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TRAVELERS INDEMNITY COMPANY v. COMMERCIAL UNION INSURANCE COMPANIES AND SWARTHMORE COLLEGE (11/17/87)

filed: November 17, 1987.

TRAVELERS INDEMNITY COMPANY, APPELLANT
v.
COMMERCIAL UNION INSURANCE COMPANIES AND SWARTHMORE COLLEGE



Appeal from the Judgment Entered June 19, 1986 in the Court of Common Pleas of Philadelphia County Civil Division, No. 6098 September Term 1985.

COUNSEL

Thomas A. Wimmer, Media, for appellant.

Andrew S. Levine, Philadelphia, for appellees.

Montemuro, Popovich and Cercone, JJ.

Author: Cercone

[ 368 Pa. Super. Page 161]

When the owner of an uninsured vehicle is struck by an insured vehicle while entering his uninsured vehicle, is the insurance carrier for the insured vehicle a proper source of basic loss benefits under section 204 of the Pennsylvania No-fault Motor Vehicle Insurance Act?*fn1 (hereinafter "No-fault Act") The trial court held that the designated carrier under the assigned claims plan,*fn2 Travelers Indemnity Company (hereinafter "Travelers"), appellant herein, was the proper source rather than the insurer of the striking vehicle, Commercial Union Insurance Companies (hereinafter "Commercial Union"). We affirm.

On October 2, 1982, Demetrius Kattes was involved in a motor vehicle accident. The facts are undisputed. At the time Mr. Kattes was injured, he was seated in his uninsured, parked vehicle in the driver's seat, with keys in the ignition, his right hand on the steering wheel. He was in the process of closing the driver's door with his left hand, his left foot was on the ground as he reached to close the door. He was struck by a motor vehicle insured by Commercial Union and owned by Swarthmore College, appellees herein.

Travelers was the assigned obligor for the payment of Kattes' basic loss benefits through the assigned claims plan. Travelers has filed the instant action in order to recoup basic loss benefits paid to Kattes in the amount of $21,303.34. In the court below, both parties filed cross-motions for summary judgment contending that the other party was liable for payment of basic loss benefits. The Honorable Ethan Allen Doty of the Court of Common Pleas of Philadelphia County granted Swarthmore College and Commercial Union's motion and denied the motion filed by Travelers.

[ 368 Pa. Super. Page 162]

That Mr. Kattes was a "victim" under section 201 of the No-fault Act and entitled to basic loss benefits is apparently conceded by Travelers. The present controversy concerns only the ultimate security liable for the basic loss benefits for which Mr. Kattes was paid. Section 204 of the No-fault Act, 40 P.S. ยง 1009.204, establishes "categories and priorities as between insurers responsible for payment of benefits." Tyler v. Insurance Company of North America, 311 Pa. Super. 25, 29, 457 A.2d 95, 96-97 (1983) (quoting Schimmelbusch v. Royal-Globe Insurance Co., 247 Pa. Super. 28, 31, 371 A.2d 1021, 1023 (1977)). This section, which creates a hierarchy among potential sources of security provides:

(a) Applicable security. -- The security for the payment of basic loss benefits applicable to an injury to:

(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee's employer, is the security for the payment of basic loss benefits ...


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