author: WETTICK JR., A.J.,

text:
    National Union Fire Insurance Co. of Pittsburgh v. Sharon Regional Health System

      C.P. of Allegheny County,
    no. GD01-14026.

      P. Brennan Hart and Russell J. Ober Jr., for plaintiff.

      Joseph P. Connor III, Christine L. Donohue, Randy Hareza, Neil R. Rosen and Edward B. Wood, for defendants.
    December 1, 2004
   WETTICK JR., A.J.,

Five motions for summary judgment and/or partial summary judgment are the subject of this opinion and order of court.

This lawsuit arises out of an underlying medical malpractice action brought in the Common Pleas Court of Mercer County by Marie and Joseph Viola against a radiologist and his professional corporation, an obstetrician and his professional corporation, and Sharon Regional Health System, in its capacity as the employer of the radiologist and the obstetrician. The lawsuit, filed on May 21,1999, was based on a failure to detect breast cancer that was allegedly apparent on the radiograph of a mammogram taken on August 20,1994 and on the radiograph of a mammogram taken on October 4, 1996. On April 20, 2001, the jury returned a verdict of $12,844,000.

From September 1, 1991 to September 1, 1992, National Union Fire Insurance Company of Pittsburgh provided excess insurance coverage to Sharon. Sharon was one of a group of hospitals that were part of a pooled program. Sharon’s policy was renewed each year through September 1, 1999.

This lawsuit arises out of National Union’s refusal to provide coverage to Sharon. National Union denied coverage on the ground that National Union was never notified of the Viola litigation until after the rendering of the verdict.

National Union commenced this lawsuit by filing a complaint seeking a declaratory judgment that it had no duty to provide coverage because of Sharon’s failure to provide timely notice of the Viola claim. Sharon’s answer includes a counterclaim seeking recovery on the ground that National Union’s defense of a lack of timely notice has no merit.

I.

The motions for summary judgment filed by the parties include National Union’s motion for the entry of a judgment declaring that National Union has no duty to provide coverage because it was not timely notified of the lawsuit, and Sharon’s motion for the entry of a judgment for the payments due under the policy. Both motions are based on the notice requirements of the insurance policies, evidence as to what notice was provided, and the case law governing noncompliance with an insurance policy’s notice provisions.

Sharon contends that the evidence establishes, as a matter of law, that it provided timely notice of the Viola lawsuit to National Union by furnishing notice of the lawsuit to Nichols & Associates Inc. within one week after the filing of the lawsuit; according to Sharon, Nichols was National Union’s agent for the purpose of receiving notice of claims against Sharon.

National Union contends that the evidence establishes just the opposite. It never had notice of the lawsuit until after the verdict was rendered and the failure to give notice bars recovery.

There is credible evidence that would permit a jury to find that Nichols had timely notice of the Viola lawsuit, through a written notice or through loss runs. However, there is also credible evidence that would permit a jury to find that neither Nichols nor National Union had notice of the Viola lawsuit until after the verdict was rendered. There is also credible evidence that would support either a finding that Nichols was only Sharon’s agent for all purposes, including receipt of notices of lawsuits and loss runs, or a finding that Nichols was a dual agent (i.e., an agent for Sharon and National Union), at least for purposes of receipt of notices of lawsuits. For these reasons, neither party may obtain a summary judgment based on that party’s evidence as to whether Nichols had (or should have had) notice of the Viola lawsuit and as to the role of Nichols vis-a-vis National Union.

For purposes of determining the issues that will be tried, I will next consider the significance of a finding in National Union’s favor that Sharon did not comply with the notice provisions of the applicable policy. It is National Union’s position that it had no obligation to provide coverage unless it was notified of the Viola lawsuit by September 1, 1999, this being the expiration date of the final policy which National Union issued to Sharon. It is Sharon’s position that noncompliance with the notice provisions of the applicable insurance policy is a defense only upon a showing of actual prejudice.

National Union’s argument that compliance with the policy’s notice provisions is a prerequisite to recovery is based on its contention that Sharon was covered for the Viola claim only by the following endorsement of the 1998-1999 policy:

“Endorsement no. 3
“Page 1 of 5
“This endorsement, effective 12:01 a.m., September 1, 1998, forms a part of policy no. *** ** ** issued to: VHA Pennsylvania Inc. and Participating Hospitals by: National Union Fire Insurance Company of Pittsburgh, PA.
380
“This is a claims-made form. Please review the coverage carefully and discuss with your insurance agent or broker.
“Hospital professional liability — (Claims made) supplement
“(I) In consideration of the premium charged, it is agreed that coverage afforded by this policy is hereby extended to include the following additional coverage, hospital professional liability:
“The company will pay on behalf of the insured the ultimate net loss in excess of either the self-insured retention or the retained limit or designated underlying insurance as defined by the schedule of underlying insurance, which the insured shall become legally obligated to pay as damages because of injury caused by a ‘medical incident’ occurring on or after the retroactive date shown below and for which claim is first made against the insured and reported to the company during the policy period.” National Union’s appendix, exhibit 17.

National Union correctly states that the hospital professional liability coverage provided through this endorsement is claims based. The endorsement specifically provides that National Union will provide coverage for claims in the policy year “for which claim is first made against the insured and reported to the company during the policy period.” In this case, the claim was first made through the filing of a lawsuit on May 21,1999. Thus, the claim was covered by this endorsement covering the period between September 1, 1998 and September 1, 1999.

The policy specifically provides coverage only for a claim initially raised in the policy period which is “reported to the company during the policy period.” There is considerable merit to National Union’s position that the notice-prejudice rule governing occurrence policies should not be extended to claims-made policies. See the numerous federal court cases and cases of other state courts cited at pages 27-28 of National Union’s brief in support of motion for summary judgment or, in the alternative, for partial summary judgment which support the position that a claims-made policy protects the insured only as to claims reported to the insurance company during the policy period.

The primary feature of occurrence coverage is that the insurance company continues to be exposed for injuries occurring during the life of the policy that are not discovered until later — perhaps as many as 10 to 20 years after the policy’s expiration date. The primary feature of claims-made coverage, on the other hand, is the inclusion of a cutoff date after which the insurance company has no underwriting risks. A claims-made policy includes the notice requirement as a trigger for coverage in order to achieve the purpose of a cutoff date. See Consulting Engineers Inc. v. Insurance Co. of North America, 710 A.2d 82, 85 (Pa. Super. 1998), aff’d per curiam on the basis of the Superior Court opinion, 560 Pa. 247, 743 A.2d 911 (2000), where the court stated that an occurrence policy protects the policyholder for any act done while the policy is in effect and a claims-made policy protects the holder only against claims made during the life of the policy.

As I previously stated, National Union’s argument that it need not show prejudice is based on its contention that the claim arising out of the Viola litigation is covered only by Endorsement 3 to the September 1, 1998-Sep-tember 1, 1999 policy. Sharon disputes this contention; it is Sharon’s position that National Union’s excess policies throughout the period between September 1991 and September 1999 also provide occurrence coverage. If this is so, Sharon can rely on the case law holding that the failure to timely report to the insurance company a claim raised under an occurrence policy is a basis for denying coverage only if the insurance company can establish actual prejudice. See Brakeman v. Potomac Insurance Co., supra, All Pa. at 76-77, 371 A.2d at 198, and its progeny.

If Sharon is correct that each of the National Union policies also provides coverage for claims seeking damages for personal injuries arising out of an occurrence, the Viola claims would be covered by the September 1, 1996-September 1, 1997 policy. This is so because claims in the underlying action were based on a misdiagnosis in October 1996. Pennsylvania case law holds that plaintiff sustained personal injury when her doctors failed to diagnose her cancer in October 1996. D’Auria v. Zurich Insurance Co., 352 Pa. Super. 231, 507 A.2d 857 (1986) (personal injury occurs when a patient is misdiagnosed).

The National Union policy covering the period between September 1, 1996 and September 1, 1997 is exhibit 1 to defendant Sharon Regional Health System’s response to plaintiff National Union’s motion for summary judgment, or in the alternative, for partial summary judgment (Sharon’s response). The limit of insurance is $25 million per occurrence. The coverage provision in the main body of the 1996-1997 policy provides for the insurance company to pay on behalf of the insured the net loss in excess of the retained limit for liability imposed upon the insured because of personal injury caused by an occurrence:

“L Coverage. To pay on behalf of the insured that portion of the ultimate net loss in excess of the retained limit as hereinafter defined, which the insured shall become legally obligated to pay as damages for liability imposed upon the insured by law, or liability assumed by the insured under contract because of (i) personal injury, (ii) property damage, or (iii) advertising liability, as defined herein caused by an occurrence.” Sharon’s response, exhibit 1 at 5.

“The term personal injury is defined to include bodily injury, sickness, disease ....” Exhibit 1 at 9. An occurrence is defined in exhibit 1 at 10 as follows:

“(H) Occurrence — With respect to personal injury and property damage, the term ‘occurrence’ means an event, including continuous or repeated exposure to conditions, which result in personal injury or property damage during the policy period, neither expected nor intended from the standpoint of the insured. All personal injury or property damage arising out of the continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.” (emphasis added)

There is no provision in the main body of the policy excluding professional services from personal injury coverage.

