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OHIO CAS. INS. CO. v. PRUDENTIAL INS. CO. OF AMERI

April 11, 1985

The Ohio Casualty Insurance Company Plaintiff,
v.
Prudential Insurance Company Of America; and Celina Mutual Insurance Company, Defendants


Conaboy


The opinion of the court was delivered by: CONABOY

Plaintiff Ohio Casualty Insurance Company (hereinafter Ohio) initiated this action pursuant to 42 Pa. C.S.A. § 7531 et seq. in the Court of Common Pleas for Luzerne County. Ohio sought a declaratory judgment that Defendants Prudential Insurance Company of America and Celina Mutual Insurance Company (hereinafter Prudential and Celina) are obligated, under terms of automobile insurance policies issued to Joseph Capone, Sr., to contribute to a settlement Ohio reached unilaterally with Kenneth Capone. Prudential and Celina exercised their right to remove this diversity action to federal court. We now consider whether Prudential and Celina are obligated to help fund Ohio's settlement with Kenneth Capone and, if so, to what extent.

 This action was precipitated by an automobile accident which occurred on March 8, 1982. In that accident Kenneth Capone, a son of Joseph Capone, Sr., was injured while riding in a vehicle owned by Thomas Zupko, Sr. and driven by Thomas Zupko, Jr. Kenneth Capone, the son of Joseph Capone, Sr. and his former wife, sustained serious injuries in this accident. Since Plaintiff Ohio insured the Zupko vehicle, it arranged to make payments to Kenneth Capone pending the outcome of this action. Plaintiff now urges that we construe certain provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa. C.S. §§ 1009.101 et seq., so as to justify a declaration that Prudential and Celina should provide contribution or indemnification regarding its settlement with Kenneth Capone.

 Ohio seizes on the fact that Prudential insures a vehicle owned by Joseph Capone, Sr. and Celina Insures the vehicles owned by Del-Cap Detective Agency, a concern of which Joseph Capone, Sr. is an officer and employee, to begin a controversy about who should be the primary insurer in this situation. Ohio points out that 40 Pa. C.S. § 1009.204 states, in pertinent part, "The security for the payment of basic loss benefits applicable to an injury to: . . . (2) an insured is the security under which the victim or deceased victim is insured . . ." Ohio then goes on to state: "Whether Kenneth Capone falls within category 2 (that cited above) depends on the definition of the term 'insured', as set forth in the aforesaid policies *fn1" as defined in 40 Pa. C.S. § 1009.103 of the Act . . . *fn2" That definition reads:

 
'Insured' means:
 
(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
 
(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 relative of a named insured if - -
 
(i.) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and
 
(ii.) in residence in the same household with a named insured.
 
An individual is in residence in the same household if he usually makes his home in the same family unit, even though he temporarily lives elsewhere.

 Thus, if we are to find that Prudential and/or Celina are obligated to Ohio, we must find also that Kenneth Capone was a member of the same household as Joseph Capone, Sr.

 The undisputed fact is that Kenneth Capone resides with his mother, who was divorced from his father in 1978, and brothers at 118 1/2 Lackawanna Avenue in Dupont, Pennsylvania. Similarly undisputed is the fact that Joseph Capone, Sr. lives at 75 Searle Street in Pittston, Pennsylvania. It is agreed, too, that these living arrangements were in existence for some years before the accident in question occurred. Ohio urges that, because Joseph Capone, Sr. pays support for his three sons and finances the cost of the home in which his sons and former wife live, Kenneth Capone may properly be considered a member of his household. Ohio relates that there is a dearth of case law in the Commonwealth of Pennsylvania on the issue of what constitutes a household. This is true. Ohio cites Hoff v. Hoff, 132 Pa. Super. 431, 1 A.2d 506 (1938) for the proposition that:

 Unfortunately, Ohio seems to ignore that the Hoff Court held that two groups who were living under the same roof actually constituted separate households due to the relative autonomy of each group and in spite of the fact that all were related. In our case Mrs. Capone has functioned as the custodial parent at least since the divorce in 1978. She has had the primary responsibility of caring for and rearing her sons in a dwelling place separate from that of her ex-husband. We do not see that the level of the non-custodial parent's financial support, generous as it may be, can ...


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