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GERALYN VOGEL v. NATIONAL GRANGE MUTUAL INS. CO. (09/07/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 7, 1984.

GERALYN VOGEL
v.
NATIONAL GRANGE MUTUAL INS. CO., APPELLANT

No. 3203 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Delaware County, No. 82-0046.

COUNSEL

James M. Marsh, Philadelphia, for appellant.

Raymond J. Falzone, Jr., Media, for appellee.

Olszewski, Popovich and Cercone, JJ. Cercone, J., files a concurring statement.

Author: Olszewski

[ 332 Pa. Super. Page 386]

Appellant challenges an order confirming an arbitration award in an automobile accident case.

Appellee sustained injuries in an automobile accident on June 11, 1980. At the time, she was a "covered person" under a policy issued by National Grange, her father's insurer. Under the policy's no-fault coverage, appellee recovered an amount in excess of $7,000 for medical expenses and $15,000 for work loss benefits. She received an additional $15,000, the policy limit from the other driver's liability insurer.

Appellee seeks further recovery under the "Underinsured Motorists Coverage." This provision offers separate coverage for a "covered person" legally entitled to recover from the owner/operator of an underinsured motor vehicle. The rider limits liability to $30,000 for all damages resulting from any one accident. Appellee asked the insurance company to multiply this liability limit by three, the number of vehicles insured under the policy -- and so, allow a $90,000 limit on the "underinsured" coverage. National Grange refused the "stacking" demand.

Under the policy, the matter went to arbitration. The arbitrators valued appellee's case at $75,000. Relying on "stacking", they entered a finding of $60,000 against appellant insurance company.*fn1 The trial court confirmed the award. This appeal follows.

The sole issue on appeal is whether the arbitrators, by allowing "stacking" of the "underinsured" benefits, committed an error of law.*fn2

[ 332 Pa. Super. Page 387]

The policy on its face proscribed "stacking". Neither party has produced persuasive authority on this point.*fn3 Our Court has found valid and enforceable policy provisions which prevent the stacking of underinsured motorist benefits. Haegele v. Pennsylvania General Insurance Co., 330 Pa. Super. 481, 479 A.2d 1005 (1984); Votedian v. General Accident Fire and Life Assurance Corp., 330 Pa. Super. 13, 478 A.2d 1324 (1984). We are loathe to ignore the express language of the policy. "It is not the function of the court to rewrite a policy or give its terms a construction in conflict with their plain meaning." Garber v. Travelers Insurance Cos., 280 Pa. Super. 323, 325, 421 A.2d 744, 745 (1980) (citations omitted).

Order vacated and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

CERCONE, Judge, concurring:

I would reverse on the basis of this court's recent opinion in Haegele v. Pennsylvania General Insurance Co., 330 Pa. Superior Ct. 481, 479 A.2d 1005 (1984).


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