The 1996-1997 policy contains an endorsement (Endorsement 2) which is virtually identical to Endorsement 3 of the September 1998-1999 policy:

“This endorsement, effective 12:01 a.m. September 1, 1996 forms part of policy no. ** *** ** ** issued to VHA Pennsylvania Inc. and Participating Hospitals by National Union Fire Insurance Company of Pittsburgh, PA.
“This is a claims-made form. Please review the coverage carefully and discuss with your insurance agent or broker.
“Hospital professional liability — (Claims-made) supplement
“(I) In consideration of the premium charged, it is agreed that coverage afforded by this policy is hereby extended to include the following additional coverage, hospital professional liability:
“The company will pay on behalf of the insured the ultimate net loss in excess of either the self-insured retention or the retained limit or designated underlying insurance as defined by the schedule of underlying insurance, which the insured shall become legally obligated to pay as damages because of injury caused by a ‘medical incident’ occurring on or after the retroactive date shown below and for which claim is first made against the insured and reported to the company during the policy period.
“Retroactive date: See Endorsement no. 1.” Sharon’s response, exhibit 1 at 15.

National Union contends that the claims-made endorsement (Endorsement 2 of the 1996-1997 policy) replaces the occurrence-based coverage provided in the main body of the policy with the claims-made protection provided in the endorsement. Sharon contends that National Union’s proposed construction of the policy is inconsistent with the clear language of the policy. I agree.

The main body of the policy expressly provides that National Union will pay on behalf of the insured the ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay as damages because of the personal injury caused by an occurrence. There is no language in either the main body of the policy or in any of the endorsements limiting the scope of this coverage. Consequently, the coverage provision in the main body covers the Viola claim.

Furthermore, the language of Endorsement 2 providing for claims-made coverage is consistent with Sharon’s position and inconsistent with National Union’s position. The heading refers to the coverage as supplemental coverage: “Hospital professional liability— (Claims-made) supplement ” The first sentence of Part I of the endorsement provides that in consideration of the premium charged, “coverage afforded by this policy is hereby extended to include the following additional coverage.” (emphasis added)

National Union contends that I should ignore the clear language of the main body of the policy and of the endorsement because it would have been irrational for Sharon to have purchased claims-made coverage if it was already protected through an occurrence-based policy. Even assuming that it would have been irrational for Sharon to have purchased this additional coverage, the clear language of a policy, including the endorsement, governs coverage issues. See Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 735 A.2d 100, 106 (1999).

Furthermore, there is not a complete overlap between occurrence coverage and claims-based coverage. Sharon could have been sued in May 1999 for an injury caused by a misdiagnosis of a slow growing cancer that occurred in 1987, or Sharon could have been sued in May 1999 by the guardian of an 18 year old who is severely brain damaged because of alleged negligence during the child’s birth. In these examples, Sharon would have had no coverage through the occurrence-based coverage provided by the policies National Union issued covering the period between September 1991 and September 1999; however, there would be coverage under the claims-made endorsement.

For these reasons, even if Sharon failed to furnish timely notice of the Viola lawsuit to National Union, it may recover unless National Union can establish prejudice.

Sharon correctly states that in Commercial Union Insurance Co. v. Walbrook Insurance Co., 7 F.3d 1047 (1st Cir. 1993), the court addressed the same issues that I am addressing. That case also involved coverage for a professional negligence claim. The main body of the umbrella insurance policy provided for coverage for all activities which result in occurrences for which the insured must respond in damages. The policy also included an engineers professional liability (EPL) endorsement. The main body provided coverage on an occurrence basis and the endorsement covered only claims made during the policy period.

The incident that gave rise to the underlying tort suit was an explosion which occurred within the policy period. However, no claims were filed within this period.

The insured contended that it could recover under the main body of the policy because the explosion was an occurrence as defined by the policy. The insurance company argued that the claims-made endorsement was the exclusive provision for affording coverage. The endorsement provided that the policy is “extended” to include EPL as more fully described.

The court, relying on the clear language of the policy, ruled that EPL coverage was additional coverage. It also ruled that extrinsic evidence could not be considered because the contract language was unambiguous.

In summary, the remaining issues that will be tried in the litigation between National Union and Sharon (in additioh to Sharon’s bad faith claims) are:

“(1) whether Nichols had notice (or was contractually obligated to have had notice) of the Viola lawsuit;
“(2) if Nichols had notice (or was obligated to have had notice) of the Viola lawsuit, whether Nichols should be characterized as an agent of National Union;
“(3) assuming that Nichols did not have notice of the lawsuit, whether Sharon’s failure to give notice of the Viola lawsuit to Nichols and/or National Union until after the verdict was rendered breached any notice requirements of the 1996-1997 policy; and
“(4) if Sharon breached notice requirements of the 1996-1997 policy, whether National Union was prejudiced by the untimely notice.”

II.

I am denying the portion of Sharon’s motion for summary judgment seeking a ruling that as a matter of law the evidence upon which National Union relies cannot support a finding that National Union was prejudiced by the untimely notice (assuming a fact-finder concludes that Sharon failed to provide timely notice). When I weigh the evidence upon which National Union relies in the manner most favorable to National Union, it may support a finding that National Union was prejudiced by the untimely notice.

III.

I am denying Sharon’s motion for summary judgment based on Sharon’s contention that the evidence requires a finding that Nichols breached its obligations to Sharon to forward notice of the Viola lawsuit to National Union and/or to collect, analyze, and forward to National Union loss runs that would have included the Viola claim. Under the Nanty-Glo rule, Sharon cannot rely on the affidavit of Ms. Peterson, and there is substantial evidence which a fact-finder may find to be credible supporting Nichols’ position that it did not breach any obligation owed to Sharon.

IV.

After the verdict was rendered and Sharon’s motion for post-trial relief was denied, Sharon filed an appeal to the Pennsylvania Superior Court. Shortly thereafter, Sharon and the Violas entered into an agreement which included Sharon’s withdrawing the appeal.

The evidence most favorable to Sharon supports findings that (1) Sharon was not likely to prevail in the Pennsylvania appellate courts; (2) Sharon lacked the resources to post a bond in order for the appeal to stay execution proceedings; and (3) if the Violas proceeded with execution proceedings, Sharon may have been unable to continue functioning as a hospital. In order to allow Sharon to continue as a hospital, Sharon and the Violas entered into negotiations which resulted in a December 28,2001 agreement regarding judgment under which Sharon made an immediate payment of $5.1 million, Sharon agreed to pay the additional amount of the judgment from proceeds recovered from National Union, Sharon agreed to withdraw its appeal and the Violas agreed not to execute against other assets of Sharon to recover any unpaid portion of the verdict. See National Union’s appendix to motion for summary judgment or, in the alternative, for partial summary judgment, exhibit 32.

In its motion for partial summary judgment, National Union seeks a ruling that if it has a duty to indemnify Sharon, it is obligated to pay only the $5.1 million that Sharon paid; it has no obligation to pay the remainder of the judgment because the Violas agreed that they would not execute against Sharon’s assets, other than its claim against National Union, to recover the remainder of the judgment.

National Union contends that its position is supported by language within the insurance policy limiting recovery to the money Sharon paid. The coverage provision of the policy, however, provides for the insurance company to “pay on behalf of the insured that portion of the ultimate net loss in excess of the retained limit... which the insured shall become legally obligated to pay as damages for liability imposed upon the insured by law, or liability assumed by the insured under contract.” Sharon’s response, exhibit 1 at 5. Under this provision, National Union agreed to pay that amount which Sharon became legally obligated to pay (the full amount of the judgment). Nothing in this language suggests that National Union is excused from paying the full amount that Sharon became legally obligated to pay if Sharon was able, through negotiations, to protect its assets, other than its claim against National Union, from execution.

Sharon entered into the agreement with the Violas under which it agreed to pursue its claims against the insurance company in exchange for a promise that the insurance company’s obligation to the insured is the only asset that the Violas will pursue only because National Union did not honor Sharon’s demand that National Union pay the excess portion of the judgment. If National Union was obligated to pay the excess portion of the judgment, the law will not reward it for breaching its obligation by invalidating an agreement under which the insured was able to protect its assets through this agreement with its judgment creditor.

Dennis v. New Amsterdam Casualty Co., 216 Pa. Super. 320, 264 A.2d 436 (1970), is the only Pennsylvania appellate court case cited by National Union to support its position. In that case, a truck driver for Commercial Concrete, an insured of New Amsterdam, ran over a fellow employee during the course of his employment. The administrator of the estate of the fellow employee filed an action in federal court against the driver and Commercial Concrete. New Amsterdam refused to provide coverage to the driver on the ground that the policy excluded obligations for which the insured may be liable under the workers’ compensation laws.

The driver, represented by private counsel, entered into a settlement agreement with the estate, settling the claim for $17,500. Under the settlement agreement, the driver would pay the sum of $1,000 and institute suit against New Amsterdam to recover the full settlement figure of $17,500, and any recovery from New Amsterdam would be the sole source of payment of the $16,500 balance.

Pursuant to this agreement, the driver sued New Amsterdam seeking indemnification under the policy New Amsterdam issued to the driver’s employer. The trial court ruled that New Amsterdam had no duty to indemnify the driver. The Superior Court affirmed on this issue, stating that, without question, the liability of the employee-driver would be limited to recovery under the workers’ compensation laws:

“The order of the court below with regard to New Amsterdam’s liability for indemnification must be affirmed both because the policy does not insure against the type of loss herein set forth and also because under the settlement agreement, Dennis is not obligated to pay the same, this being a secondary and minor consideration.” Id. at 326, 264 A.2d at 439.

National Union relies on the last portion of the quotation in Dennis. However, the Dennis court used this language in connection with a claim of the insured for indemnification of a settlement that was voluntarily made to satisfy a claim that the law does not recognize. The court was only saying, as a “secondary and minor consideration,” that an insurance company has no duty to indemnify an insured who settles a claim that the law does not recognize. Dennis has no applicability to the fact situation in the present case in which a judgment has been entered against the insured pursuant to a trial of the claim.

