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JOHN J. DRUSAK v. INSURANCE COMPANY NORTH AMERICA (03/08/85)

filed: March 8, 1985.

JOHN J. DRUSAK
v.
INSURANCE COMPANY OF NORTH AMERICA, APPELLANT



No. 00788 Pittsburgh 1983, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Cambria County at No. 1982-566.

COUNSEL

Stephen R. Mlinac, Pittsburgh, for appellant.

Samuel R. DiFrancesco, Jr., Johnstown, for appellee.

Rowley, Olszewski and Popovich, JJ.

Author: Popovich

[ 340 Pa. Super. Page 206]

This is an appeal from a judgment of the Court of Common Pleas of Cambria County by Insurance Company of North America (INA), appellant. The lower court granted summary judgment in favor of John Drusak, appellee, in the amount of $15,000. Upon praecipe, judgment was entered. This appeal followed, and we affirm.

This case presents a novel issue: Whether a victim can recover uninsured motorist benefits under the Pennsylvania Assigned Claims Plan even though he has recovered such benefits under his son's insurance policy. We hold that when a victim has not been afforded "basic loss" damages through another source, he may recover from an Assigned Claims Plan insurer who is required to provide him with uninsured motorist benefits as a direct consequence of its obligation to provide him with "basic loss" coverage.

The lower court found the following facts which gave rise to the instant controversy. On the evening of September 15, 1980, appellee, a pedestrian, was crossing a street when he was struck and critically injured by Blake Cameron who was operating a motorcycle. Cameron was uninsured. Appellee resided in the same household with his son, who was

[ 340 Pa. Super. Page 207]

    insured by State Farm Mutual Automobile Insurance Company (State Farm) under the terms of a vehicle liability policy for a motorcycle. The State Farm policy was the only policy under which appellee could claim benefits. State Farm paid appellee $15,000 which was its maximum liability under the uninsured motorist provisions of its policy with appellee's son. Appellee thereafter presented a claim through the Assigned Claims Plan to INA who was assigned his claim. INA has made basic loss payments to appellee. The only remaining claim which appellee sought in the lower court was an additional uninsured motorist benefit through the Assigned Claims Plan, or specifically from INA, which INA refused to pay.

Appellant argues, inter alia, that appellee is an "insured" under the No-Fault Act through his son's policy and, therefore, he has no right of recovery from the designated agent under the Assigned Claims Plan.

The Pennsylvania No-Fault Act allows recovery under the Assigned Claims Plan if "basic loss" insurance is not applicable or is unavailable. 40 P.S. 1009.108(a)(1).*fn1 Appellee was able to recover benefits from State Farm by virtue of 40 P.S. 1009.103*fn2 which provides that "insured" shall be defined to include:

(B) a spouse or other relative of a named insured, a minor in the custody of a named insured, and a minor in the custody of a ...


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