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TIMOTHY RALPH v. OHIO CASUALTY INSURANCE COMPANY (03/23/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 23, 1987.

TIMOTHY RALPH, APPELLEE,
v.
OHIO CASUALTY INSURANCE COMPANY, APPELLANT

Appeal from the Order Entered April 23, 1986 in the Court of Common Pleas of Philadelphia County, Civil No. 1784 April Term 1980.

COUNSEL

C. Richard Morton, West Chester, for appellant.

Robert M. Nissenbaum, Philadelphia, for appellee.

Wieand, Olszewski and Cercone, JJ. Wieand, J., concurs in the result.

Author: Olszewski

[ 363 Pa. Super. Page 288]

This is an appeal from the trial court's order awarding appellee, Timothy Ralph, work loss benefits in the amount of $1,860.58. Appellant, Ohio Casualty Insurance Co., argues that appellee has not met his burden of proving that: (1) the insurance policy issued by Ohio Casualty is the applicable security under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act);*fn1 and (2) appellee is entitled to benefits under the No-fault Act and under the Ohio Casualty insurance policy. We find that there is a lack of evidentiary support for the trial court's finding that appellee proved that he was entitled to work loss benefits from the time he was released from the hospital to the date he returned to work, and consequently, we reverse the trial court's order.

On October 17, 1979, appellee, while a pedestrian, was struck and allegedly injured by a motor vehicle operated by Horace Paul, an insured of appellant Ohio Casualty. Three days later, on October 20, 1979, appellee was seriously injured when he was shot in the chest while in a bar. Appellee was consequently hospitalized from October 20, 1979 to December 19, 1979. On October 30, 1979, appellee submitted a claim for work loss benefits to Ohio Casualty

[ 363 Pa. Super. Page 289]

    for his motor vehicle-related injuries. Ohio Casualty denied the claim due to insufficient proof of the fact and the amount of the loss being claimed by appellee.

Appellee subsequently commenced an action against Ohio Casualty, seeking wage loss benefits, attorney fees, and interest pursuant to the No-fault Act.*fn2 The trial court awarded appellee work loss benefits in the amount of $1,860.58 for the period from December 19, 1979, the date appellee was released from the hospital, to February 8, 1980, the date appellee returned to work.*fn3 The trial court also awarded interest at the rate of 18% but denied appellee's claim for attorney fees. Both parties appealed without first filing exceptions with the trial court. This Court remanded the matter to the trial court to permit the parties to file exceptions nunc pro tunc. See Ralph v. Ohio Cas. Ins. Co., 320 Pa. Super. 262, 467 A.2d 29 (1983). Exceptions were filed and denied, and Ohio Casualty filed a timely appeal to this Court.

[ 363 Pa. Super. Page 290]

Appellant's first contention in this appeal is that Horace Paul's insurance with Ohio Casualty is not the applicable security under Section 204(a) of the No-fault Act, 40 P.S. Sec. 1009.204. This Section establishes a "hierarchy among potential sources of security" that may be responsible for payment of no-fault benefits to the injured party. Tyler v. Ins. Co. of N.A., 311 Pa. Super. 25, 29, 457 A.2d 95, 97 (1983). Section 204(a) reads as follows:

Sec. 1009.204. Source of basic restoration benefits

(a) Applicable security. -- The security for the payment of basic loss benefits applicable to an injury to:

(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee's employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;

(2) an insured is the security under which the victim or deceased victim is insured;

(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;

(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and

(5) any other individual is the applicable assigned claims plan.

Pennsylvania No-fault Motor Vehicle Insurance Act, supra, at Sec. 204, 40 P.S. Sec. 1009.204. As this Court aptly stated in Tyler: "In determining the applicable source of basic loss benefits under Section 204's priority system, the

[ 363 Pa. Super. Page 291]

    pertinence of each subsection must be considered seriatim -- that is, the applicability of each preceding subsection must be excluded before the next may be considered." Tyler, 311 Pa. Super. at 30, 457 A.2d at 97.