I also find National Union’s position to be without merit for other reasons. I would characterize the agreement as a partial assignment by Sharon to the Violas of its breach of contract claim against National Union. Under Pennsylvania law, an insured’s claims against his or her insurer in the nature of a breach of contract are assignable. Brown v. Candelora, 708 A.2d 104, 112-13 (Pa. Super. 1998); Alfiero v. Berks Mutual Leasing Co., 347 Pa. Super. 86, 500 A.2d 169 (1985).

In Alfiero, an excess carrier refused to participate in the lawsuit or settlement discussions. An amicable settlement resulted in a judgment in the plaintiff’s favor against the defendant in the amount of $950,000, and the underlying insurance company paid its limits of $100,000. The settlement agreement provided that the defendant assigned to the plaintiff in the underlying action all its rights against the excess carrier and in return the plaintiff in the underlying action agreed that it would not expose the defendant’s assets to satisfy the balance of the judgment.

In the lawsuit brought by the plaintiff in the underlying action against the excess carrier, the excess carrier contended that its duty to indemnify its insured had been extinguished because the plaintiff had effectively released the insured from any further liability to pay the judgment. The trial court rejected this contention; it ruled that the excess carrier had breached its contractual obligations to its insured, that the settlement amount was reasonable and that the plaintiff could recover from the excess carrier the unsatisfied portion of the verdict ($850,000). The Superior Court affirmed the ruling, stating: “[Plaintiff] did not agree to release [the defendant] from further liability. Its agreement was to seek recovery of an agreed debt from a specific asset, i.e., the contractual rights owed to [the defendant] by [the excess insurer].”Id. at 90,500 A.2d at 171. The Superior Court held that the defendant in the underlying action “could properly negotiate a settlement according to terms intended to preserve its assets from execution.” Id. at 92, 500 A.2d at 172.

Also, see Trustees of the University of Pennsylvania v. Lexington Insurance Co., 815 F.2d 890 (3d Cir. 1987), where the court ruled that a two-tier settlement is permissible under Pennsylvania law.

V.

In its motion for partial summary judgment, National Union contends that it should not be required to indemnify Sharon for delay damages because it had no opportunity to settle the case. However, the National Union policy provides that National Union will pay the net loss in excess of the retained limit which the insured shall become legally obligated to pay as damages. Damages for delay in actions for bodily injury, death or property damages, Pa.R.C.P. 238, are part of the insured’s obligation. Under the clear language of the policy, National Union has a duty to pay this amount. Furthermore, there is nothing in Rule 238 that would support a different ruling.

The case law (see e.g., Woods v. Ellerbe, 389 Pa. Super. 281, 566 A.2d 1245 (1989)) addressing the issue of whether delay damages are payable where the policy limits have been paid by the insurance carrier are not applicable because the full amount of the Viola judgment, including delay damages, are within National Union’s policy limits.

VI.

In its motion for partial summary judgment, National Union seeks a ruling that as a matter of law Sharon is not capable of establishing bad faith under 42 Pa.C.S. §8371.

National Union contends that bad faith cannot be shown because it has never denied coverage. Instead, upon learning that there were substantial questions about Sharon’s compliance with notice requirements, it promptly issued a reservation of rights letter and initiated this declaratory judgment action.

However, National Union’s argument regarding notice is primarily based on its contention that only the endorsement providing claims-made hospital professional liability coverage is available to Sharon for the Viola claim.

On the face of the record, I cannot make a finding that Sharon is incapable of establishing bad faith.

For these reasons, I enter the following order of court:

ORDER

Upon consideration of the various motions for summary judgment, it is ordered that:

(1) Summary judgment is granted in Sharon Regional Health System’s favor as to whether National Union Fire Insurance Company of Pittsburgh’s 1996-1997 policy may provide coverage and as to whether National Union may be released from its obligations under this policy only upon a showing of untimely notice and prejudice; and

(2) the remaining motions for summary judgment are denied.

      . Sharon Regional Health System has filed a motion for summary judgment on its breach of contract counterclaim, a motion for summary judgment on Count I of its first amended and restated complaint to join additional defendant Nichols & Associates Inc., amotion for partial summary judgment regarding agency, and a motion for summary judgment on the complaint. National Union Fire Insurance Company of Pittsburgh has filed a motion for summary judgment, or in the alternative, for partial summary judgment.

      . The claim against Sharon was based solely on a theory of ostensible agency.

      . Sharon supports its position by citing Pennsylvania appellate court case law which establishes that for an occurrence-based general liability policy, late notice to an insurance company releases the insurance company from its obligations under the policy only where the insurance company has been prejudiced by untimely notice. See Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977); Metal Bank of America Inc. v. Insurance Co. of North America, 360 Pa. Super. 350, 520 A.2d 493 (1987).

      . All of the policies that National Union issued between September 1,1991 through September 1, 1999, contain the same provisions.

      . Sharon does not concede that it failed to comply with the notice provisions of the main policy governing the occurrence-based coverage. See Sharon’s response, exhibit 1 at 11, condition 4, which requires Sharon to furnish notice only when it may reasonably conclude that an occurrence covered by the policy is likely to involve injuries or damages that will involve the excess policy. (It is apparently Sharon’s position that the provision requiring the insured to provide quarterly loss runs (Sharon’s response, exhibit 1, Endorsement 8 at 26) applies only to claims raised under the claims-made professional services endorsement).

      . Because the agreement in the case before this court was reached after a jury trial and the entry of a judgment, this case does not present the issue of whether the settlement amount was fair and reasonable. Where an agreement preserving the insured’s assets is reached prior to trial, there is a concern that the defendant might have cared more about protecting its assets than arriving at a settlement figure that reflects the least amount of money for which the plaintiff was prepared to settle the case.

      .1 do not address the issue of whether National Union may raise this argument in addressing the issue of whether it was prejudiced by the late notice (assuming that timely notice was not furnished).


source: Caselaw Access Project

author: LESKINEN, J,

license: Public Domain

text:
    Heald v. Nationwide Mutual Fire Insurance Company

      C.P. of Fayette County,
    no. 2366 of 1999, G.D.

      Wayne H. Port, for plaintiff.

      Robert J. Grimm, for defendant.
    October 26, 2004
   LESKINEN, J,

— Before this court is a motion for partial summary judgment filed by defendant, Nationwide Mutual Fire Insurance Company.

After full consideration of the record, applicable law, briefs and arguments of counsel, this court finds that there is evidence to support plaintiff’s, Eugene Heald III, allegation of bad faith on the part of Nationwide in Count Two of plaintiff’s complaint. Therefore this court denies defendant’s motion for partial summary judgment.

BACKGROUND

This action arises out of a fire that occurred on or about November 21, 1998, and resulted in damage to plaintiff’s home in Dickerson Run, Fayette County, Pennsylvania. At the time of the fire, plaintiff’s home was covered under an insurance policy issued by Nationwide in July of 1998. Following the fire, Nationwide conducted an investigation as to the cause and origin of the fire. As a result of this investigation, Nationwide determined that the fire was intentionally set by plaintiff’s girlfriend, Cynthia Yeskey. Upon further investigation, Nationwide concluded that Yeskey was plaintiff’s common-law wife.

Due to that conclusion, Nationwide issued a reservation of rights letter dated June 8, 1999, claiming that Yeskey was an insured under the policy, which excluded intentional acts of an insured; and defined an insured as plaintiff’s relatives who live in the household.

Plaintiff filed a complaint in the within action on April 6, 2000, raising two counts: breach of contract and bad faith. Thereafter, on April 8, 2000, Nationwide filed the within motion for partial summary judgment to Count Two of plaintiff’s complaint alleging bad faith on the part of Nationwide.

DISCUSSION

The purpose of the summary judgment rule is to eliminate cases before trial where a party cannot make out a claim or a defense after relevant discoveiy has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000).

Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Davis v. Resources for Human Development Inc., 770 A.2d 353 (Pa. Super. 2001).

If there are no material issues of fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), allocatur denied, 532 Pa. 663, 616 A.2d 985 (1992).

Nationwide correctly states that to recover under a claim of bad faith, a plaintiff must show that “the defendant did not have a reasonable basis for denying benefits under the policy and that defendant knew or recklessly disregarded its lack of reasonable basis in denying the claim.” Terletsky v. Prudential Property and Casualty Insurance Company, 437 Pa. Super. 108, 125, 649 A.2d 680, 688 (1994).

Nationwide argues that there is no evidence to support plaintiff’s claim for bad faith in that Nationwide had reasonable basis for denying benefits under the policy. In support of this argument, Nationwide cites numerous facts uncovered through discovery tending to show that plaintiff and Yeskey were common-law husband and wife. When combined with Nationwide’s conclusion that Yeskey intentionally set the fire, that provided a basis for denial of benefits under the “exclusions” section of the policy.

However, Nationwide fails to address the second prong of the definition of “insured” under the policy, that the “relative” live in the policyholder’s “household.” As plaintiff points out in his brief to this court, throughout the same discovery it was revealed that Yeskey was no longer a member of plaintiff’s household and moved to the state of Virginia some eight months prior to the fire.

While there is a basis to conclude that plaintiff and Yeskey were legally married to each other as the result of a common-law marriage in accordance with Pennsylvania law; there is no basis to conclude that Yeskey was a member of plaintiff’s household at the time of the fire.

Thus, this court rejects Nationwide’s argument that the record is devoid of support of plaintiff’s allegation of bad faith against Nationwide, in that Nationwide did not have a reasonable basis for denial of benefits under the “exclusions” section of the policy with plaintiff.

