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ANTHONY A. GENTILE v. WEST AMERICAN INSURANCE EXCHANGE (10/16/87)

filed: October 16, 1987.

ANTHONY A. GENTILE, APPELLEE,
v.
WEST AMERICAN INSURANCE EXCHANGE, APPELLANT, V. ERIE INSURANCE EXCHANGE, APPELLEE



Appeal from the Order in the Court of Common Pleas, Civil, of Allegheny County, at No. AD86-06091

COUNSEL

Stephen P. McCloskey, Washington, for appellant.

Timothy P. O'Brien, Pittsburgh, for Gentile, appellee.

Richard C. Levine, Pittsburgh, for Erie Ins., appellee.

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

Author: Montemuro

[ 367 Pa. Super. Page 100]

Appellant West American Insurance Company challenges the dismissal of its joinder complaint against appellee Erie

[ 367 Pa. Super. Page 101]

Insurance Exchange. This appeal presents a single issue: when an employer fails to obtain worker's compensation benefits coverage for his or her employees, and one of those employees suffers injuries in a work-related motor vehicle accident while riding in the employer's vehicle, is payment of first party benefits pursuant to the Motor Vehicle Financial Responsibility Law the duty of the employer's motor vehicle insurance carrier or the employee's motor vehicle insurance carrier? Under the circumstances of this case, we find that payment of first party benefits was the responsibility of the employee's carrier. We therefore affirm the order of the Allegheny County Court of Common Pleas in favor of appellee Erie Insurance Exchange.

Appellee Anthony A. Gentile instituted the underlying action in this case against West American. Mr. Gentile suffered injuries in an automobile accident on January 31, 1986, while in the course of his employment with Richard W. Grice Remodeling. At the time of the accident, Mr. Gentile was a passenger in an automobile owned and operated by his employer, Richard Grice. Unfortunately, Mr. Grice had failed to obtain workers' compensation coverage for his employees even though section 305 of the Pennsylvania Workmen's Compensation Act, 77 P.S. § 501, required him to do so. Mr. Gentile therefore applied to West American for payment of first party benefits under a policy of insurance that West American had issued to Mr. Gentile's mother pursuant to the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq. West American denied the application on the belief that payment of first party benefits in the absence of worker's compensation was the responsibility of the employer's first party benefits carrier, not the employee's carrier. In support of their refusal to pay, West American cited the opinion of this court in Harleysville Ins. Co. v. Wozniak, 347 Pa. Super. 356, 500 A.2d 872 (1985).

The first party benefits carrier on Richard Grice's automobile at the time of the accident was appellee Erie Insurance Exchange. West American attempted to join Erie as a

[ 367 Pa. Super. Page 102]

    third party defendant in the action filed by Mr. Gentile. Erie responded by demurring to West American's joinder complaint. The trial court sustained the demurrer and ...


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