Appellant does not dispute that subsection (1) is inapplicable in the instant case since appellee was not, at the time of the accident, an employee in a vehicle provided by his employer. Appellant, however, argues that subsection (2) is applicable because appellee falls within the statute's definition of "insured."*fn4

The No-fault Act defines "insured" as:

"Insured" means:

(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and

(B) a spouse or other relative of a named insured, a minor in the custody of a named insured, and a minor in the custody of a relative of a named insured if --

(i) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and

(ii) in residence in the same household with a named insured.

An individual is in residence in the same household if he usually makes his home in the same family unit, even though he temporarily lives elsewhere.

[ 363 Pa. Super. Page 292]

Pennsylvania No-fault Motor Vehicle Insurance Act, supra, at Sec. 103, 40 P.S. Sec. 1009.103. Appellant concedes that counsel for appellee submitted an "Affidavit of No Insurance" in which appellee swore that on the date of the motor vehicle accident, "I did not own a car, have No-Fault insurance or reside in a household where a relative carried No-Fault insurance." But appellant questions the reliability of this affidavit since appellee, at his deposition, admitted that he did own a car at the time of the October 17, 1979 accident, which he drove on the public highways within three days of the motor vehicle accident. At the deposition, appellee stated that the motor vehicle was licensed but he drove it "illegally" on the day he was shot. (Discovery deposition of Timothy Ralph at 6 and 25).

We have previously stated the standard to be applied by this Court when reviewing the findings of a trial judge in a non-jury case:

Brenna v. Nationwide Ins. Co., 294 Pa. Super. 564, 567-568, 440 A.2d 609, 611 (1982) (citations omitted). The trial court stated in its opinion that: "At the time of the said automobile accident, the Petitioner (appellee) was a pedestrian who neither carried an automobile liability insurance

[ 363 Pa. Super. Page 293]

    policy nor resided with anyone who did carry such insurance." (Trial court opinion of May 17, 1982 at 2).

Initially, we note that it is irrelevant whether appellee owned a motor vehicle at the time of the accident. If appellee did own a motor vehicle, the relevant inquiry would be whether appellee's motor vehicle was insured. Moreover, when viewing the evidence and proper inferences in the light most favorable to appellee, we find that the trial judge did not abuse his discretion*fn5 in finding that appellee did not have automobile liability insurance and did not reside with a relative who did have such insurance. The trial judge viewed as credibile appellee's statements that he stayed 75% of the time in a house that he rented, other times he spent at his mother's house when he was "lonely" and that on the day of the shooting, he was driving his car "illegally," i.e., without No-fault motor vehicle insurance. (See Discovery deposition of Timothy Ralph at 4, 25, and 51). Consequently, subsection (2) is inapplicable because appellee is not an "insured" within the meaning of the No-fault Act. Subsection (3) is also inapplicable since appellee was not "the driver or other occupant" of the motor vehicle but rather, appellee was merely a pedestrian.

We agree with the trial court that subsection (4) describes the applicable security in the instant case. Subsection (4) has been interpreted to include "any uninsured person who is not an occupant of a vehicle such as a pedestrian or a bystander who was injured by a motor vehicle." Schimmelbusch v. Royal-Globe Ins. Co., 247 Pa. Super. 28, 32, 371 A.2d 1021, 1023 (1977). Appellee's status as an uninsured pedestrian places him within Subsection (4). Consequently, in the present case, the insurance policy Ohio Casualty issued to Horace Paul is the applicable security under the No-fault Act.

Appellant's second contention is that appellee has not met his burden of proving that he is entitled to work loss

[ 363 Pa. Super. Page 294]

    benefits under the No-fault Act and under the Ohio Casualty insurance policy.*fn6 With respect to the No-fault Act, appellant argues that appellee failed to establish that he suffered any work loss as a result of the October 17, 1979 motor vehicle accident. The applicable section of the No-fault Act provides in part:

Sec. 1009.106 Payment of claims for no-fault benefits

(a) In general --

(2) No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained. . .