Wherefore, this court enters the following:

ORDER

And now, October 26,2004, upon consideration of the motion for partial summary judgment filed on behalf of the defendant, Nationwide Mutual Fire Insurance Company, and upon further consideration of applicable law, and the briefs and arguments of counsel, it is hereby ordered and decreed that defendant’s motion for partial summary judgment is denied.


author: LASH, J,

text:
    Brown v. Brown

      C.P. of Berks County,
    no. 03-15613.

      Cheryl Lee Brown, pro se.

      Thomas M. Binder, for defendant.
    September 28, 2004
   LASH, J,

— The matters before this court are the preliminary objections of defendant, Christopher Todd Brown (Father), pursuant to Pa.R.C.P. 1915.5(a), challenging the jurisdiction of this court to hear the above-captioned child custody action. Father alleges that the State of Ohio has continuing jurisdiction over the child custody dispute and that, therefore, this court should decline jurisdiction. Argument was held on September 3, 2004, at which time the parties stipulated to the facts set forth in the briefs filed by the parties. Upon consideration, this court overrules the preliminary objections and assumes jurisdiction over this matter.

The parties, formerly married but now divorced, resided in Pennsylvania and Ohio at various times. At the time of their marriage on August 3,1996, they resided in Berks County, Pennsylvania, remaining in Berks County until some time in 1998. While in Berks County, plaintiff, Cheryl Lee Brown (Mother), gave birth to the parties’ minor child, Mariah Nichole Brown, bom July 22, 1997.

Sometime in 1998, the parties moved to Ohio. They resided in Ohio until either late 1998 or early 1999, when the parties returned to Pennsylvania. They resided in Pennsylvania until February or March of2001, when they returned to Ohio. In May 2001, the parties separated, but both parties continued to reside in Ohio. On or about June 28,2001, Father filed a divorce complaint with the court of Montgomery County, Ohio.

While the Ohio divorce action was still pending, both parties, around January or February of 2002, independently moved back to Pennsylvania. Subsequently, on or about May 24, 2002, the Court of Common Pleas of Montgomery County, Ohio, entered a final judgment and decree of divorce. In the judgment and decree, the Ohio court included the following language regarding child custody:

“(9) Allocation of parental rights and responsibilities: The plaintiff/father shall be designated as residential parent and legal custodian. The mother shall have parenting time with the minor child pursuant to this court’s standard order of visitation. The court retains jurisdiction over this issue.
“(10) Primary residence of children for school district designation: The father’s residence is hereby designated as the residence for school district purposes....
“(14) Out of state relocation: Neither parent shall relocate the children out of state without first obtaining a modified visitation order. The parties may submit an agreed order modifying visitation with a provision for allocation of transportation expenses, to the court for adoption by the court as an order. If the parents are unable to agree, the moving parent shall, prior to relocation, (1) file a motion asking the court to modify the visitation schedule, (2) set a hearing, and (3) obtain a modified visitation order. No continuance of the hearing shall be granted without written permission of the assigned judge.”

Both parties continued to reside in Pennsylvania, with Father having primary custody of the minor child pursuant to the Ohio court order, until December 20, 2003, when Father moved back to Ohio, taking the minor child with him. Mother then filed the within action on December 24,2003, requesting primary physical custody of the minor child. Father responded by filing preliminary objections, which are now before this court.

In determining jurisdiction, this court must review and apply two statutes, Pennsylvania’s Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §§5341-5366 (UCCJA), and the Federal Parental Kidnapping Prevention Act, 28 U.S.C. §1738A(PKPA). Further, our analysis is governed by the method established by the Pennsylvania Supreme Court in In re Adoption of N.M.B., 564 Pa. 117, 128-29, 764 A.2d 1042, 1047-48 (2000), as follows: “before the courts of this Commonwealth may assert jurisdiction over a child custody or visitation matter with interstate dimensions, the courts must engage in a multi-step analysis. First, the Pennsylvania court must decide whether the matter before it acts as a modification to a custody or visitation order of another state that was rendered ‘consistently with the provisions’ of the PKPA. 28 U.S.C. § 1738A(a). Assuming these conditions are met, the PKPA requires that then the Pennsylvania court must look to whether it could, absent the out-of-state proceeding assert appropriate jurisdiction. 28 U.S.C. §1738A(f)(l). If, . . . Pennsylvania is the ‘home state’ of the child, the PKPA allows Pennsylvania to modify the other state’s decree only if that other state ‘no longer has jurisdiction’ or has declinedjurisdiction. 28 U.S.C. §1738A(f)(2), (h). The language, ‘no longer has jurisdiction’ in section 1738A(f)(2) and (h) should be read in conjunction with section 1783A(d), supra, that specifies when a state has continuing jurisdiction. The PKPA provides that the other state would have ‘continuing jurisdiction’ if the initial decree complied with the PKPA at the time the decree was rendered; if under that other state’s law, the state maintains jurisdiction over the decree; and, the other state remained the residency of any of the parties at the time of the Pennsylvania proceeding. 28 U.S.C. §§1738A(d), 1738A(c)(l).” (footnote omitted)

The first prong of the test, that Mother’s custody complaint seeks modification of the custody order of Ohio, is clearly met. Both parties having returned to Pennsylvania before entry of the Ohio order, they were unable to comply with the terms of modification which required the parties to obtain a modified visitation order before relocating to another state. Additionally, neither party filed any subsequent motions after the order was entered. Thus, the order was never modified even though the parties resided in Pennsylvania for a substantial time. The Ohio order still exists and remains in full force and effect. Mother’s action in filing a custody proceeding in this jurisdiction and requesting primary physical custody of the minor child is for the express purpose of modifying the terms and conditions of the Ohio order.

The next determination is whether the Ohio order was valid under the PKPA. If so, the order may not be modified by Pennsylvania unless certain conditions are met. 28 U.S.C. §1738(A)(a). The applicable provision is 28 U.S.C. §1738A(c) which states:

“(c) A child custody determination made by a court of a state is consistent with the provisions of this section only if—
“(1) such court has jurisdiction under the law of such state; and
“(2) one of the following conditions is met:
“(A) such state (i) is the home state of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home state within six months before the date of the commencement of the proceeding and the child is absent from such state because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such state;
“(B)(i) it appears that no other state would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such state assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such state other than mere physical presence in such state, and (II) there is available in such state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
“(C) the child is physically present in such state and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child ... has been subj ected to or threatened with mistreatment or abuse;
“(D)(i) it appears that no other state would have jurisdiction under subparagraph (A), (B), (C), or (E), or another state has declined to exercise jurisdiction on the ground that the state whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
“(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.”

Whether Ohio had jurisdiction as required by section 1738(A)(c)(l) was answered affirmatively by the Ohio court, as evidenced by its proceeding to disposition and its entry of the final judgment and decree of divorce on May 24,2002. This court’s review of the facts known to it and the applicable provision of Ohio’s version of the UCCJA (Ohio UCCJA) discloses that the parties could not establish Ohio as the home state of the child at the time of commencement of the proceeding, for the parties and the child had only lived in Ohio for three or four months when Father filed his complaint. Flowever, the Ohio UCCJA also permits jurisdiction to be established when:

“It is in the best interests of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with the state, and there is available in the state substantial evidence concerning the child’s present or future care, protection, training and personal relationships.” R.C. 3109.22(A)(2).

Jurisdiction on the basis of establishing a “significant connection,” as an alternative to establishing “home state,” contemplates that there may be no state which qualifies as a home state under the facts and circumstances, or if there is another state that would qualify as the home state, that nevertheless, another state has “significant connections” and therefore may be in a better position than any other court to decide the merits of the case.

In determining whether the child has a “significant connection,” the Ohio courts consider such factors as where the child and the parties are currently residing, where the child would be attending school, and which state will be the forum for the child’s present and future care, protection, training and personal relationships. See Esaw v. Esaw, 2003 W.L. 21504116 (Ohio App. 7th Dist.).

In Esaw, the mother and the child both resided in Illinois, while father resided in Ohio and enjoyed custody time with the child during the summer months. The court found that the time the child spent with father in Ohio and the fact that father was seeking primary custody and could present evidence in Ohio concerning the child’s present and future care, protection, training and personal relationships, was sufficient to establish significant connections.

In In re Rayl, 7th Dist. no. 00-BA-55, 2002-Ohio-5176, the mother, who was the primary custodian of the child and resided in West Virginia, permitted the child to move in with his half brother in Ohio. The move was necessitated by mother being unable to establish a permanent residence and because the child was becoming a disciplinary problem. Shortly after the child’s relocation took place, the half brother filed a custody action in Ohio. In finding Ohio had jurisdiction, the court stated:

“The minimum qualifications of this provision have certainly been met in this case. ‘First, the minor child is currently within the borders of the state. Secondly, the child has substantial connections with the state as he is attending school in Ohio. As appellee wishes to have the child live with him in Ohio, it is the forum which contains evidence concerning the child’s present and future “care, protection, training and personal relationships.” While there is evidence regarding the child’s past care and education in West Virginia, the statute specifically addresses evidence regarding the child’s present and future care, not the child’s past living environments. Moreover, this evidence can be relocated for use in an Ohio court.... Since both appellee and his wife are residents of Ohio and intend to remain in the state, appellee certainly meets the necessary “significant connection” requirements of R.C. 3109.22.’ "Rayl at 16-19.

As already stated, the parties moved back and forth from Ohio to Pennsylvania on several occasions. As a result, at various times, they created and maintained substantial ties and relationships in both states. At the time of commencement of the Ohio proceeding, both parties and the minor child were residing in Ohio. Father’s parents continue to reside in Ohio. The purpose for moving back from Pennsylvania was to obtain a fresh start, for the lifestyle in Pennsylvania had become, according to Father, “dangerous and dysfunctional.” Even when the parties separated in May of 2001, Mother continued to reside in Ohio until early 2002. The connections established for this period of time were substantial.

