Drake v. Pennsylvania National Mutual Casualty Insurance

601 A.2d 797, 529 Pa. 44, 1992 Pa. LEXIS 20
CourtSupreme Court of Pennsylvania
DecidedJanuary 13, 1992
Docket12 M.D. Appeal Docket 1990
StatusPublished
Cited by13 cases

This text of 601 A.2d 797 (Drake v. Pennsylvania National Mutual Casualty Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drake v. Pennsylvania National Mutual Casualty Insurance, 601 A.2d 797, 529 Pa. 44, 1992 Pa. LEXIS 20 (Pa. 1992).

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

This case involves the interpretation of the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.101 et seq. Although the statute was repealed on October 1, 1984, by its successor, the Motor Vehicle Financial Responsibility Law, Act of February 12,1984, P.L. 26, No. 11, 75 Pa.C.S. § 1701 et seq., the terms of the No-Fault Act still control the obligations of insurers of victims of serious accidents which occurred while the act was in effect and who still suffer from injuries received in those accidents. The issue is whether the cost of custodial medical and nursing care required because of the medical condition caused by accident injuries is an allowable expense under a no-fault auto insurance policy. The trial court held that the insurer, Pennsylvania National Mutual Casualty Insurance Company (PNI), was liable for the cost of the victim’s custodial care under section 103 of [46]*46the No-Fault Act, 40 P.S. § 1009.103, even though the victim was no longer a candidate for rehabilitation. The Superior Court reversed, holding that Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985), excluded such treatments from expenses to be borne by no-fault insurers. Pennsylvania National Mutual Casualty Insurance Co. v. Fertig, 382 Pa.Super. 335, 555 A.2d 208 (1989).

On February 2,1984, appellant’s decedent, Millard Fertig, was injured when the automobile he was driving was struck from behind by another vehicle. Mr. Fertig suffered serious spinal injuries and was rendered quadriplegic. He received in-patient hospital care for more than two months following the accident, then was released to his home with special equipment and nursing care, but on September 3, 1984, returned to a nursing home where he remained until his death on August 20, 1989.

Mr. Fertig’s automobile was insured by appellee, PNI. While paying all the costs of Mr. Fertig’s medical treatments, PNI filed a declaratory judgment action on August 25, 1986, seeking judicial determination of its obligations under the insurance contract. Specifically, PNI sought a declaration that it was not liable for the room charge for Mr. Fertig in the nursing home.

. PNI’s theory was that Mr. Fertig was receiving only custodial care at the home rather than medical or rehabilitative treatment. PNI argued that Reilly by Reilly v. SEPTA, supra, relieved a no-fault insurer from the obligation to pay for custodial care. PNI presented the testimony of two physicians and the director of physical therapy services at Mr. Fertig’s nursing home, who all agreed that he had reached the point where he was no longer a candidate for physical therapy and was receiving only maintenance and supportive care. Nevertheless, one of the doctors testified that Mr. Fertig needed periodic review of his bladder and bowel disfunctions, that he required skilled nursing care or his condition could regress, and that even though he was not a candidate for rehabilitation he needed “medical care and nursing care because of his condition.” The trial court [47]*47found that Mr. Fertig’s care at the nursing home was “because of his medical condition,” slip op. at 2 (emphasis in original), concluded that such care was the obligation of a no-fault insurer, and ordered PNI to pay all of Mr. Fertig’s charges at the nursing home.

On appeal, the Superior Court reversed, holding that Reilly negated the duty of a no-fault insurer to pay for custodial expenses. The Superior Court quoted from this court’s decision: “Services which do not reduce the disability of the victim or restore his functioning, being custodial in nature, would not be recoverable under the No-Fault Act____” 382 Pa.Super. at 339, 555 A.2d at 209, quoting Reilly, 507 Pa. at 229, 489 A.2d at 1303. We granted allocatur to consider whether such custodial care might be “medical care” payable by the insurer as an allowable expense under 40 P.S. § 1009.103, even though Reilly held it was not the responsibility of the insurer because it was not “rehabilitation” under § 103.

Appellee PNI, of course, argues that Reilly controls this case, and that the quoted holding should not be limited. Hence, PNI claims that Mr. Fertig’s care, which was custodial in nature, is not recoverable under the No-Fault Act, and the order of the Superior Court should be affirmed. Appellant, on the other hand, argues that the trial court’s finding that Mr. Fertig’s care, necessary “because of his medical condition,” is a finding that the care was not custodial but was “professional medical treatment and care” which is recoverable as an allowable expense. Finally, amicus curiae, the Pennsylvania Trial Lawyers Association, argues that custodial care, despite the language of Reilly, should be recoverable if it is necessary because of accident injuries.

Appellee’s argument is based entirely on evidence that Mr. Fertig’s treatment was custodial, together with the statement in Reilly that custodial care is not recoverable under the No-Fault Act, and this was the justification given by the Superior Court for its decision. We conclude that the Superior Court erred in reversing the trial court.

[48]*48Due to the reliance placed thereon, it is important to understand the Reilly decision and the context in which this court stated that custodial care was not recoverable under the No-Fault Act. Reilly was a minor who was struck by an automobile after he alighted from a SEPTA bus. He suffered widespread and permanent injuries which rendered him a quadriplegic. By his parents, he sued SEPTA, the bus driver, and the owner and driver of the automobile which struck him. One of the issues in the case was whether the services provided to Reilly at the institution where he was permanently confined in a wheelchair were custodial or rehabilitative in nature. The trial court’s jury charge, reviewed in its entirety, revealed that the jury was properly instructed that it could accept or reject the evidence as to Reilly’s physical needs and that the services were custodial in nature, and that if the jury found the services to be custodial, it should award damages for the services. The jury awarded damages against SEPTA, the bus driver, and the driver of the car.

On appeal, the issue was whether or not the trial court had erred in ruling, as a matter of law, that Reilly’s institutional care was custodial rather than rehabilitative and thus recoverable from the tortfeasors rather than his no-fault insurer. This court held that the Superior Court had erred, misshaping and misreading the record, in holding that the trial judge had improperly usurped the jury’s function in finding the care to be custodial. In fact, the trial court’s charge had properly submitted the issue to the jury-

Two significant factors distinguish Reilly from this case. First, the precise issue in Reilly was a challenge to the jury charge, questioning whether it permitted the jury sufficient latitude to determine whether Reilly’s care was custodial or rehabilitative. A more important distinction, closely related to the first, is that the issue in Reilly

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Drake v. Pennsylvania National Mutual Casualty Insurance
601 A.2d 797 (Supreme Court of Pennsylvania, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
601 A.2d 797, 529 Pa. 44, 1992 Pa. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-pennsylvania-national-mutual-casualty-insurance-pa-1992.