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JACK F. MCCORMICK AND MARY ANN MCCORMICK v. BLUE CROSS WESTERN PENNSYLVANIA (01/20/87)

filed: January 20, 1987.

JACK F. MCCORMICK AND MARY ANN MCCORMICK, HIS WIFE, APPELLANTS,
v.
BLUE CROSS OF WESTERN PENNSYLVANIA, APPELLEE



Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil, at No. 8924 of 1982.

COUNSEL

Wm. Jon McCormick, Bentleyville, for appellants.

Gerri L. Sperling, Pittsburgh, for appellee.

Del Sole, Montemuro and Popovich, JJ. Popovich, J., files a concurring opinion.

Author: Montemuro

[ 360 Pa. Super. Page 211]

On November 28, 1984, appellants' action for medical benefits allegedly due from appellee was tried before the Honorable Robert A. Doyle, of the Court of Common Pleas of Allegheny County, sitting without a jury. At the close of appellants' case, on appellee's motion, a compulsory non-suit was entered against appellants.

[ 360 Pa. Super. Page 212]

An opinion and order was filed by the court below on January 9, 1985. The court therein determined that appellee's denial of benefits was improper; nevertheless, in light of appellants' failure to demonstrate actual damages, i.e., resultant out-of-pocket expenses, the court expressly "found" in appellee's favor. Both appellants and appellee filed post-trial requests for relief. Responding only to appellee's request, on March 29, 1985, the court below ordered that its January 9, 1985 opinion and order be vacated and that a nunc pro tunc order be substituted simply granting appellee's motion for compulsory non-suit.

Appellants thereafter timely reasserted their previous post-trial requests, supplementing those by noting the court's alleged violations of Pa.R.C.P. 1038(b), (c). By an order dated August 6, 1985, the court below denied appellants' motion for post-trial relief and directed the entry of judgment on the non-suit in appellee's favor. This appeal followed.*fn*

As framed by appellants, the issue presented is:

[ 360 Pa. Super. Page 213]

Whether an insured, under a policy of hospital insurance, must first pay his own bills before bringing an action in assumpsit against his carrier.

Appellee argued below, and the court so found, that its obligation to provide benefits, if any, was not to appellants directly but to the health care institution which furnished treatment. Therefore, in the absence of any actual out-of-pocket ...


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