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CONCHETTA LYDIA LAZARO v. AETNA CASUALTY AND SURETY COMPANY (01/22/88)

filed: January 22, 1988.

CONCHETTA LYDIA LAZARO, APPELLANT,
v.
AETNA CASUALTY AND SURETY COMPANY, APPELLEE



Appeal from the Judgment entered August 20, 1986, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5141 October Term 1983.

COUNSEL

JoAnna H. Flum, Philadelphia, for appellant.

Keith Grumbine, Pittsburgh, for appellee.

Olszewski, Del Sole and Beck, JJ. Olszewski, Judge, dissenting.

Author: Del Sole

[ 371 Pa. Super. Page 121]

This is an appeal from a judgment which denied Appellant's claim for work-loss benefits and attorney's fees under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act).*fn1 The significant issue is whether Appellant's entitlement to work-loss benefits will be determined pursuant to the Pennsylvania No-fault Act, or the No-fault Act of the State of New York. For the reasons which follow, we reverse.

Appellant was injured in a motor vehicle accident which occurred in Pennsylvania. At the time of her accident, Appellant was a resident of the state of New York. The unfortunate circumstances are stated in the following short order.

Appellant had been standing beside her automobile which was parked on the berm completely off the main travelled portion of U.S. Route 209 when she was struck by the dislodged tire and rim of a passing tractor trailer. The force of the impact threw her approximately 25 feet into the air, rendered her unconscious and caused her to suffer serious and permanent injuries. She has been unable to work since the accident.

At the time of the occurrence, Appellant was a named insured under a no-fault policy of insurance issued by Appellee, Aetna Casualty & Surety Co., in the State of New York. Appellee provided medical and hospital benefits, but denied Appellant's application for work-loss benefits since one month prior to sustaining her injuries, Appellant lost her job as a waitress when the restaurant where she worked ceased doing business. The case proceeded to arbitration in the Court of Common Pleas of Philadelphia County and the arbitrators found in favor of Appellant. A timely appeal of this award was made by Appellee and the case proceeded to trial on a case stated basis. The trial

[ 371 Pa. Super. Page 122]

    court entered a judgment in favor of Appellee and this appeal followed.

Initially, we note that this appeal presents no conflict of laws question. See Hahn v. Liberty Mutual Ins. Co., 336 Pa. Super. 329, 485 A.2d 830 (1984). Our legislature has expressly incorporated a conflict of laws provision into the Pennsylvania No-fault Act which reads:

(c) Applicable law. --

(1) The basic loss benefits available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs. If there is no such state no-fault plan in effect or if the victim is not domiciled in any state, then basic loss benefits available to any victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance, if any, in effect in the state in which the accident resulting in injury occurs.

40 P.S. § 1009.110(c)(1) (emphasis added by the majority).

Turning to the relevant New York No-fault statute, N.Y. Consol.Stat., Book 27, Insurance Law, § 672(5) provides:

[E]very owner's policy of liability insurance issued in satisfaction of articles six or eight of the vehicle and traffic law shall also provide, where a motor vehicle covered by such policy is used or operated in any state or in any Canadian province, insurance coverage for such motor vehicle at least in the minimum amount required for such vehicle by the laws of such other state or Canadian province.

Furthermore, Section 60.1(e) of the New York Insurance Department Regulations provides:

[A] provision that when a motor vehicle is used or operated in any other state or Canadian province as policy currently in effect or hereafter issued shall provide at least the minimum amount and kind of coverage ...


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