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MARCY L. SPISAK v. NATIONWIDE MUTUAL INSURANCE COMPANY (03/26/84)

submitted: March 26, 1984.

MARCY L. SPISAK, ADMINISTRATRIX FOR THE ESTATE OF JOHN SPISAK, AND MARCY L. SPISAK, MONICA L. SPISAK AND JASON J. SPISAK, BY THEIR OWN RIGHT,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT. AND MARCY L. SPISAK, ADMINISTRATRIX FOR THE ESTATE OF JOHN SPISAK, V. NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT



No. 1362 Pittsburgh, 1982, No. 1363 Pittsburgh, 1982, Appeals from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, at Nos. G.D. 81-812 and 234 of 1981

COUNSEL

Peter B. Skeel, Pittsburgh, for appellants.

J. Kerrington Lewis, Pittsburgh, for appellees.

Spaeth, President Judge, and Brosky and Montgomery, JJ.

Author: Montgomery

[ 329 Pa. Super. Page 484]

In the instant cases, which were consolidated in the lower court, the Appellant, Nationwide Mutual Insurance Company, appeals from the lower court's order entering summary judgment for Plaintiff-Appellee, Marcy L. Spisak, Administratrix of the Estate of John Spisak. We perceive no error in the lower court's order.

The relevant facts are not in dispute. On January 13, 1980, the bodies of Plaintiff's decedent, John Spisak, and a female companion were found in the back seat of an automobile, which had its motor running. Both persons were partially disrobed, and appeared to have been involved in

[ 329 Pa. Super. Page 485]

    what the Appellant describes as "compromising activities" at the time of death. Death occurred as a result of carbon monoxide poisoning from the exhaust fumes of the automobile. The Appellant subsequently denied the widow's application for no-fault benefits on the grounds that the loss was not, in the words of the applicable policy provision, ". . . as a result of an accident that arises out of the maintenance or use of a motor vehicle as a motor vehicle". Appellant maintains the same position on this appeal.

We first look to the Pennsylvania No-fault Motor Vehicle Insurance Act for reference. (Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq.). Section 103 (40 P.S. § 1009.103) provides, in pertinent part:

"Maintenance or use of a motor vehicle" means maintenance or use of a motor vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it.

"Victim" means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; "deceased victim" means a victim suffering death resulting from injury.

The Appellant relies most strongly in this appeal upon the decision of our Court in Crusco v. Insurance Company of North America, 292 Pa. Super. 293, 437 A.2d 52 (1981), which construed the same statutory provisions and involved similar language in the applicable insurance ...


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