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ORIEN T. DEVEAUX v. ROBERT R. PALMER (05/08/89)

decided: May 8, 1989.

ORIEN T. DEVEAUX, A MINOR, BY HER PARENT AND NATURAL GUARDIAN, BELINDA L. DEVEAUX AND BELINDA L. DEVEAUX, IN HER OWN RIGHT, APPELLANTS
v.
ROBERT R. PALMER, COMMONWEALTH OF PENNSYLVANIA MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND, COMMONWEALTH OF PENNSYLVANIA, KATHY MARTER, FEDERAL HOME LIFE INSURANCE COMPANY, APPELLEES. ORIEN T. DEVEAUX, A MINOR, BY HER PARENT AND GUARDIAN, BELINDA L. DEVEAUX, AND BELINDA L. DEVEAUX, IN HER OWN RIGHT, APPELLANTS V. ROBERT R. PALMER ET AL., APPELLEES



Appeals from the Orders of the Court of Common Pleas of Philadelphia County, in the case Orien T. Deveaux, a minor, by her parent and natural guardian, Belinda L. Deveaux and Belinda L. Deveaux, in her own right, 2408 Cardinal Drive, Coatesville, Pa. v. Robert R. Palmer, 230 Midland Road, Springfield, Pennsylvania and Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund, Suite 21, 1062 Lancaster Avenue, Rosemont, Pennsylvania, and Commonwealth of Pennsylvania, 15-21 Strawberry Square, Harrisburg, Pa., and Marsh & McLennan, Three Parkway, Philadelphia, Pa. and Kathy Marter, c/o Marsh & McLennan, Three Parkway, Philadelphia, Pa. and Federal Home Life Insurance Company, One Independence Mall, Philadelphia, Pa., No. 1603, July Term 1987, dated October 15, 1987 and November 16, 1987.

COUNSEL

T. J. Scully, with him, Jack E. Feinberg, Of Counsel: Feinberg & Silva, for appellants.

Eric B. Schnurer, Deputy General Counsel, for appellee, Pennsylvania Medical Professional Liability Catastrophe Loss Fund.

Glenn C. Equi, with him, James A. Vinarski, for appellees, Kathy Marter and Marsh & McLennan, Inc.

President Judge Crumlish, Jr., and Judges Craig, Barry, Colins, Palladino, McGinley and Smith. Opinion by President Judge Crumlish, Jr. Judge Colins dissents.

Author: Crumlish

[ 125 Pa. Commw. Page 633]

Orien Deveaux, a minor, and her mother appeal two Philadelphia Common Pleas Court orders*fn1 sustaining the

[ 125 Pa. Commw. Page 634]

    preliminary objections of the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (Fund), Kathy Marter (Marter) and Marsh and McLennan, Inc. We affirm.

Deveaux brought a medical malpractice action against a physician and a hospital (defendants) for injuries sustained during her birth. That matter was settled before trial by agreement under which the defendants would pay Deveaux an initial $800,000. The remaining $1,000,000 was to be set aside in a structured settlement.*fn2 According to Deveaux's complaint, the plaintiff and defendants' counsel were to investigate maximum yield annuity options as a condition of settlement.*fn3 Deveaux's counsel proposed a Federal Home Life Insurance Company (Federal Home Life) annuity conforming to the agreement, with an annual yield of $99,961. The Fund, insurer of the defendants, expressed reservations about the purchase of this annuity, because the Federal Home Life broker was not approved by the Fund.*fn4

Deveaux's complaint states that Fund officials breached the settlement agreement by disclosing the terms of the Federal Home Life annuity option to Marter, an agent for Marsh and McLennan -- a competing provider. The complaint avers that Marter advised Federal Home Life that Deveaux's counsel was not authorized to contact the provider, causing Federal Home Life to withdraw its offer. Deveaux asserts that Marter and the Fund's

[ 125 Pa. Commw. Page 635]

Fund's interference in the Federal Home Life annuity resulted in a $6.85 million loss to her.*fn5

Our scope of review of a common pleas court order sustaining preliminary objections and dismissing a complaint is limited to a determination of whether the trial court erred as a matter of law or committed a manifest abuse of discretion. General Accident Insurance Co. v. ...


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