Further, Pennsylvania did not have jurisdiction as of June 2001 for neither party resided in Pennsylvania when the Ohio action was commenced, nor was Pennsylvania the home state when the proceeding was commenced. Additionally, it would have been difficult for the parties to process a divorce and custody action in Pennsylvania while they continued to reside in Ohio. Custody actions often require an examination of the child by a professional, which would not have been feasible in Pennsylvania. Finally, by the time Mother returned to Pennsylvania, enough time had lapsed that Ohio could have established home state jurisdiction. Accordingly, this court finds that it was appropriate for the Ohio court to assume jurisdiction.

We make the same determination in our analysis of section 1738A(c)(2) of the PKPA. Similar to the Ohio UCCJA, subsection (B)(ii) of the PKPA allows jurisdiction to be met if a party can establish that the child and at least one party have a significant connection with Ohio. Subsection (B)(i), however, also requires an additional element, that “no other state would have jurisdiction under subparagraph (A).”

This element is also met. First, subparagraph A(i) does not qualify Pennsylvania for jurisdiction. On June 28, 2001, the date of commencement of the proceedings, Pennsylvania did not meet the PKPA definition of home state, for it was not the home state at that time. 28 U.S.C. §1738A(b) defines “home state,” in pertinent part, as follows:

“(4) ‘home state’ means the state in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months,....”

As of June 28,2001, the minor child had already been residing in Ohio for at least three months. The word “immediately” is defined as “without interval of time.” The interval contemplated by the word “immediately” must therefore be a time of short duration, as in days or perhaps weeks. The interval contemplated could be of a length sufficient to permit the parties to obtain an attorney and file an action to seek relief from a court on child custody and jurisdictional questions. However, thethreeto four-month interval from the time the parties and the minor child moved from Pennsylvania is well in excess of what is necessary to file an action, and cannot be considered to be “immediately preceding the time involved.”

Secondly, to qualify under subsection A(ii), one parent must be living in Pennsylvania as of June 28, 2001, which was not the case.

Pennsylvania could not establish jurisdiction under subparagraph (A) as of June 28, 2001. As such, no state other than Ohio had jurisdiction as required by section 1738A(c)(2)(B). The requirements of section 1738A(c) (2) are met and the Ohio court order is deemed consistent with the PKPA.

We turn then to the central issue of the case, whether the petition to modify filed by Mother in Pennsylvania can be entertained by this court, in light of the existence of a valid Ohio order which expressly retains jurisdiction over the matter. Section 5355 of the Pennsylvania UCCJA provides the basis for Pennsylvania to modify a custody decree of another state. That section states, in pertinent part:

“(a) If a court of another state has made a custody decree, a court of this Commonwealth shall not modify that decree unless (1) it appears to the court of this Commonwealth that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify the decree and (2) the court of this Commonwealth has jurisdiction.”

Mother filed the within petition on December 24,2003. Only four days earlier, Father and the minor child had relocated to Ohio. Prior to relocation, both parties and the minor child had lived in Pennsylvania for almost two years. As such, Pennsylvania meets the jurisdictional requirements as the home state of the minor child. 23 Pa.C.S. §5344(a)(1) establishes:

“(a) A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(1) this Commonwealth (i) is the home state of the child at the time of commencement of the proceeding; or (ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;...

We also note that Father does not dispute Pennsylvania’s status as home state.

Accordingly, Pennsylvania would have the authority to modify the Ohio order if Ohio “does not now have jurisdiction.” 23 Pa.C.S. §5355(a)(l). In In re Adoption ofN.M.B., the Pennsylvania Supreme Court instructs that this provision must be read in conjunction with the PKPA. The court goes on to say that Ohio would have “continuing jurisdiction” if: (1) the initial decree complies with the PKPA at the time the decree was rendered, (2) under Ohio law, Ohio maintains jurisdiction over the decree, and (3) Ohio remained the residency of any of the parties at the time of the Pennsylvania proceeding. 28 U.S.C. §§1738A(d), 1738A(c)(l).

For reasons already set forth, Father can establish that Ohio’s initial decree complied with the PKPA at the time the decree was rendered. However, he is unable to establish either of the other two prongs of the test.

Ohio could not maintain jurisdiction because the contact with the parties had ended. Because of the parties’ two-year removal from Ohio, Ohio does not qualify as the home state. Secondly, neither the minor child nor at least one contestant has a significant connection with Ohio, sufficient to establish jurisdiction under section 3109.22(A)(2), in the same manner jurisdiction was established at the time of the initial decree. There is nothing in the record that provides “substantial evidence concerning the minor child’s present or future care, protection, training and personal relationship.” R.C. 3109.22 (A)(2). Father moved with the minor child approximately four days before Mother filed the within petition. While Father reestablished himself in Ohio, enrolled the minor child in school, and began acquiring other connections with Ohio, this is not sufficient. This case is distinguished from Rayl, supra, for in Rayl, the mother had initially agreed to the child moving to Ohio, and only objected when the half brother sought custody through a court action. Here, Father’s action was unilateral, uprooting the minor child from her home in Pennsylvania without Mother’s consent. Further, Father cannot rely on the past contacts, as the parties and the minor child had resided in Pennsylvania for a substantial time after those contacts were abandoned. The only remaining contacts would be Father’s family.

F ather relies on the language of the Ohio order in which the Ohio court, by agreement of the parties, expressly retained jurisdiction over the child custody issue. However, if Ohio does not have subject matter jurisdiction, said jurisdiction cannot be conferred upon Ohio by agreement or consent of the parties. Golindo v. Delossantos, 2004 W.L. 1433539 (Ohio App. 3 Dist.).

Even if Father could present sufficient evidence to establish a significant connection with Ohio, he does not meet the third prong in the test, as neither of the parties remained a resident of Ohio. The ruling of the Supreme Court of Ohio in The State ex rel. Seaton v. Holmes, 100 Ohio St.3d 265, 798 N.E.2d 375 (2003), is dispositive. There, the court, reviewing similar facts, defines the word “remains” under the PKPA and held as follows:

“The word ‘remains’ in section 1738A(d) of the PKPA ‘is defined by the dictionary.’ See e.g., In re Marriage of Pedowitz (1986), 179 Cal.App.3d 992, 1001, 225 Cal.Rptr. 186. See also, Maxie v. Fernandez (E.D.Va. 1986), 649 F. Supp. 627, 631; cf. Campus Bus Serv. v. Zaino, 98 Ohio St.3d 463, 2003-Ohio-1915, 786 N.E.2d 889 (court construes undefined statutory language according to rules of grammar and common usage by consistently using dictionaiy definitions). After applying the applicable rules of construction, we determine that the word ‘remain’ means ‘to stay in the same place’ and ‘to continue unchanged in form, condition, status, or quantity.’ Webster’s Third New International Dictionary (1971) 1919.
“Ohio was the residence of both parents and the child when they agreed to terms that were subsequently incorporated into the original divorce decree. But all of them moved to Missouri. Although Aaron later moved back to Ohio, he did not thereby confer continuing jurisdiction on the Ohio court. His status as an Ohio resident did not ‘continue unchanged’ from the issuance of the divorce decree until the present. In fact, according to Rachelle’s uncontroverted affidavit, Aaron has expressed his intent to continue residence in Missouri and doubts the likelihood of further proceedings in Ohio.
“Therefore, under the PKPA, Ohio lacks jurisdiction over Aaron’s postdecree motions. In other words, ‘ [i]f the party attempting to “continue” jurisdiction in the original court leaves that jurisdiction, establishes residence elsewhere, and subsequently attempts to reestablish residence in the original court, then that party does not satisfy the requirement of subsection (d) that the state or district “remains the residence” of that party.' Maxie, 649 F. Supp. at 631,....” 798 N.E.2d 377-78.

Ohio does not now have jurisdiction. Pennsylvania is the only state with jurisdiction and accordingly, Father’s preliminary objections must be overruled. Accordingly, we enter the following order:

ORDER

And now, September 28,2004, upon consideration of the preliminary objections of defendant, Christopher Todd Brown, pursuant to Pa.R.C.P. 1915.5(a), response thereto, briefs filed by the parties, and after argument held, the preliminary objections are overruled. This matter shall be referred to the child custody master for a conciliation conference and further proceedings.

      . Docket no. 01-LS-25.

      . The conditions for modification are set forth in 28 U.S.C. §1738A(f) which states:
      “(f) A court of a state may modify a determination of the custody of the same child made by a court of another state, if—
      “(1) it has jurisdiction to make such a child custody determination; and
      “(2) the court of the other state no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.”

      . R.C. 3109.22(A).

      . The pertinent provisions of R.C. 3109.21(A) defines “home state” to mean the state in which the child, immediately preceding the time involved, lived with the child’s parents, a parent, or a person acting as parent, for at least six consecutive months.

      . This ruling stems from the same reasoning relied on in our determination that, as of June 2001, Pennsylvania did not qualify as a home state under PKPA, infra.

      . Webster’s Ninth New Collegiate Dictionary, 1984 at 601.

      . 764 A.2d at 1047.

      . 764 A.2d at 1048.


author: FRIEDMAN, J,

text:
    Atlantic States Insurance Co. v. Northeast Networking Systems Inc.

      C.P. of Allegheny County,
    no. GD 03-335.

      Scott Millhouse, for plaintiff.

      Lorraine A. Smith, for defendant Northeast.

      Clinton Boyd, pro se.

