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RUTH JONES v. KEYSTONE INSURANCE COMPANY (06/16/87)

filed: June 16, 1987.

RUTH JONES, ADMINISTRATRIX OF THE ESTATE OF MICHAEL SELDEN, DECEASED, AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
KEYSTONE INSURANCE COMPANY, APPELLEE



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Dauphin County, No. 695 S 1986.

COUNSEL

Richard C. Angino, Harrisburg, for appellants.

A. Richard Feldman, Philadelphia, for appellee.

Wieand, Montemuro and Johnson, JJ.

Author: Wieand

[ 364 Pa. Super. Page 320]

This class action for post-mortem work loss benefits under Pennsylvania's No-fault Motor Vehicle Insurance

[ 364 Pa. Super. Page 321]

Act*fn1 was commenced by Ruth Jones, the administratrix of the estate of Michael Selden, deceased, on behalf of her decedent's estate and the estates of all insureds of Keystone Insurance Company who had died in motor vehicle accidents after passage of the No-fault Act. The trial court held that the claim for work loss benefits asserted by Jones on behalf of her decedent's estate had been waived. Therefore, the court entered summary judgment against Jones and dismissed the class action complaint. Jones appealed.

Michael Selden*fn2 sustained fatal injuries in an automobile accident on August 23, 1977. At the time of the accident, Selden was uninsured. To recover basic loss benefits under the No-fault Act, Ruth Jones, a cousin of Selden who had been appointed to administer his estate, filed a claim on behalf of the estate with the Pennsylvania Assigned Claims Plan. The claim was assigned to Keystone Insurance Company (Keystone), which promptly paid funeral and survivor's benefits. In addition, on August 16, 1978, Keystone reimbursed the decedent's estate for medical bills which had been incurred by Selden prior to his death. Thereafter, Jones instituted an action against Keystone in Philadelphia County to recover uninsured motorist benefits. This action was terminated on June 25, 1982 after Keystone had agreed to settle the same for $15,000. Later, Jones caused a letter to be sent to Keystone requesting payment of post-mortem work loss benefits. Keystone denied this request by letter dated October 26, 1979. On February 9, 1981, a second claim by Jones for work loss benefits was also denied by the assigned claims carrier. More than four years later, on June 24, 1985, Jones commenced the present class action against Keystone to recover unpaid work loss benefits.*fn3

[ 364 Pa. Super. Page 322]

The class defined in the complaint included the estates of all insureds of Keystone who had died in motor vehicle accidents after 1975, when the No-fault Act went into effect.

Keystone filed a motion for summary judgment in which it alleged, inter alia, that because Jones had failed to assert the claim for work loss benefits in the prior action for uninsured motorist benefits, the claim had been waived pursuant to Pa.R.C.P. 1020(d)(1) and (4), and that, in any event, the claim for work loss benefits was barred by the statute of limitations.*fn4 After hearing oral argument, the trial court rejected Keystone's contention that Jones' claim for work loss benefits was barred by the statute of limitations. The court agreed, however, that Jones had waived that cause of action by failing to assert it in the prior action for uninsured motorist benefits.*fn5 Consequently, the court granted Keystone's motion for summary judgment and dismissed the class action complaint. Although we disagree with the court's analysis, the summary judgment was proper and will be affirmed.

In Miller v. Federal Kemper Insurance Co., 352 Pa. Super. 581, 508 A.2d 1222 (1986), this Court said:

For the entry of summary judgment, there must not only be an absence of genuine factual issues, but there must also be an entitlement to judgment as a matter of law. Lookenbill v. Garrett, 340 Pa. Super. 435, 439, 490 A.2d 857, 859 (1985); Curry v. Estate of Thompson, 332 Pa. Super. 364, 368,

[ 364 Pa. Super. Page 323481]

A.2d 658, 659 (1984); Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 109 (1983). On appeal from an order entering summary judgment, an appellate court will reverse the trial court where there has been an error of law or a clear abuse of discretion. Peters Township School Authority v. United ...


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