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Home My WebLink About94-07063 , Lackawaxen Township, PA was struck by a motor vehicle owned and operated by Kenneth T. Hoehne. 6. As a result of the aforementioned accident, Steven J. Brutkiewicz suffered serious and pennanent injuries. 7. At all times material hereto, Defendant, Steven J. Brutkiewicz was covered under a pollcy of automobile insurance issued to said individual by the American Mutual Insurance Company of Boston, (hereinafter referred to as American Mutual). Said policy provided coverage in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa. C.S.A. ~IOO9.101l:.1 Wl. 8. American Mutual was declared insolvent by the State of Massachusetts on March 9, 1989. 9. American Mutual provided unlimited no-fault benefits to Steven J. Brutkiewicz. 10. At all times relevant hereto, Kenneth T. Hoehne was insured with a policy of insurance issued by Nationwide which also provided unlimited no-tort benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa. C.S.A. ~IOO9.101l:.1 Wl. Plaintiff has, to date, been unable to locate a copy of the Nationwide policy, but it believes and therefore avers that a copy of such is in possession of Defendant, Nationwide. II. Subsequent to the insolvency of American Mutual, Defendant, Steven J. Brutkiewicz, by and through his attorneys has demanded ongoing no-fault benefits from PIGA pursuant to PIGA's obligations under the Pennsylvania Insurance Guaranty Association Act, 40 Pa. C.S.A. ~1701.101l:.1 Wl. 12. Pursuant to the Pennsylvania Insurance Guaranty Association Act. including ~1701.S03 entitled "Non-Duplication of Recovery", PIGA avers that all no-fault benefits currently due and accruing to Steven J. Brutkiewicz should be paid by Nationwide as it was the insurer/security for the vehicle that struck Steven J. Brutkiewicz. 13. At all times material hereto, there existed the Pennsylvania No-Fault Motor Vehicle Insurance Act, which provided, in part, pursuant to 40 Pa. C.S.A. ~IOO9.204, a "source of basic restoration benefits". Pursuant to said Subsection, "Nationwide" is the "security" for Steven J. Brutkiewicz and should provide basic loss benefits in accordance with said Act given the insolvency of American Mutual. 14. As a genuine colllroversy exists between the parties involving rights and legal obligations ..2-- I T' C rt 0 C-mm~-t ::1.::J.....~ __ro C",~ ...-' ...\'..., ....t .''''''-'.',/? I -- ., n€l ou or ........ ...... . __.;I'" .......-,::1. _n.... 1",........... I S:1r::!:iY'I:::r:i... Pennsylvania Insurance Guaranty Association 'is. Nationwide Insurance pompany ~o. 94-7063 ~~yil T~rm ---. :?__.- :iow, December 21. 1994 :9_ !. SEZ?~: 0:::' C:'~GZ?..!.A..'ID COt.~~Y. :'..0\... co h=--by ci...::u= tb So.::E oi Montqomery .. 'V' Cuu.:rr :0 ::::-:".1t: =u , :;:, :!:is ":=?uc.:on :~ -.,.:- 3.t ~ ~ ::d ~ vi :.:::: ?!.1.bd. /,...,/~ .t~ r/ )/1.:,:.., ~,...',,~-L: p.:~' SlJe.~ at S::='u'..:u:d CJWUT. ?:l. Affidavit or Semc::3 ~OW, ~~ . .- Q'':'!ca ~[. 1=:-.-d ._a witbln '''\pca u by ::u:~ :a ~ C':py of == 0::;-:....,1 ~ md -~,.:. i=wu :0 :.::.: . . ..::::t.t:::':J :.~::::::t. So =w=. .sh::a' 0/ Cow..". ?:l. 5"",,~ md r.:c.c:-:be:i be:'= =:::.:s_o,!oi '0 -.- COSTS S~VIC:: ~a:r..z.."'G Z A::iDA;-rr s --~-_. s f_ .--' truth of the allegations of paragraph six and said allegations are therefore denied. Proof thereof is demanded at trial. 7. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs seven and said allegations are therefore denied. Proof thereof is demanded at trial. 8. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph eight and said allsgations are therefore denied. Proof thereof is demanded at trial. 9. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph nine and said allegations are therefore denied. Proof thereof is demanded at trial. 10. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 10 and said allegations are therefore denied. Proof thereof is demanded at trial. 11. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 11 and said allegations are therefore denied. Proof thereof is demanded at trial. 12. While it is admitted that Section 1701.503 of the Pennsylvania Insurance Guaranty Association Act is entitled "Non- -2- duplication of recovery," it is specifically denied that all no- fault benefits currently due and accruing to steven Brutkiewicz should be paid by Nationwide. It is further specifically denied that section 1701.503 is applicable to the present action. 13. It is admitted that under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa. C.S.A. 51009.204 outlines the "source of basi" restoration bensfits." As for the remaining allegations of paragraph 13, they are conclusions of law to which no answer is required. If an answer is required, the allegations are specifically denied, and proof thereof is demanded. 14. Conclusion 01' law to which no answer is required. answer is required, the allegations of paragraph specifically denisd, and proof thereof is demanded. 15. Conclusion of law to which no answer is required. If any answer is required, the allegations of paragraph 15 are specifically denied and proof thereof is demanded. WHEREFORE, Defendant Nationwide Insurance company demands that Plaintiff's Complaint be dismisaed and judgment entered in its favor and against the plaintiff plus costs of this action. NEW MATTER 16. Plaintiff's claims are barred by the applicable statute 01' limitations. 17. Plaintiff's Complaint fails to state a claim upon which relief can be granted. If any 14 are -3- 18. Under 40 P.S. 51701.201(b) (1) (ii), the Pennsylvania Insurance Guaranty Association has the stated purpose of covering claims of an insolvent insurer. PIGA is deemed to bs the insured to the extent of its obligation on the covered claim and to such extent shall have all rights, duties and obligations of the insol vent insurer as if that insurer had not become insolvent. Accordingly, PIGA has all of the rights, duties and obligations of the insolvent insurer and is responsible for payment of basic restorations benefits to steven Brutkiewicz. 19. 40 P.S. 51701.503, entitled non-duplication of recovery is inapplicable to the present case since the current claim is not a covered claim under that provision. 20. Even if the current claim is determined to be a covered claim, which is specifically denied, plaintiff had waived the argument by any payment of basic restoration benefits to Defendant Brutkiewicz. 21. Under 40 P.S. 51009.204, the Amsrican Mutual policy was of a higher priority than any insurance coverage provided by Defendant Nationwide. Accordingly, plaintiff's obligation as a result of American Mutual'S insolvency are primary. 22. Since the underlying accident occurred 16 1/2 years ago, Defendant Nationwide, in the normal course of business, has destroyed any and all records regarding the accident and any claim arising therefrom. Accordingly, it is severely prejudiced by the -4- , ' ..- ';.'1 l'- c: (. , .!, .~ " .:: ~", . ,. .. 0-' t:" ,"'-j fi; ~ ~l ,!! il- l.') .-', (' tl_ .,"t. I ... I', ,(I _.J U C'" \. J Z 0 H ~ U 0 tIl .... ~ nl '" ~ .. . ~ t: :;; 13 ~ w 0 .. 0 ~ ~ U u 0( <<l U or< :!: > u ~ :l j a ~ <<l .,. <ll ~ z ~ 0( 6 u Ul ~ ~ 0 !!' Ul ~ ,.l <<l 0( ... ~ .. .. ~ > H ~ ~ g ~ 0( >- Iii ~ tIl :>- . 0( z 0 Z H .c "' ~ ... ... .. I ~ :f >- u z z l H tIl U ..... '" ... z 0( z 0( ~ z or<'" z 5 z .. ... ;;; ;S H I aD> u ~ ... ~ w d ii ~ !! M tIlO 0 ~ .: ~ t: .. ~ <<l '" ~ 0( ... ~ z ~ 0 . u 0( z ~ . ;: ... I< UI 0 0 I 0 ~ ~ ~ 'tl Z 5 t tIl 0 '" ... :e ~ H nl . ~ "'A :l 0 .. . 0( "" Z '-'H Z . . . . NAULTY, SCARICAMAZZA & McDEVITT BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 1600 One Penn Center Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR PLAINTIFF PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION VS NATIONWIDE INSURANCE COMPANY AND STEVEN J. BRUTKIEWICZ COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 94-7063, CIVIL TERM PLAINTIFF, PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION'S REPLY TO DEFENDANT, NATIONWIDE INSURANCE COMPANY IS NEW MATTER AND CROSSCLAIM 16. Denied. The allegations contained in this paragraph are conclusIOns of law and as such, no response is required. To the extent a response is required, Plaintiff specifically denies and demands strict proof thereof at trial that its claims are barred by any statute of limitations. 17. Denied. The allegations contained in this paragraph are conclusions of law and as such, no response is required. To the extent a response is required, Plaintiff specifically denies and demands strict proof thereof at trial that its Complaint fails to state a claim upon which relief can be granted. 18. Denied. The allegations contained in this paragraph are conclusions of law and as such, no response is required. To the extent a response is required, Plaintiff specifically denies and demands strict proof thereof at trial that it is deemed to be the insurer to the extent of its obligations and/or on the covered claims and/or that it shall have the duties and/or obligations of the insolvent insurer as if that insurer had not become insolvent. Furthermore, Plaintiff specifically denies and demands strict proof thereof at trial that it has all of the duties and/or obligations of the insolvent insurer and/or is responsible for payment of basis restoration benefits to Defendant, Steven J. Brutkiewicz. On the contrary, said payments are due and owing from Defendant, Nationwide Insurance Company and Plaintiff has no such obligations to Defendant, Steven J. Brutkiewicz. 19. Denied. The allegations contained in this paragraph are conclusions of law and as such, no response is required. To the extent a response is required, Plaintiff specifically denies and demands strict proof thereof at trial that 40 P.S. ~1701.503 is inapplicable to the present case. On the contrary, said provision is clearly applicable and the claim is covered under said provision. 20. Denied. The allegations contained in this paragraph are conclusions of law and as such. no response is required. To the extent a response is required, Plaintiff denies that it has waived the argument of any payment of basic restoration benefits to Defendant. Steven J. Brutkiewicz. On the contrary, said argumcnt has been preserved. 21. Denied. The allegations contained in this paragraph are conclusions of law and as such, no response is required. To the extent a response is required, it is believed and therefore averred that Defendant, Nationwide Insurance Company's coverage is primary. Furthermore, Plaintiff specifically denies and demands strict proof thereof at trial that the American Mutual policy was of a higher priority than any insurance coverage provided by Defendant, Nationwide Insurance Company. 22. Denied. The allegations contained in this paragraph are conclusions of law and as such, no response is required. To the cxtent a response is required, Plaintiff specifically denies and demands strict proof thereof at trial that Defendant, Nationwide Insurance Company will be severely prejudiced by the filing of the instant lawsuit and/or that said Defendant is unable to adequately defend against Plaintiffs allegations. On the contrary. said lawsuit was filed timely and Defendant, Nationwide Insurance Company is not severely prejudiced and/or unable to adequately defend the instant action. Furthermore, after reasonable investigation, Plaintiff is without sufficient information and knowledge to form a belief as to --2-- .... 2. PIGA, in its complaints has alleged that defendants, Faiola and Brutkiewicz were passengers in vehicles which were involved in automobile accidents. 3. PIGA has further alleged in its Complaints that at the time of the alleged incident, defendants, Brutkiewicz and Faiola were covered under a policy of automobile insurance issued by Slate Automobile Insurance Association (hereinafter referred to as State Auto) and American Mutual Insurance Company of Boston (hereinafter referred to as American Mutual). 