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filed: June 7, 1989.


Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil at No. 82-19106.


Catherine Miraglia-Lecky, King of Prussia, for appellant.

Robert F. Callahan, New York, for appellee.

Cirillo, President Judge, and McEwen and Montemuro, JJ. McEwen, J., files a dissenting opinion.

Author: Montemuro

[ 385 Pa. Super. Page 79]

This is an appeal from a summary judgment entered in favor of the appellee, the Metropolitan Life Insurance Company. As we must, we have examined the record before us in a light most favorable to the appellant, Catherine Bodge. Finding that there is no genuine issue of material fact and that Metropolitan is entitled to judgment as a matter of law, we affirm the order of the trial court.

Appellant's daughter, Catherine Theresa Bodge, ("Terri Bodge"), was involved in an automobile accident in 1980 which rendered her incompetent. On May 8, 1980, the Orphans' Court of Montgomery County entered a final decree appointing the appellant Guardian of the Person and the Estate of her daughter. At the time of the accident, Terri was an employee of the Krylon Division of Borden, Inc., and was an insured under a Group Health Insurance Policy issued by Metropolitan to Borden, Inc. Premiums for this health insurance were paid, in whole or in part, through deductions from Terri Bodge's salary.*fn1 At the time of the accident, Terri Bodge was also an insured under a No-fault automobile policy issued by Concord Mutual Insurance Company to the appellant.*fn2 Terri Bodge was an "insured" under the express terms of the Concord No-fault policy because she resided in her mother's home. The appellant submitted Terri Bodge's medical bills and related expenses to Metropolitan which paid in excess of $100,000.00 to health care providers. Appellant subsequently submitted the same medical bills to the Pennsylvania Assigned Claims Plan ("PACP"), which was processing claims against Concord following Concord's insolvency. In December of 1981, PACP issued a check in the amount of $105,892.44, representing payment for claims associated with Terri's medical

[ 385 Pa. Super. Page 80]

    care. The proceeds of this check have been placed in an escrow account pending the resolution of this litigation.

Metropolitan commenced this declaratory judgment action, claiming that it was entitled to recover the PACP monies because of a coordination of benefits provision contained in the group insurance policy issued to Borden, Inc. The trial court agreed, finding the coordination of benefits provision in Metropolitan's Group Health Insurance Policy to be valid and enforceable:


(1) "Plan" means any plan providing benefits or services for or by reason of medical care or treatment, which benefits or services are provided by (i) any group, blanket, or franchise insurance plan, or other plan covering individuals or members as a group, (ii) any group hospital service prepayment plan, group medical service prepayment plan, group practice, or other group prepayment coverage, (iii) any coverage under Governmental programs, or any coverage required or provided by any statute, including any Motor Vehicle No fault Coverage required by statute.

(3) If the Employee or a Dependent is covered by any other Plan of insurance or any other prepayment Plan, or is covered under any other type of benefit or service Plan, the benefits otherwise payable under the Group Policy as summarized in this certificate including the preceding paragraph are subject to reduction so that for Allowable Expenses incurred in any Claim Determination Period the benefits payable thereunder together with the benefits available under such other Plan of Plans will not exceed the total amount of such Allowable Expenses.

(8) If any overpayment is made under the Group Policy because of failure to report other coverage or otherwise,

[ 385 Pa. Super. Page 81]

    the Insurance Company shall have the right to recover such overpayment . . . .

R.R. at 88a. Appellant contends that the trial court erred in finding this coordination of benefits clause enforceable for a number of reasons. First, appellant argues that Section 111(a)(4) of the No-fault Act renders the provision invalid:

(4) In no event shall any entity providing benefits other than no-fault benefits to an individual as described in section 203 of this Act, have any right of subrogation with respect to said benefits.

40 P.S. § 1009.111(a)(4). We find that the eminent President Judge William W. Vogel correctly construed the meaning and import of Section 111(a)(4):

In Section 111(a), the legislature prohibited subrogation by no-fault insurers, subject to certain limited exceptions, as a necessary piece of the overall no-fault insurance package. Section 111(a)(4), which applies to "any entity providing benefits," extended this prohibition of subrogation rights under the former fault-based system to other providers of accident and health benefits.

When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of preserving its spirit. 1 Pa.C.S.A. § 1921(b). Words and phrases in a statute are to be construed according to their plain and common usage. Old [sic] Fellows Home of Pennsylvania v. Commonwealth Department of Public Welfare, 56 Pa. Commonwealth Ct. 115 [424 A.2d 961] (1981).

Subrogation commonly refers to the right of an insurer to step into the shoes of a party whom they have rightfully compensated and sue any party which the compensated party could have sued. In a fault-based insurance system, subrogation is necessary to ensure the party at fault bears the cost of his negligence.

However, in this instance, the right to reimbursement that Metropolitan seeks to enforce refers only to the right to recover directly from its promisee any monies overpaid

[ 385 Pa. Super. Page 82]

    under the Health Policy "for failure to report other coverage or otherwise " (Emphasis added). Metropolitan, which is not a no-fault carrier, does not seek to recover by stepping into the shoes of its insured nor by determining the ultimate question of fault, but rather by merely enforcing an agreement it has with its insured. Therefore, we determine the right to reimbursement that Metropolitan seeks to have determined in this action to be wholly different than the right to subrogation prohibited by Section 111(a)(4). Accordingly, we determine [that] Section 111(a)(4) does not render the reimbursement provision of the Health Policy unenforceable in this instance.

Op. of Trial Court, January 31, 1985, at 11-13 (footnotes omitted).

The trial court was also correct in its construction of 31 Pa.Code § 89.97(c).*fn3 The court, quite correctly, noted that no provision of the No-fault Act, or its accompanying regulations, expressly prohibits the coordination of benefits between a group health insurance policy and an individual No-fault automobile policy. Id. at 15. Moreover, as the trial court recognized, the existence of 31 Pa.Code § 89.97(c), although applying specifically to coordination of benefits between group ...

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