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NATIONWIDE INSURANCE COMPANY DELAWARE v. WILLIAM F. ENDERLE AND MARGARET ENDERLE (04/21/87)

submitted: April 21, 1987.

NATIONWIDE INSURANCE COMPANY OF DELAWARE, APPELLANT,
v.
WILLIAM F. ENDERLE AND MARGARET ENDERLE, HIS WIFE



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Delaware County at No. 79-13742.

COUNSEL

Michael Yanoff, Lansdale, for appellant.

Edward S. Lawhorne, Media, for appellees.

Popovich, Johnson and Hester, JJ. Johnson, J., filed a dissenting opinion.

Author: Popovich

[ 369 Pa. Super. Page 45]

This is an appeal from the judgment of the Court of Common Pleas of Delaware County entered against the appellant, Nationwide Insurance Company of Delaware. We reverse.

The record discloses that on December 15, 1977, Clyde and Bernice Ewing, domiciled in the State of Delaware and

[ 369 Pa. Super. Page 46]

    insured by the appellant, sustained injuries in Pennsylvania as a result of the negligent operation of a vehicle owned by William and Margaret Enderle and insured by a Pennsylvania carrier.

When the Ewings refused to execute a complaint brought by the insured/Nationwide against the Enderles, it secured the status as party-plaintiff and sought the recoupment of $4,309.44 (of basic loss benefits paid to its insured/Ewings) from the Enderles under a right of subrogation afforded to it by the Delaware Motor Vehicle Act, 21 Del. Code Ann. § 2118(f). A verdict was entered against Nationwide and its complaint was dismissed.

A series of appeals and remands transpired thereafter leading to the re-imposition of the original verdict and complaint dismissal. This appeal followed.

Nationwide assails the trial court's dismissal of its complaint on the ground that the Delaware No-Fault Act (21 Del. Code Ann. § 2118) affords it a right of subrogation which was refused recognition by the court below. We agree.

Under our No-Fault Act (40 P.S. § 1009.101 et seq.), reference to the law of the state of domicile of the victim is required in those instances where the payment of basic loss benefits is at issue, the victim is not domiciled in Pennsylvania but the state of domicile of the victim does provide a No-Fault plan to its domiciliaries. For example, 40 P.S. § 1009.110(c)(1) reads in pertinent part:

(1) Basic Loss Benefits*fn1 available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the State's No-Fault plan for motor vehicle insurance in effect in the state of

[ 369 Pa. Super. Page 47]

    domicile of the victim on the date when the motor vehicle accident resulting ...


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