4. Said policy provided coverage in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. ~ 1009.101 et. seq. 5. Defendants, Faiola and Brutkiewicz have allegedly suffered personal injuries as a result of the automobile accident. 6. State Auto was placed in rehabilitation by the State of Indiana on October 17, 1991 and subsequently declared insolvent on December 22, 1992. 7. American Mutual was placed in insolvency by the Slate of Massachusetts on March 9, 1989. 8. Prior to the rehabilitation and insolvency orders, State Auto and American Mutual provided unlimited no-fault benefits to defendants, Brutkiewicz and Faiola. 9. At all times relevant hereto, the owners and/or operators of the vehicles within which defendants, Brutkiewicz and Faiola were passengers, were insured by a policy of insurance issued by Nationwide and Potomac which also provided unlimited no-fault tort benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Act, 40 P.S. ~ 1009.101 ct. seq. 10. Subsequent to the insolvency of State Auto and American Mutual, defendants, Brutkiewicz and Faiola, by and through their attorneys, have demanded ongoing no. fault benetits from PIGA pursuant to PIGA's obligations under the Pennsylvania Insurance Guaranty Association Act, 40 Pa. C.S.A. ~ 1701.101 ct. seq. II. Pursuant to the Pennsylvania Insurance Guaranty Association Act, including ~ 1701.503 entitled "Non-Duplication of Recovery," PIGA asserted that all no-fault benefits currently due and accruing to defendants, Faiola and Brutkiewicz should be paid by Nationwide and Potomac as Nationwide and Potomac were the insurer/sureties for the vehicles occupied by said defendants at the time of the alleged accidents. At all times material hereto, there existed the Pennsylvania No-Fault Motor Vehicle n 3-- .. Insurance Act which provided, in part, pursuant to 10 P.S. 1009.204, a "source of basic benefits," 12. Pursuant to subsection 1009.204 of title 40 of the Pennsylvania Code, Potomac and Nationwide are the "sureties" for defendants, Brutkiewicz and Faiola and should provide basic loss henefits in accordance with said act given the insolvency of State Auto and American Mutual. 13. PIGA, by and through its attorneys, subsequent to the insolvency of State Auto and American Mutual has demanded that Nationwide and Potomac provide basic loss benefits to defendants, Faiola and Brutkiewicz. 14. Potomac and Nationwide, by and through their attorneys, have denied PIUA's request. 15. As a result of the positions taken by all parties, PIGA has filed Declaratory Actions in the above captioned matters. 16. Both actions arise out of the same set of facts involving a common question of law. ) 17. The consolidation of these actions will avoid the possibility of conflicting verdicts and therefore will lead to a fair and more sensible result. 18. It is respectfully submitted that consolidating the above captioned matters will promote additional efficiency and economy for both the Court and the parties. WHEREFORE, plaintiff, Pennsylvania Insurance Guaranty Association respectfully requests that this Honorable Court enter the attached Order consolidating the above causes of action for all purposes, including but not limited to discovery, pleadings and trial. NAULTY, SCARICAMAZZA & McDEVITT, LTD. fl. BY: GERARD X. SMITH, ESQUIRE Attorney for Plaintiff -- 4 .. . Automobile Insurance Association (hereinafter referred to as State AlIlO) and American Mutual Insurance Company of Boston (hereinafter referred to as American Mutual). Said policy provided coverage in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act. 40 P.S. ~ 1009.101 et. seq. Defendants, Faiola and Brutkiewicz have allegedly suffered personal injuries as a result of the automobile accident. Stat~ AUlo was placed in rehabilitation by the State of Indiana on October 17, 1991 and subsequently declared insolvent on December 22, 1992. American Mutual was placed in insolvency by the Slale of Massachusetts on March 9, 1989. Prior to the rehabilitation and insolvency orders, State Auto and Americ.1n Mutual provided unlimited no.fault benefits to defendants, Brutkiewicz and Faiola. At all times relevant hereto, the owners and/or operators of the vehicles within which defendants, Brutkiewicz and Faiola were passengers, were insured by a policy of insurance issued by Nationwide and Potomac which also provided unlimited no-fault tort benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Act, 40 P.S. ~ 1009.101 et. seq. Subsequent to the insolvency of State Auto and American Mutual, defendants, Brutkiewicz and Faiola, by and through their attorneys, have demanded ongoing no-fault benefits from PIGA pursuant 10 PIGA's obligations under the Pennsylvania Insurance Guaranty Association Act, 40 Pa. C.S.A. ~ 1701.101 et. seq. Pursuant to the Pennsylvania Insurance Guaranty Association Act, including ~ 1701.503 entitled "Non-Duplication of Recovery," PIGA asserted that all no-fault benefits currently due and accruing to defendants, Faiola and Brutkiewicz should be paid by Nationwide and Potomac as Nationwide and Potomac were the insurer/sureties for the vehicles occupied by said defendants at the time of the alleged accidents. At all times material hereto, there existed the Pennsylvania No-Fault Molor Vehicle Insurance Act which provided, in part, pursuant to 40 P.S. 1009.204, a "source of basic benefits." Pursuant to subsection 1009.204 of title 40 of the Pennsylvania Code, Potomuc and Nationwide are the "sureties" for defendants, Brutkiewicz and Faiola and should provide basic loss benefits in accordance with said act given the insolvency of State Auto and American Mutual. PIGA, by and through its attorneys, subsequent to the insolvency of State Auto und American MUlual has demanded that Nationwide and Potomac provide basic loss benefits 10 defendants, Faiola and Brutkiewicz. Potomac and Nationwide, by and through their attorneys, have denied PIG,\ 's request. As a result of the positions taken by all parties, PIGA has filed __ 6 n .. Declaratory Actions in the above captioned matters. Both actions arise out of the same set of facts involving a common question of law. I The consolidation of these actions will avoid the possibility of contlicting verdicts and therefore will lead to a fair and more sensible result. It is respectfully submitted that consolidating the above captioned matters will promote additional efficiency and economy for hoth the Court and the parties. Under Pennsylvania Rule of Civil Procedure 213(a), when actions involving a common question of fact or law are pending before the Court: the court on its own motion or on motion of any party may order a joint hearing or trial of any or all the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary cost or delay. Pa. R. Civ. Pro. 2123(a). It has been held that the propriety of consolidation is a mailer left to the sound discretion of the trial court. Azinger v. Pennsylvania R.R. Co., 262 Pa. 242, 246 (1918). Consolidation is proper where two actions involve common questions of law and/or fact and where unnecessary delay or cost can be avoided through the elimination of duplicative actions. Acquaviva v. Hartman, 203 Super. 505,201 A.2d 239 (1964). This matter is similar to the case of Stauffer v. Cymvyd Investments, 29 The Cumbo L.J., 73 (1979), where the plaintiff was struck by an automobile while walking in a parking lot. In that case, the Court held that consolidation of separate suits against the automobile operator for negligence in operating his motor vehicle and against the parking lot owner for failure to provide adequate lighting, was proper. Both actions involve common questions of law and consolidation was ordered on the basis that the allegations arose out of the same occurrence. Indeed, where loss of time, cost and expense may be reduced, consolidation has been held proper even though details of evidence and issues of proof may vary materially as between defendants. See Schwartz. et /Lt, v. Camegie-IIlinois Steel Corp.. 34 D&C 546 (1939). In the present action, adjudication of plaintiff's claims against the defendants will involve resolution of the same legal and factual issues. 1l1is can only be accomplished in a unitary proceeding. It is, therefore, clear that separate adjudications would contravene the interest of judicial economy and fairness and would expose the parties to a n 7-- ~ '.' Lackawaxen Township, PA was struck by a motor vehicle owned and operated by Kenneth T. Hoehne. 6. As a result of the aforementioned accident, Steven 1. Brutkiewicz suffered serious and permanent injuries. 7. At all times material hereto, Defendant, Steven 1. Brutkiewicz was covered under a policy of automobile insurance issued to said individual by the American Mutual Insurance Company of Boston, (hereinafter referred to as American Mutual). Said policy provided coverage in accordance with the Pennsylvania No.Fault Motor Vehicle Insurance Act, 40 Pa. C.S.A. fi1009.101 ~~. 8. American Mutual was declared insolvent by the State of Massachusetts on March 9, 1989. 9. American Mutual provided unlimited no-fault benefits to Steven 1. Brutkiewicz. 10. At all times relevant hereto, Kenneth T. Hoehne was insured with a policy of insurance issued by Nationwide which also provided unlimited no-tort ben~fits pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa. C.S.A. fi1009.101 ~~. Plaintiff has, to date, been unable to locate a copy of the Nationwide policy, but it believes and therefore avers that a copy of such is in possession of Defendant, Nationwide. 11. Subsequent to the insolvency of American Mutual, Defendant, Steven J. Brutkiewicz, by and through his attorneys has demanded ongoing no-fault benefits from PIGA pursuant to PIGA's obligations under the Pennsylvania Insurance Guaranty Association Act, 40 Pa. C.S.A. fi1701.10l ~~. 12. Pursuant to the Pennsylvania Insurance Guaranty Association Act, including fil701.503 entitled "Non-Duplication of Recovery", PIGA avers that all no-fault benefits currently due and accruing to Steven J. Brutkiewicz should be paid by Nationwide as it was the insurer/security for the vehicle that struck Steven J. Brutkiewicz. 13. At all times material hereto, there existed the Pennsylvania No-Fault Motor Vehicle Insurance Act, which provided, in part, pursuant to 40 Pa. C.S.A. fiI009.204, a "source of basic restoration benefits". Pursuant to said Subsection, "Nationwide" is the "security" for Steven J. Brutkiewicz and should provide basic loss benefits in accordance with said Act given the insolvency of American Mutual. 14. As a genuine conlroversy exists between the parties involving rights and legal obligations .- 2 .- " " '. , , of pennsylvania with c,~fices located at 100 Corporate Center Drive, Camp Hill, Pennsylvania. . 3. Defendant, Ann Faiola, is an adult individual residing in the Commonwealth of Pennsylvania at 2303 E. Tilden Road, Harrisburg, Pennsylvania. 4. This declaratory judgment action is brought pursuant to 42 Pa. C.S.A. 57531, At~. for the purpoee of deciding an actual oontroversy between the parties as appears more fully hereinafter. 5. On November 8, 1981, Defendant, Ann Faiola, was a passenger in a motor vehicle owned and operated by Richard J. Rabold, whioh was involved in a one vehicle accident in Swatara Township, Dauphin County, Pennsylvania. 6. As a result of the aforementioned accident, Defendant, " Ann Faiola, suffered serious injuries rendering her a quadriplegic. 