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JOSEPH KINTZ v. NATIONWIDE MUTUAL INSURANCE COMPANY (12/30/83)

filed: December 30, 1983.

JOSEPH KINTZ, ADMINISTRATOR OF THE ESTATE OF MIRIAM G. KINTZ, DECEASED
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT. JOSEPH KINTZ, ADMINISTRATOR OF THE ESTATE OF MIRIAM G. KINTZ, DECEASED, APPELLANT V. NATIONWIDE MUTUAL INSURANCE COMPANY



No. 319 Harrisburg 1981, No. 330 Harrisburg 1981, Appeal from the Order in the Court of Common Pleas, Civil Division, of Dauphin County at No. 409 S 1981.

COUNSEL

Roger T. Shoop, Harrisburg, for appellant.

Robert D. Myers, Harrisburg, for appellee.

Wickersham, Cirillo and Watkins, JJ.

Author: Wickersham

[ 323 Pa. Super. Page 4]

On February 12, 1980, appellee's decedent, Miriam G. Kintz, was killed in an automobile accident. She was covered by a Pennsylvania No-Fault Automobile Insurance policy issued by appellant Nationwide Mutual Insurance Company. At the time of her death, appellee's decedent was 41 years

[ 323 Pa. Super. Page 5]

    old and was employed on a part-time basis by Rakestraw's Dairy, Mechanicsburg, Pennsylvania, working one day per week (a total of six hours), at a pay rate of $3.40 per hour. (Record at 36a-38a).

The complaint alleges that on October 24, 1980, appellee Kintz, as surviving spouse and administrator of Mrs. Kintz's estate, demanded that Nationwide pay the total work loss benefits payable under the policy, $15,000. The complaint further avers that Nationwide offered to pay the $15,000 in work loss benefits at the rate of $77.21 per month over a period of sixteen years, three months. Appellee rejected this offer, demanding that the entire $15,000 be paid in one lump sum, or alternatively, at the rate of $1,000 per month. Nationwide rejected this demand; on January 8, 1981, Nationwide tendered a check to appellee in the amount of $849.31, representing eleven months of benefits at the rate of $77.21 per month. Appellee informed Nationwide that he was accepting the check as part payment of his claim but without prejudice to his right to pursue a demand for lump sum payment. Since January of 1981 Nationwide has paid, and we assume, continues to pay $77.21 per month to appellee.

Appellee instituted the instant action on February 4, 1981. On February 27, 1981, Nationwide filed preliminary objections to the complaint. On April 29, 1981, the lower court overruled and denied Nationwide's preliminary objections. Pleadings were completed and depositions were taken. Both parties filed motions for summary judgment. On August 17, 1981, following submission of briefs by both parties, oral argument was held on the cross motions for summary judgment. The Honorable Clarence C. Morrison filed an opinion and order granting appellee's motion for summary judgment and denying Nationwide's cross motion for summary judgment on November 9, 1981. The lower court did not, however, grant appellee Kintz's request for interest and counsel fees.

Appellant Nationwide appealed from the order requiring it to pay work loss benefits in a lump sum. Appellee Kintz

[ 323 Pa. Super. Page 6]

    filed a cross appeal on the issue of the lower court's denial of interest and counsel fees. These two appeals were ...


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