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DAVID W. KRAFT v. ALLSTATE INSURANCE COMPANY. (TWO CASES) APPEAL DAVID W. KRAFT (06/19/86)

filed: June 19, 1986.

DAVID W. KRAFT, ADMINISTRATOR OF THE ESTATE OF JOHN J. KRAFT, DECEASED, ET AL.; AND ALL OTHERS SIMILARLY SITUATED
v.
ALLSTATE INSURANCE COMPANY. (TWO CASES) APPEAL OF DAVID W. KRAFT, ADMINISTRATOR OF THE ESTATE OF JOHN J. KRAFT; EILEEN C. VENEGAS, ADMINISTRATRIX OF THE ESTATE OF JULIO C. VENEGAS, DECEASED; AND DENNIS R. SHOEMAKER, SR. AND DONNA LEE SHOEMAKER, ADMINISTRATORS OF THE ESTATE OF DENNIS R. SHOEMAKER, JR. APPEAL OF CLYDE J. BELL, ADMINISTRATOR OF THE ESTATE OF ALICE LORRAINE BELL, DECEASED; AND BARBARA BERGBAUER SHIELDS, ADMINISTRATRIX OF THE ESTATE OF MICHAEL BERGBAUER, DECEASED



Appeals from the Orders of the Court of Common Pleas, Civil Division, of Dauphin County at No. 2557 S 1984.

COUNSEL

Richard C. Angino, Harrisburg, for appellants.

William T. Barker, Harrisburg, for appellee.

Wickersham, Brosky and Watkins, JJ.

Author: Wickersham

[ 354 Pa. Super. Page 318]

These appeals stem from a class action brought under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act), 40 P.S. §§ 1009.101-1009.701, (West Supp. 1984-1985), repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984, in which payment of post-mortem work loss benefits was sought. In the court below, the Honorable Warren G. Morgan issued the following Order on May 20, 1985 in response to defendant's motion for summary judgment, and petitions to intervene (plaintiff's motion for certification was granted and two subclasses were defined).

Order

AND NOW May 20, 1985, defendant's motion for summary judgment with respect to the claims of representative plaintiffs Kraft, Venegas, and Shoemaker are granted.

The petitions to intervene are denied.

Plaintiffs' motion for certification is granted, with two subclasses to be defined as follows:

(1) The first subclass shall consist of the estates of all decedents insured under policies of no-fault insurance issued by Allstate Insurance Company whose deaths occurred as the result of the maintenance and use of a motor vehicle within Pennsylvania during the period from August 21, 1980 to final disposition of this action. The subclass shall also include the estates of such decedents who were residents of Pennsylvania and who died as the result of the maintenance and use of a motor vehicle outside of Pennsylvania during that period.

[ 354 Pa. Super. Page 319]

(2) The second sub-class shall consist of the estates of all decedents insured under policies of no-fault insurance issued by Allstate Insurance Company whose deaths occurred as the result of the maintenance and use of a motor vehicle during the period from June 23, 1978, to August 20, 1980. The sub-class shall also include the estates of such decedents who were residents of Pennsylvania and who died as the result of the maintenance and use of a motor vehicle outside of Pennsylvania during that period.

The subclasses shall further be limited to those estates which have not yet been paid wage loss benefits. The subclasses shall further be limited to those estates whose decedents did not recover work loss benefits to the amount of $15,000.00 prior to their deaths.

Defendant is directed to search its files and provide to plaintiffs a list of all members of the two subclasses. Such provision must be made within 30 days of today's date.

Furthermore, the parties shall make best efforts to agree on a form of notice to class members and a plan for distributing such notices. The agreement shall be submitted to the court for approval within 30 days from today's date.

If the parties are unable to agree, each side shall submit proposed forms and plans to the court, along with an explanation as to why they were unable to agree. The court will then determine the form and manner of notice.

All members of the class as certified shall be included in the class unless a written election to be excluded is filed as of record within thirty (30) days of the date of notification.

On May 31, 1985 Judge Morgan issued a modified supplemental Order as follows:

Order

AND NOW, this 31st day of May, 1985, upon consideration of plaintiffs' Petition to Sever and Enter a Modified

[ 354 Pa. Super. Page 320]

Supplemental Order, the following Supplemental Order is hereby entered:

1. The claim of Blyde (sic) J. Bell, Administrator of the Estate of Alice Lorraine Bell, Deceased, is dismissed.

2. The claim of Barbara Bergbauer Shields, Administratrix of the Estate of Michael Bergbauer, Deceased, is dismissed.

3. The claims of the estates of decedents who died as a result of motor vehicle accidents between July 19, 1975 and June 22, 1978, who were covered by no-fault automobile insurance policies issued by Allstate Insurance Company are dismissed.

These appeals bring three issues for our consideration:

A. Was the statute of limitations tolled for decedents whose deaths occurred prior to June 23, 1978, by § 106(a)(5) of the No-fault Act, 40 P.S. § 1009.101, et seq., and by the various other class actions that were brought on behalf of those decedents in 1979 and 1981 seeking identical relief against the same defendant?

B. Did the Trial Court err in refusing to certify a class of plaintiffs' decedents' estates where death occurred prior to June 23, 1978?

C. Did the Trial Court err in dismissing the claims of four of the representative plaintiffs, Kraft, Venegas, Shoemaker, and Bell, as well as dismissing the claim of the Petitioner to Intervene, Shields, where fatal accidents occurred prior to June 23, 1978?

Brief for Appellants at 5.

Post-mortem work loss benefits, like ordinary work loss benefits and medical benefits are "benefits . . . for loss arising otherwise than from death" governed by the statute of limitations provided by Section 106(c)(1) of the No-fault Act. Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 170, 455 A.2d 101, 103 (1982). Section 106(c)(1) provides, in part, as follows:

[ 354 Pa. Super. Page 321]

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced no later than two years after the victim suffers the loss . . . or not later than ...


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