J-A08026-16
2016 PA Super 274
PROFESSIONAL FLOORING COMPANY, : IN THE SUPERIOR COURT OF
INC. : PENNSYLVANIA
:
Appellant :
:
v. :
:
BUSHAR CORPORATION :
:
APPEAL OF: ROSE LINE, INC. :
: No. 1594 EDA 2015
Appeal from the Order Entered April 21, 2015
in the Court of Common Pleas of Montgomery County
Civil Division at No(s): 05-20924
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
DISSENTING OPINION BY STRASSBURGER, J.: FILED DECEMBER 06, 2016
Although not binding on this Court, I find persuasive the cases cited by
Appellant on the issue of whether Brethren is entitled to subrogation when
the fees and costs assessed by the Claims Administrator exceeded the
insurance payment. In Nationwide Mut. Ins. Co. v. Butler, 28 Pa. D. & C.
3d 627 (Westmoreland Cty. 1983), Nationwide issued an automobile
insurance policy to Butler which provided $15,000 in basic loss benefits and
$10,000 in supplemental work coverage. Following an automobile accident,
Nationwide paid Butler $15,000 and an additional $8,348.83 in work loss
benefits. Butler sued the tortfeasor and, following a non-jury trial, verdict
was entered on Butler’s behalf in the amount of $165,000. The tortfeasor’s
insurance company paid its policy limit of $25,000 and the action was settled
and discontinued. Nationwide then initiated an action in assumpsit,
*Retired Senior Judge assigned to the Superior Court.
J-A08026-16
requesting reimbursement in the amount of $8,348.83. The matter was
heard by the trial judge, the Honorable Joseph A. Hudock, prior to his
elevation to this Court. Sitting non-jury on stipulated facts, he held that
Nationwide was not entitled to subrogation where Butler was not “made
whole.” The court explained as follows.
This court agrees with [Nationwide] that the Pennsylvania No-
fault Act provides for a right of subrogation when the victim
recovers for economic losses above the basic loss benefits. The
problem here, however, is that it cannot be said that the [Butler]
has made a recovery for “economic losses” when he has only
received $25,000 from the tortfeasor and his economic and non-
economic losses are in the amount of $165,000. Had [Butler]
received the full amount of his verdict from the tortfeasor, this
court would have no difficulty in finding that [Nationwide] is
entitled to reimbursement for the amount of additional work loss
benefits it paid to [Butler].
General principles of subrogation law must be studied in
order to determine the issue. Subrogation is intended to be used
to avoid a double recovery by the insured victim. Most courts in
determining reimbursement rights of the insurer limit the
recovery against the insured to the amount by which the sum
received by the insured from the wrongdoer, together with the
insurance payments made, exceeds the loss and expense
incurred by the insured in realizing the claim against the
wrongdoer. See 44 Jur 2d Insurance §1820. Generally speaking,
the insured is first entitled to be compensated for his total loss
before the right of subrogation attaches. In Willard v.
Automobile Underwriters, Inc., 407 N.E. 2d 1192 (Inc. App.
1980) the insured was injured in an automobile accident and
brought suit against the negligent driver. Judgment was entered
in the sum of $15,000. The victim’s insurer, which had paid the
victim $9,000 in benefits for lost wages, claimed that it was
entitled to $9,000 of the damage award pursuant to its right of
subrogation. The court, in holding against the insurer’s position,
stated:
The general rule applicable to actions based on the
ground of subrogation is that the right does not exist
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unless the whole debt has been paid . . . Even if a
surety is liable for only part of the debt and pays
that part for which he is liable, he cannot be
subrogated until the whole demand or debt is
satisfied.
Here, since [Butler] has not been made whole since his loss has
been determined to be $165,000, and his recovery has only
been $48,348.83 ($25,000 from the tortfeasor plus $23,348.83
in work loss benefits from [Nationwide]). Thus, no right of
subrogation arises.
Id. at 630–31.
Similarly, in Nationwide Mutual Insurance Co. v. Kintz, 27 Pa. D.
& C. 3d 164 (Cumberland Cty. 1983), the Honorable Dale F. Shughart held
that Nationwide was not entitled to subrogation in the amount of $15,000 in
uninsured motorist benefits where no “excess fund” existed after Kintz paid
his costs and attorneys’ fees. In granting Kintz’s motion for judgment on the
pleadings, the court held as follows.
[T]he only material fact is the amount which [Kintz] expended to
recover his $129,870.00 verdict. Paragraph 27 of the [Kintz’s]
answer with new matter puts the cost at $46,469.97 ($43,840
attorney’s fees plus $2,629.97 other expenses). This allegation
is admitted in [Nationwide’s] reply.
Since this sum exceeds the $15,000 Nationwide paid
[Kintz] as an uninsured motorist benefit, there is no excees fund
to which Nationwide has a subrogation right. [Kintz’s] net
recovery in his survival and wrongful death actions was
$83,400.03 ($129,870 verdict less $46,469.97 expenses). That
$83,400.03 plus the $15,000 uninsured motorist benefits paid by
Nationwide brings his total compensation to $98,400.03. This
sum is less than the loss that the jury determined that he
sustained. Hence, [Kintz] has not been made whole, and for this
reason Nationwide’s subrogation claim must fail.
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Id. at 168.
Instantly, Appellant’s total gross loss was valued at $135,205.
Appellant’s gross award from the Claims Administrator was $145,477.30.
However, as the Majority’s footnote 8 points out, after deduction of
$41,305.12 in costs and fees, Appellant’s net award is reduced to
$104,172.18, an amount far under the value of its gross loss. Accordingly,
because Appellant has not been made whole, Brethren should not be entitled
to subrogation. Thus, I respectfully dissent.
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