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TWILA J. MITCHELL v. TRAVELERS INSURANCE COMPANY AND PUBLIC SERVICE MUTUAL INSURANCE COMPANY. APPEAL TRAVELERS INSURANCE COMPANY (03/16/88)

filed: March 16, 1988.

TWILA J. MITCHELL, MOTHER AND NATURAL GUARDIAN OF CARL R. MITCHELL, A MINOR,
v.
TRAVELERS INSURANCE COMPANY AND PUBLIC SERVICE MUTUAL INSURANCE COMPANY. APPEAL OF TRAVELERS INSURANCE COMPANY



Appeal from Order of the Court of Common Pleas, Civil Division, of Cambria County, No. 1984-3163.

COUNSEL

William J. Begley, Pittsburgh, for appellant.

Louis C. Long, Pittsburgh, for appellee.

Wieand, Montemuro and Popovich, JJ.

Author: Wieand

[ 372 Pa. Super. Page 107]

In the event that an uninsured pedestrian is struck and injured by a motorcycle, is it the insurer of the motorcycle or the Assigned Claims Plan carrier which is required to pay basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act?*fn1 The trial court held that it was the Assigned Claims Plan carrier. We conclude that this was error and that the insurer of the motorcycle is liable for no-fault benefits. Therefore, we reverse.

On March 24, 1983, while crossing an alley in Johnstown, Pennsylvania, twelve-year-old Carl Mitchell was struck by a motorcycle owned by Louis Wattman and operated by Michael Wattman. The Mitchell boy was uninsured and was not otherwise covered by a policy of insurance providing no-fault benefits. The motorcycle which struck Mitchell was insured under a policy issued by Public Service Mutual Insurance Company (PSMI).

On October 31, 1984, Twila J. Mitchell, the mother and natural guardian of the injured boy, commenced an action for basic loss benefits on his behalf against Travelers Insurance Company (Travelers), the carrier designated by the Assigned Claims Plan, and PSMI, the insurer of the motorcycle. Both Travelers and PSMI denied liability on grounds that the other was the primary obligor and applicable source of security for the payment of basic loss benefits. On April 15, 1987, the trial court entered a final order

[ 372 Pa. Super. Page 108]

    granting a motion by PSMI for summary judgment and dismissing it from the action. Travelers appealed.

PSMI argues at the outset that Travelers lacks standing to appeal. We reject this argument. The law is clear that a defendant has a sufficient interest in and, therefore, standing to appeal from an order entering judgment in favor of a co-defendant or otherwise letting the co-defendant out of the case. East Broad Top Transit Co. v. Flood, 326 Pa. 353, 357, 192 A. 401, 403 (1937); Schwartz v. Jaffe, 324 Pa. 324, 330-331, 188 A. 295, 298 (1936); Carollo v. Forty-Eight Insulation, Inc., 252 Pa. Super. 422, 427 n. 1, 381 A.2d 990, 992 n. 1 (1977). This is particularly so where, as here, the only real issue is which of two insurance carriers is required by statute to pay the plaintiff's claim.

Section 204 of the No-fault Act*fn2 "in effect creates a hierarchy among potential sources of security" which are responsible for the payment of basic loss benefits to a person injured in an automobile accident. Tyler v. Insurance Co. of North America, 311 ...


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