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ALLSTATE INSURANCE COMPANY v. SAMUEL K. CLARKE AND LEBOVITZ & LEBOVITZ (06/10/87)

filed: June 10, 1987.

ALLSTATE INSURANCE COMPANY
v.
SAMUEL K. CLARKE AND LEBOVITZ & LEBOVITZ, P.A. APPEAL OF SAMUEL K. CLARKE



Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. 5432 of 1985.

COUNSEL

Yaier Y. Lehrer, Pittsburgh, for appellant.

John M. Silvestri, Pittsburgh, for appellee.

Brosky, Rowley and Popovich, JJ. Rowley, J., files a concurring and dissenting statement.

Author: Brosky

[ 364 Pa. Super. Page 198]

This is an appeal from an order entering summary judgment in favor of Appellee-plaintiff in the amount of $4,007.00.

Appellant has raised two issues in this appeal: (1) whether a subrogee is entitled to full payment when an entire matter has not been litigated and only a portion of the claimed damage has been recovered by settlement; and (2) whether the subrogor may make payment in full less reasonable attorneys fees where the fund against which a subrogee attempts to collect has been created by the work of the attorney for the subrogee.

[ 364 Pa. Super. Page 199]

We have reviewed the record and briefs submitted by counsel and find that the entry of summary judgment was improper under the facts of this case. Accordingly, we vacate the order of the trial court granting summary judgment in favor of appellee.

Appellee, Allstate Insurance Company, instituted the action below seeking the sum of $4,007.00 from appellant, Samuel Clarke. Appellant had insurance coverage provided by appellee on an automobile which was damaged severely in a collision with two other vehicles. Appellee paid the value of the car to appellant who was also seeking damages in legal proceedings against the other two drivers involved in the collision. Appellant received a $100,000 settlement against one of the drivers and his insurance carrier, which represented the extent of liability coverage of the driver, and executed a joint tort-feasor release agreement releasing the driver and his carrier from any further damages. Appellee, who had previously notified appellant of its subrogation interest and after learning of the settlement, demanded repayment of the sum paid to appellant citing a subrogation provision in the insurance contract as grounds for the repayment. Appellant, through his attorneys, notified appellee that the sum in question was being held in escrow pending resolution of the action against the other driver and the City of Pittsburgh, for whom that driver was employed at the time of the collision. Appellee then filed the action which is the subject of this appeal.

Appellant, while acknowledging appellee's subrogation right, has maintained throughout this case, that appellee's interest cannot be determined until appellant has resolved all actions and claims arising out of the collision in question. Appellant has maintained this position because it is also his contention that appellee cannot recover, in subrogation, the full amount paid to appellant unless appellant in turn recovers the full amount of his claim against the alleged tort-feasors. Given this premise, appellant argues, the percentage of repayment on the subrogation claim cannot be determined until after resolution of the other claim and attempts

[ 364 Pa. Super. Page 200]

    at subrogation now are both premature and inequitable. Both parties cite in their briefs Associated Hospital Service of Philadelphia v. Pustilnik, infra. in support of their position. We ...


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