Appeal from Order Entered January 12, 1987, Court of Common Pleas, Civil Division, Schuylkill County No. S-960-1986.
Andrew Teitelman, Philadelphia, for appellant.
John B. Lieberman, III, Pottsville, for appellee.
Cavanaugh, Rowley and Montemuro, JJ.
[ 370 Pa. Super. Page 310]
This case presents issues arising under the Motor Vehicle Financial Responsibility Law, hereinafter referred to as MVFRL, 75 Pa.C.S. §§ 1701-1798, regarding the availability of first party benefits to the victim of an automobile accident who is both a named insured and an insured under two separate policies.*fn1 The specific issues for decision are (1) whether a provision of a policy which precludes recovery of benefits where another insurer at a higher level of priority, as stated in 75 Pa.C.S. § 1713(a) and the policy itself, is liable for coverage is enforceable; and (2) assuming the clause is invalid, whether 75 Pa.C.S. § 1717(2), preventing the stacking of coverage of multiple policies, applies where the insured seeks the excess amount of coverage the second priority policy would provide.
The matter was submitted to the court below upon cross motions for summary judgment. Appellee, hereinafter referred to as Erie, was awarded summary judgment in its favor. The lower court found that the prohibition against stacking contained in § 1717(2) applied to the facts of the case and required a finding that appellant, hereinafter referred to as Laguna, could not collect first party benefits
[ 370 Pa. Super. Page 311]
from Erie. We find the lower court's interpretation of the statute and policy without error and affirm.
Mr. Laguna was a passenger in an automobile owned by a third party which was involved in an accident with another vehicle on July 4, 1985. Mr. Laguna was the named insured in a policy with Federal Kemper Insurance Company, hereinafter referred to as Kemper, for an automobile which he owned. The limits of coverage for first party medical benefits under this policy was $10,000. This amount was paid to Laguna by Kemper. A separate policy of insurance issued by Erie to Mrs. Laguna for a vehicle owned by her provided for coverage in the amount of $100,000 for first party medical benefits. In this policy, Mrs. Laguna was the named insured and her husband, appellant, was covered as an insured. Since the medical expenses incurred by Laguna were in excess of $10,000, claim was made by him to Erie for benefits in the amount of the remainder of the expenses.
Erie denied coverage on the basis of the "Priorities of Policies" clause of the policy. This clause, in relevant part, provides, as follows:
We will pay First Party Benefits in accordance with the following order of priority. We will not pay if there is another insurer at a higher level of priority. The priority levels shown ...