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PETER H. SHAFFER v. PENNSYLVANIA ASSIGNED CLAIMS PLAN INSURANCE COMPANY NORTH AMERICA AND NATIONWIDE MUTUAL INSURANCE COMPANY. APPEAL NATIONWIDE MUTUAL INSURANCE COMPANY (12/04/86)

filed: December 4, 1986.

PETER H. SHAFFER, ADMINISTRATOR OF THE ESTATE OF GAIL F. JAKOVAC AND TRUSTEE AD LITEM OF KEIRSTEN LEIGH JAKOVAC AND GERALD JAKOVAC
v.
PENNSYLVANIA ASSIGNED CLAIMS PLAN INSURANCE COMPANY OF NORTH AMERICA AND NATIONWIDE MUTUAL INSURANCE COMPANY. APPEAL OF NATIONWIDE MUTUAL INSURANCE COMPANY



Appeal from the Judgment entered December 18, 1985 in the Court of Common Pleas of Butler County, Civil Division, at No. CP 84-1994 BK 187 PG 486.

COUNSEL

Lee C. McCandless and James E. Kerr, Butler, for appellant.

William D. Kemper, Butler, for Shaffer, appellee.

Stephen R. Mlinac, Pittsburgh, for Pa. Assigned, appellee.

Cirillo, President Judge, and Del Sole and Beck, JJ.

Author: Beck

[ 359 Pa. Super. Page 242]

Appellees Gerald Jakovac (Gerald) and Peter H. Shaffer*fn1 filed claims against Nationwide Mutual Insurance Company (Nationwide) and Insurance Company of North America (INA) under the No-fault Motor Vehicle Insurance Act (No-fault Act)*fn2 and the Uninsured Motorist Act.*fn3 The court granted INA's motions for summary judgment, and INA was released from the case. Appellant Nationwide was found liable to the Appellees.

Nationwide appeals the order granting summary judgment to INA and the judgment awarding damages in favor of Gerald Jakovac, Keirsten Jakovac, and the estate of Gail Jakovac. For the following reasons we quash the appeal as to the granting of summary judgment to INA and otherwise reverse in part and affirm in part the judgment of the Court of Common Pleas of Butler County.

The pertinent facts underlying this appeal are undisputed. On November 11, 1979, Gerald was driving with his wife Gail as a passenger in Gail's uninsured 1977 Toyota automobile when the car struck a bridge abutment. Gerald was injured, and Gail died as a result of injuries sustained in the one-car accident. At the time of the accident, Gerald owned a 1977 Ford pickup truck which was insured by Nationwide under a business auto policy. The only motor vehicle designated in the business auto policy as a "covered automobile" was Gerald's 1977 Ford pickup truck, and Gerald was listed as the sole policyholder of the business auto policy. As a result of the accident, suit was filed on behalf of Gerald, Gail's estate, and Keirsten (Gerald and Gail's daughter) against the Pennsylvania Assigned Claims Plan,*fn4

[ 359 Pa. Super. Page 243]

INA as the assignee insurer under the assigned claims plan of the No-fault Act, and Nationwide as the insurer under Gerald's business auto policy.

All of the parties to the suit filed motions for summary judgment in their favor on the issues of liability raised by the suit. In the trial judge's order of July 23, 1982, summary judgments were granted as follows:

(1) for Gerald and against Nationwide on Gerald's no-fault claim, plus interest and attorney's fees;

(2) for Nationwide and against Gerald on Gerald's uninsured motorist claim;

(3) for Keirsten and against Nationwide on Keirsten's no-fault claim, plus interest and attorney's fees;

(4) for Nationwide and against Keirsten on Keirsten's uninsured motorist claim;

(5) for Nationwide and against Gail's estate for the estate's no-fault claim;

(6) for Gail's estate and against Nationwide on the estate's uninsured motorist claim, and

(7) for INA and against Gerald, Keirsten, and Gail's estate on all claims.

In summary, INA was released from all claims to all parties. Nationwide's liability to Gerald and Keirsten for no-fault benefits and Nationwide's liability to Gail's estate for uninsured motorist benefits were to be determined by the trial court. After a hearing, an order was issued by the trial court on September 17, 1984, assessing damages against Nationwide on the respective claims.

Nationwide then filed a timely motion for post-trial relief asserting, inter alia, that the trial court had erred in (1)

[ 359 Pa. Super. Page 244]

    ruling that Nationwide, rather than INA as the assigned claims plan insurer, was the appropriate obligor; (2) failing to recognize the No-fault Act's statute of limitations as a bar to the claim in the amended complaint for survivor's loss; (3) assessing attorney's fees against Nationwide; (4) refusing Nationwide a setoff against Gail's estate under section 501 of the No-fault Act for basic loss benefits payable by Nationwide, and (5) ordering payment of uninsured motorist benefits to Gail's estate since the uninsured vehicle was owned by Gail, the decedent. Nationwide's motion for post-trial relief was denied, and judgment was entered against Nationwide. Thereafter, Nationwide appealed.

In this appeal, Nationwide reiterates the arguments raised in its motion for post-trial relief. First, Nationwide contends that the trial court improperly adjudged Nationwide, rather than INA, liable as the obligor for the no-fault claims of Gerald and Keirsten and for the uninsured motorist claim of Gail's estate. In essence, Nationwide contests the propriety of the trial court's July 23, 1982, order granting summary judgments for INA on all the no-fault and uninsured motorist claims presented on behalf of Gerald, Keirsten, and Gail's estate. Initially, we consider whether Nationwide has timely appealed the issues concerning the summary judgments in favor of INA since the timeliness of an appeal affects our court's jurisdiction. Murphy v. Brong, 321 Pa. Super. 340, 468 A.2d 509 (1983).

Pennsylvania Rule of Appellate Procedure 903(a) specifies that a notice of appeal is timely if it is filed within thirty days after entry of the order being appealed. Nationwide's notice of appeal was filed on January 11, 1985, approximately two and one-half years after the trial court granted summary judgments to INA. However, Nationwide asserts that the trial court's July 23, 1982, order granting INA summary judgments was not a final, appealable order. Nationwide maintains that only the September 17, 1984,

[ 359 Pa. Super. Page 245]

    judgment*fn5 entered against it was properly appealable as a final and duly entered order in the case. Inasmuch as Nationwide's appeal was filed within thirty days of the entry of the September 17, 1984, judgment, Nationwide ...


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