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STATE AUTOMOBILE INSURANCE ASSOCIATION v. WARREN C. KUHFAHL AND DOROTHY KUHFAHL AND ST. LUKE'S HOSPITAL (06/19/87)

filed: June 19, 1987.

STATE AUTOMOBILE INSURANCE ASSOCIATION, APPELLANT,
v.
WARREN C. KUHFAHL AND DOROTHY KUHFAHL AND ST. LUKE'S HOSPITAL, R.D. HERNANDEZ, M.D., IVAN PEREZ, M.D., JAN E. WEMPLE, M.D., JAMES L. COSTAN AND ELIZABETH MAE COSTAN, BENJAMIN BIDLACK, A MINOR BY AND THROUGH JERRY BIDLACK, HIS PARENT AND NATURAL GUARDIAN, AND JERRY BIDLACK AND NANCY BIDLACK, INDIVIDUALLY



Appeal from the Order entered July 15, 1986 in the Court of Common Pleas of Northampton County, Civil Division, No. 1985-C-3229.

COUNSEL

Michael Saltzburg, Philadelphia, for appellant.

William W. Matz, Jr., Bethlehem, for Kuhfahl, appellees.

Jerry A. Snyder, Allentown, for Bidlacks, appellees.

Cirillo, President Judge, and Tamilia and Cercone, JJ.

Author: Cercone

[ 364 Pa. Super. Page 232]

This declaratory judgment comes to us on appeal by the plaintiff, State Automobile Insurance Association (State Auto) from the lower court's denial of its motion for summary judgment and the question to be resolved is whether or not a certain accident comes within the terms of an automobile insurance policy which the appellees, the Kuhfahls had with State Auto at the time of the accident. State Auto sought a determination by the trial court that the facts and circumstances of the underlying incident infra, are such that the Kuhfahls, the insureds, are not entitled to a legal defense or liability insurance coverage from State Auto under the provisions of the insurance policy. The pertinent issue is whether or not injuries, sustained by a child, who after disembarking from the Kuhfahls' parked automobile and while proceeding across the street was struck by another vehicle, were causally connected with the use of the Kuhfahl automobile, thus triggering the participation of State Auto in the underlying lawsuit.

The lower court, in reviewing the depositions consisting solely of testimony of Mr. and Mrs. Kuhfahl, set forth the following facts in its opinion:

Defendants, Warren C. Kuhfahl and Dorothy Kuhfahl, used to transport Benjamin Bidlack home from Lincoln Elementary School, where Benjamin attended kindergarten and where Mrs. Kuhfahl works. On October 26, 1982, Mr. Kuhfahl drove his car to Lincoln School to pick up his wife and three children: Benjamin Bidlack, the Kuhfahl's grandson, Charles, and a neighbor, Jonah Levi. Mrs. Kuhfahl was seated in the front passenger seat of the vehicle, a two-door Ford Pinto. The three children

[ 364 Pa. Super. Page 233]

    were seated in the back. Mr. Kuhfahl then proceeded home to Sycamore Street in Bethlehem, and parked his vehicle in front of his home. Mr. Kuhfahl stated on deposition that he pulled over to the curb and turned off the ignition. However, Mr. Kuhfahl did not get out of the car for the reason that after dropping off the children, the Kuhfahls intended to proceed to a gas station where Mrs. Kuhfahl's vehicle was being inspected. Mrs. Kuhfahl then exited the vehicle on her side in order to push her seat forward and let the children out. At this point, Benjamin Bidlack began to run across the street towards his home, whereupon Mr. Kuhfahl shouted "Wait Benji." However, Benjamin did not wait, and was struck and injured by an oncoming vehicle.

The Kuhfahls as we have said, supra, have been named as defendants in an action filed by the Bidlacks on behalf of their son. (The Bidlacks have also sued the owner and driver of the automobile that struck their son and also the doctors and hospital involved in this case.) This will be referred to as the underlying action in which the Kuhfahls ask State Auto to defend them.

As the learned court, Judge Richard D. Grifo, in setting forth the principles of law governing the granting or denying motions for summary judgment said:

Summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show that there exists no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982). The moving party has the burden of proving that there is no material issue of fact, and the court must accept as true all well-pleaded facts in the light most favorable to the nonmoving party. Nash v. Chemetron Corp., 246 Pa. Super. 595, 371 A.2d 992 (1977).

Here there is no dispute as to any substantiated fact. The issue in this case concerns the proper construction of the

[ 364 Pa. Super. Page 234]

Kuhfahls' State Auto insurance policy which is properly resolved by the court as a matter of law in a declaratory judgment proceeding. Pa.P.U.C. Bar Assoc. v. Thornburgh, 62 Pa. Commonwealth Ct. 88, 434 A.2d 1327 (1981). Granting or denying a petition for a declaratory judgment is a matter lying within the sound discretion of the lower court. Greenberg v. Blumberg, 416 Pa. 226, 228, 206 A.2d 16, 17 (1965). We find that the trial court did not abuse its discretion when it granted summary judgment in favor of appellees, the Kuhfahls,*fn1 on July 15, 1986.

In analyzing whether the insurer has a duty to defend, we must first look to the complaint filed against the insureds. D'Auria v. Zurich Ins. Co., 352 Pa. Superior Ct. 231, 507 A.2d 857 (1986), and determine whether the insurer is required to defend. Vale Chemical Company v. Hartford Accident and Indemnity, 340 Pa. Superior Ct. 510, 490 A.2d 896 (1985), reversed on other grounds, 512 Pa. 290, 516 A.2d 684 (1986).

After discerning the facts alleged in the complaint, we must then decide whether, if those facts were found to be true, the policy would provide coverage. If it would, then there is a duty to defend. Id.

In Cadwallader v. New Amsterdam Casualty Company, 396 Pa. 582, 152 A.2d 484 (1959), our Supreme Court referred to this principle as explained by Judge Learned Hand in Lee v. Aetna Casualty and Surety Company, 178 F.2d 750 (2d Cir.1919). In Lee, an insured brought suit on a policy of liability insurance in two counts, seeking both relief from a judgment against the insured and costs in defense of the suit. Our Supreme Court in Cadwallader stated that the Lee Court found

     that the insurer was not obligated to pay the amount of the judgment recovered against the insured as the recovery was not one ...


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