Appeals from the Order of the Court of Common Pleas of Philadelphia County in case of Nationwide Insurance Company v. City of Philadelphia, No. 243 April Term, 1981.
Barbara R. Axelrod, Deputy City Solicitor, with her, Barbara W. Mather, City Solicitor, for appellant/appellee, City of Philadelphia.
Robert Keller, for appellee/appellant, Nationwide Insurance Company.
Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Barry did not participate in the decision in this opinion.
This is a consolidated action whereby both the City of Philadelphia (City) and Nationwide Insurance Company
(Nationwide) appeal here an order of the Court of Common Pleas of Philadelphia County. That order required the City to pay to Nationwide the sum of $25,000 as full reimbursement for No-Fault basic loss benefits which Nationwide paid to an injured pedestrian as a result of an accident which took place between a City police vehicle and a vehicle insured by Nationwide.
This dispute between the City and Nationwide stems from a motor vehicle accident which occurred on December 21, 1979 at the corner of 58th and Vine Streets in Philadelphia. Nationwide's insured was driving in a northerly direction on 58th Street when it collided with a police car, owned and operated by the City, which was proceeding in an easterly direction on Vine Street. The collision caused the vehicle operated by Nationwide's insured to spin whereupon it struck and seriously injured a pedestrian, Evelyn Hunte, who was standing on the northeast corner of the intersection. On March 3, 1983, a court-approved settlement of the personal injury actions brought as a result of this accident provided for the City to pay to Hunte the sum of $450,000 and to the occupants of the vehicle insured by Nationwide the sum of $25,000. In addition, Nationwide was to pay $3,000 to satisfy the claims of the occupants of the vehicle of its insured.
Hunte had also filed a claim for basic loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act (Act).*fn1 Nationwide paid a total of $78,758.07
to her as basic loss benefits under the No-Fault Act. In 1981, Nationwide sued the City to recover what it contended was the City's pro rata share of Hunte's basic loss benefits. The City contended that under the provisions of the Political Subdivision Tort Claims Act (Tort Claims Act),*fn2 the non-government insurer was the primary source of No-Fault basic loss benefits and that it was not liable to Nationwide for contribution. On April 28, 1983, the common pleas court ordered the City to reimburse Nationwide $25,000 as its share of Hunte's basic loss benefits. The common pleas court reasoned that since the City could be required to pay not more than $500,000 for damages resulting from liability under the Tort Claims Act, Nationwide was only entitled to $25,000 since the City had already paid out $475,000 resulting from claims from the December 21, 1979 accident. Both the City and Nationwide filed exceptions to that order which were denied by the common pleas court on December 1, 1983 and appeal to this Court followed.
In this appeal, the City contends that the common pleas court erred in finding it liable for any portion of basic loss benefits due Hunte under the No-Fault Act as the Tort Claims Act makes the non-government ...