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

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 ...


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