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JOHN ANTANOVICH AND NELLIE ANTANOVICH v. ALLSTATE INSURANCE COMPANY. CYNTHIA BRENDLINGER (10/14/83)

filed: October 14, 1983.

JOHN ANTANOVICH AND NELLIE ANTANOVICH, CO-ADMINISTRATORS OF THE ESTATE OF GARY LEE ANTANOVICH, DECEASED, APPELLANTS,
v.
ALLSTATE INSURANCE COMPANY. CYNTHIA BRENDLINGER, INDIVIDUALLY AND AS THE ADMINISTRATRIX OF THE ESTATE OF KENNETH BRENDLINGER, AND AS NATURAL GUARDIAN OF TRACI BRENDLINGER, JODIE BRENDLINGER, AND LONNIE BRENDLINGER, AND TRACI BRENDLINGER, JODI BRENDLINGER, AND LONNIE BRENDLINGER, INDIVIDUALLY, V. ALLSTATE INSURANCE COMPANY, APPELLANT



No. 1230 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas of Washington County, Civil at No. 299 June Term 1981, No. 450 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil at No. 8420 of 1981

COUNSEL

Anthony J. Seneca, Washington, for Antanovich, appellants (at No. 1230).

Richard C. Angino, Harrisburg, for Antanovich, appellants (at No. 1230) and for Brendlinger, appellees (at No. 450).

William T. Barker, Chicago, Ill., for Allstate, appellant (at No. 450) and appellee (at No. 1230).

Cercone, President Judge, and Spaeth, Brosky, Rowley, McEwen, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 320 Pa. Super. Page 324]

This case arises on two appeals, which we ordered consolidated because they both present the question whether the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, No. 40 P.S. 1009.101 et seq., requires that the basic loss benefits provided by Section 202 of the Act, 40 P.S. § 1009.202, are to be multiplied by the number of vehicles as to which security has been provided under an insurance policy entitling the victim to benefits. Stated differently, we are to decide whether basic loss benefits may be "stacked." The Courts of Common Pleas have divided on this question,*fn1 and it is one of first impression in this court. In Part 1 of this opinion we hold that basic loss benefits may not be stacked.

One of these appeals, Antanovich, presents a second question: whether post-mortem work-loss benefits are to be paid to the survivors of the victim at a monthly rate or in a lump sum. In Part 2 of this opinion we hold that post-mortem work-loss benefits are to be paid in a lump sum.

1.

Under the No-fault Act, "basic loss benefits" include several different items of loss. As to some of these items, the Act places no limits on the amount that may be recovered. As to others, the Act does place limits. The items without limits are the expense of medical treatment and

[ 320 Pa. Super. Page 325]

    care, the expense of emergency health services, and the expense of medical and vocational rehabilitation services. The items with limits are: funeral expenses -- $1,500; work loss benefits -- $15,000; replacement services losses -- $25 per day for an aggregate period of one year; and survivors' losses -- $5,000. 40 P.S. §§ 1009.103, 1009.202.

In both Antanovich and Brendlinger the victim died as a result of injuries sustained in an automobile accident. In both cases the insurance policy was issued by Allstate Insurance Company, and in both cases more than one vehicle was covered under the policy.

In Antanovich, the policy covered four vehicles. The victim's parents, as administrators of his estate, sued to recover work loss benefits in the amount of $60,000, on the theory that the benefits may be stacked (i.e., 4 X $15,000). They also sought to have the benefits paid to them in a lump sum, rather than at a monthly rate. On Allstate's motion for summary judgment, the Court of Common Pleas of Washington County held that work loss benefits may not be stacked, and should be paid at a monthly rate.

In Brendlinger, the policy covered two vehicles. The surviving spouse and children of the victim, suing on the theory that benefits may be stacked, sought to recover $30,000 work loss benefits (2 X $15,000), $10,000 survivors' loss benefits (2 X $5,000) and $2,117 funeral expenses (2 X $1,500 except not to exceed actual funeral expense). Allstate had made a total lump-sum payment to cover work loss in the amount of $13,903,*fn2 and had paid $5,000 survivors' loss benefits and $1,500 funeral expenses. On the Brendlingers' motion for summary judgment, the Court of Common Pleas of Westmoreland County held that the benefits may be stacked, and ordered Allstate to pay, in addition to the sums it had already paid, work loss benefits up to $15,000, to be paid at a monthly rate, survivors' benefits of $5,000, and funeral expenses of $617.

