Dickson v. Federal Kemper Insurance

23 Pa. D. & C.3d 102, 1982 Pa. Dist. & Cnty. Dec. LEXIS 319
CourtPennsylvania Court of Common Pleas, Crawford County
DecidedJune 17, 1982
Docketno. A.D. 1980-259
StatusPublished

This text of 23 Pa. D. & C.3d 102 (Dickson v. Federal Kemper Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Crawford County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickson v. Federal Kemper Insurance, 23 Pa. D. & C.3d 102, 1982 Pa. Dist. & Cnty. Dec. LEXIS 319 (Pa. Super. Ct. 1982).

Opinion

WALKER, J.,

Barbara Dickson was fatally injured in an automobile accident on April 5, 1979. Defendant insurance carrier had issued a standard no-fault insurance contract to plaintiff and his wife, decedent. Plaintiff has brought this action to recover replacement services as a part of survivor’s loss under the No-fault act. Both plaintiff and his daughter, Lori Shetler, were deposed and interrogated relating to the alleged contract for the payment for replacement services. Defendant has now filed a motion for summary judgment which is before us for disposition.

As a part of the definition of “survivor’s loss,” there is included “expenses reasonably incurred by a survivor or survivors after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed not for income but for their benefit if he had not sustained the fatal injury.” 40 P.S. 1009.103. This definition is substantially identical to the definition of replacement services loss which is applicable to living victims and extends that recovery to the survivors of deceased victims: [104]*104Brandon v. Erie Insurance Exchange, 264 Pa. Superior Ct. 258, 399 A. 2d 765 (1979).

Both parties have discussed at argument and in their briefs the presumption that a child performs services for his or her parent gratuitously. We do not believe that that presumption is compelling in this situation. The No-fault act does not limit the class of persons from whom replacement services can be obtained. In the recent case of Habecker v. Nationwide Insurance Co., (opinion filed May 14, 1982, no. 116 Dauphin County 1981), the issue before the court was the construction of the statutory time period through which replacement services loss would be paid. Although the appellate court opinion does not so indicate, it is our understanding that the furnisher of the replacement services was, in fact, an immediate relative, and, therefore, although the issue was not specifically argued, it would seem that the Superior Court has tacitly approved the payment of replacement services loss where the obligation was incurred to a member of the family.

The real issue before us is an interpretation of the phrase “expenses reasonably incurred” as used in Section 103 of the No-fault act. In construing a statute relating to insurance, doubts must be resolved in favor of coverage for the insured and insurance policies and statutory provisions in relation thereto must be given the broadest possible effect: Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A. 2d 629 (1980). This philosophy is also borne out by the findings and purposes clause of the No-fault Insurance Act as expressed by the legislature: 40 P.S. 1009.102. It is also true, however, that “words and phrases shall be construed according to rules of grammar and according to their common approved usage.” 1 Pa.C.S.A. 1903; [105]*105Kury v. State Ethics Commission, 62 Pa. Commonwealth Ct. 174, 435 A. 2d 940 (1981); Wajert v. State Ethics Commission, 491 Pa. 255, 420 A. 2d 439 (1980).

The word “incur” is a transitive verb meaning “to become hable or subject to: (to) bring down upon oneself.” Websters New Collegiate Dictionary, 1977 Edition. Plaintiff is, therefore, entitled to those reasonable expenses for ordinary and necessary services that would have been performed by his deceased wife, if he has “incurred” those expenses. This must be construed as requiring that he has become legally hable for those expenses. In order to recover, plaintiff must show either that he has paid some amount for such services oris legally hable to pay some amount. Had the legislature intended otherwise, they would have used language similar to that used in defining “allowable expense” in section 103, where the language defining that term is “reasonable charges incurred for, or the reasonable value of (where no charges are incurred) reasonably needed and used products, services and accommodation for. . ..” Clearly the legislature understands the difference between incurring an expense for services and recovering the reasonable value of those services if no expense was, in fact, incurred. In the definitions of both “replacement services loss” and “survivor’s loss,” the requirement is that the expenses be incurred. This definition of “incurred” is supported by Geiger v. Reserve Insurance Company, 94 Montg. 378 (1972).

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Related

Brandon v. Erie Insurance Exchange
399 A.2d 765 (Superior Court of Pennsylvania, 1979)
Wercoch v. Liberty Mutual Insurance
429 A.2d 712 (Superior Court of Pennsylvania, 1981)
Wajert v. State Ethics Commission
420 A.2d 439 (Supreme Court of Pennsylvania, 1980)
Allstate Insurance v. Heffner
421 A.2d 629 (Supreme Court of Pennsylvania, 1980)
Kury v. Commonwealth, State Ethics Commission
435 A.2d 940 (Commonwealth Court of Pennsylvania, 1981)

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Bluebook (online)
23 Pa. D. & C.3d 102, 1982 Pa. Dist. & Cnty. Dec. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickson-v-federal-kemper-insurance-pactcomplcrawfo-1982.