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DESPINA KAMPERIS v. NATIONWIDE INSURANCE COMPANY (12/30/83)

decided: December 30, 1983.

DESPINA KAMPERIS, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN TO HER MINOR CHILDREN GEORGE, BASILIOS AND JORDANUS, AND DIMITRIOS KANTYLTZOGLOU, ADMINISTRATOR OF THE ESTATE OF CHRISTOS KAMPERIS, APPELLANTS,
v.
NATIONWIDE INSURANCE COMPANY, APPELLEE



No. 87 E.D. Appeal Docket, 1983, Appeal from the Order of the Superior Court at No. 2686 Philadelphia, 1981, entered August 4, 1983, reversing the Order of the Court of Common Pleas of Philadelphia, Trial Division, Law, at No. 828 July Term, 1980, entered October 5, 1981, Pa. Super. , Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Hutchinson, J., files a concurring and dissenting opinion. Larsen, J., files a dissenting opinion.

Author: Flaherty

[ 503 Pa. Page 538]

OPINION OF THE COURT

We are called upon to address the timeliness of an action to recover work loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (Supp. 1983-1984) (hereinafter referred to as "the Act"). We hold that Superior Court erred in concluding the statute of limitations commences running from the date of the accident, and, thus, reverse.

Appellants' decedent, Christos Kamperis, was killed in a motor vehicle accident on June 28, 1978, while he was a passenger in his employer's vehicle and within the scope of his employment as a painter-sandblaster. Appellants, decedent's

[ 503 Pa. Page 539]

    wife, children and estate, recovered no-fault benefits in the form of $1,000 for funeral expenses on February 6, 1980, from Hartford Insurance Company, decedent's employer's insurer; however, appellants have had no recovery of no-fault benefits for any losses arising otherwise than from decedent's death. On July 10, 1980, two years and two weeks after decedent's accident and death, appellants filed an action against appellee, Nationwide Insurance Company, insurer of decedent's automobile, in the Court of Common Pleas of Philadelphia, seeking recovery for, inter alia, work loss benefits as provided by the Act. The Court of Common Pleas ordered payment of $15,000.00 in work loss benefits plus interest. Superior Court, 313 Pa. Super. 94, 459 A.2d 426, (Wieand, Beck and Hoffman, JJ.) reversed, ruling appellants' action for post-mortem work loss benefits was barred by the statute of limitations, 40 P.S. § 1009.106(c)(1), because it was filed more than two years after the accident.

The applicable provision of the Act regarding the limitation of time for bringing a civil action to recover work loss benefits payable under the Act is § 106(c)(1), see Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982). That section provides in pertinent part as follows:

(c) Time limitations on actions to recover benefits. --

(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 P.S. § 1009.106(c)(1) (Supp. 1983-1984) (emphasis supplied). As § 106(c)(1) requires timely actions to be initiated "not later than two years after the victim suffers the loss," resolution of the question whether an action is timely must rest on a determination of the meaning of the phrase "suffers the loss" within the context of the Act. The Act

[ 503 Pa. Page 540]

    provides: "Loss accrues not when injury occurs, but as . . . work loss . . . is sustained." 40 P.S. § 1009.106(a)(1) (emphasis supplied). Thus, the time for filing suit to recover benefits from a no-fault carrier commences, not as Superior Court concluded, on the date the accident occurs, but on the date the victim sustains the loss.

Section 103 of the Act defines "loss" as "accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to . . . work loss . . . ." 40 P.S. § 1009.103. The pertinent provision of the Act defines "work loss", in the case of a victim who is not self-employed, as "loss of gross income . . . ." Id. The plain meaning of the Act is clear: work loss is economic detriment resulting from inability to work and earn a living, e.g., loss of a paycheck. In the case at bar, where the victim was gainfully employed but not self-employed prior to his death, the victim suffered the work loss on the date he could next have expected to receive his regular pay for work he would ordinarily have performed in due course, but for the accident. The record does not disclose the next date on which Mr. Kamperis would have expected to receive compensation for his labors in the event of the non-occurrence of his untimely accident. We hold the statute of limitations contemplates commencement of the period for bringing the action on the date the victim would next have expected to receive compensation for work he would have performed had the motor vehicle accident not occurred. Thus, the statute of limitation, 40 P.S. § 1009.106(c)(1), contemplates commencement of the action not later than two years after the date Mr. Kamperis missed his next expected paycheck.

Our inquiry does not end here, however, as, in furtherance of its broad remedial purposes, the Act clearly looks to a continuing series of losses with each failure of a victim to receive his or her normal financial remuneration for work the victim could have performed had the accident not rendered the victim unable to work. This is evident by review of the provision of § 106(a)(1): "No-fault benefits

[ 503 Pa. Page 541]

    are payable monthly as loss accrues. Loss accrues not when injury occurs, but as . . . work loss . . . is sustained." 40 P.S. § 1009.106(a)(1). Thus, it is clear that work loss is sustained each time a victim suffers economic detriment, or, as in the case at bar, misses a paycheck he would ordinarily have earned, but for the injuries sustained in the accident. Section 202(b) of the Act provides, in pertinent part, "Work loss, as defined in section 103 shall be provided . . . (2) up to a total amount of fifteen thousand dollars ($15,000)." 40 P.S. § 1009.202(b)(2). Thus, the period of limitations provided in § 106(c)(1) must be construed to mean that, where as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to have been caused by the accident, an action to recover work loss benefits under the Act may be commenced (a) within two years from any time the victim suffers work loss as a result of the accident, Cf., Murphy v. Prudential Property & Casualty Insurance Co., 503 Pa. 528, 469 A.2d 1378 (1983) (action to recover cost of medical services only barred by statute of limitations insofar as it ...


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