7. At all times material hereto, Ann Faiola was covered under a polioy of automobile insurance issued to her father, Herman J. Faiola, of 4000 Elmerton Avenue, Harrisburg, Pennsylvania, issued by the State Automobile Insurance Association, (hereinafter called .State Auto"), under policy number H7-1-095-992-004. Said policy provided coverage in acoordance with the Pennsylvania No- Fault Motor Vehicle Insurance Act, 40 Purdon's S1009.101 At ~. A true and oorrect copy of the State Auto policy in effect at the time of this accident is attached hereto, made a part hereof and marked as Exhibit "A". 2 ;.. .' " 8. State Auto was placed in rehabilitation by the state of Indiana on October 17, 1991 and was subsequently declared insolvent on December 22, 1992. 9. '~tate Auto provided unlimited no-fault benefits to Ann Faiola up through and including Septembek 10, 1991. Pursuant to the rehabilitation and insolvency orders, state Auto's last payment to Ann Faiola for no-fault benefits was September 10, 1991. 10. At all times relevant hereto, Richard J. Rabold was insured with a policy of insurance issued by Potomac Insurance Company (Policy number RPA 41 688 73) also providing unlimited no- fault benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Purdon's 91009.101 ~~. plaintiff has to date been unable to locate a copy of the potomac insurance policy but avers and believes that one is in possession of the Defendant, Potomac Insurance Company. 11. Subsequent to the insolv~ncy of State Auto, Defendant Ann Faiola, by and through her attorneys, has demandod ongoing no- fault benefits from PIGA pursuant to PIGA's obligations under the Pennsylvania Insurance Guaranty Association Act, 40 Pa. C.S.A. 91701.101 ~~. 12. Pursuant to the Pennsylvania Guaranty Insuranoe Association Act, including 91701.503 entitled "Non-Duplication of Recovery", PIGA avers that all no-fault benefits currently due and accruing to Ann Faiola should be paid by Potomac Insurance Company as they were the insurer/security for the vehicle occupied by Ann Faiola at the time of this accident. 3 - " " 13. At all times material hereto, there existed the Pennsylvania No-Fault Motor Vehicle Insurance Act, which provided, . in part, pursuant to 40 Purdon's !i1009.204, a "source of basic restoratibn benefits". Pursuant to said chapter/subsection, Potomac Insurance Company is the "security" for Ann Faiola and should provide basic loss benefits in accordance with said Act given the insolvency of state Auto. 14. The Pennsylvania Insurance Guaranty Association and Ann Faiola, by and through her attorney, F, Lee Shipman, Esquire, have demanded that Potomac provide basio loss benefits to Ann Faiola subsequent to the insolvency of State Auto. Potomac, by and through William R. Plummer, Claims Manager, has denied same and has set forth their reasons in a letter dated June 1B, 1993, a copy of whioh is attached hereto, made a part hereof and marked as Exhibit "Bit . 15. As a result of the posi~ions taken by PIGA, Potomac and Faiola, a genuine controversy exists between the parties involving rights and legal obligations as set forth by Statute (Pennsylvania No-Fault Motor Vehicle Insurance Act) and the rights and legal obligations of the parties to a contract of insurance written pursuant to the Pennsylvania No-Fault Motor Vehiole law. 16. Declaratory relief is necessary and proper in this action to resolve the unoertainty created by the provisions of the Pennsylvania No-Fault Motor Vehicle law, the oontracts of insurance, the decisions of this Court and the insolvency of State Auto. 4 ,;. r- , , YOUR PERSONAL AUTO POLICY QUICK REFERENCE DECLARATIONS PAGE Your Name and Address Your Auto or Trailer Policy Period Coverages and Amounts of Insura~ce Beginning on Page AGREEMENT DEFINITIONS PART A liability Coverage Supplementary Payments Exclusions limit of Liability Out 01 Slale Coverage Financial Responsib11jty Required Other Insurance PART B Medical Payments Coverage 3 Exclusions limit of liability Other Insurance PART C Uninsured Motorists Coverage 4 Exclusions limit of liability Other Insurance Arbitration PART 0 Damage 10 Your Auto Coverage 5 Transportation Expenses Exclusions limit of Liability Payment of loss No Benefit to Bailee Other Insurance PART E Duties ANer an Accident or loss 6 PARTF General Provisions 7 Policy Period and TerritoI)' Termination ;. ;. .....'ACH fORM AND ENDORSEMENTS UF ANY) HERE ""' " Under General Provisions. add: 9. PREMIUM If this policy is written for a term of less than one year (12 months}, Ihe premium stated in the Declarations is the initial premium for this policy. On each renewal. continuation or anniversary of the effective date of this policy the premium shall be computed by us in accordance with our manuals then in use. 10. LOSS PAYABLE CLAUSE Loss or damage under this policy shall be paid as interest may appear to you and the loss payee shown in the declarations. This insurance covering the interest of the loss payee shall become invalid only because of your fraudulent acts or omissions. However, we reserve the right to cancel the policy as permitted by policy terms and the cancellation shall terminate this agreement as to the loss payee's inlerest. We will give the same advance notice of cancellation to the loss payee as we give to the named insured shown in the declarations. When we pay the loss payee we shall, to the extent of payment. be subrogated to the loss payee's rights of recovery. 11. RECIPROCAL CLAUSE In consideration of the payment of premium as provided in this policy and in reliance upon the statements in the declarations and subject to the limits of liability. exclusions, conditions and other terms 01 this policy, Automobile Underwriters, Incorporated. Attorney-in-Fact for the subscribers at State Automobile Insurance Association, hereby agrees with the insured named in the declarations as provided for in this policy and any forms and endorsements made a part hereof. The word "company" means Automobile Underwriters, Incorporated, Attorney-In-Fact for the subscribers at State Automobile Insurance Association. The word "policy" means the Subscrlber's Agreement, application and policy In Its entirety. The subscriber's liability under this policy shall be fixed and limited to the premium deposit and application fee provided for in this policy, and the policy being In all respects non-assessable. 12. DECLARATION AND SUBS~RIBER'S AGREEMENT By acceptance of this policy the named Insured agrees that the statements in the declarations are his agreements and representations, that this policy Is Issued In reliance upon the truth of such representations and that this policy and the Subscriber's Agreement embody all agreements existing between himself and the company or any of Its agents relating to this insurance. 13. SUBSCRIBERS The subscribers at State Automobile Insurance Association are Individuals, firms and corporations, each of whom has executed a separate Subscriber's Agreement, authorizing Automobile Underwriters, Incorporated. Attorney-in-Fact, an Indiana corporation to issue policies exchanging insurance and reinsurance upon the terms and COnditions and subject to the restrictions and limitations contained in said Subscriber's Agreement, which are made a part of this policy. IN WITNESS WHEREOF AUTOMOBILE UNDERWRITERS. INC., Attorney-in-Fact for the Subscribers At State Automobile Insurance Association, has caused this policy to be signed by its President and Secretary. but the same shall not be binding at the Association unless countersigned by a person duly authorized to do so. QtiL- D,[).~ PRESIDENT SECRETARY COUNTERSIGNED BY A\I1tlotlltd"'trol ;. .;. ..j I'.' .' E'" . I'B' , .' E'" C' 'P' "V" .. .. : . . . ',' . .. : . . I I . . I,. .. . It... It .' .t, . ... ' . .. I ..' ,'. '. ',' I '. . '. .0, ,'. '. . . I '. . . . .' '. 0.. . '. . t' '.. . . .' . .. .:..' ,.:Ll,: " ".:, "l,: .... ,':.' " ILLEGIBLE COpy ILLE IBLE COP ILLEGIBLE COpy I"l': l'; E...... 'I"'B""L'; E..... C" 'O'P' ,.... . . . . I.,. I. . ,',.' II ',' I'. . '" . ""' .. . ..' " 'f '.' " . . 'I' ,'. '. . .' .1,. . . . ....... '.. . '. .... I II . . .' . ,I '. ..' . . . . .' .. ". . ..... . . '.:, ..., ......... . ':" .. ", . ". ..' ", '.. ,'." y ,,~ ,: "' t.. ',' '.. '\'. ':' ,,' j'.. L l ( :',; I, '.. t, " l : ' Y I " f I I :. I" ". 1.,"'.. :. 1 L... 1'.J 1.1, ,",', t" . . ", :PO~.ICY NUMBER ~ 0: '~' .:.:: 'I POLICY PERIOD ";. -'1 I :7":""...! lBEGI~S12:0,l^,M," ,EXPIRES 12:01 A,M: Tr . STATESMAN GROUP EFFECTIVE Ii AGEN', - 'sr""j ,-;j.Jll;:...~ ~ : , t, T ,. (" T': ,. r, r :',.l".~r~"-:il:' ~'I. '17! ~ 7.; .~ 1 Wtlln In .Il.cli.... dllllppaarl hlte the policV II amlnd.d hl'lb' in conlkll"lIon 01 the addltlonalloJ, relum pr.mlum .hown blla"" 1hl, am.nded dlel.tlllon riP lie.. all PfC"'lCWlly IUuld d.cl." Uanl blltlng thl 11m. policy number NA~eO jN84~JD.~~O ~SD.!'!'!,":": '_.., .___ ,....._ 'DRIVER, BIRT~ DATE :USAGE r : L t, I" - J " ., " ' L' , '. ., (", ~ -; .. \ r' L h r ~ " ~r., '. , , " " -' . ", . . ~jiiiB::"EAJ;it,iCJic'iOVMQPJiGZ.iQ!NTif~JO./'l,NUMiiER .-Z:"ii"'MiAQiCCO,iINEW,'1lVijii"TEAii:''CL..;'siL!""" li.;::;;wal::~r' C' ,... ~:.:, !:. T '. ; 31. ~ ~ r: to 11'~ _' -: 3 4 t..: ;!,,:.,.:J.... :'., !',1 F 1 Ill:: ,.' ~tWei;'~'~~-t~t'~~~.B~Y~~~;if~~~.~i~fN~\t~~t~~ c ~~ II ~ i. :. ~ ":" :, l I ~ : . ~ ..; f l I ~ .. r L 1 T V P :7'~. 'A ~ ,! u . " . LJ A,. ILl 11 '!!.... '..1.- L::..~, t.LC~;;t,','l ~q . ~ : 1'. ; . p. I' " r . , ... 'J;', 1 r, S i:t. 1:"\ T "!' I~. T 1 :',' r. .;.l:' tl CC 1:':c.. ". T 1. L :' .. ,. ? , . :' ~ '.1 ,.." e. T. ,r, ., " 'r ~.., I' ~..; T:':: T '" l'" ~::, L !.. r ': I ~ r 1,,1 ~ t ',. \ i "'_'-: t":;::. - :.. :~;..,' T 1 ~' l ~. . ~- :0.: TC!,.t:.;; t.'tl L.'.r'~r cOST ~.~~.\.r. ':tlCtl ~I~',~L:":.~'T 1 . ~ .. ;':'~['I)~'( r "',t \/1 ",",~"'ruu . . . . . . :~ :1 . ;-: ': to.:.: )j, S,' ,-':: '. T~ . ... II.. .... .... ; , . -, .. " J U '" ~r 1 _ 1 ~ 1 f:~. . ~'\I: TnT~L ;:J :-. E 'IJ '. ... .I H(l~.,r. TP~'. u ~F" Tn u<,E 'J F T ::" 1 . ,,7 0~,L Y CC .,', <,. (LAcS >'1112. A0l '::7 L. "!. f. !~. :~ ~ "I' L'M ,I ~_~I - (I' ~J CL r ' [) 1 - 'J TI ::'l ~, 1 ~' ..J PIP 13 8lACW "r'~~ ACTU/L (hSh ~^!..UE) Authorized R.pr...nl.U.... 'tJl~leP.ktJ'l,!:'.A:lliA",;RIic:...:.n<?::~If.'-f1:.l., .,JKW ' ., <? ~~:-...:0l-"'7"'"'.,ll',.c,'J'll~ "Oph "^A',tR,; IC--='~"'''l\tMJ'K'1I!1''''' 'I;'; . .... __~ ,;;_____._-.:.:-j.~c;,. ._..__ __ _........__ __'l:~t:.,Ui'i.P-.::'';_ _....___ __......... .:. "n" . , J , '. . . . . " @ . 1979 ---------- -~------+---------_._+ --.-. PERSONAL AUTO POLICY AGREEMENT ------- -I~r~i~~n-i~~-pay;;;ent ~i-ih;premlum and subjectt;;;,lih";t-;;;;"s. ~j'thi~'pollcy. we agree with you as follows: DEFINITIONS ---- ------------.-- --- .__._~----- --- Throughout this policy. "you" and "your" reteI' to: 1. The "named Insured" shown In the Declarations: and 2. The spouse It a resident of the same household. "We", "us" and "our" refer to the Company"provldlng this Insurance. For purposes of this policy. a private passenger type auto shall be deemed to be owned by a person If leased: 1. Under a written agreement to that person; and 2. For a continuous period of at least 6 months. Other words and phrases are defined. They are boldfaced when used. "Family member" means a person related to you by blood. marriage or adoption who Is a resident of your household. This Includes a ward or foster child. "Occupying" means In. IJpOn, getting In. on, out or off. "Trailer" means a vehicle designed to be pulled by a: 1. Private passenger auto; or 2. Pickup, panel truck, or van. It also means a farm wagon or farm Implement while towed by a vehicle listed In 1. or 2. above. "Your covered auto" means: 1. Any vehicle shown In the Declarations. 