Appeal From Judgment Entered February 11, 1988, Court of Common Pleas, Civil Division, Crawford County No. A.D. 1983 - 894
Ann H. Gamble, Titusville, for appellants.
R. Charles Thomas, Meadville, for Wescoat, appellees.
Cavanaugh, Rowley and Kelly, JJ.
[ 378 Pa. Super. Page 296]
The issue in this case is whether the statute dealing with comparative negligence, 42 Pa.C.S. § 7102, applies to a negligence action where the defendant allegedly failed to
[ 378 Pa. Super. Page 297]
procure an insurance policy for the plaintiff and failed to notify the plaintiff that the insurance was not obtained.*fn1
The evidence established that in 1978 the plaintiffs below, and appellees herein, Williard J. Wescoat, Jr. and Susan G. Wescoat, applied to the defendant, Northwest Savings Association (Northwest), for a mortgage loan on a residential property that they were acquiring. In connection with the processing of the loan, the plaintiffs were asked if they wished to have the loan covered by credit life insurance and disability insurance and they indicated that they did. Pursuant to their request, Northwest prepared an application for insurance and submitted it to the Security of America Life Insurance Company (Security). Northwest maintained a group policy with Security in which mortgage borrowers could participate if they qualified. Robert C. Holquist, a vice-president and local manager of Northwest, was also an agent of Security and Northwest made available to borrowers life and disability insurance only through Security.
The application for insurance indicated that the husband plaintiff, Willard J. Wescoat, Jr., who would be an insured under the disability policy, had a knee injury in 1963 and listed a Dr. Fan of Titusville as the attending physician. Based on this information, Security forwarded to Dr. Fan a form to obtain an attending physician's statement. Dr. Fan did not respond and again Security requested the information. When it still obtained no response, Security wrote to the plaintiffs in August, 1978, that the file was closed and no insurance would be issued. Northwest wrote a similar letter in September, 1978. The only fact issue essentially
[ 378 Pa. Super. Page 298]
disputed in the court below was whether this information was actually received by the plaintiffs who denied having received such notifications.
In November, 1981, Mr. Wescoat again injured his left knee as a result of which he was disabled, at least partially. The plaintiffs advised Northwest of the injury and requested that the monthly payments on the mortgage be made by Security during the husband's disability. Upon discovering that they had no insurance, the plaintiffs brought an action against Northwest and Security in both trespass and assumpsit to recover the amounts that they would have been entitled to had the insurance been in place.*fn2 Appellants on ...