Hamberger v. Erie Insurance

15 Pa. D. & C.4th 468, 1992 Pa. Dist. & Cnty. Dec. LEXIS 262
CourtPennsylvania Court of Common Pleas, Cumberland County
DecidedAugust 8, 1992
Docketno. 57 Equity 1990
StatusPublished

This text of 15 Pa. D. & C.4th 468 (Hamberger v. Erie Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamberger v. Erie Insurance, 15 Pa. D. & C.4th 468, 1992 Pa. Dist. & Cnty. Dec. LEXIS 262 (Pa. Super. Ct. 1992).

Opinion

HESS, J.,

This action arises from a petition for relief filed by the defendant, Erie Insurance Exchange. In our order of April 9, 1992, we directed Erie Insurance Exchange to pay for 24 hours of in-home nursing care each day for the plaintiff, Kim B. Hamberger. The defendant now requests that we enter an order fixing the limit of the amount to be paid for in-home care not to exceed an average for such care if provided in a nursing home.

[469]*469We have had a number of hearings in this matter and have dealt with the facts on previous occasions. They can be summarized as follows:

(1) More than ten years ago, the plaintiff, Kim B. Hamberger, was catastrophically injured in an automobile accident.

(2) At the time of the accident, the plaintiff was insured under an Erie Insurance policy in accordance with the provisions of the Pennsylvania No-Fault Motor Vehicle Act, Act of July 19, 1974, P.L. 489, 40 P.S. §1009.101 et seq. (now repealed).

(3) Erie Insurance Exchange is presently paying for 24 hours of in-home nursing care each day for the plaintiff at a cost of approximately $15,000 per month.

(4) Institutionalizing the plaintiff in a nursing home would cost approximately $3,000 per month for a semiprivate room or between approximately $4,500 and $5,500 per month for a private room.

(5) The optimal setting for Kim B. Hamberger is in his home where he not only has nursing care and therapy but the constant companionship and stimulation of his family.

DISCUSSION

The issue in this case is whether, given the alternative of nursing home care, the plaintiff’s 24-hour-per-day in-home nursing care constitutes an “allowable expense” under section 103 of the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. §109.101 et seq. In section 103 of the No-Fault Act, “allowable expense” is defined and requires an insurance carrier to pay reasonable charges for reasonably needed care. While we are cognizant of the substantial sums that the defendant must expend for the plaintiff’s in-home care, we conclude [470]*470that the plaintiff’s in-home care constitutes reasonably needed care at a reasonable cost.

Section 103 of the No-Fault Act does not explicitly define what constitutes reasonable costs incurred for reasonably needed medical care, however, the findings of the General Assembly which led to the passage of the No-Fault Act are instructive.

Section 102(a)(3) provides:

“(3) The maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce.” (emphasis added)

Section 102(a)(9) provides:

“(9) A statewide low-cost, comprehensive and fair system of compensating and restoring motor vehicle accident victims can save and restore the lives of countless victims by providing and paying the cost of services so that every victim has the opportunity to:
“(A) receive prompt and comprehensive professional treatment; and
“(B) be rehabilitated to the point where he can return as a useful member of society and a self-respecting and self-supporting citizen.” (emphasis added)

Consequently, the comprehensive care and maximum rehabilitation of injured individuals constitute major goals of the 'No-Fault Act. In addition, Pennsylvania courts have consistently held that in'close cases involving the No-Fault Act, courts must err, if at all, in favor of extending coverage to insureds. See e.g., Allstate Insurance Co. v. Williams, 347 Pa. Super. 468, 500 A.2d 1151 (1985); [471]*471Drake, Estate of Fertig v. Pennsylvania Nat. Mut. Casualty Insurance Co., 529 Pa. 44, 601 A.2d 797 (1992).

In considering the specific issue in this case of what constitutes reasonably needed care at a reasonable cost, we have been unable to find authority factually on point. However, we find the case of Fasciana v. Aetna Life & Casualty Co. quite instructive. 343 Pa. Super. 1, 493 A.2d 772 (1985). In Fasciana, the plaintiff was injured in a vehicular accident and sought to recover the cost of two and one-half years of physical therapy treatments through her no-fault insurance policy. At trial, the plaintiff’s physician, who had initially prescribed the physical therapy, conceded that the maximum physical benefit had likely been achieved within three months of the commencement of the therapy. Id. at 5, 493 A.2d at 774. Although the physician had never told the plaintiff to stop the physical therapy, he testified that he never anticipated the therapy would continue so long. Id. The trial court ruled that the full two and one-half years of therapy were reasonably necessary and must be paid by the defendant insurer pursuant to the no-fault policy. In upholding the trial court’s decision, the Pennsylvania Superior Court noted that the physical therapy treatment had been medically prescribed. Id. Moreover, the court observed that the physical therapy was reasonably necessary based upon the fact that “there were subjective benefits derived by the appellee from the prolonged course of treatment.” Id. at 6, 493 A.2d at 774.

In the instant case, there is compelling and uncontroverted testimony from the plaintiff’s physician, Dr. Michael Dobish, that in-home care is necessary in order for the plaintiff to continue progressing both mentally and physically. Dr. Dobish has testified that the plaintiff has made slow but steady progress that has exceeded what Dr. Dobish ever thought was possible. Dr. Dobish [472]*472has also stated that the plaintiff receives support from his family “going above and beyond the call of duty.” (N.T. of Hearing of Nov. 28, 1990, p. 11). In fact, Dr. Dobish attributes the plaintiff’s unanticipated degree of progress to the involvement and support of the plaintiff’s family.

Dr. Dobish has also testified that in-home care is much more beneficial to Mr. Hamberger than institutional care. In this regard, Dr. Dobish has stated:

“I think it is much more beneficial for him to be at home, because he is leading a life with family and friends. If he was in an institution still, I believe we would probably be back with some similar circumstances of when I had first seen him.
“I think that the stimulation he gets in the home environment is what keeps him where he is and keeps him progressing. Without that almost, you know, 24-hour, 16-hour stimulation, which you won’t get in an institution, no matter how good the institution is, you are not getting that same family stimulation, friend stimulation that you get at home.” N.T. of Hearing of Nov. 28, 1990, pp. 11, 12.

In addition, Dr. Dobish has testified:

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Related

Allstate Insurance v. Williams
500 A.2d 1151 (Supreme Court of Pennsylvania, 1985)
Drake v. Pennsylvania National Mutual Casualty Insurance
601 A.2d 797 (Supreme Court of Pennsylvania, 1992)
Fasciana v. Aetna Life & Casualty Co.
493 A.2d 772 (Superior Court of Pennsylvania, 1985)

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Bluebook (online)
15 Pa. D. & C.4th 468, 1992 Pa. Dist. & Cnty. Dec. LEXIS 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamberger-v-erie-insurance-pactcomplcumber-1992.