Smiley v. Ohio Casualty Insurance

455 A.2d 142, 309 Pa. Super. 247, 1983 Pa. Super. LEXIS 2331
CourtSuperior Court of Pennsylvania
DecidedJanuary 7, 1983
Docket628 and 629
StatusPublished
Cited by14 cases

This text of 455 A.2d 142 (Smiley v. Ohio Casualty 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
Smiley v. Ohio Casualty Insurance, 455 A.2d 142, 309 Pa. Super. 247, 1983 Pa. Super. LEXIS 2331 (Pa. Ct. App. 1983).

Opinions

[250]*250VAN der VOORT, Judge:

This is a No-fault auto insurance case arising out of the death of Sandra L. Smiley, who was killed in an automobile accident in Fayette County on July 30, 1978. She survived the accident by approximately two (2) hours, during which time she was removed by ambulance to a local hospital. On December 5, 1978, Ohio Casualty Insurance Company, hereinafter the insurer, reimbursed, the estate of the deceased victim in the sum of $695 for ambulance and hospital bills and $1,500 for funeral expenses.

Sandra was survived by her father Glenn W. Smiley, her mother, Betty S. Smiley, and a brother, Glenn Douglas Smiley, hereinafter the claimants. On January 7, 1980, the claimants filed an assumpsit action against the insurer in the Court of Common Pleas of Fayette County for work loss benefits on behalf of Glenn W. Smiley as administrator of his daughter’s estate or, alternatively, on behalf of the father, mother, and brother, as survivors of the deceased victim.

On July 24, 1980, the Complaint was amended to include a claim by the three family members for survivor’s benefits. On both counts, the claimants ask for interest at the rate of 18% per anum for the period of delay in payment beyond the statutory deadline for payment, 40 P.S. § 1009.106(a),1 and for allowance of a reasonable attorney’s fee. The insurer filed a responsive answer denying liability for either work loss or survivor’s benefits, and later pleaded the statute of limitations as a bar to recovery on both counts, and moved for judgment on the pleadings.

In support of it’s motion for judgment on the pleadings, the insurer took the deposition of Glenn W. Smiley, the father of the deceased victim. He testified that Sandra had lived at home with her parents, had been a full time teacher with the Albert Gallatin School District, that she had paid no rent to her parents, but had contributed money from time to time for household items and incidentals, had occa[251]*251sionally helped her brother pay for maintenance items on his car, and might have helped pay for his college education, although there had been no understanding with her about such help.

The lower court accepted the testimony of Sandra’s father as true, and concluded that, while the deceased victim provided occasional assistance to the claimants, she was by no means actually supporting either her parents or her brother, and that none of them was dependent on her.

In ruling upon a motion for summary judgment, the record is to be examined in the light most favorable to the nonmoving party, Hankin v. Mintz, 276 Pa.Super.Ct. 538, 540, 419 A.2d 588 (1980); and summary judgment is to be allowed only if the pleadings and depositions show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law, Pa.R.C.P. 1035(b).

In light of these guidelines, the lower court sustained the eligibility of Sandra’s estate to recover work loss benefits, but ruled that the claim was barred by § 1009.106(c)(2) of the No-fault Act because the action had not been brought within one year after death.

The court denied the claim for survivor’s benefits, because the uncontradicted testimony of Sandra’s father established that none of her family had been dependent on her at the time of her death. The court rejected the contention that it was sufficient to establish the daughter’s probable financial contributions to the claimants in future years.

The court also ruled that the claim for work loss benefits bore interest at the rate of 18% per anum for the period of delay in payment, but that the allowance of attorney’s fees depended upon a showing of bad faith by the insurer, and was an issue inappropriate for determination on summary judgment. The court concluded by dismissing the Complaint, and both the claimants and the insurer have appealed.

[252]*252The insurer contends that an estate can only recover work loss benefits if one or more of the beneficiaries of the estate are survivors of the deceased victim who were financially dependent upon the victim at the time of her death.

A work loss benefit is not a form of survivor’s benefit, but is in the nature of reimbursement to the estate of the deceased for income he or she would probably have earned but for the accident. 40 P.S. § 1009.103.

Survivor’s benefits, by way of distinction, are what a survivor might reasonably have expected to receive from the victim in money or services, had the victim not sustained the fatal injury. 40 P.S. § 1009.103.

Each is a separate type of benefit, the work loss benefit intended to reimburse the estate of the victim for lost earnings, and survivor’s benefits to reimburse surviving family members for what they would have received had the victim lived. Both may be claimed in a single action. A work loss claim is comparable to a survival action and a survivor’s claim is comparable to a wrongful death action. These conclusions were fully developed in Heffner v. Allstate Insurance Co., 265 Pa.Superior Ct. 181, 190, 401 A.2d 1160 (1979), affirmed, 491 Pa. 447, 421 A.2d 629, 636 (1980), and further reaffirmed and clarified in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982). Freeze has been followed in Wingeart v. State Farm Mutual Auto Insurance Co., 302 Pa.Super.Ct. 524, 449 A.2d 40 (1982), and Reynolds v. Nationwide Mutual Insurance Co., 303 Pa.Super.Ct. 31, 449 A.2d 62 (1982); Hartleb v. The Ohio Casualty Insurance Company, 305 Pa.Superior Ct. 231, 451 A.2d 506 (1982); Miller v. United States Fidelity and Guaranty Company, 304 Pa.Superior Ct. 43, 450 A.2d 91 (1982).

While it is true that a recovery of both work loss benefits and a survivor’s loss claim may involve some of the same potential earnings of the victim in both claims, any duplication is corrected by deducting the decedent’s contribution of income under survivor’s loss recovery from the [253]*253amount recovered on behalf of the estate under work loss. Allstate Insurance Co. v. Heffner, 491 Pa. 447, 459-60, 421 A.2d 629 (1980).

We conclude that the estate of the victim has a right to recover work loss benefits without regard to the status of any of the claimants as survivors.

We next address the claim of the father, mother, and brother of the deceased victim to survivor’s benefits.

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Smiley v. Ohio Casualty Insurance
455 A.2d 142 (Superior Court of Pennsylvania, 1983)

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455 A.2d 142, 309 Pa. Super. 247, 1983 Pa. Super. LEXIS 2331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smiley-v-ohio-casualty-insurance-pasuperct-1983.