2. Any of the following types cf vehicles on the date you become the owner: a. a private passenger auto; or b. a pickup, panel truck or van. not used In any business or occupation other than farming or ranching. This provision applies only If. you: a. acquire the vehicle during the policy period; and b. ask us to Insure It within 30 days after you become the owner. If the vehicle you acquire replaces one shown In the Declarations, It will heve the same coverage as the vehicle It replaced. You must ask us to Insure a replacement vehicle within 30 days only II you wish to add or continue Coverage for Damage to Your Auto. If the vehicle you acquire Is In addition to any shown In the Declarations, It will have the broadest coverage we now provide for any vehicle shown In the Declarations. 3. Any trailer you own. 4. Any auto or trailer you do not own while used as a temporary substitute for eny other vehicle described In this definition which Is out of normal use because of Its: a. breakdown; d. loss; or b. repair; e. destruction. c. servicing; PART A-LIABILITY COVE.RAGE INSURING We will pay damages for bodily Injury or property damage for which any covered person AGREEMENT becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability. we will pay all defense costs we Incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. PP 00 01 (Ed. 6.80) Page 1 of 10 .:,.;.. INSURING AGREEMENT (Continued) SUPPLEMENTARY PAYMENTS EXCLUSIONS PP 00 01 (Ed. 6.80) "'. lICovered person" as used in this Part means: 1. You or any family member for the ownership, maintenance or use of any auto or trailer. 2. Any person using your covered auto. 3. For your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage Is afforded ulider this Part. 4. For any auto or trailer. other than your covered auto. any person or organization but only with respect to legal responsibility for acts or omissions of you or any family member for whom coverage is afforded under this Part. This provision applies only If the erson or or anizatlon does not own or hire the auto or trailer.' . In addition to our limit of liability. we will pay on behalf of a covered person: 1. Up to $250 for the cost of bail bonds required because of an accident, Including related traffic law violations. The accident must result In bodily Injury or property damage covered under this polley. 2. Premiums on appeal bonds and bonds to release attachments In any suit we defend. 3. Interest accruing after a judgment is entered In any suit we defend. Our duty to pay Interest ends when we offer to pay that part of the Judgment which does not exceed our limit of liability for this coverage. 4. Up to $50 a day for loss of earnings, but not other Income, because of attendance at hearings or trials at our request. 5. Other reasonable ex enses Incurred at our re uest. A. We do not provide Liability Coverage for any person: 1. Who intentlonaliy causes bodily Injury or property damage. 2. For damage to property owned or being transported by that person. 3. For damage to property: a. rented to; b. used by; or c. In the care of; that person. This exclusion does not apply. to damage to: a. a residence or private garage: or b. any of the following type vehicles not owned by or furnished or available for the regular use of you or any family member: (1) private passenger autos; (2) trailers; or (3) pickups, panel trucks, or vans. 4. For bodily Injury to an employee of that person during the course of employment. This exclusion does not apply to bodily Injury to a domestic employee unless workers' compensation benefits are required or available for that domestic employee. 5. For that person's liability arising out of the ownership or operation of a vehicle while It Is being used to carry persons or property for a fee. This exclusion does not apply to a share.the.expense car pool. 6. While employed or otherwise engaged In the business or occupation of: a. selling; d. storing; or b. repairing; e. parking; c. servicing; vehicles designed for use mainly on public highways, This Includes road testing and delivery. This exclusion docs not apply to the ownership, maintenance or use of your covered auto by: a. you; b. any family member; or c. any partner, agent or employee of you or any family member. Page 2 of 10 - - ,EXCLU:;IONS (C~ntinued) . . LIMIT OF LIABILITY OUT OF STATE COVERAGE FINANCIAL RESPONSIBILITY REQUIRED PP 00 01 (Ed. 6.80) 7. Maintaining or using any vehicle while that person is employed or otherwise engaged In any business or occupation not described In Exclusion 6. This exclusion does not apply to the maintenance or use of a: a. private passenger auto: b. pickup. panel truck or van that you own; or c. trailer used with a vehicle described in a. or b. above. 8. Using a vehicle without a reasonable belief that that person Is entitled to'do so. 9. For bodily Injury or property damage for which that person: . a. Is an Insured under a nuclear energy liability policy; or b. would be an Insured under a nuclear energy liability policy but for Its termination upon exhaustion of Its limit of liability. A nuclear energy liability policy Is a policy Issued by any of the following or their successors: a. Nuclear Energy Liability Insurance Association: b. Mutual Atomic Energy Liability Underwriters; or c. Nuclear Insurance Association of Canada. B. We do not provide Liability Coverage for the ownership. maintenance or use of: 1. Any motorized vehicle having less than four wheels, 2. Any vehicle, other than your covered auto, which is: a. owned by you; or b. furnished or available for your regular use. 3. Any vehicle. other than your covered auto, which Is: a. owned by any family member; or b. furnished or available for the regular use of any family member. However, this exclusion does not apply to your maintenance or use of any vehicle which Is: a. owned by a family member; or b. furnished or available for the regular use of a family member, The limit of liability shown In the Declarations for this coverage Is our maximum limit of liability fur all damages resulting from anyone auto accident. This Is the most we will pay regardless of the number of: 1. Covered persons; 2. Claims made; 3. Vehicles or premiums shown In the Declarations; or 4. Vehicles Involved In the auto accident. We will apply the limit of liability to provide any separate limits required by law for bodily Injury and property damage liability. However, this provision will not change our total limit of liability. If an auto accident to which this policy applies occurs In any state or province other than the one In which your covered auto Is principally garaged, we will Interpret your policy for that accident as follows: If the state or province has: 1. A financial responsibility or similar law specifying limits of liability for bodily Injury or property damage higher than the limit shown In the Declarations, your policy will provide the higher specified limit. 2. A compulsory Insurance or similar law requiring a nonresident to maintain Insurance whenever the nonresident uses a vehicle In that state or province. your policy will provide at least the required minimum amounts and types of coverage. No one will be entitled to duplicate payments for the same elements of loss. When this policy Is certified as future proof of financial responsibility, this policy shall comply with the law to the extent required. " ", Page 3 of 10 ;.- " 'm' OTHER INSURANCE II there Is other applicable liability Insurance we will pay only our share of the loss. Our share Is the proportion that our limit of liability bears to the total of all applicable limits. However, any Insurance we provide for a vehicle you do not own shall be excess over any other collectible Insurance. PART B.....:.MEDICAL PAYMENTS COVERAGE EXCLUSIONS . . We will pay reasonable expenses Incurred for necessary medical and funeral services because of bodily Injury: 1. Caused by accident: and 2, Sustained by a covered person, We will pay only those expenses Incurred within 3 years from the date of the accident. "Covered person" as used In this Part means: 1. You or any family member: a. while occupying; or b. as a pedestrian when struck by: a motor vehicle designed for use mainly on public roads or a trailer of any type. 2. Any other person while occupying your covered auto. We do not provide Medical Payments Coverage for any person for bodily Iniury: 1. Sustained while occupying any motorized vehicle having less than four wheels. 2. Sustained while occupying your covered auto when It Is being used to carry persons or property for a fee. This exclusion does not apply to a share-the-expense car pool. 3. Sustained while occupying any vehicle located for use as a residence or premises. 4. Occurring during the course of employment If workers' compensation benefits are required or available for the bodily Injury. ". -. 5. Sustained while occupying or, when struck by, any vehicle (other than your covered auto) which Is: a. owned by you; or . b. furnished or available for your regular use. 6. Sustained while occupying ol'"wben struck by, any vehicle (other than your covered auto) which Is: a. owned by any family member; or b. furnished or available for the regular use of any family member. However, this exclusion does not apply to you. 7. Sustained while occupying a vehicle without a reasonable belief that that person Is entitled to do so. a. Sustained while occupying a vehicle when It 15 being used In the business or occupa- tion of a covered person. This exclusion does not apply to bodily Injury sustained while occupying a: a. private passenger auto: b. pickup, panel truck, or van that you own; or c. trailer used with a vehicle described In a. or b. above. 9. Caused by or as a consequence of: a. discharge of a nuclear weapon (even If accidental): b. war (declared or undeclared): c. civil war: d. Insurrection; or e. rebellion or revolution. 10. From or as a consequence of the following, whether controlled or uncontrolled or however caused: a. nuclear reaction; b. radiation; or c. radioactive contamination. INSURING AGREEMENT . . Page 4 of 10 - - pp 00 01 (Ed. 6.80) LIMiT 61, LlA!3!LlT\' The limit of liability shown In the Declar~tions for this coverage is our maximum limit of liability for each person injured in anyone accident. This is the most we will pay regardless of the number of: 1. Covered persons; 2. Claims made: 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the accident. Any amounts otherwise payable for expenses under this coverage shalll5e reduced by any amounts paid or payable for the same expenses under Part A or Part C. No payment will be made unless the injured person or that person's legal representative agrees In writing that any payment shall be applied toward any settlement or .jodgment that person receives under Part A or Part C. -----.--....-....---..- --- . .. If there Is other applicable auto medical payments Insurance we will pay only our share of the loss. Our share Is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible auto Insurance providing payments for medical or funeral expenses. OTHER INSURANCE PART C-UNINSURED MOTORISTS COVERAGE We will pay damages which a covered person Is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily Injury: 1. Sustained by a covered person; and 2. Caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership. maintenance or use of the uninsured motor vehicle, Any judgment for damages arising out of a suit brought without our written consent Is not binding on us. "Covered person" as used In this Part means: 1. You or any family member. 2. Any otller person occupying your covered auto. 3. Any person for damages that person Is entitled \J recover because of bodily Injury to which this coverage applies sustained by a person described In 1. or 2. above. "Uninsured motor vehicle" means ';I land motor vehicle or trailer of any type: 1. To which no bodily Injury liability bond or polley applies at the time of the accident. 