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DANIEL CALLAHAN v. FEDERAL KEMPER INSURANCE COMPANY (12/26/89)

decided: December 26, 1989.

DANIEL CALLAHAN, APPELLANT,
v.
FEDERAL KEMPER INSURANCE COMPANY, A CORPORATION



Appeal from the Order Docketed December 9, 1988 in the Court of Common Pleas of Allegheny County, Civil Division, at No. 4564 of 1987.

COUNSEL

Brian P. Gallagher, Allison Park, for appellant.

Lisa Ondich, Pittsburgh, for appellee.

Rowley, Melinson and Hoffman, JJ.

Author: Hoffman

[ 390 Pa. Super. Page 203]

This appeal is from an order and judgment below reversing an order of the arbitrators and entering judgment in favor of appellee Federal Kemper Insurance Company and against appellant Daniel Callahan for excess wage loss benefits. Appellant raises the following issue on appeal:

I. Whether an exclusion in an automobile insurance policy stating that coverage does not extend to one sustaining injury as a direct result of loading or unloading a motor vehicle is valid under the terms of the Motor Vehicle Financial Responsibility Law.

For the following reasons, we agree that the policy exclusion cannot stand and, accordingly, we reverse the order and judgment below and reinstate the order of the arbitrators.

On September 11, 1985, appellant, employed as a truck driver, drove a tractor trailer loaded with forty bathtubs from Pittsburgh to Chicago. In Chicago, appellant unloaded the bathtubs from the trailer. When lifting the last bathtub, appellant slipped inside the trailer and was pinned up against the inside of the truck, sustaining severe injuries to his back. Because appellant's injuries occurred in the course of his employment as a truck driver, he received workmen's compensation benefits in the amount of $1,456.00 per month. On April 20, 1987, appellant filed a claim for excess wage loss benefits under an automobile insurance policy issued by appellee to him. The policy, which afforded coverage pursuant to the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law (the MVFRL), provided for first party benefit protection with work loss limits up to a maximum of $5,000. Although the parties stipulated that appellant's injuries disabled him for a sufficient length of time to trigger the $5,000 coverage, appellee nonetheless denied coverage because of an

[ 390 Pa. Super. Page 204]

    exclusion in the policy. While admitting the existence of the policy exclusion, appellant maintained below that the exclusion contravened the Financial Responsibility Law and therefore was invalid.

The case was first presented to the Arbitration Division of the Court of Common Pleas of Allegheny County, where a panel of three arbitrators found in favor of appellant and awarded him $5,000. Appellee appealed to the Common Pleas Court. On July 14, 1987, the parties submitted the action on "Joint Stipulations for Non-Jury Adjudication" and requested that the trial court enter "an appropriate verdict." The parties also reserved the right "to appeal the verdict/judgment of the trial court" and stated that neither party would be required to file post-verdict motions to perfect an appeal. On December 9, 1988, the trial court entered ...


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