      John Newborg, for defendant Fornicoia.
    September 8, 2004
   FRIEDMAN, J,

The facts in the captioned action for a declaratory judgment are somewhat confusing at first. Plaintiff insured defendant Northeast Networking Systems Inc. under a business auto policy. That policy excludes coverage for any injuries that Northeast would be liable for under laws such as the workers’ compensation law. Both of the individual defendants, Clinton Boyd and Charles Fomicoia were employees of Northeast at the time they were involved in the automobile accident that gave rise to the instant dispute.

The insurance policy issued by plaintiff included the following liability coverage:

“(A) Coverage
“We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’
“(1) Who is an insured.
“The following are ‘insureds’:
“(a) You for any covered ‘auto.’
“(b) Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow____” (emphasis added)

The policy also contained the following exclusions:

“(B) Exclusions
“This insurance does not apply to any of the following: ...
“(3) Workers’ Compensation
“Any obligation for which the ‘insured’ or the ‘insured’s’ insurer may be held liable under any workers’ compensation, disability benefits or unemployment compensation law or any similar law.
“(4) Employee Indemnification and Employer’s Liability
“ ‘Bodily injury’ to:
“(a) An employee of the ‘insured’ arising out of and in the course of employment by the ‘insured’; or
“(5) Fellow Employee
“ ‘Bodily injury’ to any fellow employee of the ‘insured’ arising out of and in the course of the fellow employee’s employment.”

The undisputed facts are as follows:

—Boyd and Fomicoia had been sent by Northeast from Murrysville, Pennsylvania, where they normally worked, to Richmond, Virginia.

—They had to stay overnight in a motel/hotel.

—They had to eat at restaurants.

—They did not have to drink alcoholic beverages.

—They had the use of a company-owned vehicle, covered by the policy at issue, during the course of their stay in Virginia.

—Only Boyd was permitted by Northeast to drive the car.

—Boyd was Fornicoia’s supervisor at the time.

—At dinner, Boyd consumed alcohol.

—After dinner, Boyd drove the car with Fomicoia riding as a passenger.

—The car was involved in an accident and Fomicoia was seriously injured.

—The accident gave rise to two other types of proceedings besides the instant one, Fomicoia and Boyd’s workers’ compensation claims against Northeast and a tort action in Florida by Fomicoia against Boyd and Northeast. (Fomicoia now resides in Florida.)

—A workers’ compensation referee decided Fomicoia was in the scope of Northeast’s business when he was injured, even though he had also imbibed alcohol, apparently because he was a passenger at the time of the accident.

—A different workers’ compensation referee decided that Boyd, the driver of the auto, was not in the scope of Northeast’s business at the time of the accident, giving as the reason for this decision the fact that Boyd had consumed alcohol prior to driving the car.

—According to the workers’ compensation decision, Boyd was charged with DUI by Virginia police. It is unclear whether or not he was convicted.

—The referees granted Fomicoia workers’ compensation benefits and denied them to Boyd.

—Boyd was a permissive user of Northeast’s automobile at the time and as such was an “insured” under section A. l.b. of the business auto policy, quoted above.

DISCUSSION

The policy section cited by plaintiff excludes “any obligation for which the ‘insured’ (either Northeast or Boyd) or the ‘insured’s’ insurer (plaintiff) may be held liable under workers’ compensation ... or any similar law.”

That policy section does not exclude any obligation for which Boyd, Northeast or plaintiff may be held liable under ordinary tort law.

Workers’ compensation statutes are intended to protect employees who are injured while on their employers’ business or by fellow employees also on their employer’s business. However, the public policy considerations behind such legislation have yet to be extended to persons injured in a different context. Here, the decision of the workers’ compensation referee that Boyd was not in the scope of his employment because of the drinking he did at dinner, raised the question of whether Boyd should be considered a fellow employee whose conduct does not give rise to more than a workers’ compensation claim by Fornicoia, or whether Boyd, having been determined to be acting outside the scope of his employment by the referee, is liable to Fornicoia in tort.

As defendant Fornicoia points out in his cross-motion for summary judgment, there are at least two types of insureds under the policy, Northeast itself (which can only act through its agents and employees) and a permissive user, such as Boyd, of an automobile owned, hired or borrowed by Northeast.

Since Boyd was found to have been acting outside of his employment according to the workers’ compensation referee, it follows that his tortious act is not the act of Northeast. It then follows that Boyd was acting on his own behalf when he caused the accident. In that capacity, he, not Northeast, is the insured under the policy, because he undisputedly was a permissive user of the vehicle.

The Florida court reached a similar conclusion, applying Pennsylvania law. Even were there somehow a justification for re-litigating the workers’ compensation referee’s conclusion that Boyd was not within the scope of his employment, we are also constrained by the Florida court’s ruling that the workers’ compensation bar does not apply. Boyd’s conduct, not Northeast’s, is at issue, and that conduct, vis-á-vis Fomicoia, based on estoppel principles, is not the conduct of a fellow employee.

CONCLUSION

The question under the policy is whether Northeast, acting through Boyd, is the tme insured. Since Northeast opposed the referee’s finding that Boyd was in the scope of his employment, it is now estopped from taking the opposite position that Boyd was acting for Northeast at the time of the accident. The Florida court, applying Pennsylvania law, decided that Boyd’s liability is not limited by workers’ compensation laws. The Florida court’s reasoning is not obviously incorrect and therefore this court has no basis in justice to disregard it. Boyd was permitted by plaintiff’s insured, Northeast, to drive the car at the time of the accident, and Northeast only permitted Fomicoia to be a passenger. Boyd is clearly an insured under the applicable policy and under the workers’ compensation decision, he was not acting in the capacity of “a fellow employee” at the time of the accident.

Therefore, this court declares that plaintiff must continue to defend Boyd in the Florida litigation and also must pay any verdict in favor of Fomicoia and against Boyd (up to its coverage limits, without any deduction for the workers’ compensation benefits paid to Fomicoia in satisfaction of Northeast’s separate employer liability).

See order filed herewith.

ORDER

And now, to-wit, September 8,2004, after considering the motion for summary judgment of plaintiff and the cross-motion for summary judgment of defendant Fomicoia, the motion of plaintiff is denied, the cross-motion of Fomicoia is granted, and it is declared as follows:

Plaintiff must continue to defend Clinton Boyd in the Florida litigation and also must pay any verdict in favor of Charles Fomicoia and against Clinton Boyd up to its coverage limits without any deduction for the workers’ compensation benefits paid to Fomicoia in satisfaction of Northeast’s employer liability.

      . An exception to the rule that prior decisions of a judge of coordinate jurisdiction must be honored is permitted when “the prior holding was clearly erroneous and would create a manifest injustice if followed.” Zane v. Friends Hospital, 575 Pa. 236, 244, 836 A,2d 25, 29 (2003), citing Commonwealth v. Starr, 541 Pa. 564, 576, 664 A.2d 1326, 1332 (1995).

      . Under 75 Pa.C.S. §1724, alcohol use will not void insurance coverage.


author: TURGEON, J,

text:
    Finney v. Nastacio

      C.P. of Dauphin County,
    no. 3191 CV 2002.

      David H. Rosenberg, for plaintiff.

      Richard Wix, for defendant.
    August 10, 2004
   TURGEON, J,

— George Finney Jr. was killed in an automobile accident April 20,2001. His wife, plaintiff Carol Finney, as executrix of his estate and in her own right, brought wrongful death and survival actions. The case was tried before a jury, and because defendant Peter Nastacio admitted liability, the only issue was the amount of damages, which the jury determined to be $ 110,710. Plaintiff filed a timely motion for post-trial relief arguing that the verdict was inadequate and seeking a new trial. On June 3, 2004,1 found that a new trial was warranted based upon the jury’s award of zero damages in the wrongful death action, for Mr. Finney’s family’s loss of household services and loss of comfort, society, guidance and tutelage. I also held that the jury’s award of zero damages in the survival action, for Mi'. Finney’s pain and suffering prior to his death, did not warrant a new trial. This opinion is written in support thereof. Pa.R.A.P. 1925(b).

BACKGROUND

The relevant testimony concerning the issues raised in plaintiff’s post-trial motion is as follows: On the afternoon of April 20,2001, George Finney Jr., then a 75-year-old retired electrician on an errand to purchase lottery tickets, was stopped in traffic in the left lane of eastbound Route 22. While waiting to make a left turn, his vehicle was struck from behind by defendant’s Jeep Wagoneer, traveling between 45 and 50 miles per hour. The force of the accident pushed Mr. Finney’s vehicle into the westbound lane where he was immediately struck by an oncoming Ford Bronco that caused Mr. Finney’s car to spin and strike Nastacio’s vehicle a second time. Mr. Finney was ejected from his car through the rear window of his vehicle and landed on the road in an unconscious state. He died shortly thereafter. (N.T. 22-25.) One eyewitness recalled that a paramedic who arrived on the scene within two minutes of the accident reported that Mr. Finney had a pulse. (N.T. 27.) Another eyewitness testified that Mr. Finney was unconscious immediately after the accident although he was “white and was moaning.” (N.T. 124, 127.) Plaintiff’s expert pathologist, Dr. Richard Callery, testified that he believed Mr. Finney experienced conscious pain and suffering prior to his death. (N.T. 216-17.) Dr. Callery stated that “[h]e was able to have a short period of conscious pain and suffering, although of short duration, manifested by movement, moaning and blood pressure before he died as a result of increased cranial pressure.” (N.T. 219.)

At the time of his death, Mr. Finney resided in his West Hanover Township home with his three adult children, son Shawn, then 28 years old, and daughters Schenley, 25, andLyndsay, 23. (N.T. 107,152.) His wife Carol had moved out of the family home in 1991 but remained married to Mr. Finney and saw him every day. (N.T. 44-45, 81.) Until Mr. Finney’s death, his children had lived their entire lives with him.

