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WILLIAM J. VICKODIL v. COMMONWEALTH PENNSYLVANIA (06/08/89)

decided: June 8, 1989.

WILLIAM J. VICKODIL, SR. AND JEAN R. VICKODIL, HIS WIFE, PETITIONERS,
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, ET AL., RESPONDENTS



PRAECIPE FOR WRIT OF SUMMONS IN TRESPASS.

COUNSEL

Ruth A. Zittrain, Zittrain & Zittrain Pittsburgh, for petitioners.

Thomas F. Halloran, Sr. Depty. Atty. Gen., Harrisburg, for respondent, Insurance Dept.

Daniel B. Winters, Greg. T. Kinskey, Winters, McKenna & Arcovio, Pittsburgh, for Scor Reinsurance Co.; James C. Schraeder, David M. Spector, Mayer, Brown & Platt, Chicago, Ill., of counsel.

Barry and Smith, JJ., and Kalish, Senior Judge.

Author: Barry

[ 126 Pa. Commw. Page 392]

OPINION

Before the Court are preliminary objections to William and Jean Vickodils' original jurisdiction complaint*fn1 against

[ 126 Pa. Commw. Page 393]

    the Commonwealth of Pennsylvania Insurance Department (Department); its Director of Liquidation James Lewis; Kramer Capital Consultants, Inc. and Paul Sweeney in their capacities as the Department's specially appointed deputy rehabilitators of Northeastern Fire Insurance Company (Northeastern Fire); Northeastern Fire employees Hugh O'Brien and Paul Tyahla;*fn2 and Scor Reinsurance Company (Scor).

The complaint arises from the following underlying facts. The Vickodils obtained a $1.475 million judgment against a tortfeasor, insured by Northeastern Fire, based on an automobile accident tort claim. The chain of insurance was as follows: (1) the tortfeasor was insured by Aetna Life and Casualty Company for liability up to $100,000; (2) Northeastern Fire, the primary excess insurer, covered liability from $100,000 to $1,000,000, ninety percent of which was reinsured by Scor pursuant to a contract between Scor and Northeastern Fire; (3) Lexington Insurance Company, an additional excess insurer, provided coverage for liability exceeding $1,000,000. Unfortunately for the Vickodils, during the litigation of their negligence action, Northeastern Fire was ordered into rehabilitation and later liquidation, pursuant to the Insurance Department Act of 1921 (Act).*fn3 This effectively precluded the Vickodils from receiving direct and immediate satisfaction of the entire judgment from the Northeastern Fire insurance proceeds.*fn4 Although

[ 126 Pa. Commw. Page 394]

Northeastern Fire's liquidation entitled the Vickodils to recovery from the Pennsylvania Insurance Guaranty Association fund for insolvent insurers, they recovered only the statutory allowable maximum of $299,900, ...


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