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PATRICIA FAIRBANKS v. TRAVELERS INSURANCE COMPANY (12/28/84)

filed: December 28, 1984.

PATRICIA FAIRBANKS, APPELLANT,
v.
TRAVELERS INSURANCE COMPANY, AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



No. 01618 Philadelphia 1983, APPEAL FROM THE ORDER ENTERED MAY 16, 1983 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 1396 SEPTEMBER TERM 1982

COUNSEL

Claire Newman, Philadelphia, for appellant.

Steven B. Kantrowitz, Philadelphia, for Travelers Ins., appellee.

John F. Smith, III, Philadelphia, for SEPTA, appellee.

Cirillo, Olszewski and Montgomery, JJ.

Author: Cirillo

[ 337 Pa. Super. Page 41]

We decide today that Modesta v. Southeastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), is retroactive. Self-insurers under the Pennsylvania No-Fault Motor Vehicle Insurance Act*fn1 must therefore pay uninsured motorist benefits to persons whose causes of action against them arose before Modesta was decided, provided that suit on those causes of action is not barred by the statute of limitations.

Appellant Patricia Fairbanks was a passenger on a bus owned by appellee Southeastern Pennsylvania Transportation Authority (hereafter "SEPTA") when it was struck by an uninsured motorist. She had no applicable insurance, because she did not own nor reside with anyone who owned a motor vehicle. SEPTA paid her basic loss benefits, which it is required to do as a self-insurer under the No-Fault Act.*fn2 Appellant's claim was then assigned to appellee Travelers Insurance Company (hereafter "Travelers") pursuant to the Assigned Claims Plan (hereafter "the Plan") of the No-Fault Act.*fn3

Appellant sought uninsured motorist benefits from SEPTA and Travelers. Both denied her claim. She then sought a declaratory judgment to determine which of appellees was liable to her for these benefits. Both appellees filed preliminary objections, which were denied. SEPTA moved for reconsideration of its preliminary objections; the court granted the motion for reconsideration and SEPTA's preliminary objections.

After appellant filed her notice of appeal, the Supreme Court of Pennsylvania decided Modesta, supra, in which it overruled Johnson v. Yellow Cab Co. of Philadelphia, 456 Pa. 256, 317 A.2d 245 (1974), and held that the No-Fault Act

[ 337 Pa. Super. Page 42]

    requires self-insurers to provide coverage for claims under the Uninsured Motorist statute.*fn4 The question presented is thus whether Modesta should be applied retroactively.*fn5

In deciding the applicability of Modesta to the instant case we are mindful that "[a]t common law, an overruling decision is normally retroactive." August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981). ...


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