Shawn Finney testified that his dad “took care of everything,” was very involved in his life, and that he “couldn’t have asked for a better relationship”; Shawn misses his companionship and advice. (N.T. 131-32,140-41.) Mr. Finney handled Shawn’s bills, balanced his checkbook, kept his records and would basically do anything asked of him. (N.T. 134.) According to Shawn, his father paid all their household expenses and kept up with the house maintenance like wiring, cleaning, mowing and keeping the family pool in shape. (N.T. 132, 137-38.) Mr. Finney did all of Shawn’s laundry and cooked all his meals when he was home. (N.T. 133-34.) They would typically spend four or five hours together in the evening. (N.T. 139.) They spent time together shooting pool, doing yard work and home projects, tooling round with cars and occasionally playing golf. (N.T. 131-32, 138.) Although Shawn intended to one day move out, he was in no hurry and planned on living with his father for a long time. (N.T. 130.)

Schenley Finney described her father as her “hero,” as “perfect” and as someone who could do anything. She testified that she could talk to her father about everything and he gave her advice, even as an adult. (N.T. 154, 158.) She summed him up as “the best father anybody could ever have.” (N.T. 154.) She testified that he would do errands for her, get her up for work and that he did all the household work, except the daughters’ laundry, including cooking and baking. (N.T. 154-56.) If she had time, she would go home over her lunch hour and eat with him and watch a soap opera. (N.T. 155.) She often spent evenings with him and her sister playing board and card games. (N.T. 156.) She was pregnant at the time her father died and testified that he had been very excited and had made plans for the baby. (N.T. 157.) Schenley, who got married in September 2002, greatly regretted that her father was not able to walk her down the aisle at her wedding nor meet his new grandson. (N.T. 159.)

Lyndsay Finney testified that her father meant the world to his children and they meant the same to him. (N.T. 52-53.) She described him as very supportive, providing her unconditional love and always teaching her right from wrong. She could talk to him about anything. (N.T. 45, 49, 51-52.) Regarding daily life, she testified that they “always did everything together” including shopping for groceries, playing pool and going to doctor’s appointments. (N.T. 45, 49.) Her father would run errands for her like going to the bank or drug store, and also chauffeured her around. (N.T. 49, 51.) Mr. Finney paid all home expenses including electric, utilities, taxes, food and groceries and refused to accept money from his children when they offered to help. (N.T. 47,49-50.) He was a very good cook and baker and would bring lunch and baked goods to her at her job, where she worked with her sister Schenley and their mother Carol. (N.T. 50-51.) She testified that he brought lunch to them almost every day and would sometimes stay and talk over the lunch hour. (N.T. 51.)

Carol Finney testified that she had married the decedent in 1973. Although separated in 1991, they still did many things together and she saw and talked to him every day. (N.T. 78, 81.) She testified that he paid all the household expenses for the home he shared with his children. (N.T. 86-90; plaintiff exhibit 5.) She believed his health was good and he had fully recovered from a heart attack and quadruple bypass surgery in 1998 as well as Guillain-Barre Syndrome in 1987 or 1988. (N.T. 90-92, 104.)

Plaintiff’s expert economist, Dr. Andrew Verzilli, testified that based upon the fact that Mr. Finney had done all the cooking, cleaning and shopping in the household, and in light of his life expectancy of 9.6 years, the value of his lost services to the household members ranged from $14,820 (assumed over a three-year period at 10 hours per week) to $59,280 (assumed over a six-year period at 20 hours per week). (N.T. 181 -84.) Dr. Verzilli arrived at these figures using a replacement cost approach of $9.50 per hour.

Following the conclusion of trial, the jury returned its verdict awarding plaintiff $110,710. Significantly, the jury awarded the estate beneficiaries zero damages for lost value of household services and loss of comfort, society, guidance and tutelage, and zero to the estate for decedent’s pain and suffering, as follows:

“Jury Questionnaire
“Damages — wrongful death action
“(1) State the amount of money damages to be awarded to the beneficiaries of the estate of George Finney Jr., for each of the categories listed below under the Wrongful Death Act. Then, please add up all the amounts entered and place that amount on the line marked ‘Total.’:
“(A) Loss of value of household services: $ 0
“(B) Funeral/burial expenses: $ 4,255
“(C) Loss of his comfort, society, guidance, and tutelage: $ 0
“(D) Loss of financial support and contributions to family: $ 37,259
“Total: $ 41,514
“Damages — survival action
“(2) State the amount of money damages to be awarded to the estate of George E. Finney Jr., for each of the categories below under the survival action. Then, please add up all amounts entered and place that amount on the line marked ‘Total.’:
“(A) Lost net retirement income: $ 69,196
“(B) Mental & physical
pain & suffering $ 0
“Total: $ 69,196
“Summary of damages
“(3) State the sum total of both the survival action and the wrongful death action above:
“Total compensatory damages: $ 110,710”

LEGAL DISCUSSION

Plaintiff argued that the jury rendered a verdict manifestly against the weight of the evidence and sought a new trial in the wrongful death action since the jury awarded zero damages to Mr. Finney’s family, as the estate beneficiaries, for their loss of value of household services and their loss of comfort, society, guidance and tutelage. Plaintiff also sought a new trial in the survival action, arguing that the verdict was against the weight of the evidence where the juiy awarded zero damages for the mental pain and suffering experienced by Mr. Finney prior to his death.

Before addressing the merits of plaintiff’s post-trial motion, we address defendant’s assertion that plaintiff has “waived her right to ask for a new trial by not objecting to problems with the verdict before the jury was dismissed.” The record explicitly revealed otherwise. Immediately after the jury had announced its verdict, plaintiff’s counsel stated as follows:

“Mr. Rosenberg: I don’t know if this is the proper time but I am going to request additur to the verdict slip that it’s not reflective of the damages represented or the judge consider judgment against the verdict, I guess.
“The Court: Okay. You could present that motion orally and then follow it up with a written motion but I wouldn’t do it with the jury still here.” (N.T. 256.)

After I excused the jury, counsel continued:

“Mr. Rosenberg: I am going to file a motion with the court for judgment n.o.v. and I confused the terms but to reconsider some of the elements where nothing was awarded. In this situation that is against the weight of the evidence in this case.
“The Court: Okay. Thank you.
“Mr. Wix [defense counsel]: I think this really is in the form of a post-trial motion which we will respond to but basically these were all jury issues. The jury considered them and made their decision. We believe that the jury verdict should be upheld.
“The Court: We will take it under advisement once it is filed. Thank you.” (N.T. 257-58.)

Defendant noted that the plaintiff should have specifically requested that the court instruct the jury and return for further deliberations, citing Curran v. Greate Bay Hotel and Casino, 434 Pa. Super. 368, 643 A.2d 687 (1994). In light of my admonition to plaintiff’s counsel that he could raise his objection after the jury was excused, there was no error in counsel’s failure to request that the jury be called back to deliberate further.

With regard to the merits of plaintiff’s motion, the law allows for the granting of a new trial where the verdict is against the weight of the evidence. Thompson v. City of Philadelphia, 507 Pa. 592, 597-98, 493 A.2d 669, 672 (1985). A jury verdict will be set aside as inadequate when it appears to have been the product of passion, prejudice, partiality or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994). A new trial is required when the jury’s verdict is so contrary to the evidence so as to “shock one’s sense of justice.” Id. Inasmuch as the uncontradicted evidence showed that the award of zero damages in the wrongful death action — for loss of household services and for loss of comfort, society, guidance and tutelage — bore no reasonable relation to the loss suffered by the estate beneficiaries, a new trial was warranted. On the other hand, the jury’s award of zero damages in the survival action for pain and suffering bore a reasonable relation to the evidence, and thus a new trial was unwarranted.

Wrongful Death Damages: Loss of Household Services and Loss of Comfort, Society, Guidance and Tutelage

“An action for wrongful death may be brought by the personal representative of those persons entitled to receive damages for wrongful death under the statute.” Kiser v. Schulte, supra at 226, 648 A.2d at 4. (citations omitted) Wrongful death damages are established for the purpose of compensating the spouse, children, or parents of a deceased for pecuniary loss they have sustained as a result of the death of the decedent. Id. (citations omitted) The damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had he or she lived, as well as funeral and medical expenses. Id. (citations omitted)

The “services” for which recovery is permitted include tangible items such as the lost value of household services as well as the lost contribution the decedent would have made to the family for the purchase of items such as shelter, food, clothing, medical care, education, entertainment, gifts and recreation. Machado v. Gawlas, 804 A.2d 1238, 1245 (Pa. Super. 2002), appeal denied, 572 Pa. 763, 819 A.2d 547 (2003) (citation omitted); Walton v. Avco Corp., 383 Pa. Super. 518, 547, 557 A.2d 372, 388 (1989), aff’d in part, rev’d in part on other grounds, 530 Pa. 568, 610 A.2d 454 (1992). In addition, the spouse and child survivors are also entitled to be awarded damages for the intangible loss of services, which in the case of a surviving spouse are labeled loss of consortium, and in the case of surviving children are referred to as the “loss of companionship, comfort, society and guidance,” or alternatively described as “loss of guidance, tutelage, and moral upbringing.” Machado at 1245 (citing Walton at 549-50, 557 A.2d at 388).

i. Loss of Household Services

The jury’s award of zero damages for the lost value of household services the decedent would have provided to his children, had he lived, was wholly contradicted by the evidence. The uncontroverted and credible evidence revealed that the decedent provided numerous specific household services for his children on a daily basis: Mr. Finney did all the cooking and baking in the household, kept up with home maintenance and took care of paying for all household expenses; he did all of his son Shawn’s laundry, balanced his checkbook and kept his records; he ran errands for his daughter Schenley, got her up for work and occasionally prepared lunch for her at home over her lunch hour; Mr. Finney ran errands for his youngest child Lyndsay, would chauffeur her around, often brought lunch to her and her sister and mother at work, shopped for groceries with her and traveled to doctor’s appointments together. The jury’s disregard of this evidence, that Mr. Finney provided extensive household services to his children, rendered its verdict of zero damages inadequate.