Pennsylvania No-fault Motor Vehicle Insurance Act, supra, at Sec. 106, 40 P.S. Sec. 1009.106 (emphasis added).

This appeal presents us with two problems of statutory construction regarding Section 106. First, we must determine who bears the burden of proving the fact and amount of work loss. Second, we must define what is "reasonable proof of the fact and amount of the loss sustained."

Preliminarily, we note that in construing any statute, we are guided by the Statutory Construction Act.*fn7 Our object in interpreting Section 106(a)(2) of the No-fault Act is "to ascertain and effectuate the intention of the General Assembly."

[ 363 Pa. Super. Page 295]

Statutory Construction Act, 1 Pa.C.S.A. Sec. 1921(a). The provisions of the No-fault Act must be "liberally construed to effect their objects and to promote justice," but where the words of the No-fault Act are free from ambiguity, "the letter of it is not to be disregarded under the pretext of pursuing its spirit." Statutory Construction Act, 1 Pa.C.S.A. Sec. 1921(b), Sec. 1928(c). On the other hand, where the words of the No-fault Act are "not explicit, the intention of the General Assembly (must) be ascertained" by taking into consideration a number of factors.*fn8 Statutory Construction Act, 1 Pa.C.S.A. Sec. 1921(c).

In determining who bears the burden of establishing "reasonable proof of the fact and amount of loss" under Section 106(a)(2), we are guided by the purpose of the No-fault Act, namely, "to establish . . . a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims." Pennsylvania No-fault Motor Vehicle Insurance Act, supra, at Sec. 102(b), 40 P.S. Sec. 1009.102(b). We conclude that, although the No-fault Act fails to explicitly state who bears the burden of proof under Section 106(a)(2), the purpose of the No-fault Act could only be served by requiring the "victim,"*fn9 or his "survivor,"*fn10 or the representative

[ 363 Pa. Super. Page 296]

    of either, to establish "reasonable proof." Under the Nofault Act, only motor vheicle accident victims and the survivors of deceased victims are to be accorded basic loss benefits from motor vehicle accidents. We find that our legislature would not have intended to create a situation where someone other than the victim or his survivor would bear the burden of proof in order for the victim or his survivor to be entitled to receive no-fault benefits. Additionally, the Insurance Department Regulations*fn11 provide in part:

As soon as practicable the eligible person, survivor or the representative of either shall give the Company written proof of claim, under oath if required, fully describing the nature and extent of bodily injury, treatment and rehabilitation received and contemplated and other information to assist the Company in determining the amount due and payable.

31 Pa.Code Sec. 66.102 Condition C (emphasis in original). This statement is consistent with our conclusion that the burden falls on the victim or his survivor.

We are also cognizant that if we are to err in ascertaining the intent of the legislature in close or doubtful cases, we should err in favor of coverage for the insured. See Crawford v. Allstate Insurance Co., 305 Pa. Super. 167, 451 A.2d 474 (1982). We, however, do not find this to be either a close or doubtful case. It seems reasonable to assert that our legislature was thinking of the victim or his survivor when it stated that "reasonable proof of the fact and amount of loss" has to be submitted to the "obligor."*fn12 Either the victim or his survivor would be in the best position, or perhaps would be the only person capable, of submitting such proof. We find, therefore, that the victim

[ 363 Pa. Super. Page 297]

    or his survivor has the responsibility of proving the fact and amount of the losses he claims are the result of a motor vehicle accident.

