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HARLEYSVILLE MUTUAL INSURANCE COMPANY v. JOSEPH SMITH (01/22/86)

submitted: January 22, 1986.

HARLEYSVILLE MUTUAL INSURANCE COMPANY, APPELLANT,
v.
JOSEPH SMITH, APPELLEE



Appeal from the Order entered February 11, 1985, in the Court of Common Pleas of Philadelphia county, Civil No. 1959 Aug. Term 1982.

COUNSEL

Kenneth D. Powell, Philadelphia, for appellant.

Allen L. Feingold, Philadelphia, for appellee.

Cavanaugh, Olszewski and Tamilia, JJ.

Author: Olszewski

[ 352 Pa. Super. Page 175]

This matter comes before this Court on appeal from an order of the lower court vacating and striking the order of November 30, 1984, and granting summary judgment in favor of appellee. The present action is brought pursuant to 40 P.S. Sec. 1009.501 of the Pennsylvania No-Fault Motor Vehicle Insurance Act.

On October 8, 1977, Mrs. Smith, the passenger in a car driven by her husband the appellee, was injured in an automobile accident. Since appellee was an uninsured motorist, Mrs. Smith applied for basic loss benefits under the

[ 352 Pa. Super. Page 176]

Pennsylvania No-Fault Motor Vehicle Insurance Act*fn1 on or about January 12, 1978. Pursuant to Sec. 1009.108 of this Act, the claim was assigned to Harleysville Mutual Insurance Company on or about January 26, 1978. Mrs. Smith received her first benefits from the assigned insurer on June 23, 1981. Appellant then commenced an action against appellee on August 9, 1982, to recover the payments it had made to Mrs. Smith under the assigned claims plan.

It is noteworthy that the insurer's right to recover these benefits is unambiguously provided for under Sec. 1009.501 of the No-Fault Act. This section in pertinent part provides:

The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of his motor vehicle registration and operator's license.

Act of July 19, 1974, P.L. 489, No. 176, Sec. 501, 40 P.S. Sec. 1009.501, repealed Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a) effective October 1, 1984.

Now, in what appears to be a case of first impression before this court, we are asked to resolve the following two issues: (1) when does a cause of action by an assigned claims insurer accrue pursuant to Sec. 1009.501 of the No-Fault Act, and (2) what statute of limitations governs this action. Appellant argues that its cause of action should accrue when it makes its first payment to the claimant and that a six-year statute of limitations should ...


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