2. To which a bodily Injury liability bond or polley applies at the time of the accident. In this case Its limit for bodily Injury liability must be less than the minimum limit for bodily Injury liability specified by the financial responsibility law of the state In which your covered auto Is principally garaged. 3. Which Is a hit and run vehicle whose operator or owner cannot be identified and which hits: a. you or any family member; b. a vehicle which you or any family member are occupying; or c. your covered auto. 4. To which a bodily Injury liability bond or polley applies at the time of the accident but the bonding or Insuring company: a. denies coverage: or b. Is or becomes Insolvent. However, "uninsured motor vehicle" does not Include any vehicle or equipment: 1. Owned by or furnished or available for the regular use of you or any family member, 2. Owned or operated by a self.lnsurer under any applicable motor vehicle law. 3. Owned by any governmental unit or agency. 4. Operated on rails or crawler treads. 5. Designed mainly for use off public roads while not on public roads. 6. While located for use as a residence or premises. --'-~-'---_._- ..----.-------- INSURING AGREEMENT . . PP 00 01 (Ed. 6,80) Page 5 of 10 - - EXCLUSIONS LIMIT OF LIABILITY . . OTHER INSURANCE ARBITRATION n' A. We do not provide Uninsured Motorists Coverage for bodily injury sustained by any person: 1. While occupying, or when struck by, any motor vehicle owned by you or any family member which is not insured for this coverage under this policy. This includes a trailer of any typo used with that vehicle. 2. If that person or the legal representative setties the bodily Injury claim without our consent. 3. While occupying your covered auto when It Is being used to carry persons or property for a fee. This exclusion does not apply to a share-the.expense .car pool. 4. Using a vehicle without a reasonable belief that that person is entitied to do so. B. This coverage shail not apply directly or Indirectiy to benefit any insurer or selt.insurer under any of the fOllowing or similar law: 1. workers' compensation law; or 2. disability benefits law. The limit of liability shown in the Declarations for this coverage Is our maximum limit of liability for ell damages resulting from anyone accident. This Is the most we will pay regardless of the number of: 1. Covered persons; 2. Claims made; 3. Vehicles or premiums shown In the Declarations; or 4. Vehicles involved In the accident. Any amounts otherwise payable for damages under this coverage shail be reduced by all sums: 1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legaily responsible. This Includes all sums paid under Part A; and . 2. Paid or payable because of the bodily Injury under any of the fOllowing or similar law: a. workers' compensation law; or b. disability benefits law. Any payment under this cover~ge.wiil reduce any amount that person Is entitled to recover for the same damages under 'Pan A. If there is other applicable similar insurance we will pay only our share of the loss. Our share Is the proportion that our limit of liability bears to the total of all applicable limits. However, any Insurance we provide with respect to a vehicle you do not own shail be excess over any other coilectible Insurance. If we and a covered person do not agree: 1. Whether that person is Ie gaily entitled to recover damages under this Part; or 2. As to the amount of damages; either party may make a written demand for arbitration. In this event. each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a Judge of a court having Jurisdiction. Each party wlil: 1. Pay the expenses it Incurs; and 2. Bear the expenses of the third arbitrator equally. Unless both parties agree otherwise. arbitration will take place in the county in which the covered person lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators wlil be binding as to: 1. Whether the covered person Is Ie gaily entitled to recover damages; and 2. The amount of damages. This applies only If the amount does not exceed the mini- mum limit for bodily injury liability specified by the financial responsibility law of the state In which your covered auto Is prlnclpaily garaged. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within 60 days of the arbitrators' decision. If this demand Is not made. the amount of damages agreed to by the arbitrators wlil be binding. ;;. Page 6 of 10 - PP 00 01 (Ed. 6.80) - --.------.-----------.-----..- -----" -- ...--_.- ,.. PART D-COVERAGE FOR DAMAGE TO YOUR AUTO ---.....--... .-...- . . INSURING We will pay for direct and accidental loss to your covered auto, Including its equipment. AGREEMENT minus any applicable deductible shown in the Declarations. However, we will pay for 1055 caused by collision only If the Declarations Indicate that Collision Coverage 15 provided. "Collision" means the upset, or collision with another object of your covered auto. How. ever, loss caused by the following are not considered "collision": 1. Missiles or failing objects; 6. Hall. water or ~IQod; 2. Fire; 7. Malicious mischief or vandalism: 3. Theft or larceny: 8. Riot or civil commotion: 4. EXl'loslon or earthquake; 9. Contact with bird or animal; or 5. Windstorm: _ 10. Breakage of glass. If breakage of glass 15 caused by a collision, you may elect to have It considered a 1055 caused by collision, TRANSPORTATION In addition, we will pay up to $10 per day, to a maximum of $300, for transportation EXPENSES expenses Incurred by you. This applies only In the event of the total theft of your covered auto, We will pay only transportation expenses Incurred during the period: 1. Beginning 48 hours after the theft: and 2. Ending when your covered auto 15 returned to use or we pay for Its 1055. We will not pay for: 1. Loss to your covered auto which occurs while It 15 used to carry persons or property for a fee. This exclusion doas not apply to a share-the.expense car pool. 2. Damage due and confined to: a. wear and tear; b. freezing; c. mechanical or electrical breakdown or failure; or d. road damage to tires. This exclusion does not apply II the damaga results from the total theft of your covered auto. 3. Loss due to or as a consequence of: a. radioactive contamination; b. discharge of any nu~le~r weapon (even If accidental); c. war (declared or undeclared); d. civil war; e. Insurrection; or f. rebellion or revolution. 4. Loss to equipment designed for the reproduction of sound. This exclusion doas not apply If tha equipment 15 permanantly Installed In your covered auto, 5. Loss to tapes, records or other davlces for use with equipment designed for the reproduction of sound. 6. Loss to a camper body or trailer not shown In the Declarations. This exclusion does not apply to a camper body or trailer you: a. acquire during the policy period; and b. ask us to Insure within 30 days after you become the ownar. 7. Loss to any vehlcla while used as a temporary substitute for a vehicle you own which 15 out of normal use because of Its: a. breakdown; d. 1055: or b. rapalr; e. destruction. c. servicing; 8. Loss to: a. TV antennas: b. awnings or cabanas; or c. equipment designed to create additional living facilities. EXCLUSIONS PP 00 01 (Ed. 6.80) Page 7 of 10 - - r.kCLJSICNS (Conllnued) LIMIT OF LIABILITY PAYMENT OF lOSS NO BENEFIT TO BAilEE OTHER INSURANCE APPRAISAL " 9. Loss 10 any of Ihe following or their accessories: a. citizens band radiO; b. two.way mobile radio; c. telephone; or d. scanning monilor receiver. This exclusion does not apply if lhe equipment is permanently insljllled in Ihe opening of lhe dash or console of the auto. This opening must be normally used by the auto manufacturer for the installation of a radio. 10. Loss to any cuSlom furnishings or equipment in or upon any pickup. panel truck or van. Custom furnishings or equipment include but are not limited to: . a. special carpeting and insulation. furnllure. bars or television receivers; b. facilities for cookinll and sleeping; c. height.extending roofs: or d. custom murals. paintings or other decals or graphics. Our limit of liability for loss will be the lesser of the: 1. Actual cash value of the stolen or damaged property: or 2. Amount necessary to repair or replace the property. We may pay for loss In money or repair or replace the damaged or stolen property. We may. at our expense. return any stolen property to: 1. You; or 2. The address shown In this polley. If we return stolen property we will pay for any damage resulting from the theft. We may keep all or part of the property at an agreed or appraised value. This Insurance shall not directly or Indirectly benefit any carrier or other bailee f~.r hire. If other Insurance also covers the loss we will pay only our share of the loss. Our share Is the proportion that our limit of lIabllltv bears to the total of all applicable IImils. If we ana you do not agree on the amount of loss. either may demand an appraisal of the loss. In this event. each party will select a competent appraiser. The two appraisers will select an umpire. The appraisers will state separately the actual cash value and the amount of loss. If they fall to agree, they Yillf submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will: 1. Pay Its chosen appraiser; and 2. Bear the expenses of the appraisal and umpire equally. We do not waive any 01 our rights under this polley by agreeing to an appraisal. GENERAL DUTIES PART E-DUTIES AFTER AN ACCIDENT OR LOSS PP 00 0 t (Ed. 6.80) We must be notified promptly of how, when and where the accident or loss nappened. Notice should also Include the names and addresses of any Injured persons and of any witnesses. A person seeking any coverage must: 1. Cooperate with us In the Investigation. settlement or defense of any claim or suit. 2. Promptly send us copies of any notices or legal papers received In connection with the accident or loss. 3. Submit, as olten as we reasonably require, to physical exams by physicians we select. We will pay for these exams. 4. Authorize us to obtain: a. medical reports; and b. other pertinent records. 5. Submit a proof of loss when required bv us. Page 8 of 10 - - , ' " A per$on seeking Uninsured Motorists Coverage must also: 1. Promptly notify the police If a hit and run driver is Involved. 2. Promptly send us copies of the legal papcrs if a suit is brought. ,"DDITIQ~'Al DUTIES fOR UNINSURED MOTORISTS COVERAGE ---_...._-..._--_._.-.-----_._--.-._.~.-_..._--_..------.- ---------- ADDITIONAL A person seeking Coverage for Damage to Your Auto must also:. . OUll~S feR 1. Take reasonable steps after loss to protect your covered auto and its equipment COVERAGE fOR from further loss. We will pay reasonablc expenses incurrcd to do this. DAMAGE TO 2. Promptly notify the police If your covered auto is stolen. YOUR AUTO 3. Permit us to Inspect and appraise the dam3ged property before Its repair or dis. posal. . BANKRUPTCY PART F-GENERAL PROVISIONS CHANGES LEGAL ACTION AGAINST US . . OUR RIGHT TO RECOVER PAYMENT POLICY PERIOD AND TERRITORY TERMINATION PP 00 01 (Ed. 6.80) Bankruptcy or insolvency of the covered person shall not relieve us of any obligations under this policy. --------.. --......-.----..... .- -. .-. -.. This polley contains all the agreements between you and us. Its terms may not be changed or waived except by endorsement Issued by us. If a change requires a premium adjust. ment. we will adjust the premium as of the effective date of change. We may revise this polley form to provide more coverage without additional premium charge. If we do this your polley will automatically provide the additional coverage as of the date the revision Is effective In your state. No legal action may be brought against us until there has been full compliance with all the terms of this polley. In addition, under Part A. no legal action may be brought against us until: 1. We agree In writing that the covered person has an obligation to pay; or 2. The amount of that obligation has been finally determined by judgment after trial. No person or organization has any right under this policy to bring us Into any action to determine the liability of a covered person. -_.