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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND BRIAN G. STUCK v. JOHN E. MOORE (07/20/88)

filed: July 20, 1988.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND BRIAN G. STUCK
v.
JOHN E. MOORE, JUNE A. MOORE, DARRIN E. MOORE, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS JOHN E. MOORE AND JUNE A. MOORE, CHARLES L. ROYER, KAY ROYER, JOHN E. REED AND OHIO CASUALTY INSURANCE COMPANY. (TWO CASES) APPEAL OF OHIO CASUALTY INSURANCE COMPANY (TWO CASES)



Appeal from the Order entered August 27, 1987, Court of Common Pleas, Mifflin County, Civil Division at No. 951 of 1983. Appeal from the Judgment entered October 19, 1987, Court of Common Pleas, Mifflin County, Civil Division at No. 951 of 1983.

COUNSEL

Peter J. O'Donnell, Lewistown, for appellants.

Theresa Shade, Harrisburg, for State Farm and Stuck, appellees.

Brosky, Montemuro and Johnson, JJ. Montemuro, J., files a concurring and dissenting Opinion.

Author: Johnson

[ 375 Pa. Super. Page 472]

Before us is an appeal from declaratory relief granted in favor of appellees State Farm Mutual Automobile Insurance Company and Brian Stuck. The case involves the interpretation of an "omnibus clause" contained in an automobile insurance policy issued by Ohio Casualty Insurance Company.

The accident underlying this action occurred in 1980, while Brian Stuck was driving a 1961 Pontiac owned by

[ 375 Pa. Super. Page 473]

Charles Royer and insured by Ohio Casualty. Although owned by Charles Royer the Pontiac was paid for and primarily used by his daughter Leigh Ann Royer. On the night of the accident Leigh Ann, Brian Stuck and some friends visited several bars. Initially, Leigh Ann drove the Pontiac. Later in the evening, when she wished to ride in her friends' car she gave Brian Stuck the keys to the Pontiac so that he could drive her car to the agreed upon destination. Brian Stuck did not have a driver's license. On the way to the destination an accident occurred.

Personal injury actions were brought naming Brian Stuck as defendant. Ohio Casualty denied coverage claiming, in part, that because Stuck was not licensed to drive he was excluded from coverage under the policy. At the time of the accident Stuck resided with his parents who had a no-fault insurance policy with State Farm Mutual Automobile Insurance Company. State Farm undertook the defense of claims asserted against Stuck. State Farm maintains that its policy provides only excess coverage. State Farm commenced the instant declaratory judgment action seeking a determination that primary liability coverage should be furnished by Ohio Casualty.

Following trial the jury returned a verdict specifically finding that Brian Stuck had a reasonable belief that he was entitled to use the vehicle in question. Accordingly, the trial court found Ohio Casualty's exclusion was avoided and that Brian Stuck was entitled to liability coverage under the Ohio Casualty policy.

Appellant, Ohio Casualty, filed a notice of appeal on September 21, 1987 from an order entered August 27, 1987 denying Ohio Casualty's Motion for Post-Trial Relief. This order is interlocutory and unappealable. Slagter v. Mix, 441 Pa. 272, 272 A.2d 885 (1971). No appeal should have been filed until a final judgment was entered. Id. Accordingly, the appeal at Number 596 Harrisburg 1987 is quashed.

Appellant filed a separate notice of appeal on October 20, 1987 in which it represented that the order of August 27,

[ 375 Pa. Super. Page 4741987]

had been reduced to judgment. In fact judgment was entered upon the jury verdict and the grant of declaratory relief on October 19, 1987. Thus, the appeal at Number 651 Harrisburg 1987 is properly before us and shall be addressed on the merits.

In its appeal Ohio Casualty raises four issues:

1. Whether the lower court misconstrued the pertinent insurance ...


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