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WILLIAM FLORES AND JOAN FLORES v. TRAVELERS (07/23/86)

filed: July 23, 1986.

WILLIAM FLORES AND JOAN FLORES, APPELLANTS,
v.
THE TRAVELERS, APPELLEE



Appeal from the Order Entered April 4, 1985 in the Court of Common Pleas of Philadelphia County, Civil No. 292 August Term 1984.

COUNSEL

Charles S. Lieberman, Philadelphia, for appellants.

Jeffrey S. Hoyle, Lansdale, for appellee.

Wieand, Olszewski and Beck, JJ. Wieand, J., files a concurring opinion.

Author: Olszewski

[ 354 Pa. Super. Page 467]

This matter comes before this Court on appeal from an order of the lower court, Judge Doty presiding, granting

[ 354 Pa. Super. Page 468]

    summary judgment in favor of appellee and against appellants. We must now decide whether appellants' claim for uninsured motorist benefits against an assigned claims plan insurer is barred by the statute of limitations pursuant to Sections 106(c)(1) and 108(c)(1) of Title 40 of the Pennsylvania No-fault Motor Vehicle Insurance Act (Act).*fn1

On September 13, 1980, appellants, William and Joan Flores, were injured when a motor vehicle in which they were traveling as passengers was struck by an unidentified vehicle. The appellants eventually received compensation for basic loss benefits from Federal Kemper Insurance Company (Kemper), the insurer of the vehicle in which appellants were riding, but their claims for uninsured motorist benefits were denied by this insurer on August 10, 1981. It was not until April 27, 1984 that appellants filed a claim for uninsured motorist benefits against appellee, The Travelers, the assigned claims plan designated insurer. Appellee, however, rejected this claim on July 11, 1984. Consequently, appellants filed suit against appellee on August 6, 1984. Thereafter, the lower court granted appellee's motion for summary judgment and dismissed the complaint. The lower court found that since appellants were aware that Kemper rejected their claim for benefits on August 10, 1981, they had until August 10, 1983 to file a claim for these benefits with the assigned claims plan. Because they did not file such a claim until April 27, 1984, said claim was barred by Sections 106(c)(1) and 108(c)(1) of the Act. Appellants now allege that in Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981), our Supreme Court held that an assigned claims plan insurer was obligated to provide uninsured motorist benefits "as if a valid policy had been issued." Thus, appellants state, " Tubner implied a contract of insurance that the legislature did not expressly authorize." Consequently,

[ 354 Pa. Super. Page 469]

"this decision compels the reader to conclude that a four year statute of limitations for contracts implied in law is applicable." See 42 Pa.C.S.A. Sec. 5525(4). (Appellants' brief, pp. 7-8). We disagree.

Although Tubner holds that an assigned claims plan insurer was required to pay not only basic loss benefits, but also uninsured motorist benefits to an uninsured motorist on the basis of his statutory rights under the Act, there is no indication that our courts should look outside the Act to determine the applicable statutory period of limitations. We agree with Judge Doty that the applicable period of limitations for claims by an uninsured motorist against an assigned claims plan insurer can be found in Section 106(c) of the Act. See Warren v. Reliance Insurance Company, 318 Pa. Super. 1, 464 A.2d 487 (1983) (en banc); Holland v. General Accident Fire and Life Insurance Company, 339 Pa. Super. 433, 489 A.2d 238 (1985). Moreover, Section 108(c) dealing ...


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