Appeal from the Order Entered on September 4, 1986, in the Court of Common Pleas of Perry County, Civil Division, at No. 80-768.
George F. Douglas, Jr., Carlisle, for appellant.
David Schwalm, Harrisburg, for Insurance Co. of N.A., appellee.
Cirillo, President Judge, and Olszewski and Hester, JJ.
[ 365 Pa. Super. Page 185]
This appeal followed the trial court's refusal to open a summary judgment. We conclude that appellant has failed to allege sufficient grounds to warrant opening the judgment, and affirm.
Clyde Bishop was seriously injured on October 19, 1978, when the vehicle he owned and was operating collided with a tractor-trailer owned by Hall's Motor Transit Company and operated by one of its drivers. Bishop, in violation of the former Pennsylvania No-fault Motor Vehicle Insurance Act*fn1 (the "Act"), was uninsured. On April 23, 1979, his wife, as his guardian, applied for benefits under the Assigned Claims Plan of the Act. The claim was assigned to the Insurance Company of North America ("INA"). Between the date of the accident and the date INA began paying benefits, Bishop's medical expenses of $66,741.27 were paid by the Teamsters Local No. 429 Health and Welfare Fund (the "Fund") under a group policy for union members.
Bishop subsequently received a structured settlement in excess of $250,000 in a tort action instituted by his guardian against Hall's Motor Transit Company and its driver. Pursuant to section 501 of the Act,*fn2 INA then filed suit against
[ 365 Pa. Super. Page 186]
Bishop's guardian for reimbursement of the $41,359 in no-fault benefits previously paid to Bishop. The guardian joined the Fund as an additional defendant claiming that, if INA was entitled to reimbursement for benefits paid, the payment should be made by the Fund pursuant to its insurance policy for union members. The Fund filed a counterclaim against INA seeking reimbursement of the $66,741.27 which it paid before INA began making payments. Cross-motions for summary judgment were filed by the parties.
On September 11, 1981, President Judge Quigley of the Perry County Court of Common Pleas ruled that INA had a right to be reimbursed by Bishop, the owner-operator of the uninsured vehicle, but not from the proceeds of Bishop's recovery against the third party tortfeasor for non-economic detriment not covered by no-fault.
He next addressed the issue as to which of the two insurers, INA or the Fund, would be primarily liable for the benefits they had respectively paid to Bishop as a result of the accident. He decided that INA was secondarily liable, despite the fact that the Fund's policy which insured Bishop excluded coverage for "services paid or payable by any other insurance carrier." INA successfully argued that the assigned claims provision in the Act was only operative if no other insurance was available and that the Fund provided such insurance. The judge reasoned that the escape clause in the Fund's policy was not effective against INA in this situation, as benefits provided pursuant to the Act should be viewed as excess or secondary insurance under the Act. He observed,
First, the Act itself indicates that benefits paid under an assigned claim are to be secondary to other benefits received and receivable by the victim. 40 P.S. § 1009.108(a)(3). More importantly, to find this coverage to ...