We must next attempt to give some meaning to the phrase "reasonable proof of the fact and amount of the loss sustained." Neither the No-fault Act nor the regulations define this phrase. In regard to this question, a major treatise on the Pennsylvania No-fault, published by the Pennsylvania Trial Lawyers Association, states:

Items ordinarily used to prove economic loss or "special damages" in personal injury cases should suffice as "reasonable proof of the fact and amount of loss sustained" for the purpose of obtaining no-fault benefits. Counsel for no-fault claimants should submit, for example, medical reports and bills to prove medical expenses, income tax returns and a statement from the employer to prove work loss, and bills and receipts to prove survivor's loss, replacement services loss, or funeral expenses.

D. Shrager, ed., The Pennsylvania No-fault Motor Vehicle Insurance Act, Sec. 1:22 (1979). While such documents are necessary, the mere fact that they were submitted does not alone establish "reasonable proof of the fact and amount of the loss." The court must make a case-by-case determination of whether there is "reasonable proof" based on the particular facts of each case.

In the case sub judice, the trial court found that "Plaintiff (appellee) did establish a basis for payment of his wage loss after he was discharged from the hospital."*fn13 (Trial court opinion of April 23, 1986 at 5). As we previously stated, when reviewing the findings of a trial judge in a

[ 363 Pa. Super. Page 298]

    non-jury case, this Court will only reverse the findings of the trial court where the trial court abused its discretion or there is a lack of evidentiary support. See Brenna, supra. While recognizing that our scope of review is limited, we have difficulty accepting the trial court's finding that appellee proved his entitlement to work loss benefits under the No-fault Act for the period from December 19, 1979, the date appellee was released from the hospital, to February 8, 1980, the date appellee returned to work.

Following the October 17, 1979 motor vehicle accident, appellee was able to make two trips in a motor vehicle; and on the day of the shooting, was able to drive himself to and from Chester, a thirty-six mile round trip, in order to get a haircut. (Discovery deposition of Timothy Ralph at 24-25, 41, and 45). After appellee returned from Chester, he entered a bar and was subsequently shot there. Additionally, the motor vehicle accident of October 17th occurred while appellee, a pedestrian, was crossing the street. Appellee was struck by the eighty-year-old driver of a Volkswagon who was attempting to back into a parking space along the roadside. (Discovery deposition of Timothy Ralph at 30). Regarding appellee's hospital stay as the result of the gunshot wound, appellee testified that he told the doctors about the motor vehicle accident, but they did not treat him for any injuries sustained as a result of the motor vehicle accident. (Discovery deposition of Timothy Ralph at 43).

Appellee further testified that everyday he suffers from pain in his leg, arm, neck, back, and right shoulder and that he also suffers from headaches and dizziness. (Discovery deposition of Timothy Ralph at 49). Appellee asserted that these injuries prevented him from driving a vehicle since the night of the shooting, with one exception, when he did drive his car. (Discovery deposition of Timothy Ralph at 49-50). Thus, appellee was unable to return to work where he was employed as a truck driver. Appellant paid appellee's medical bills resulting from the motor vehicle accident but appellant refused to pay work loss benefits because

[ 363 Pa. Super. Page 299]

    appellee did not submit sufficient proof of the fact and amount of work loss.

We agree with appellant's refusal to pay work loss benefits to appellee under the No-fault Act. The connection between the injuries appellee sustained and the motor vehicle accident is tenuous at best. We do not believe that the legislative purpose of the No-fault Act would be furthered by extending liability to the facts of this case. The No-fault Act was designed to compensate victims for motor vehiclecaused injuries. After careful review of the record, we conclude that there is no evidentiary support for the trial court's finding that appellee's injuries were the result of the October 17th motor vehicle accident. Appellee was hospitalized from October 20, 1979 to December 19, 1979, nearly two months, as a result of a gunshot wound to the chest. Appellee failed to prove that his inability to return to work until February 8, 1980 was due to the motor vehicle accident and was not the result of the gunshot wound to the chest. Consequently, we conclude that appellee failed to submit to appellant reasonable proof of the fact of the loss.*fn14

Order of the trial court reversed.

Disposition

Order of the trial court reversed.


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