83)

filed: August 5, 1983.

FIREMAN'S FUND INSURANCE COMPANY, APPELLANT,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY AND ERNEST CLARK



No. 2626 Philadelphia, 1981, Appeal from the Judgment of the Court of Common Pleas Trial Division, Law, of Philadelphia County, June Term, 1980, No. 23.

COUNSEL

Michael D. Gallagher, Philadelphia, for appellant.

James C. Haggerty, Philadelphia, for appellees.

Spaeth, Rowley and Cirillo, JJ.

Author: Rowley

[ 317 Pa. Super. Page 500]

This is an appeal from an order of the trial court granting summary judgment in favor of Nationwide Mutual Insurance Company (hereinafter "Nationwide" or "appellee") and against Fireman's Fund Insurance Company (hereinafter "Fireman's" or "appellant"). For the reasons set forth more fully below, we reverse.

On September 23, 1977, Ernest Clark, then 22 years of age, was involved in a single car motor vehicle accident while riding as a passenger in a car owned and operated by one Ward Ellison. The accident rendered Ernest Clark a quadriplegic. Clark neither owned an automobile nor was he the named insured in any policy of automobile insurance at the time of the accident. However, Ernest's father, Leroy Clark, was the named insured in a policy of automobile insurance issued by Appellant Fireman's. This policy's

[ 317 Pa. Super. Page 501]

    coverage applied to two motor vehicles owned by Leroy Clark. Moreover, living in the same household with the other two Clarks was William Clark, Ernest's brother. William Clark was the named insured in a policy of automobile insurance issued by Appellee Nationwide. This policy applied to the single motor vehicle owned by William Clark.

Ernest Clark first asserted his claim for basic loss benefits against Fireman's as if that insurer were wholly responsible for the payment of those benefits in accordance with § 204(b) of the No-Fault Act, Act of July 19, 1974, P.L. 489, No. 176, Art. II, Sec. 204(b), 40 P.S. § 1009.204(b). Fireman's paid the claim and then demanded contribution pro rata from Nationwide for one-half of the total claim. It made this demand based upon the number of involved obligors, in this instance two, and the principle that each should bear the burden equally. Nationwide resisted, paying instead only one-third of the claim as reimbursement to Fireman's, basing this apportionment of liability on the number of insured vehicles and the difference in premiums paid to obtain coverage for them.

This difference in interpretation as to their responsibility under § 204(b) of the No-Fault Act led Fireman's to file a petition on June 2, 1980, seeking a declaratory judgment in its favor pursuant to the Declaratory Judgments Act, Act of July 9, 1976, P.L. 586, No. 142, Sec. 2, 42 Pa.C.S.A. § 7531 et seq. On February 13, 1981, Fireman's filed a motion for summary judgment. By an order dated September 18, 1981, the Honorable Edward Rosenwald denied the motion and held that Fireman's was entitled to receive reimbursement for only one-third of the benefits it paid to Ernest Clark.*fn1 Fireman's then filed a notice of

[ 317 Pa. Super. Page 502]

    appeal to this court. At that time, the trial court's docket indicated only that the motion for summary judgment was denied. It is clear that such an order is not appealable. Husak v. Berkel, Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975); Sultan v. Sentry Insurance Co., 220 Pa. Super. 372, 283 A.2d 869 (1971). Thereafter, on July 15, 1982, pursuant to Pa.R.A.P. No. 301 summary judgment in favor of Nationwide was entered and it was docketed on August 2, 1982. With the appeal now properly before us, we proceed to consider the issues on the merits.

Appellant's action is brought under § 204(b) of the Act "to recover contribution pro rata" from appellee for basic loss benefits paid to Ernest Clark. It is necessary, therefore, that we first construe the language of that provision. When interpreting a statute, our first step is to "ascertain and effectuate the intention of the General Assembly," giving full effect to each provision of the statute if at all possible. 1 Pa.C.S.A. §§ 1921(a), 1922(2). See also Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). The General Assembly is presumed not to have intended a result which is absurd or unreasonable. 1 Pa.C.S.A. § 1922(3). The words and phrases used in any legislation are to be construed "according to their common meaning and accepted usage," with technical words being given their technical meaning. Id. § 1903(a). With these principles in mind, it is appropriate to examine the pertinent statutory language.

Section 204 of the Act provides:

§ 204 Source of basic restoration benefits

(a) Applicable security. -- The security for the payment of basic loss ...


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