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CARROLL R. BOSWELL v. SOUTH CAROLINA INSURANCE COMPANY (01/15/86)

submitted: January 15, 1986.

CARROLL R. BOSWELL, APPELLEE AT NO. 892 PGH 85, APPELLANT AT NO. 943 PGH 85,
v.
SOUTH CAROLINA INSURANCE COMPANY, AND THE TRAVELERS INSURANCE COMPANY, APPELLEE AT NO. 943 PGH 85. APPEAL OF SOUTH CAROLINA INSURANCE COMPANY, APPELLANT AT NO. 892 PGH 85



Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division in Case No. GD83-5571, June 24, 1985.

COUNSEL

Gilbert M. Coogler, Beaver, for appellant (at 892) and appellee (at 943).

James Cole, Pittsburgh, for appellant (at 943) and appellee (at 892).

Philip A. Faix, Jr., Pittsburgh, for Travelers, appellee.

Cavanaugh, Olszewski and Kelly, JJ.

Author: Kelly

[ 353 Pa. Super. Page 111]

This appeal is from an Order of the Court of Common Pleas of Allegheny County in an action for recovery of lost wages under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. ยง 1009.101 et seq. (herein after the No-Fault Act) entered in favor of plaintiff/appellee Carroll R. Boswell and defendant/appellee The Travelers Insurance Company (herein after Travelers) and against defendant/appellant South Carolina Insurance Company (herein after appellant). Appellee Boswell seeks recovery from appellant, or in the alternative, from Travelers, of the amount of his wage loss resulting from his accident and injury sustained July 1, 1982 not reimbursed by his employer, the Federal Government. We affirm the lower court order for the reasons discussed below. The facts are as follows:

Carroll R. Boswell suffered injuries on July 1, 1982 in a motor vehicle accident which occurred in Pennsylvania while in the course of his employment as a U.S. Postal employee. Boswell at this time did not own an auto. Plaintiff's son, Carroll L. Boswell (herein after son), a member of the U.S. Army, did own a car, which at the time of the accident was insured by appellant. Appellee's son was stationed in Korea at the time of the accident; prior to service in Korea, he had been stationed at Fort Bragg, North Carolina.

[ 353 Pa. Super. Page 112]

Son acquired his car while stationed in North Carolina and had purchased insurance for the car, listing the principal garage for the car as the 21st MP Company, Fort Bragg, North Carolina. When the son was reassigned to duty in Korea, he notified Peggy Norton, agent for appellant insurance company, of his new assignment and of the fact that he would be garaging the car at his father's home in Pittsburgh, Pennsylvania. Appellant's agents changed the son's policy to reflect the new principal garage for the car.

A brief trial was held on March 20, 1985, and certain exhibits, depositions, transcripts and stipulations were entered into the record.*fn1 The Honorable I. Martin Wekselman entered a non-jury verdict in favor of Boswell, and in favor of Travelers and against appellant. Appellant filed timely post-trial motions; Boswell filed timely motions to protect his claim against Travelers.

Section 204 of the No-Fault Act delineates the basic procedure for victims seeking compensation for injuries sustained in the course of their employment. The victim must first seek basic loss benefits from his employer, then from his personal automobile insurance carrier, if any, then from any automobile insurance carriers covering members of his household, and finally from the Pennsylvania Assigned Claims Plan. In this case the state claims plan designated Travelers as its insurance carrier.

Appellee recovered all his medical no-fault benefits from his employer, the U.S. Postal Service, and two-thirds (2/3) of his wage loss from the U.S. Department of Labor, the federal workmen's compensation equivalent. Since we find that the appellee was covered by the automobile insurance carrier of a member of his household, we find no need to hold Travelers liable as designated carrier under the Pennsylvania Assigned Claims Plan. Therefore, on this issue, we affirm the trial court decision.

[ 353 Pa. Super. Page 113]

Appellant raises two issues on appeal: whether the trial court erred in refusing to give effect to pertinent sections of the policy "providing coverage for an out-of-state automobile accident only if the accident occurs in a state other than the state in which the covered automobile is principally garaged"; and whether the trial court misapprehended Pennsylvania law by finding appellee's son was "in residence" in his father's Pittsburgh home at the time of the accident. (Appellant's brief at 7).

Appellant argues that the policy issued to appellee Boswell "does not provide coverage in the situation in this case where the accident has occurred outside of the state in which the policy was written, but in the same state (Pennsylvania) where the automobile is principally garaged . . . . An automobile insured in one state but principally garaged in another state at all times does not present an insurable risk." (Appellant's brief at 8.) Appellant refers the court to page three (3) of the insurance policy in support of its contention.

An examination of the policy and the "Out of State Coverage" section beginning on page 3 reveals the following:

OUT OF STATE COVERAGE If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will ...


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