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KATHLEEN CARTER KERSHNER v. PRUDENTIAL INSURANCE COMPANY (03/03/89)

filed: March 3, 1989.

KATHLEEN CARTER KERSHNER
v.
PRUDENTIAL INSURANCE COMPANY, APPELLANT



Appeal from the Order entered February 19, 1987, Court of Common Pleas, Bucks County, Civil Division at No. 84-09010-03-1.

COUNSEL

Charles W. Craven, Philadelphia, for appellant.

Richard S. Wasserbly, Doylestown, for appellee.

Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Del Sole, J., joins and files a concurring statement, which is joined by McEwen, J.

Author: Johnson

[ 382 Pa. Super. Page 96]

In this appeal we are asked to decide whether the trial court committed error in granting a directed verdict. Finding the directed verdict to have been granted upon grounds

[ 382 Pa. Super. Page 97]

    outside the boundaries of the controversy as defined by the parties' stipulations, we reverse and remand.

Kathleen Carter Kershner, appellant, brought an action against her no-fault automobile insurer, the Prudential Insurance Company, for medical expenses and lost wages alleged to be due her under the personal injury protection provisions of her policy. Kershner had carried auto insurance with Prudential since 1976. Subsequently she added and subtracted vehicles and changed her coverage in several respects to minimize cost. In 1981 she allegedly added a collateral benefits option to her policy designating the Prudential coverage as excess over other insurance held, and for this she received a reduction in her premium to reflect Prudential's decreased risk. Her primary health coverage consisted of comprehensive medical insurance policies with Massachusetts Mutual Insurance Company and Postmaster's Health Insurance. Kershner had no disability coverage.

On September 25, 1982 Kershner was seriously injured in an automobile accident and was unable to work for several months. Because she had no disability insurance, the board of directors of her employer of sixteen years, the Delaware Valley Mental Health Foundation, voted to give Kershner a sum equal to the salary she would have earned during this period. Kershner's medical insurance covered her medical bills. When Kershner sought to recover medical expenses and wage loss from her auto policy, Prudential denied her claim on the basis of the collateral benefits clause. Kershner initiated an action against Prudential, alleging that she never added a collateral benefits clause to her policy.

At commencement of the jury trial the parties agreed to a number of stipulations and presented them to the court. The court in turn furnished them to the jury with the explanation that these were to be considered as true and agreed upon facts and conclusions. The parties agreed that Kershner was injured in the automobile accident, that Prudential was her automobile insurer, that the medical and related bills totaled $29,976.19, that these were fair and

[ 382 Pa. Super. Page 98]

    reasonable charges, and that Prudential had already paid $5,137.00 of this amount. The parties agreed that if the collateral benefits clause was not in the contract, then Prudential would pay Kershner the balance of this sum and would also pay Kershner's lost wages of ...


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