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DERRICK BRAGG v. STATE AUTOMOBILE INSURANCE ASSOCIATION (01/24/86)

filed: January 24, 1986.

DERRICK BRAGG, A MINOR, BY DELORES J. BRAGG, MOTHER AND NATURAL GUARDIAN AND DELORES J. BRAGG, MOTHER OF THE MINOR IN HER OWN RIGHT, APPELLANTS,
v.
STATE AUTOMOBILE INSURANCE ASSOCIATION



Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 83-2175.

COUNSEL

Conrad A. Johnson, Chester, for appellants.

Peter B. Skeel, Pittsburgh, for appellee.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Cirillo, Olszewski, Beck and Tamilia, JJ. Spaeth, President Judge, joined in this opinion before the expiration of his term on the Court.

Author: Wickersham

[ 350 Pa. Super. Page 259]

This case was certified to the court en banc to determine the appropriate statute of limitations for uninsured motorist benefit claims under the Pennsylvania No-fault Motor Vehicle Insurance Act and the effect, if any, of a claimant's minority.

[ 350 Pa. Super. Page 260]

Derrick Bragg, a minor, was struck by a motor vehicle operated by William Kellem while Bragg was riding a bicycle on August 17, 1978. At the time of the accident, Kellem was allegedly uninsured. Accordingly, the appellants, Derrick Bragg, by his guardian Delores Bragg and Delores Bragg, in her own right, submitted a claim for no-fault benefits to the Pennsylvania Assigned Claims Plan Bureau on December 14, 1978.*fn1 This claim was subsequently assigned to the appellee, State Automobile Insurance Association, and basic loss no-fault insurance benefits were paid to Derrick Bragg. The date of the last payment of no-fault benefits made by appellee was on February 28, 1980.

In order to obtain uninsured motorist benefits, a demand was made upon appellee by appellants at some later date. This was followed by a demand for settlement. The record is devoid of the dates and manner of both demands. The record does show that on August 9, 1982, counsel for appellee refused to arbitrate this matter, however, asserting that appellants had no right to arbitrate under the No-fault Act's assigned claims plan.

On February 11, 1983, appellants brought the instant cause of action in the Court of Common Pleas of Allegheny County against appellee to obtain uninsured motorist benefits.

Appellee filed an answer and new matter, raising as an affirmative defense the statute of limitations. No reply to new matter was filed by appellants. Appellee then filed a motion for summary judgment which alleged that the implied contract statute of limitations of four years, 42 Pa.C.S. ยง 5525, applied, barring the commencement of the instant action. The lower court granted that motion and upon appellants' motion for reconsideration, the court affirmed its earlier decision.

Appellants filed this appeal in which they raise the following issues:

[ 350 Pa. Super. Page 2611]

) Whether the lower court erred in failing to find that the time limitation for uninsured motorist benefits under an assigned claim plan begins to run from the date that the assigned carrier refuses to accept the claim.

2) Whether the lower court erred in failing to find that the claim for uninsured motorist benefits on behalf of a minor is governed by the time limitations ...


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