Defendant suggested at trial that Mr. Finney’s life expectancy was not as long as the 9.6 years provided in the life expectancy tables, noting his quadruple bypass surgery in 1998, for example. Nevertheless, the jury clearly determined that Mr. Finney had some life expectancy and that all or some of his children would have continued to live in his house for some time into the future since it awarded the estate beneficiaries $37,259 in the wrongful death action for loss of financial support and contribution to the family. Thus, an award of zero damages for loss of household services was shocking and warranted a new trial.

ii. Loss of Comfort, Society, Guidance and Tutelage

The evidence was equally uncontroverted that Mr. Finney provided his children significant services in the form of comfort, society, guidance and tutelage. Prior his death, Mr. Finney doted on his children through their adulthood. Fie spent a significant amount of time with them, typically eating lunch with one or more of them and spending his evenings with his children partaking in numerous activities, including shooting pool with his son and playing board and card games with his daughters. Mr. Finney was variously described by his children as their hero, as perfect, and as the best father anybody could ever have. Fie meant the world to his children, was very supportive of them and provided them unconditional love. Mr. Finney’s children could talk to him about anything and he continued to provide advice to them as adults. That the jury ignored this uncontroverted evidence and awarded zero damages was shocking.

The remedy of a new trial is proper where a jury awards zero damages in the face of uncontroverted evidence that the plaintiff has suffered damages. Walton v. Avco Corp., supra and Deitrick v. Karnes, 329 Pa. Super. 372, 478 A.2d 835 (1984). In Walton, the Superior Court upheld trial court’s grant of a new trial limited to wrongful death damages for wife’s loss of household services and loss of consortium, occasioned by her husband’s death, where the jury had otherwise awarded the surviving children damages for their intangible losses. Id. at 549-50, 557 A.2d at 388. In Deitrick, the Superior Court reversed the trial court’s denial of a new trial where, among other findings, the jury had awarded zero damages for a wife’s loss of consortium claim in a non-death personal injury action. The Superior Court found that the zero damages were inadequate and a new trial warranted where there was uncontradicted evidence that the wife’s right to the company, affection and cooperation of her husband had been restricted by his back injury, a result of defendant’s negligence. Id. at 831, 478 A.2d at 839.

Defendant has argued that the zero damage awards in the wrongful death action were reasonable in light of the evidence that the decedent and his wife had lived apart for some time prior to his death, and that she was collecting $6,720 per year from his pension. Defendant also claims the verdict was adequate since his children were all adults independently employed.

This court agrees with the defendant that to the extent the jury’s decision to award zero damages for Carol Finney’s loss of household services and loss of comfort, society, guidance and tutelage {i.e., loss of consortium), was supported by the evidence: Mrs. Finney has been living separate from her husband since 1991. However, the two categories in the jury questionnaire (for wrongful death) for which the jury chose to award zero damages clearly indicated that they were to be awarded to the beneficiaries of the estate. This court’s jury instructions clearly identified the beneficiaries as Mr. Finney’s “family” or “children.” (N.T. 238-39.) Thus, the fact that the jury may have decided to award zero damages to Mrs. Finney cannot explain its decision to do the same to the children.

Additionally, as to the issue of damages for lost value of household services and loss of comfort, society, guidance and tutelage, it is irrelevant that the decedent’s children were independently employed adults at the time of Mr. Finney’s death. Under Pennsylvania law, persons with a family relation to the deceased are entitled to recover under the wrongful death statute, so long as they have suffered a pecuniary loss. Gaydos v. Domabyl, 301 Pa. 523, 529, 152 A. 549, 551-52 (1930); Berry v. Titus, 346 Pa. Super. 376, 381, 499 A.2d 661, 664 (1985); Manning v. Capelli, 270 Pa. Super. 207, 211, 411 A.2d 252, 255-56 (1979) (a beneficiary under the Act must prove a family relationship and pecuniary loss). Since the Act specifically includes children as a category of beneficiaries, the polestar for recovery is whether the child-beneficiary is able to prove pecuniary loss. Emancipated children have long been eligible to recover damages for the wrongful death of their parent where they have suffered such a loss. As stated by the court in Gaydos:

“Family relation, as understood by the [Wrongful Death] Act, exists between parent and child when a child receives from a parent services or maintenance or gifts with such reasonable frequency as to lead to an expectation of future enjoyment of these services, maintenance, or gifts. The term ‘family relation’ as thus used does not embrace its comprehensive definition, but is confined to certain phases of family relation between the persons named in the Act. As the term ‘family relation’ is understood under the Act, those affected by such death need not reside at the same home or under the same roof as the deceased. They may reside elsewhere and still be within the family relation: .... Before there can be any recovery in damages by one in that relation for the negligent death of another in the same relation, there must be a pecuniary loss:....
“Pecuniary loss has been defined to be a destruction of a reasonable expectation of pecuniary advantage from the deceased. It is not a matter of guess or conjecture, but must be grounded on reasonably continuous past acts or conduct of the deceased:....
“The reasonable expectation of pecuniary advantage to one standing in the family relation may be shown in many ways, but more frequently through services, food, clothing, education, entertainment and gifts bestowed; to be reasonable, the services and gifts must have been rendered with a frequency that begets an anticipation of their continuance; occasional gifts and services are not sufficient on which to ground a pecuniary loss, [citations omitted] ...
“The adults over age who lived at home, contributed all their earnings and received clothing, food, spending money and the mother’s services; the value of all these, less their contributions to the mother, would be the measure under the rule above.
“These adult children might reasonably expect to receive from their mother the same shelter, care, attention and service until her death as each had been given before; now that she is gone, the services cannot be secured altogether from paid help....
“Appellant is laboring under the impression that 21 years of age is the dividing line in the statute beyond which children cannot recover for loss of services. He forgets that the family relation is the basis of the recovery of damages, and that this may continue beyond that period; damages are measured by the pecuniary loss, based on past conduct and acts of the deceased in that relation. It is quite true that defendant may show a case where no loss has been made out, but ordinarily the question is for the jury, and not one for binding instructions.” Id. at 529-30, 536, 537, 152 A.2d at 551-52, 554 (1930).

Thus, it is irrelevant that the Finney children were adults or independently employed at the time of their father’s death; what is relevant, however, was that Mr. Finney rendered household services and comfort, society, guidance and tutelage to them “with a frequency that begets an anticipation of their continuance” and with a reasonable expectation that “[t]hese adult children might reasonably expect to receive from their [father] the same shelter, care, attention and service until [his] death as each had been given before.” Id.

Survival Action Damages: Pain and Suffering

Plaintiff had argued that a new trial was warranted in the survival action because the jury ignored uncontroverted testimony that the decedent experienced pain and suffering prior to his death. As noted, plaintiff’s expert Dr. Callery testified that Mr. Finney was able to experience a period of conscious pain and suffering, although of short duration, prior to his death.

Nevertheless, the jury’s decision to disregard that evidence was not shocking in light of the evidence that the decedent was thrown from his car and rendered immediately unconscious. Furthermore, the plaintiff presented no evidence of how long Mr. Finney lived following the accident except that it was of a short duration. Thus, the jury could have reasonably concluded that Mr. Finney did not suffer compensable pain and suffering.

Accordingly, this court issued an order June 3, 2004, granting in part plaintiff’s motion for post-trial relief.

      . Plaintiff asserted additional issues in her post-trial motion including the court’s failure to include a requested jury instruction and to remove a juror for cause during voir dire. She failed to brief those issues, however, and as such, they have been waived. Jackson v. Kassab, 812 A.2d 1233, 1234 (Pa. Super. 2002) (en banc), appeal denied, 573 Pa. 694, 825 A.2d 1261 (2003) (any issues raised in a motion for post-trial relief that are not briefed may be considered waived by the trial court); accord, Kraus v. Taylor, 710 A.2d 1142, 1146 (Pa. Super. 1998).

      . The Wrongful Death Act provides as follows:
      “Death action.
      “(a) General Rule. — An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.
      “(b) Beneficiaries. — Except as provided in subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.
      “(c) Special Damages. — In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.
      “(d) Action By Personal Representative. — If no person is eligible to recover damages under subsection (b), the personal representative of the deceased may bring an action to recover damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 Pa.C.S. §8301.

      . This category of damages is also sometimes incorrectly labeled “loss of parental consortium.” See Machado at 1244. It is notable that while children may recover for this category of damages occasioned by the death of their parent(s), there is no right by a parent for his or her similar loss due to the death of a child, referred to as “loss of filial consortium.” McCaskill v. Philadelphia Housing Authority, 419 Pa. Super. 313, 318, 615 A.2d 382, 384-85 (1992); but see Ehrman v. Mid-American Waste Systems of Pa. Inc., 39 D.&C.4th 235 (Allegheny Cty. 1998).

      . We note the distinction between actually handling household finances and contributing money to household expenses. The former would be a household service and the latter actual financial support and contribution, for which the jury here did award damages to the estate’s beneficiaries.

      . We note that absent expert testimony, there can be no recovery for pain and suffering in a survival action for the period between the time of injury and the time of death, where the decedent is unconscious for the duration. Cominsky v. Donovan, 846 A.2d 1256, 1260 (Pa. Super. 2004) (citing Nye v. PennDOT, 331 Pa. Super. 209, 214, 480 A.2d 318, 321 (1984)).