No. 10 Philadelphia, 1982, Appeal from the Judgment of the Court of Common Pleas, Trial Division, Civil Section, of Philadelphia County, December Term, 1980, No. 2938.
James M. Marsh, Philadelphia, for National Grange, appellant.
Michael Saltzburg, Philadelphia, for Fireman's Fund, appellant.
Mayer Horwitz, Philadelphia, for appellee.
Wickersham, Rowley and Watkins, JJ.
[ 323 Pa. Super. Page 561]
This is an appeal from the entry of judgment in favor of appellee, Helen V. Wright, Administratrix of the Estate of James D. Wright, Deceased, and against the appellants, National Grange Mutual Insurance Company and Fireman's Fund Insurance Company. For the reasons set forth more fully below, we reverse in part and remand for further proceedings.
The facts are undisputed. On December 29, 1978, James D. Wright, a pedestrian, was injured in an automobile accident. He died twelve days later. At the time of his death, James was not the named insured under any policy of no-fault automobile insurance. However, James lived with his mother, Helen V. Wright, who owned a single automobile insured under a policy of insurance issued by Fireman's Fund. Gerald Wright, James' brother, also lived in the same household with James and their mother. Gerald owned a single automobile insured under a policy issued by National Grange. Helen V. Wright, as James' personal representative, made a demand for the full payment of no-fault benefits from each insurer. The insurers admitted that James was an insured under their respective policies, see 40 P.S. § 1009.103 ("Insured"), and also admitted that they were "jointly and severally liable" to appellee in her representative capacity for (1) survivor's loss benefits in the total amount of $5,000.00, (2) work loss benefits in the total amount of $15,000.00 as that loss accrues, and (3) funeral expenses in the total amount of $1,500.00. See 40 P.S. §§ 1009.103 and 1009.202. The insurers denied any further liability.
[ 323 Pa. Super. Page 562]
Appellee then instituted this suit by filing a complaint in assumpsit on December 17, 1980. Appellee asserted that she was entitled to a judgment against the insurers in the amount of $10,000.00 for survivor's benefits, $30,000.00 for work loss benefits and $1,500.00 in funeral benefits as well as counsel fees, costs and interest at the rate of 18% per year. In their answers, the insurers admitted the underlying facts and their liability but denied that they were obligated to provide any benefits in an amount greater than the limits specified in one of the two applicable policies. Appellee then filed a motion for summary judgment.
The parties submitted two issues to the trial court for its determination. The first was whether or not appellee was entitled to "stack" the benefits provided in each insurance policy so as to permit her to claim the amounts set forth in her complaint and her motion. The second issue was whether the insurers should pay work loss benefits in a lump sum or be permitted to pay out work loss benefits as the economic detriment accrued. The trial court found in favor of appellee on both issues and, in an order entered November 9, 1981, the court granted her motion for summary judgment in the amounts set forth above. The insurers sought and were granted reconsideration of this order pursuant to Pa.R.A.P. 1701. On December 9, 1981, the trial court again granted appellee's motion for summary judgment, this time reducing the amount of the judgment by the amount of the benefits already paid by the insurers. Judgment was entered against National Grange and Fireman's Fund jointly and severally, in the amount of $5,000.00 for survivor's benefits, $17,703.26 for work loss benefits, $1,500.00 for funeral expenses, and interest at the rate of 18% per annum, from September 22, 1980. The trial court also awarded appellee $1,000.00 for counsel fees. The insurers thereafter, on December 30, 1981, filed a notice of appeal to this court.
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