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SAMUEL PHILLIP AND LYDIA PHILLIP v. RICHARD M. CLARK (05/04/89)

filed: May 4, 1989.

SAMUEL PHILLIP AND LYDIA PHILLIP, APPELLANTS,
v.
RICHARD M. CLARK



Appeal from the Judgment of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 2557 February 1977.

COUNSEL

Allen L. Feingold, Philadelphia, for appellants.

Joseph Ross, Philadelphia, for appellee.

Brosky, McEwen, and Olszewski, JJ. McEwen, J., concurs in the result.

Author: Brosky

[ 385 Pa. Super. Page 230]

This is an appeal from a judgment entered against appellant in a motor vehicle tort case. The trial court found that appellant's recovery in an arbitration proceeding constituted a litigation of damages and that appellants were estopped from further litigating these damages.

[ 385 Pa. Super. Page 231]

Appellants argue that the trial court erred in granting summary judgment as the uninsured motorist recovery did not preclude an action against the tortfeasor. We affirm.

This suit arose out of an automobile accident which occurred on December 26, 1975. Appellants claim personal injuries resulting from a collision with appellee. At the time of the collision, appellee was insured by Concord Mutual Insurance Company ("Concord"), and his automobile was therefore a "secured vehicle" as defined by Section 104 of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984 (No. 1984-11) § 8. The Concord policy provided liability limits of $15,000 per person, $30,000 per accident.

On May 13, 1978, a Court of Common Pleas panel of arbitrators awarded appellant, Samuel Phillip, $7,000.00 and appellant, Lydia Phillip, $500.00. On May 18, 1978, the appellee appealed the award for a jury trial de novo before the Court of Common Pleas.

In July, 1980, prior to the trial, Concord was declared insolvent and ultimately dissolved. Consequently, the Pennsylvania Insurance Guaranty Association ("PIGA") became Mr. Clark's statutory insurer under Section 201(b)(1)(ii) of the Pennsylvania Insurance Guaranty Association Act, 40 P.S. § 1701.101 et seq. ("the Act"). The appellants, as required by Section 503(a) of the Act, submitted an uninsured motorist claim to their own automobile insurance carrier, Nationwide Insurance Company ("Nationwide"). The matter was submitted to binding arbitration under the terms of the Nationwide policy. On July 19, 1982, the arbitration panel awarded the appellants the sum of $26,788.00 in compensation for their injuries.

Nevertheless, the appellants continued to seek additional recovery from P.I.G.A., which denied their claim because the uninsured motorist benefits available to the appellants from their Nationwide policy had not been exhausted, and the award ...


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