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CLAIR BORTNER v. CNA INSURANCE CO. A/K/A VALLEY FORGE INSURANCE CO. (09/07/84)

filed: September 7, 1984.

CLAIR BORTNER, ADMINISTRATOR,
v.
CNA INSURANCE CO. A/K/A VALLEY FORGE INSURANCE CO., APPELLANT



No. 00358 HBG 82, Appeal from the Order entered October 13, 1982 in the Court of Common Pleas of York County, Civil Division at No. 81-S-235.

COUNSEL

Joseph W. Moyer, York, for appellant.

Samuel K. Gates, York, for appellee.

Wickersham, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 332 Pa. Super. Page 407]

Appellant challenges the lower court's order finding that (1) appellee's action for post-mortem work loss benefits was timely filed and (2) "stacking" of No-fault insurance benefits is permitted. We agree with appellant that stacking is prohibited in the No-fault context; however, based upon the record before us, we are unable to determine the timeliness of appellee's action. Accordingly, we reverse in part and remand in part.

[ 332 Pa. Super. Page 408]

On May 21, 1977, appellee's decedent died as a result of injuries sustained in an automobile accident on that same date. Appellee, decedent's father and administrator of decedent's estate, filed suit against appellant, CNA Insurance Co., on May 16, 1978, seeking to recover survivor's benefits under the No-fault Motor Vehicle Insurance Act (No-fault Act). The lower court found in favor of appellant. Thereafter, on February 10, 1981, appellee filed the instant suit, seeking post-mortem work loss benefits on behalf of decedent's estate. In its preliminary objections, appellant claimed that appellee's action was barred by the No-fault statute of limitations, 40 P.S. § 1009.106(c). On October 14, 1981, the lower court ruled that the action was timely. Appellee then filed a motion for summary judgment alleging his right to "stack" the coverage of his four vehicles insured by the policy at issue. The lower court granted appellee's motion, prompting this appeal.

Appellant first contends that appellee's action was barred by the No-fault statute of limitations.*fn1 40 P.S. § 1009.106(c)(1) establishes the appropriate time limitation for actions seeking benefits intended to compensate either the insured or his estate. See Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982). Section 106(c)(1) provides, in pertinent part:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim

[ 332 Pa. Super. Page 409]

    suffers the loss and either knowing or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

Therefore, in order to determine when the time limitation has run, we must consider when the "loss" has been sustained. In discussing post-mortem work loss benefits in Kamperis v. Nationwide Insurance Co., 503 ...


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