~--_.__.. - A. If we make a payment under this polley and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do: .. 1. Whatever is necessary to enable us to exercise our rights: and 2. Nothing after loss to prejudice them. However. our rights In this paragraph do not apply under Part 0, against any person using your covered auto with a re~sonable belief that that person Is entitled to do so. B. If we make a payment under this polley and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. Reimburse us to the extent of our payment. This polley applies only to accidents and losses which occur: 1. During the polley period as shown in the Declarations; and 2. Within the polley territory. The polley territory Is: 1. The United States of America. Its territories or possessions; 2. Puerto Rico; or 3. Canada. This policy also applies to loss to. or accidents Involving, your covered auto while being transported between their ports. Cancellation. This policy may be cancelled during the policy perlod'asfOiTows: .----- - 1. The named Insured shown in the Declarations may cancel by: a. returning this policy to us; or b. giving us advance writlen noticc of the date cancellation Is to take effecl. Page 9 of 10 -- TERMINATION (Continued) . . TRANSFER OF YOUR INTEREST IN THIS POLICY TWO OR MORE AUTO POLICIES PP 00 01 (Ed. 6.80) .' 2. We may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy: a. at least 10 days notice: (1) if cancellation is for nonpayment of premium: or (2) If notice Is mailed during the first 60 days this policy Is in effect and this Is not a renewal or continuation polley; or . b. at least 20 days notice in all other cases. 3. After this policy Is in effect for 60 days. or If this is a renewal or continuation polley, we will cancel only: a. for nonpayment of premium; or b. If your driver's license or that of: (1) any driver who lives with you; or (2) any driver who customarily uses your covered auto; has been suspended or revoked. This must have occurred: (1) during the polley period; or (2) since the last anniversary of tha original effective date If the polley period Is other than 1 year. Nonrenewal. If we decide not to renaw or continue this polley, we will mall notice to the named insured shown In the Declarations at the address shown In this polley. Notice will be mailed at least 20 days bafore the end of the polley period. If the polley period Is other than 1 year, we will have the right not to renew or continue It only at each anniversary of Its original effective date. Automatic Termination. If we offer to renew or continue and you or your representatlva do not accept, this polley will automatically terminate at the end of the current polley period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer. If you obtain other Insurance on your covered auto, any similar Insurance provided by this polley will terminate as to that auto on the effective date of the other Insurance. Other Termination Provisions. 1. If the law In effect In your state at the time this polley Is Issued. renewed or con. tlnued: a. requires a longer notice p~rl!ld; b. requires e special form of 'or' procedure for giving notice; or c. modifies any of the stated termination reasons; we will comply with those requirements. 2. We may deliver any notice Instead of mailing It. Proof of mailing of any notice shall be sufficient proof of notice. 3. If this polley is cancelled, you may ba entitled to a premium refund. If so, we will send you the refund. The premium refund. If any, will be computed according to our manuals. However, making or offering to make the refund Is not a condition of cancella. tlon. 4. The effective date of cancellation sta'ted In the notice shall become the end of the polley period. Your rights and duties under this polley may not be assigned without our written consent. However, If a named Insured shown In the Declarations dies. coverage will be provided for: 1. The surviving spouse If resident in the same household at the time of death. Cover. age applies to the spouse as If a named Insured shown In the Declarations; or 2. The legal representative of the deceased person as If a named Insured shown In the Declarations. This applies only with respect to the representatlve's legal responslbll. Ity to maintain or use your covered auto. Coverage will only be provided until the end of the polley period. If this policy and any other auto Insurance polley Issued to you by us apply to the same accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit 01 liability under anyone policy. Page 10 of 10 -- PERSONAL INJURY PROTECTION COVERAGE- PENNSYLVANIA . . Other autos If not Insured under this polley. Relatives who don't have their own autos Insured. Relatives who have their own auto Insurance. " PP 05 51 (Ed. 12.80) This endorsement is subject to all the provisions of the policy except as modi- fied herein: SECTION I SCHEDULE LIMIT OF LIABILITY No Maximum Amount f!1axlmum of $1.500 Maximum of $15,000 Maximum of $1,000' Maximum of $ 2 5 per day up to one year Survlvor's Loss Maximum of $5.000 'Note: $1.000 is multiplied by the average per capita Income In Pennsylvania divided by the average per capita Income In the United States shown In the latest U. S. Department of Commerce figures. BENEFITS Medical Expenses Funeral Expenses Total Work Loss Monthly Work Loss Repla~ement Services Loss The following options apply as Indicated below or in the Declarations: COORDINATION OF BENEFITS If an X Is entered In one or both boxes below. Coordination of Benefits applies to the named insured and any relative. . o Medical Expenses Is excess to a qualified primary source. other than Medi- care Benefits. designated by the named Insured. If the primary source is not available. a $250 deductible applies to the named Insured. o Work Loss is excess to a qualified primary source designated by'the named Insured. If the primary source is not available. a 2-week waiting period will apply to the named Insured. DEDUCTIBLE AND WAITING PERIOD o If an X Is entered in this box, both a $100 medical expense deductible and 3 I-week waiting period for work loss benefits apply to the named Insured and any relative, LIMITED WORK LOSS o If an X is entered In this box. the Limit of Liability Section of this Schedule or the Declarations Is amended by substituting, for the named insured only, $500 Monthly Work Loss for $1,000 Monthly Work Loss and delet- Ing the Note. PERSONAL INJURY PROTECTION COVERAGE In accordance with the Pennsylvania No.Fault Motor Vehicle Insurance Act. the Com- pany will pay any or all personal Injury protection benefits for bodily Injury to an eligible person due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. EXCLUSIONS This coverage DOES NOT APPLY to bodily Injury to: (a) the named Insured or any relative resulting from the maintenance or use of the named Insured's motor vehicle which Is NOT an Insured motor vehicle; (b) any relative resulting from maintenance or use of his motor vehicle which does not meet requirements of the Pennsylvania No-Fault Motor Vehicle Insurance Act: (c) any relative entitled to Pennsylvania personal Injury protection coverage as a self.lnsured or as a named Insured In another insurance policy; PP 05 51 (Ed. 12-80) Page 1 of 6 ;..- Persons covered by (d) any person. except the named Insured or any relative, if entitled to Pennsyl- their owr. auto vania personal iniury protection coverage as a self.insured or as a naaled insured or insurance. relative in another Insurance policy; R'd' g I I 's ' (e) the named Insured or any relative while occupying his employer's motor vehl- V~hli~1 n emp oyer cle, other than the insured motor vehicle, for which security is furnished under the e. Pennsylvania No.Fault Motor Vehicle Insurance Act; (I) any person resulting from the conduct of the business of repairing. servicing, or otherwise maintaining motor vehicles unless the conduct occurs off the business prem- ises; (g) any person loading or unloading any motor vehicle except while occupying a motor vehicle; (h) any person while occupying a motorcycle: (I) any person other than the named Insured or any relative, while maintaining or using a motor vehicle without reasonable belief that he is legally entitled to do so; nor shall survivor's loss benefits be payable to him or his survivor(s); (j) any pedestrian other than the named Insured or any relative, if the accident occurs outside the Commonwealth of Pennsylvania: (k) any person while maintaining or using a motor vehicle while located for use as a residence or premises: (I) any person due to war, whether or not declared. civil war. Insurrection, revolu- tion or rebellion or any accompanying acts or conditions; (m) any person caused by nuclear radioactivity or explosion; and (n) any person who intentionally Injures himself or another; nor shall survivor's loss benefits be payable to such person or his survlvor(s). DEFINITIONS Wherever "he", "his". "him" or "himself" appears In this endorsement you may substitute IIshe''. "her" or Olherself". "bodily Injury" or "Injury" mea'ns accidental bodily harm and resulting Illness, dis- ease or death: "eligible person" means (a) the named insured or any relative who sustains Injury while occupying, or as a pedestrian struck by, any motor vehicle; (b) any other person who sustains Injury (1) while occupying, or as a pedestrian struck by, the Insured motor vehi- cle; or (2) while occupying a motor vehicle not owned by, but operated by the named Insured or relative, other than a publiC or livery conveyance, if the bodily Injury results from the operation of the motor vehicle by the named Insured or relative; "funeral expenses" means reasonable expenses dlrectiy related to funeral, burial, cremation or other disposition of the remains of the deceased eligible person; "Insured motor vehicle" means a motor vehicle (a) to which the bodily Iniury liability Insurance of the policy applies and for which a specific premium is charged and (b) for which the named insured maintains security as required under the pennsyl. vania No-Fault Motor Vehicle Insurance Act; "loss of Income" means gross Income actually lost by an eligible person, or that would have been lost had it not been for an Income continuation plan. reduced by (a) 80% at any income he earns from substitute work, (11) income he would have earned in available substitute work he was capable at doing but unreasonably failed to undertake, or (c) any self. employment income reasonably obtainable by employing an available subslitute; .,.. , .' " . 'n .' p. .' ' . . . l @r' 1910 Repair, servicing, etc. Loading and unloading. Motorcycles. Car thieves. Pedestrians In other states, Parked camper vehicles, etc. War, riot, etc. . . Nuclear. Intentional Injury PP 05 51 (Ed, 12-80\ " PP 05 51 (Ed. 12.80) -- 't.!' . . ... I .' '=: ~l" ,:. 'C'.''''''l980 "" . ., PP 05 51 (Ed. 12-80) ___.___ .____________._________... .__'.___ _........_. ___ ~__._._.___.