Appeal from Judgment of the Court of Common Pleas, Civil Division, of bucks County, No. 80-9644-12-1.
Nino V. Tinari, Philadelphia, for appellant.
John S. Thome, Jr., Doylestown, for appellee.
Cavanaugh, Wieand and Montgomery, JJ. Cavanaugh, J., files a dissenting opinion.
[ 342 Pa. Super. Page 622]
William Brickajlik was the owner of a truck which had been stolen while in the possession of Mycek's Sunoco Service Center. Paxton National Insurance Company (P.N.I.), which had written a policy insuring against theft, reimbursed Brickajlik for his loss in the amount of $3,350. P.N.I. then attempted to assert a third party claim against Mycek's Sunoco Service Center. Brickajlik refused to sign a complaint which would have enabled P.N.I. to commence an action against Mycek in Brickajlik's name. Thereafter, P.N.I. commenced an action against Brickajlik, its insured, to recover damages for breach of the cooperation clause in
[ 342 Pa. Super. Page 623]
the policy of insurance. The action was tried non-jury and resulted in a decision in favor of P.N.I. and against Brickajlik for $3,350, plus interest. Post-trial motions were denied, and judgment was entered on the verdict. Brickajlik appealed. We reverse.
Paragraph 7 of the policy of insurance provides:
Subrogation: In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights. (emphasis in the original).
Paragraph 4-C of the policy also provides:
The insured shall cooperate with the company and, upon the company's request, assist in making settlements, in the conduct of suits, and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which the insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, ...