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ROBERT R. BISHOP AND BAILEY BISHOP v. WALTER WASHINGTON AND NATIONWIDE INSURANCE COMPANY (07/06/84)

filed: July 6, 1984.

ROBERT R. BISHOP AND BAILEY BISHOP, ADMINISTRATORS OF THE ESTATE OF JOHN LEBOUTILLIER BISHOP, APPELLANTS,
v.
WALTER WASHINGTON AND NATIONWIDE INSURANCE COMPANY



No. 2166 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Chester County, Misc. Term, 1978, Civil No. 184-P.

COUNSEL

Fred T. Magaziner, Philadelphia, for appellants.

William J. Gallagher, West Chester, for appellees.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Johnson and Hoffman, JJ.

Author: Rowley

[ 331 Pa. Super. Page 389]

In this declaratory judgment action, appellants, the Administrators of the Estate of John Leboutillier Bishop (Administrators), requested the trial court to determine whether the Estate was entitled to receive payment up to the limit of liability coverage for bodily injury under each of two

[ 331 Pa. Super. Page 390]

    automobile insurance policies issued by Nationwide Insurance Company (Nationwide) despite the clear language contained in exclusionary clauses in each of the policies which prohibited double recovery. Appellants contend that the $25,000 liability coverage limit under one policy should be "stacked" upon the $25,000 liability coverage limit under the second policy, thereby obligating Nationwide to pay a total of $50,000 for injuries sustained by the Administrators' decedent.

The Administrators and Nationwide filed Cross Motions for Summary Judgment based upon the pleadings, the insurance policies and Nationwide's Answers to Interrogatories. The trial court denied the Administrators' motion and granted Nationwide's motion, holding that Nationwide was only obligated to pay the Administrators the limit of liability coverage for loss due to bodily injury under one policy of insurance. We granted en banc review to consider the application of this Court's decision in Hionis v. Northern Mutual Insurance Co., 230 Pa. Super. 511, 327 A.2d 363 (1974) to the circumstances of this case. Upon a thorough review of the record, we affirm.

The principles governing an order entering summary judgment, and an appeal therefrom, are well settled. Summary judgment will be granted only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). The trial court must accept as true all well-pleaded facts, resolving any doubts regarding the existence of a genuine issue of material fact against the moving party. Carrollo v. Forty-Eight Insulation, Inc., 252 Pa. Super. 422, 381 A.2d 990 (1977). On appeal, we must examine the record in the light most favorable to the appellant. Speyer, Inc. v. Goodyear Tire & Rubber Co., 222 Pa. Super. 261, 295 A.2d 143 (1972).

The undisputed facts as they appear from the record in this case are as follows. Appellants' decedent, John L.

[ 331 Pa. Super. Page 391]

Bishop, died from injuries he sustained on December 15, 1974, when his Volkswagen was struck from the rear by a bus driven by Walter Washington (Washington) and owned by the First Baptist Church of Coatesville. At the time of the accident, Washington was the owner of an automobile and a truck. Both of Washington's vehicles were insured by Nationwide under separate, but identical policies. The policy terms provided, inter alia, liability coverage for property damage and bodily injury in the event that the insured was involved in an accident while driving a "non-owned" motor vehicle. Liability coverage for bodily injury under each policy was limited to $25,000 per person. In addition, the policies included an "other insurance" provision which stated, in pertinent part:

For losses involving the use of other motor vehicles, we will pay the insured loss not covered by other insurance. If Property Damage or Bodily Injury Liability coverage in more than one policy applies to a loss, we will pay only up to the highest limit in any one policy. (Emphasis added)

This provision was listed in the policy under the general heading of "Limits of Payment".

The bus involved in this accident was covered by an insurance policy issued to First Baptist Church of Coatesville by General Accident Group. Following settlement negotiations, General Accident Group paid the Administrators $50,000 -- the limit of liability coverage under their policy. The Administrators then demanded a total payment of $50,000 from Nationwide on the ground that Nationwide was liable for $25,000 under the policy issued on Washington's car and an additional $25,000 under the policy issued on Washington's truck.

Nationwide paid $25,000 to the Administrators under the terms of one policy, but refused to pay an additional $25,000 under the second policy. The Administrators filed this declaratory judgment action to recover the additional $25,000. Nationwide maintains that it is only liable for the highest coverage limit in any one policy pursuant to the

[ 331 Pa. Super. Page 392]

    express limitation contained in the "other insurance" provision.

The parties to this appeal agree that appellant's damages would be in excess of $100,000, if the case were tried. We point out, however, that a General Release was executed by the Administrators and filed in the court below on July 2, 1980. That document provides:

[The Administrators] for and in consideration of TWENTY-FIVE THOUSAND (25,000.00) DOLLARS payable immediately and the additional sum of TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS if a court of competent jurisdiction shall determine that the defendant, WALTER WASHINGTON'S limit of liability shall be a combined total of $50,000.00/$100,000.00 because of insuring two separate vehicles with Nationwide . . . do hereby remise, release and discharge, WALTER WASHINGTON . . . from all and all manner of actions and causes of action, suits, debts . . . judgments, claims and demands whatsoever in law or equity, especially to No. 47 July Term, 1975, in the Court of Common Pleas of Chester County, regarding an automobile accident which occurred on December 15, 1974 in the Borough of Kennett Square, Chester County, Pennsylvania . . .

Thus, Washington will not be held individually liable for any additional losses involved herein, regardless of our ...


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