Callahan v. State Automobile Mutual Insurance

18 Pa. D. & C.3d 190, 1981 Pa. Dist. & Cnty. Dec. LEXIS 525
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedJanuary 5, 1981
Docketno. 238
StatusPublished

This text of 18 Pa. D. & C.3d 190 (Callahan v. State Automobile Mutual Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Callahan v. State Automobile Mutual Insurance, 18 Pa. D. & C.3d 190, 1981 Pa. Dist. & Cnty. Dec. LEXIS 525 (Pa. Super. Ct. 1981).

Opinion

MUELLER, J.,

Petitioner, Barbara Jo Callahan, sustained severe injuries on October 28, 1978 when struck by an automobile operated by Pedro Cartagena. The accident occurred on South Duke Street in the City of Lancaster when she was walking to her automobile which was parked across the street from the point where she was struck on the sidewalk. Mrs. Callahan, a resident of Ohio, was insured under a policy of automobile liability insurance issued in Ohio by the State Automobile Mutual Insurance Company of Columbus, Ohio (hereafter State Auto). Mr. Cartagena, a Pennsylvaniaresident, was insured under a policy issued by The Home Insurance Companies (hereafter Home).

Mrs. Callahan presented claims for payment for medical expenses pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, art. I, sec. 101 et seq., 40 P.S. §1009.101 et seq., to both State Auto and Home. Petitioners’ policy with State Auto included an amendatory endorsement identified as an “out-of-state insurance endorsement” which provided in pertinent part as follows:

“It is agreed that, subject to all the provisions of the policy except where modified herein, the following provision is added:
“If, under the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state or province, a non-resident is required to maintain insurance with respect to the operation or use of a motor vehicle in such state or province and such insurance requirements are greater than the insurance provided by the policy, the limits of the company’s liability and the kinds of coverage af[192]*192forded by the policy shall be as set forth in such law in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of a motor vehicle in such state or province; provided that the insurance under this provision shall be reduced to the extent that there is other valid and collectible insurance under this or any other motor vehicle insurance policy. In no event shall any person be entitled to receive duplicate payments for the same elements of loss.”

Both State Auto and Home declined payment, each contending that the other company was the applicable source of no-fault benefits. State Auto’s denial was initially premised upon the belief that the out-of-state insurance endorsement did not obligate State Auto to provide no-fault coverage and further that, under the terms of the endorsement, out-of-state coverage was provided “only with respect to the operation or use of a motor vehicle in such state. ...”

Petitioners instituted this declaratory judgment action against both insurers seeking a declaration by this court as to which insurer must pay no-fault benefits under the applicable insurance coverage and the benefits to which they are entitled. The amended prayer of the petition of the petitioners requested a specification of the amounts to which the Callahans are entitled under the applicable policy. After the petition was filed, State Auto determined that its “out-of-state insurance endorsement” was intended to provide no-fault benefits where required. State Auto and Home then made an agreement to jointly share in the payment of the outstanding medical expenses, and those expenses were paid.

[193]*193It is conceded by all parties that Ohio, the state of the Callahans’ residence, has not enacted a no-fault statute. This action continues with respect to petitioners’ claim for work loss benefits, replacement service loss, interest and counsel fees. At no time prior to the filing of the declaratory judgment action did petitioners submit to either insurer an application for either work loss benefits or replacement services loss, nor did petitioners provide either insurer with information which supported the existence of such claims or which would have permitted either company to calculate the amount of such benefits. State Auto and Home agreed at the hearing held November 28, 1980 that the court need not determine which company is to make payment if the court concludes that the Callahans are entitled to additional benefits.

The evidence at the hearing established that Mrs. Callahan was not employed at the time of the accident and had not been employed since 1970. She testified that at the time of the accident she had two applications for employment pending in the Columbus, Ohio, area. One application made in 1977 was with the United States Postal Service, and the other job application was with General Motors Corporation. At some time during the month of September or early October, 1978, she had been interviewed and had a physical examination at General Motors Corporation. As of October 28, 1978 she was intending to go to work at the General Motors Corporation plant, but she had not been accepted for employment by either prospective employer at the time of the accident. She had notified the U.S. Postal Service on October 16, 1978 that she would be available after December 1978, but she still had to meet pre-employment training and testing qualifications. Following the accident she has not been [194]*194contacted by either prospective employer. Mrs. Callahan also testified that she did not feel that she was capable of working even now since she is not able to either stand or sit for any length of time due to residual problems from her severe injuries. She stated that she had not asked her doctor when she could go to work.

The evidence disclosed that from November 1, 1978 through March 30, 1979 petitioners used a day care center for their youngest daughter who was two years old. The claim for replacement services loss of $689.50 had not been submitted to the insurers previously and was dated October 22, 1980.

The insurers contend that work loss benefits are only available to victims of automobile accidents who were either employed at the time of the accident or are able to demonstrate that they would have been employed during the period of their disability and, therefore, sustained an actual loss.

It is clear that the General Assembly declared that the No-fault Act was to provide motor vehicle accident victims with “maximum feasible restoration” and “recovery of a reasonable amount of work loss [and] replacement services” by establishing a system “of prompt and adequate basic loss benefits.” 40 P.S. §1009.102(a)(3) and (6)(A), and § 1009.102(b). The appellate courts have to date broadly construed the act to provide full benefits to those who are injured or to survivors of deceased victims: Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A. 2d 629 (1980); Erie Insurance Exchange v. Roule,_Pa. Superior Ct._, 420 A. 2d 733 (1980).

Work loss is one of several basic loss benefits available to a victim: 40 P.S. § 1009.202. The definitions of “loss”, “loss of income” and “work loss” are [195]*195set forth in section 103 of the act: 40 P.S. §1009.103. Section 205 of the act deals with the calculation of “work loss” and establishes three categories of employment status including victims who are not employed at the time of theirinjury: 40 PS. § 1009.205(c). As in other cases arising under this act, this situation presents an interpretive dilemma.

Mrs. Callahan was not employed on the accident date. The evidence does disclose that sixteen days before October 28, 1978 she indicated that she would be available for pre-employment training after December 1978 with the U.S. Postal Service.

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Related

Hayes v. Erie Insurance Exchange
395 A.2d 1370 (Superior Court of Pennsylvania, 1978)
Erie Insurance Exchange v. Roule
420 A.2d 733 (Superior Court of Pennsylvania, 1980)
Allstate Insurance v. Heffner
421 A.2d 629 (Supreme Court of Pennsylvania, 1980)
Hayes v. Erie Insurance Exchange
419 A.2d 531 (Superior Court of Pennsylvania, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
18 Pa. D. & C.3d 190, 1981 Pa. Dist. & Cnty. Dec. LEXIS 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callahan-v-state-automobile-mutual-insurance-pactcompllancas-1981.