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APPLEBAUM v. STATE FARM MUT. AUTO. INS. CO.

January 31, 1986

MORRIS ALLEN APPLEBAUM, Administrator of the Estate of David Marc Applebaum, and all others similarly situated, Plaintiff
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: CALDWELL

 I. Introduction.

 The parties have filed cross-motions for summary judgment. Plaintiff, Morris Allen Applebaum (Applebaum), administrator of the estate of David Marc Applebaum, filed this action in the Court of Common Pleas of Dauphin County, Pennsylvania, against defendant, State Farm Mutual Automobile Insurance Co. (State Farm), to recover work loss benefits due his decedent under the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, ยง 101-701. State Farm was decedent's no-fault insurer. Plaintiff also sought to represent a class of "all others similarly situated." The defendant removed the action to this court on the basis of diversity of citizenship. It has moved for summary judgment on Applebaum's individual claim, contending that the claim is barred by: (1) the statute of limitations or statute of repose set forth in the No-fault Act; (2) the doctrine of lis pendens because Applebaum had filed a previous action for the same claim in the Court of Common Pleas of Philadelphia County; and (3) a release previously executed by decedent's survivor and approved by Applebaum as administrator of decedent's estate. Plaintiff contends that none of these arguments are applicable to him and he is entitled to summary judgment not only on his own claim but also on the claims of the class he purports to represent.

 II. Factual Background.

 From the pleadings, exhibits and affidavits submitted by both parties in connection with the motions, the following is the background of this litigation. Plaintiff's decedent, David Marc Applebaum, died on December 24, 1977, when he was struck by a car being operated by an uninsured driver as decedent was walking along the side of a road. At the time of his death decedent was scheduled to begin employment on January 16, 1978 with the University of Miami-Jackson Memorial Medical Center as a respiratory therapy technician. His starting salary was to be $10,000 per year.

 Applebaum was named administrator of the estate. He and the decedent's survivor, decedent's mother, Esther Applebaum, retained Marvin F. Galfand, Esq. to represent the estate and to collect any monies due from State Farm. In connection with claims against the no-fault policy, Galfand and Applebaum specifically asked defendant about liability for lost wages. A representative of the company told them that State Farm provided no coverage for such a loss and was responsible only for survivor's benefits and uninsured motorist protection. Galfand and Applebaum relied upon these representations and the decedent's mother executed the following release on August 7, 1978 in connection with her receipt of $2,500 in survivor's loss benefits:

 
Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purposes of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.
 
Undersigned hereby accepts draft or drafts as final payment of the consideration set forth above.

 Also on August 7, 1978, she executed another release after receiving $ 15,000.00 in payment of the uninsured motorist protection which read, in part, as follows:

 
Received of State Farm Mutual Auto Ins. Co. hereinafter called the company, the sum of Fifteen Thousand ($15,000.00) in full settlement and final discharge of all claims under the above numbered policy because of bodily injuries known and unknown and which have resulted or may in the future develop, sustained by David Applebaum by reason of an accident or occurrence arising out of the ownership or operation of an uninsured automobile . . . which occurred on or about the 24[th] day of December 1977 at Lower Moreland Pa.

 Further, Applebaum, as administrator of decedent's estate, executed the following affidavit on August 14, 1978:

 Morris Allen Applebaum, being duly sworn according to law, deposes and says as follows:

 
1. He is the administrator of the Estate of David Marc Applebaum.
 
2. He approves the settlement of the Uninsured Motorist claim against State Farm Automobile Insurance Company for the sum of $15,000.00
 
3. He approves the payment of the settlement directly to Esther Applebaum.
 
4. He will bring no claim against State Farm Automobile Insurance Company for Uninsured Motorist benefits or survivors benefits.
 
5. He approves the settlement of the claim for survivors benefits for ...

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