[ 320 Pa. Super. Page 326]

-a-

We may start our discussion by noting the terms of the Allstate policy, for in that way we may see just what is the issue we must decide.

In specifying "limits of liability," the Allstate policy provides:

Regardless of the number of . . . INSURED MOTOR VEHICLES to which this coverage [ i.e., No-fault cover-age] applies, Allstate's liability for personal injury protection benefits with respect to BODILY INJURY to any one ELIGIBLE PERSON in any one MOTOR VEHICLE accident is limited as follows: (1) the maximum amount payable for WORK LOSS shall not exceed $15,000 . . . (3) The maximum amount payable for FUNERAL EXPENSES shall not exceed $1,500; (4) The maximum amount payable for SURVIVOR'S LOSS shall not exceed $5,000.

The Antanovichs and Brendlingers do not argue that the Allstate policy is ambiguous, or that Allstate in some way misled them. Cf. Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979); Habecker v. Nationwide Insurance Co., 299 Pa. Super. 463, 445 A.2d 1222 (1982); Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa. Super. 116, 386 A.2d 535 (1978); Barth v. State Farm Fire & Casualty Co., 214 Pa. Super. 434, 257 A.2d 671 (1979). Instead, they admit, as they must, that the policy clearly prohibits stacking. They argue, however, that this prohibition should be declared invalid as contrary to the No-fault Act. They acknowledge their inability to point to any provision of the Act explicitly providing that a policy may not prohibit stacking. Moreover, it is evident that the Insurance Commissioner is of the view that a policy that prohibits stacking is not contrary to the Act, for the Commissioner has approved the Allstate policy. See 31 Pa.Code § 66.101. However, even though the Commissioner has expert knowledge, to which a court must defer, Feingold v. Bell of Pennsylvania, 477 Pa. 1,

[ 320 Pa. Super. Page 327383]

A.2d 791 (1977), he has on occasion issued invalid regulations, United Services Auto Ass'n Appeal, 227 Pa. Super. 508, 323 A.2d 737 (1974), and the position of the Antanovichs and Brendlingers is that here he has issued invalid regulations. While no provision of the No-fault Act explicitly provides that a policy may not prohibit stacking, neither does any provision explicitly provide that a policy may prohibit stacking. This being so, the Antanovichs and Brendlingers argue, we must consider the public policy underlying the Act. In their view, a proper understanding of that public policy leads to the conclusion that an insurance policy such as Allstate's may not prohibit stacking.

Allstate generally agrees with this definition of the issue, but in its view, a proper understanding of the public policy underlying the No-fault Act leads to the conclusion that stacking is prohibited by the Act, and that therefore its insurance policy is valid.

-b-

As with other remedial legislation, like workmen's compensation provisions, see Bley v. Commonwealth Department of Labor and Industry, 484 Pa. 365, 399 A.2d 119 (1979), Workmen's Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1975), we are to construe insurance statutes liberally in order to effect their purposes. 1 Pa.C.S.A. § 1928(c); Miller v. U.S. Fidelity and Guaranty Company, 304 Pa. Super. 43, 450 A.2d 91 (1982); Chesler v. Government Employees Insurance Company, 302 Pa. Super. 356, 448 A.2d 1080 (1982); Dull v. Employers Mutual Casualty Co., 278 Pa. Super. 569, 420 A.2d 688 (1980). However, we are not free to create additional authority in a statute when its terms are unambiguous. In re Private Detective License of Keibler Detective Agency, Inc., 279 Pa. Super. 276, 420 A.2d 1331 (1980). "The court's function is to interpret legislative enactments and not promulgate them." Mayhugh v. Coon, 460 Pa. 128, 331 A.2d 452 (1975).

When the words of a statute are not explicit -- no provision of the No-fault Act either explicitly requiring or explicitly

[ 320 Pa. Super. Page 328]

    prohibiting stacking basic loss benefits -- we proceed as follows:

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon the same ...


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