Estate of Jordan v. Colonial Penn Insurance

537 A.2d 14, 370 Pa. Super. 555, 1988 Pa. Super. LEXIS 50
CourtSuperior Court of Pennsylvania
DecidedFebruary 1, 1988
DocketNos. 451 and 452
StatusPublished
Cited by3 cases

This text of 537 A.2d 14 (Estate of Jordan v. Colonial Penn Insurance) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Jordan v. Colonial Penn Insurance, 537 A.2d 14, 370 Pa. Super. 555, 1988 Pa. Super. LEXIS 50 (Pa. Ct. App. 1988).

Opinion

TAMILIA, Judge:

These are timely cross-appeals by defendants Colonial Penn Insurance Company (“Colonial”), and Prudential Insurance Company (“Prudential”), of a January 14, 1987 trial court Order entering summary judgment in favor of defendant Pennsylvania Assigned Claims Plan (“the Plan”). This action was commenced on October 24, 1984 by the plaintiff John Victor Jordan, an incompetent, by his sister and guardian Brenda Foster. The case arose from a motor vehicle accident that occurred on December 30, 1982. On that date, Harry Yellin, the owner operator of a vehicle insured by Prudential, struck Jordan on Interstate 95 in Philadelphia, Pennsylvania, causing serious bodily injuries which rendered Jordan an incompetent. Jordan has never been able to explain the events leading up to his unfortunate accident because of his permanent condition.

An automobile belonging to Mr. Jordan was subsequently found parked alongside the roadway approximately three-quarters of a mile south of the accident scene. Although no evidence has surfaced to explain Jordan’s situation, the trial court conjectured that Jordan experienced mechanical difficulty, parked his automobile, and set off on foot to seek assistance when he was struck (Slip Op., Wallace, J., 5/19/87, p. 2).

By Order of June 11, 1985, the trial court permitted New Medico Associates, one of the medical providers to Jordan, to become an intervening plaintiff in the action. Plaintiffs’ action seeks basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act (“No-fault Act”), [558]*55840 P.S. § 1009.101 et seq.1 Plaintiffs seek recovery from Colonial based on a motor vehicle insurance policy it issued to Brenda Foster, with whom Jordan was living at the time of the accident. Plaintiffs seek alternative recovery from Prudential pursuant to its policy issued to Yellin, and as a last resort seeks basic loss benefits through the Plan. All three defendants filed an answer and new matter to Jordan’s complaint and all three participated in extensive discovery. At the close of pleadings and discovery, cross-motions for summary judgment were filed by the defendants and subsequently denied. A court-approved settlement was then entered into by Colonial for basic loss benefits, interest, counsel fees and costs in the amount of $553,000 on December 19, 1986, without prejudice to Colonial’s claims against the other defendants. Subsequently, after reconsideration, the trial court granted the Plan’s motion for summary judgment on January 14, 1987, dismissing the Plan. It is from this Order that Colonial and Prudential bring these timely appeals.

Summary judgment may be entered only in the clearest of cases where the right to judgment is clear and free from doubt. Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 507 A.2d 323 (1986); Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Pa.R.C.P. 1035(b). As we stated in Morgan v. Johns-Manville Corporation, 354 Pa.Super. 58, 61, 511 A.2d 184, 186 (1986):

Summary judgment ‘shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.Civ.P. 1035(b). When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-moving party, Helinek v. Helinek, 337 Pa.Superior Ct. 497, 502, [559]*559487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa.Superior Ct. 39, 48, 489 A.2d 828, 833 (1985). Moreover, summary judgment may be rendered only in cases that are free from doubt. Id., 340 Pa.Superior Ct. at 44-45, 489 A.2d at 831; Huffman v. Aetna Life and Casualty Co., 337 Pa.Superior Ct. 274, 277, 486 A.2d 1330, 1331 (1984).

See Davis v. Pennzoil Company, 438 Pa. 194, 264 A.2d 597 (1970); Chandler v. Johns-Manville Corporation, 352 Pa. Super. 326, 507 A.2d 1253 (1986); Pennsylvania Gas & Water Company v. Nenna & Frain, Inc. 320 Pa.Super. 291, 467 A.2d 330 (1983).

Section 1009.204(a) of the No-fault Act sets forth a priority schedule of the sources of payment of no-fault basic loss benefits with a descending list of priorities. Jordan’s complaint claims recovery from Colonial pursuant to section 1009.204(a)(2), with alternative recovery from Prudential pursuant to section 1009.204(a)(4) should Colonial be found to be not liable, and final recovery from the Plan pursuant to section 1009.204(a)(5) should neither Colonial or Prudential be found liable:

§ 1009.204. Source of basic restoration benefits
(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(2) an insured is the security under which the victim or deceased victim is insured;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
[560]*560(5) any other individual is the applicable assigned claims plan.

40 P.S. § 1009.204(a) (repealed). As we explained in Tyler v. Insurance Company of North America, 311 Pa.Super. 25, 30, 457 A.2d 95, 97 (1983):

In determining the applicable source of basic loss benefits under Section 204’s priority system, the pertinence of each subsection must be considered seriatim — that is, the applicability of each preceding subsection must be excluded before the next may be considered. The security provided by the assigned claims plan is applicable only as a last resort.

Following this method of determining the proper source of basic loss benefits, the trial court examined the positions taken by Colonial and Prudential and concluded that liability rested upon either Colonial or upon Prudential, therefore, making it conclusive under section 1009.204(a) that the Plan cannot be liable.

The trial court’s rationale can only be understood after a review of Colonial and Prudential’s positions and defenses.

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537 A.2d 14, 370 Pa. Super. 555, 1988 Pa. Super. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-jordan-v-colonial-penn-insurance-pasuperct-1988.