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FOREMOST INSURANCE COMPANY v. INSURANCE DEPARTMENT COMMONWEALTH PENNSYLVANIA AND PENNSYLVANIA AUTOMOBILE INSURANCE PLAN (04/23/84)

decided: April 23, 1984.

FOREMOST INSURANCE COMPANY, PETITIONER
v.
INSURANCE DEPARTMENT OF THE COMMONWEALTH OF PENNSYLVANIA AND THE PENNSYLVANIA AUTOMOBILE INSURANCE PLAN, RESPONDENTS



Original jurisdiction in case of Foremost Insurance Company, Grand Rapids, Michigan, a Michigan Corporation v. Insurance Department of the Commonwealth of Pennsylvania and the Pennsylvania Automobile Insurance Plan.

COUNSEL

Dennis J. Bonetti, with him S. Walter Foulkrod, III, Foulkrod, Peters & Wasilefski, for petitioner.

Hannah Leavitt, Assistant Counsel, Chief of Litigation, with her Anthony A. Geyelin, Chief Counsel, for respondent, Insurance Department of the Commonwealth of Pennsylvania.

Martin J. Hertz, with him Albert J. Strohecker, Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, and John J. McClean, Jr., Clark R. Kerr and Mark Raymond Hornak, Buchanan, Ingersol, Rodewald, Kyle & Buerger, for respondent, Pennsylvania Automobile Insurance Plan.

Judges MacPhail, Doyle and Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 82 Pa. Commw. Page 2]

Foremost Insurance Company (Petitioner) brings this action in our original jurisdiction, see Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. ยง 761(a)(1), seeking our interpretation of Section 105 of the Pennsylvania No-Fault Motor Vehicle Act (No-Fault Act).*fn1 Specifically, Petitioner alleges that the

[ 82 Pa. Commw. Page 3]

Pennsylvania Automobile Insurance Plan (Plan) established pursuant to Section 105 has improperly included mobile homes and snowmobile premiums collected by Petitioner within the total premium upon which Petitioner's allocation of risks under the Plan is based.

This matter is presently before us for a decision on the Preliminary Objections of the Insurance Department of Pennsylvania (Respondent) in the nature of a demurrer or, in the alternative, raising a question of jurisdiction. Respondent alleges, inter alia, that this Court does not have jurisdiction in the instant case because of Petitioner's failure to exhaust its administrative remedies. We will sustain Respondent's Preliminary Objections on this basis; therefore, we will not address the other issues raised.

Petitioner participates in the Plan, which is administered by the Insurance Commissioner (Commissioner) pursuant to Section 105 of the No-Fault Act. The Plan distributes to participating insurers, policy applications from individuals who have been unable to purchase insurance from the voluntary market. Section 105 requires apportionment of these risks in an equitable manner. Petitioner insures both snowmobiles and mobile homes, and premiums received from these policies are included in the annual report to the Plan. Consequently, Petitioner's share of assigned risks has been partly based upon premiums from mobile home and snowmobile policies.*fn2

Petitioner states that on August 28, 1981, it formally requested that the Governing Committee of the Plan determine that inclusion of snowmobile and mobile home premiums was contrary to law, ...


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