__n__ "medical expenses" means reasonable charges Incurred for necessary products. services and accommodations for (a) professional medical treatment and care; this Includes, but is not limited to. (I) medical and dental services; (2) prosthetic devices; (3) ambulance; (4) hospital and professional nursing services for diagnosis. care and recov- ery: however, it does not include charges in excess of those for a semi-private room, unless more intensive care is medically required; and (5) all reasonable expenses for any remedial religious treatment and care provided by a recognized religious or licensed method of healing; (b) emergency health services: these are services necessary to treat bodily Injury Immediately following the accident: these Include. but are not limited to. (I) communications and (2) transportation and treatment by medical and paramedical personnel; such services must be supplied or provided by any person accredited or certl. fled by an emergency health services system which may be either a public or private entity: and (c) medical and vocational rehabilitation services; these are services necessary to reduce disability and to restore the physical, psychological, social and vocational function- Ing of an eligible person; these include. but are not limited to. (I) medical care. (2) diagnostic and evaluation procedures. (3) physical and occupational therapy and other therapies, . . (4) speech pathology and audiology, (5) optometric services, (6) nursing care under the supervision of a registered nurse, (7) medical social services. (8) vocational rehabilitation and training services. (9) occupatlonallice'ns~s and tools and (10) transportation where necessary to secure medical and vocational rehabilitation services: ali services must be provided by a facility approved by the Department of Health, th<l equivalent governmental agency responsible for health programs or the accrediting designee of a department or agency of the state In which those services are provided; "motor vehicle" means any vehicle of a kind required to be registered under the Pennsylvania Vehicle Code: "named Insured" means the person or organization named In the declarations; "occupying" means In or upon. entering into or alighting from; "relative" means the spouse and any person related to the named Insured by blood, marriage or adoption, Including a minor In the custody of the named Insured, spouse or such related person, resident In the same household as the named Insured, whether or not temporarily residing elsewhere: "replacement services loss" means expenses reasonably Incurred during the ellgl- blA person's lifetime, In obtaining ordinary and necessary services replacing those that (had he not been Iniured) he would have performed without payor profit. for the benefit of himself and his family: " . , In''; . . . , . , . @", "1980 PP 05 51 (Ed. 12.80) ._._._~_..._. .. ------- "survivor" means (a) a spouse, or (b) any of the following dependent upon the deceased for support at the time of death of the eligible person resulting from bodily Injury: child. parent, orother. sister or .relative; "survivor's 105s" means (a) loss of income which would probably have been contributed to the survivor(s), if the eligible person had not sustained fatal Injury, and (b) expenses reasonably incurred by the survivor(s) after an eligible person dies as a result of bodily Injury In obtaining ordinary and necessary services replacing those that the eligible person would have performed (had he not been fatally Injured), without payor profit. for their benefit. reduced by expenses the survlvor(s) would probably avoid by reason of the eligible person's death from Injury; Ilwork 105s" means (a) loss of income during the lifelime of an eligible person as computecl under the Pennsylvania No.Fault Motor Vehicle Insurance Act. and (b) reasonable expenses incurred during the Iifelime of a self.employed eligible person for hiring (1) special help. thereby enabling the eligible person to work. or (2) a substitute. thus reducing loss of Income. POLICY PERIOD; TERRITORY This coverage applies only to accidents which occur during the policy period and within the United States of America. Its territories and possessions or Canada. Certain government benefits. LIMITS OF LIABILITY . Regardless of the number oll1ersons Insured. policies or plans of self.lnsurance applicable. claims made or Insured motor vehicles to which this coverage applies, the Company's liability for personal Injury protection benefits with respect to bodily Injury to anyone eligible person In anyone motor vehicle accident Is as shown In the Schedule or Declarations. ANY AMOUNT PAYABLE BY THE COMPANY UNDER THE TERMS OF THIS COVERAGE SHALL BE REDUCED BY: (a) all benefits or advantages, less reasonably Incurred collection costs. that an eligible person receives or Is entitled to receive under the laws of any state or the federal government providing social security. workmen's compensation, any state.requlred bene- fits, and all other benefits received or available from any government (except life Insurance payments); benefits provided under Title XIX of the Social Security Act and those medicare benefits related to a person's use of his "life-time reserve" of benefit days shall not reduce the amount payable: benefits excess or secondary by law to the benefits provided by this coverage shall not reduce the amount payable; the amount payable under this coverage shall not be reduced by the above benefits If these have not been paid or provided before the overdue date under this coverage or before the no.fault claim Is paid; In the event of payment. the Company shall then be entitled to reimbursement from the person obligated to provide these beneflls or the eligible person who actually receives them; PP 05 51 (Ed. 12.80) Page 4 of 6 . - - , 'D' .~. PI' '.. . ,.. .: , .' ,@:. . 1910 Income tax saving. . . .. PP 05 51 (Ed, 12.80) (b) any Incorno lax saVlnH rosulllnH from bonoflls ur iIlJvanlaHos received for Ion of Income under this coverage or ,lilY soureo uf bunellls undor paraHraph (a) above which are non.taxable; such reduction may not exceed 20% 0' lOll of Income: Ihe Company shall rea'sona. bly dolermlno an appropriate reduction b<1sud on a 11Issor Incomo lax advanlage. CONDITIONS A. Action Against Company. No actlun shall lie aHalnst tho Company on the part of any eligible person unloss such porson has fully compllod with all tho lorms 0' this coverage. B. Notice. If an accident OCCUI5, written notlco adequately identltylng the eligible perlon and reasonably accessible tacts concerninH the time, place end circumstances of the accident shall be Illven 85 soon as practicable by or on bohalf of each eligible penon to the Company or any 01 lis authorlzod allents. C. Medical Reperts; Proef of Claim. As soun as practicable the eligible penon, survivor or tho represanlatlvo 0' elthor sholl glvo tho Company written proof of claim. under oath If required. tully descrlblnH Iho nature and odent 01 bodily Injury, treatment and rehabilitation received and contemplated and 01 her Information to assist the Company In determlnlngtlie amount due and payable. Proof 01 claim shall be made upon lorms 'urnlshed by the Company unless the Company falls to supply such forms wllhin 15 days atter receiving notice at claim. The ollglble person shall submit to mental and physical examinations by physicians selected by tho Company when and as otten as tho Company may reasonably ,'equlre. The Company will pay the costs 0' such examinations. The eligible person (or, In the event 01 such person's Incapacity or death, his legal representative) shall, If the Company roquests, sign papers to enable the Company to obtain medical reports and caples 0' records. A copy at such medical report will be forwarded to such ellllble person upon his written request. If benetlls for lOll of Income are clalm€d, the eligible perlon pres~ntlng such claim shall authorize the Company to obtain details of all earnings paid to him by an employer or earned by him since the tlmo at the Injury or during tho year Immediately preceding the date of the accident. D. Overdue Benetlls PaY"1e~ts. No.faull bonetlls ore ovordue If not paid to the eligible peraon or supplier or provider of the products, services and accommodations within 30 days atter the Company receives reasonable proof of and the amount of loss. If reesonable proof 01 only part of e claim Is supplied and the part amounts to $100.00 or more, benefits for such part are also subject to this provision. Interest on overdue payments Is at a rate of 18 % per annum. If the Company chooses to accumulate the bills and pay them on e monthly basis, the first payment must be made within 46 days after the Company receives reasonable proof and the amount at loss. It madlcal products, services and accommodations have been provided to the eligi- ble peraon and the Company believes in good faith that the unpaid portion 01 the costs or charlles for those will be paid within a reasonable time through government program such as Medicare or Medicaid, Ihe Company sholl not be required to pay any Interest or penalty applicable to overdue payments, E. Suhrolallon. SubJect to the appllceble limitations In the Pennsylvania No.Fault Motor V"Ihlcle Insurence Act. II any peyment Is made under this coverage, the Company is subrogated to the rights of the person to whom or for whose benefit these payments were made, to the extent of amounts paid. The person shall execute and deliver Instru- ments and papers and <:10 whalover else Is necessary to secure these rights and shall do nothing after loss to prejudice such rights. The Company. however. shall not make unrea. sonable demands on the Insurod. PP 05 51 (Ed. 12.80) Page 5 of 6 -- . t . , , . . ..... , .~ 'I ~.. ~ it- . . . @)., . 19110 PP 05 51 (Ed. 12.80) F. Relmburslmlent Agreement. Subject to any applicable limitations in the Penn- sylvania No-Fault Motor Vehicle Insurance Act, if any payment is made to any eligible person under this coverage; _ I. the Company shall be entitled, to the extent 01 its payrr,ent. to the amount of any settlement or judgment in lavor of such person. less the total amount of all economic lo~ses for which such person was not compensated by insurance or similar benefits. resulting from the exercise of rights of such person against any person or organization legally responsible for the bodily injury for whiCh payment was made; the Company shall have a lien to the extent of this net amount; a notice of lien may be given to the person or organization held responsible for bodily Injury, his agent. his insurer or a court having jurisdiction In the matter: 2. such person shall hold in trust for the Company all rights of recovery f'lr bodily Injury which he shall have against the other person or organization; 3. such person shall properly secure and do nothing after loss to prejudice such rights; and 4. such person shall execute and deliver to the Company instruments and papers appropriate to secure the rights of such person and the Company established by this provision. G. Indemnity_ The Company has the right of Indemnity against any person who has converted a motor vehicle Involved In an accident. or against a person who has intentionally Injured himself or another person. for no-fault benefits paid for 1. the loss caused by the conduct of that person. 