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JOSEPH MCCABE v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY AND TRAVELERS INSURANCE COMPANY. APPEAL PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY (08/25/86)

filed: August 25, 1986.

JOSEPH MCCABE
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY AND TRAVELERS INSURANCE COMPANY. APPEAL OF PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY



Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County at No. 82-15801.

COUNSEL

David M. McCormick, Philadelphia, for appellant.

Eugene F. Jarrell, III, Media, for McCabe, appellee.

Charles Craven, Philadelphia, for Travelers, appellee.

Wickersham, Wieand and Popovich, JJ. Wieand, J., concurs in the result.

Author: Popovich

[ 356 Pa. Super. Page 224]

This is an appeal by appellant, Prudential Property and Casualty Insurance Company (hereinafter referred to as Prudential), from an order entered in the Delaware County Court of Common Pleas granting, inter alia, Travelers Insurance

[ 356 Pa. Super. Page 225]

Company's (hereinafter referred to as Travelers) motion for summary judgment against Prudential for indemnity, for any and all amounts paid by Travelers to Joseph McCabe in satisfaction of his claims for Pennsylvania No-Fault Motor Vehicle Insurance Benefits.

On or about May 14, 1981, while walking across a portion of Interstate 95 located in Pennsylvania, Joseph McCabe was struck by an automobile owned and operated by Kevin Frissora. Mr. Frissora was a Connecticut resident and his automobile was insured by Prudential under a policy written in accordance with the Connecticut No-Fault Motor Vehicle Statute. Mr. McCabe had no insurance of his own, and, therefore, applied to the Pennsylvania Assigned Claims Plan for no-fault benefits. The Pennsylvania Assigned Claims Plan assigned his claim to Travelers. Travelers denied Mr. McCabe's claim, and, in turn, Mr. McCabe instituted this action against both Prudential and Travelers in order to recover under the Pennsylvania No-Fault Motor Vehicle Insurance Act. The parties filed motions for summary judgment.

Summary judgment was granted in favor of Joseph McCabe and against Travelers for no-fault benefits and attorney's fees. The lower court also granted Travelers' motion for summary judgment against Prudential for indemnity for any and all amounts paid by Travelers to Joseph McCabe in satisfaction of his claims for Pennsylvania No-Fault Motor Vehicle Insurance Benefits. This appeal followed.

Appellant raises three issues: (1) whether a pedestrian injured in Pennsylvania, when struck by a vehicle insured in Connecticut, may obtain "no-fault benefits" under that vehicle's policy when he is excluded from coverage by a policy provision written in compliance with Connecticut law; (2) whether the Pennsylvania No-Fault Act imposes liability for the payment of "no-fault benefits" to pedestrians injured in Pennsylvania, on a Connecticut policy of insurance which specifically excludes such coverage; and, (3) whether the denial of "no-fault benefits" under the Connecticut policy

[ 356 Pa. Super. Page 226]

    was unreasonable and justified the imposition of attorney's fees against the appellant.

The Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter referred to as Pennsylvania No-Fault Act, the Act of July 19, 1974; P.L. 489, No. 176, Act I, § 101, 40 P.S.A. § 1009.101, et seq.) requires that:

Every owner of a motor vehicle . . . operated in this Commonwealth by the owner . . . shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth of Pennsylvania. Security shall be provided for the payment of basic loss benefits . . . .

40 P.S.A. § 1009.104(a). (Emphasis added) All owners of a motor vehicle operated in Pennsylvania are required to provide such security. See, Greathouse v. Federal Kemper Insurance Co., 13 D. & C.3d 785, 789 (1980).

Many states, including Connecticut, specifically require nonresident owners of motor vehicles to maintain that state's minimum level of no-fault security while that vehicle is operating within the state. Connecticut, Conn.Gen.Stat.Rev. § 38-327(a)(2); Florida, West's F.S.A. § 627.733(2); Colorado, C.R.S. (1973), 10-4-705.

Under section 1009.201(a) of the Pennsylvania No-Fault Act, appellant, Prudential, concedes that Joseph McCabe, an uninsured pedestrian who was injured when he was struck by a Connecticut insured automobile while it was being operated in Pennsylvania, is entitled to no-fault benefits. The Act provides that "if the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act." (Emphasis added.) 40 P.S.A. § 1009.201(a).

As Prudential emphasizes in its brief, the real dispute concerns the source of those benefits. Section 204(a) of the Pennsylvania No-Fault Act deals with McCabe's source of benefits. Section 204(a), which is entitled "Source of Basic Restoration Benefits", provides:

[ 356 Pa. Super. Page 227]

(a) Applicable Security. -- The security for the payment of basic loss benefits ...


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