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DELLA C. LASTOOKA AND FRANCIS R. SCHOLL AND ANTHONY P. PICADIO v. AETNA INSURANCE COMPANY. DELLA C. LASTOOKA AND FRANCIS R. SCHOLL AND ANTHONY P. PICADIO (11/15/88)

filed: November 15, 1988.

DELLA C. LASTOOKA AND FRANCIS R. SCHOLL AND ANTHONY P. PICADIO, CO-EXECUTORS OF THE ESTATE OF JOHN M. LASTOOKA, DECEASED, APPELLANTS,
v.
AETNA INSURANCE COMPANY. DELLA C. LASTOOKA AND FRANCIS R. SCHOLL AND ANTHONY P. PICADIO, CO-EXECUTORS OF THE ESTATE OF JOHN M. LASTOOKA, DECEASED, V. AETNA INSURANCE COMPANY, APPELLANT



Appeals from the Judgment Order entered December 4, 1987, of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 86-2091.

COUNSEL

Anthony P. Picadio, Pittsburgh, for Lastooka, et al.

John Edward Wall, Pittsburgh, for Aetna Ins. Co.

Brosky, Johnson and Melinson, JJ. Johnson, J., files dissenting opinion.

Author: Brosky

[ 380 Pa. Super. Page 409]

This is a consolidated appeal from a summary judgment granted in part in a declaratory judgment action instituted by appellants, Lastooka, Scholl and Picadio, co-executors of the estate of John Lastooka, after the deceased was killed in an automobile accident. These appellants sought a declaration of insurance coverage rights based upon a business auto policy in existence at the time of the fatal accident.

Two issues have been raised for resolution on appeal: (1) was the decedent covered under the uninsured motorist provisions of the policy even though he was not occupying a covered auto at the time of the accident? and (2) was decedent entitled to stack insurance coverage? The trial court found that uninsured motorist coverage applied to the accident but that stacking of coverage was not permissible.

[ 380 Pa. Super. Page 410]

Appellee, Aetna Insurance Company, in a cross-appeal, appeals the finding that coverage applied in the first instance. We will refer to Aetna as appellee throughout this opinion. We affirm in part and vacate in part.

The following facts are of relevance to our decision: On February 5, 1985, John Lastooka was fatally injured in a motor vehicle accident while riding as a passenger in a car driven by Sharon Kentros, who was uninsured. At the time of the accident the deceased was the owner of Ram Construction Company, a sole proprietorship. All of Ram Construction's business vehicles, as well as the family's personal automobiles, were titled under the name of Ram Construction and insured under a business auto policy issued by Aetna. The total number of vehicles insured at the time of the accident was 28, five of which were the personal vehicles of the family members. All insurance premiums were paid by the deceased personally through a company account. Effective February 25, 1984, the endorsement to the policy had been amended to include John Lastooka and Della Lastooka as named insureds. The named insureds had already included John M. Lastooka d/b/a Ram Construction Company, Ram Construction Company and Ram Management Corporation.

We agree with the trial court's conclusion that uninsured motorist coverage existed despite the fact that appellants' decedent was not occupying a "covered auto" at the time of the accident. This Court previously found coverage to apply under similar facts in the case of Estate of Rosato v. Harleysville Mut. Ins., 328 Pa. Super. 278, 476 A.2d 1328 (1984). There we stated "[t]he fact that the decedent was not occupying a vehicle covered under appellant's policy at the time of the accident is not determinative." Id., 328 Pa. Superior Ct. at 289, 476 A.2d at 1334. Appellee argues, however, that Rosato did not consider the effect that a schedule of coverages section in the policy had upon the determination that coverage existed.

Under the policy found in this case, there is a "schedule of coverages and covered ...


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