2. the cost of processing the claims for such benefits and 3. the cost of enforcing this right of indemnity (including reasonable attorney's fees). If. Non-Duplication of Benefits; Other Insurance. No eligible person shall recover duplicate benefits for the same elements of loss under this or any other similar automobile Insurance Including self-insurance. If the eligible person has such other Insurance applica- ble to the accident. the maximum recovery shall not exceed the amount payable under the Insurance or self-insurance providing the highest dollar limit. In no case shall the Company be'lIable for a greater proportion of any loss than this pollcy's limit of liability bears to the sum of all limits of liability of all applicable Insurance and self-Insurance. I_ Applicable Law, Regardless of any other provisions of this endorsement, the personal Injury protection coverage available to an eligible person or any survlvor(s) of a deceased eligible person shall be In accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act. Medical Payments coverage to be deleted. SECTION " In consideration of the coverage afforded under Section I and the adjustment of applicable rates, any Medical Payments Coverage afforded under this policy Is deleted with respect to a motor vehicle on which coverage Is provided under this endorsement. SECTION III Constllutionallly Clause. The premiums for and the coverage of this policy conform to the Pennsylvania No-Fault Motor Vehicle Insurance Act. If a court of competent Jurisdic- tion declares or its judgment effectively renders, provisions of this Act Invalid or unen- forceable In whole or In part, the Company may recompute the premium payable and void or revise the terms of this endorsement. However. the Company shali effect such changes only upon such approval of the Pennsylvania Insurance Commissioner as Is required under the Pennsylvania Insurance Law. If the Company falls to act within a reasonable time, appropriate adjustments that are fair and reasonable under the circumstances may be directed by the Commissioner. This endorsement must be attached to the Change Endorsemeot when issued after the policy Is written. PP 05 51 (Ed, 12.80) Page 6 of 6 - - - . , "'n" " . : I.- .. .' @}' -"79 AMENDMENT -OF POLICY PROVISIONS- PENNSYLVAWA .. .. , PP 01 51 (Ed. 6.BO) I. UNINSURED MOTORISTS COVERAGE Exclusions A. and B. of Pari C are replaced by tho following: A. We do not provide Uninsured Molorlsts Coverage fM bodily injury sustained by any person: 1. If that porson or thu logal representative settles the bodily Injury claim without our consont. 2. While occupylnc your covered auto when It Is being used to carry persons or property for a fee. This exclusion does nol.apply to a share-the.expense car pool. 3. Using a vehicle without a reasonable bollef that that person Is entitled to do so. B. This coverage shall not apply directly or Indirectly to benefit any Insurer or self.in. surer under any of tho following or similar law: 1. workers' compensation law; or 2. disability bene fils law. II. The Arbitration prnvlslon Is replaced by tho following: ARBITRA nON If we and a covered perlon do not agree: 1. Whether that person Is legally entitled to recover damages from the owner or operator of an: a. unlnlured fIlalor vehicle: or b. underlnlured molor vehicle If Underinsured Motorists Coverage is afforded; or 2. As to the amount of damages; either party may mako a written demand for arbitration. Arbitration shall be conducted In accordance with the provisions at the Pennsylvania Arbitration Act of 1927. Each party will soloct an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection bo made by a judge of a court having jurisdic- tion. Each party will: 1. Pay the expenses It Incurs: I!nd 2. Bear tho expenses of the thl;d arbitrator equally. Unless both parties egree otherwise, arbitration will take place In the county in which the covered perlon lives. Local rules of law as to procedure and evidence will apply. A decision aBreed to by two of the arbitrators will be binding. III. GENERAL PROViSIONS The Torminatlon provision of Part F is replaced by the following: TERMINATION ClncenlUen. This policy may be cancelled during the policy period as follows: 1. The named insured shown In the Declarations may cancel by: a. returning this policy to us: or b. giving us advence written notice of the date cancellation is to take effect. 2. We may cancel by mailing to the named insured shown In the Declarations at the address shown In this policy: a. at least 10 days notice if notice Is effective within the first 60 days this policy Is In effect and this is not a renewal or continuation policy. b. at least 15 days notice of cancellation: (1) tar nonpayment of premium; or PP 01 51 (Ed. 6.BO) Page 1 of 2 - - Ii: (l .. . , "~"'n'''' . ~ t , .' @, 1919 PP 01 51 (Ed. 6.80) (2) if your driver's license has been suspended or revoked after the effective date if this policy has been in effect less than one year; or if the polley has been In effect longer than one year. since the last anniversary of the original effective date. c. at least 30 days notice In all other cases. Our right to cancel this polley is subject to the limitations contained In the applicable Pennsylvania Statutes. Nonrenewal. If we decide not to renew or continue this polley. we will mall to the named insured shown in the Declarations at the address shown in this policy: 1. at least 1 5 days notice before the end of the policy period: a. for nonpayment of premium; or b. If your drlver's license has been suspended or revoked after the effective date if this policy has been In effect less than one year: or if the policy has been in effect longer than one year, since the last anniversary of the original effective date. 2. at least 30 days notice before the end of the policy period in all other cases. However, our right to nonrenew this polley Is subiect to the limitations contained In the applicable Penr,sylvanla Statutes. Automatic Termination. If we offer to renew or continue and you or your representative do not accept. this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer. If you obtain other Insurance on your covered auto, any similar Insurance provided by this policy will terminate as to that auto on the effective date of the other Insurance. . . Other Termination Provisions, 1. We may deliver any notice Instead of mailing It. Proof of mailing of any notice shall be sufficient proof of notice. 2. If this polley Is cancelled, you may be entitled to a premium refund. If so. we will send you the refund.The premium refund. If any, will be computed according to our manuals. However, making or offering to make the refund is not a condition of cancel- lation. 3. The effective date of cancellation stated In the notice shall become the end of the policy period. . This endorsement must be attached to the Change Endorsement when Issued after the polley Is written. PP 01 51 (Ed. 6.80) Page 2 of 2 - - ~ r' '- r_ - ~ t' :3 -).-<. , ,:.. .,. )," .(-, -- ~:~ .r .... :,,:,j , TO c: ~ ..;j' 'Ill ft I .J~ " .. ~I, . ~. . "\\11 r;:; ~..~ ~r_ ...- ,. \I, UJ ".:) Cl U' U . ~ . . 2. Denied. There is not a copy of the Complaint in the action with regard to Nationwide Insurance attached to the copy of PIGA's Motion, hence answering Defendant is without information or belief as to the truth of the averments of Paragraph 2 and they are denied. 3. Denied. There is not a copy of the Complaint in the action with regard to Nationwide Insurance attached to the copy of PIGA's Motion, hence answering Defendant is without information or belief as to the truth of the averments of Paragraph 3 and they ale denied. It is further noted that separate insurance companies are involved pursuant to the averments Paragraph 3, hence there is not a common question of fact. 4. Denied. There is not a copy of the Complaint in the action with regard to Nationwide Insurance atlached to the copy of PIGA's Motion, hence answering Defendant is without information or belief as to the truth of the averments of Paragraph 4 and they are denied. 5. Denied. There is not a copy of the Complaint in the action with regard to Nationwide Insurance attached to the copy of PIGA's Motion, hence answering Defendant is without information or belief as to the truth of the averments of Paragraph 5 and they are denied. 2 6. Denied. Answering Defendant is without infonnation or belief as to the truth of the avennents of Paragraph 6, hence they are denied and proof is demanded at time of trial. 7. Denied. Answering Defendant is without infonnation or belief as to the truth of the avennents of Paragraph 7, hence they are denied and proof is demanded at time of trial. 8. Denied. Answering Defendant is without infonnation or belief as to the truth of the avennents of Paragraph 8, hence they are denied and proof is demanded at time of trial. 9. Denied. There is not a copy of the Complaint in the action with regard to Nationwide Insurance attached to the copy of PIGA's Motion, hence answering Defendant is without infonnation or belief as to the truth of the avennents of Paragraph 9 and they are denied. Any and all other avennents of liability of Potomac Insurance are denied and proof is demanded at time of trial. In the alternative, the avennents state a conclusion of law to which no responsive pleading is required. 10. Denied. There is not a copy of the Complaint in the action with regard to Nationwide Insurance atlached to the copy of PIGA's Motion, hence answering Defendant is without infonnation or belief as to the truth of the avennents of Paragraph 10 and they are denied. 11. Denied. The avennents of Paragraph 11 state a conclusion of law to which no responsive pleading is required. In the alternative, it is denied that benefits to Faiola are required to be paid by Potomac Insurance, hence the avennents are denied and proof is demanded at time of trial. 3 ~ Cl\ ~ i' - , -:~ ,:-. "_~l U.\t, : f?' ~- <': l~. .1 0- '. i O~ (1' :..1 @'. ~C. - '.,.; \jY' I"- ,j r.' 1;1- -- \1. . ,.., , V C., :) .,. , I , l !~ - . I , \til_ e ; ( , I"~ .- .. C' , L l' I .. I I U , .J " , ,. .' . . .' In II: W 0 .., 0 UI l'l UI .. 0 ~ ~ Q z I ~ E ~ j VI 0 < .. too 0 i ~ oC z t") of ..( III 0 10 ~ :J: ~ II N: )- U1 W lo.. 0 III ([ZIalZ L&.I II to . Z ~ 0 II: 0 W U to 0 a; a. ~ ~ z g iij , l'l C ~ ii . ~ . II: W " N l;; :::E . v. : IN THE COURT OF COMMON PLEAS OF ; /CUMBERLAND COUNTll, PENNSllLVANIA : ~ NO. 94-7063-CIVIL TERM . . : JURll TRIAL DEMANDED PENNSllLVANIA INSURANCE GUARANTll ASSOCIATION, Plaintiff NATIONWIDE INSURANCE COMPANll and STEVEN J. BRUTKIEWICZ, Defendants ----------------------------------------------------------------- PENNSllLVANIA INSURANCE GUARANTll ASSOCIATION, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLANDCOUNTll, PENNSllLVANIA v. NO. 93-2847 JURY TRIAL DEMANDED POTOMAC INSURANCE COMPANll and ANN FAIOLA Defendants ANSWER OF DEFENDANT NATIONWIDE INSURANCE COMPANY TO MOTION TO CONSOLIDATE Defendant Nationwide Insurance Company opposes consolidation of these actions as they do not involve a common question of fact, do not arise from the same transaction of occurrence or occurrence, and a joint hearing or action is not appropriate in these mattera, inclUding but not limited to, claims in the action involving Nationwide Insurance may be barred by the Statute of Limitations. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth ot the allegations ot paragraph six and said allegations are theretore denied. Proot thereot is demanded at trial. 7. Denied. After reasonable investigation, detendant is without knowledge or information sutticient to torm a beliet as to the truth ot the allegations ot paragraphs seven and said allegations are therefore denied. proot thereot is demanded at trial. 8. Denied. After reasonable investigation, detendant is without knowledge or intormation sufficient to torm a beliet as to the truth of the allegations of paragraph eight and said allegations are therefore denied. Proof thereof is demanded at tr ia 1. 9. Denied. Any and all averments of liability of Nationwide Insurance Company are denied and proof is demanded at time of trial. In the alternative, the averments state a conclusion of law to which no responsive pleading is required. 10. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 10 and said allegations are therefore denied. Proof thereof is demanded at trial. 11. Denied. The averments of paragraph 11 state a conclusion ot law to which no responsive pleading is required. In the alternative, it is denied that benefits to Brutkiewicz are required to be paid by Nationwide Insurance Company, said averments are therefore denied. Proof thereof is demanded at trial. -2- .- ,-. j' " i: I ~ J : . , (J' L" , j cj, " , e, ~;J: ;~ L~ I .. I . ~I C. - , :.J