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MCKAY v. LIBERTY MUT. INS. CO.

January 25, 1984

Jay C. McKAY
v.
LIBERTY MUTUAL INSURANCE CO., General Accident Insurance Co., Equitable Life Assurance Society of the United States and ICI Americas, Inc.



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 This action, initially filed in the Court of Common Pleas of Philadelphia County, and removed to this court, arises out of an automobile accident resulting in grave injuries to the plaintiff. It is undisputed that on July 3, 1982 the plaintiff was a passenger in New Jersey in a vehicle owned and operated by Gerald Monigle, ("Monigle"). The vehicle left the road and struck a utility pole. McKay sustained a compressed fracture of the spinal column. He has incurred and continues to incur medical health care and rehabilitation expenses as well as lost income. He appears to be permanently disabled.

 At the time of the accident the plaintiff, a resident of Delaware, maintained a policy of no-fault automobile insurance issued by Liberty Mutual Insurance Company ("Liberty Mutual") under Delaware law. Monigle, a resident of Pennsylvania, maintained an automobile insurance policy issued by General Accident Insurance Company ("General Accident") under the Pennsylvania No-Fault Motor Vehicle Insurance Act. Also at the time of the accident, plaintiff was an eligible member of an ICI Americas, Inc. Health Care Plan ("Plan") administered by defendant Equitable Life Assurance Society of the United States. *fn1"

 Liberty Mutual has paid to McKay $100,000 in first party No-Fault benefits under its policy (para. 13, Stipulation of Facts of Plaintiff, Jay C. McKay and Defendant, General Accident Insurance Co.). Nevertheless, in addition to other remedies, plaintiff seeks to have this court determine that General Accident is liable to him for his medical, health care or rehabilitation expenses as well as his lost wages under Monigle's personal injury protection coverage. *fn2" The sole matter before the court at this time *fn3" is the cross-motions of the plaintiff and defendant for summary judgment. The parties have stipulated to a number of facts and there is no dispute over any material fact. Therefore, the court may entertain the motions for summary judgment. Rule 56 of the Federal Rules of Civil Procedure.

 Some salient factors are to be borne in mind in this portion of the case: plaintiff is a resident of Delaware covered by automobile insurance issued under Delaware law; he seeks to recover, as a non-relative passenger, from a Pennsylvania No-Fault carrier under a policy issued to a Pennsylvania driver in compliance with the Pennsylvania No-Fault Motor Vehicle Act, 40 Pa.Stat.Ann. ยงยง 1009.101-.301 (Purdon Supp.1982). The plaintiff has been paid $100,000 for economic loss under his own policy *fn4" and has, or will, receive the policy limits of General Accident for his pain and suffering. He seeks to have this court declare that he is entitled to personal injury protection ("PIP") coverage for those bills and expenses beyond those covered by Liberty Mutual benefits.

 In Swezey v. Home Indemnity Co., 691 F.2d 163 (3d Cir.1982), the Court of Appeals for the Third Circuit was faced with a resident of Delaware who was also injured in a car driven by a Pennsylvania resident and insured under the Pennsylvania No-Fault statute by defendant Home Indemnity Company. The plaintiffs, guardians of the injured passenger, sought a court determination that they were entitled to unlimited medical benefits provided under Pennsylvania law. The defendant contended that plaintiffs were entitled only to those medical benefits fixed under Delaware law. The court began its analysis by stating:

 
In addressing these contentions on appeal, it is important to bear in mind that plaintiffs' rights arise under the Home insurance policy, and not under any particular statute. . . . This suit is purely and simply a contract claim based upon an insurance policy and it is the terms of that policy that determine the outcome. Swezey v. Home Indemnity Co., 691 F.2d at 165-166.

 In the case sub judice the General Accident policy describes its Personal Injury Protection Coverage as follows:

 
In accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act, the Company will pay any or all personal injury protection benefits for bodily injury to an eligible person due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. (emphasis original)
 
"eligible person" means
 
(b) any other person who sustains injury
 
(1) while occupying . . . the insured motor ...

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