Nationwide Insurance v. Enderle , 369 Pa. Super. 44 ( 1987 )

POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Delaware County entered against the appellant, Nationwide Insurance Company of Delaware. We reverse.

The record discloses that on December 15, 1977, Clyde and Bernice Ewing, domiciled in the State of Delaware and insured by the appellant, sustained injuries in Pennsylvania as a result of the negligent operation of a vehicle owned by William and Margaret Enderle and insured by a Pennsylvania carrier.

When the Ewings refused to execute a complaint brought by the insured/Nationwide against the Enderles, it secured the status as party-plaintiff and sought the recoupment of $4,309.44 (of basic loss benefits paid to its insured/Ewings) from the Enderles under a right of subrogation afforded to it by the Delaware Motor Vehicle Act, 21 Del. Code Ann. § 2118(f). A verdict was entered against Nationwide and its complaint was dismissed.

A series of appeals and remands transpired thereafter leading to the re-imposition of the original verdict and complaint dismissal. This appeal followed.

Nationwide assails the trial court’s dismissal of its complaint on the ground that the Delaware No-Fault Act (21 Del. Code Ann. § 2118) affords it a right of subrogation which was refused recognition by the court below. We agree.

Under our No-Fault Act (40 P.S. § 1009.101 et seq.), reference to the law of the state of domicile of the victim is required in those instances where the payment of basic loss benefits is at issue, the victim is not domiciled in Pennsylvania but the state of domicile of the victim does provide a No-Fault plan to its domiciliaries. For example, 40 P.S. § 1009.110(c)(1) reads in pertinent part:

(1) Basic Loss Benefits[¹] available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the State’s No-Fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs. * * * *

The Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a) effective October 1, 1984.

Viewing the intention sought to be achieved by the Legislature (see 1 Pa.C.S. § 1921) in promulgating § 1009.-110(c)(1) against a common sense reading of the statute in question, we do not read the provision so narrowly as to impair the appellant’s ability to look to Delaware’s subrogation statute (21 Del. Code Ann. § 2118(f)) to afford it the opportunity to recover monies paid to its insured under Delaware’s No-Fault Act, which grants unequivocally the appellant the right to subrogation for benefits paid.

In doing so, we find that the appellant’s right to subrogation is controlled by Delaware law, and, accordingly, appellant is entitled to seek payment from the appellees for monies paid to its insured. Thus, we see no need to engage in a conflict-of-law analysis when Pennsylvania’s No-Fault Act directs that the domicile of the victim is to be respected in determining one’s rights under No-Fault law. See § 1009.110(c)(1).

In Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980) this Court concluded that 40 P.S. § 1009.110(c)(2), which required that a victim’s right to sue in tort was to be determined by the law of the state of domicile of such a victim, was not undermined by 40 P.S. § 1009.301(a)’s abolishment of tort liability and the $750.00 threshold requirement that had to be met to recover damages for non-economic detriment caused by an automobile accident. Rather, § 110(c)(2), similar in essential language to § 110(c)(1), was read to require that New Jersey’s $200.00 threshold requirement proviso in the law controlled vis-a-vis Pennsylvania’s $750.00 level.

Instantly, as in Toter, the applicable provision of Pennsylvania’s No-Fault Act (§ 110(c)(1)) is being read to allow the out-of-state statute (Delaware’s § 2118) to regulate entitlement to recovery. In this way, Delaware law availing the appellant/insured a right to subrogation, the Pennsylvania’s No-Pault Act need not be relied upon to direct our decision. See Swezey v. The Home Indemnity Co., 691 F.2d 163 (3rd Cir.1982).

Further, under § 110(c)(1), as is obvious from its reading, basic loss benefits are available only to a “victim” or a “survivor of a deceased victim.” However, albeit the appellant is certainly not a “victim” or a “survivor of a deceased victim” as those terms are described statutorily, nonetheless, that is not the end of the inquiry since the appellant seeks to implement its subrogation rights specifically provided for under § 2118(f) of the Delaware law.

Because traditionally notions of subrogation relate to “ ‘the equitable substitution of another person in the place of the lienholder or preferred claimant to whose original rights he succeeds in relation to the claim paid’ ”, Willis v. Continental Casualty Co., 649 F.Supp. 707, 709 (D.C. Del. 1986)(Citation omitted), the “victim’s” entitlement to basic loss benefits under § 110(c)(1) would encompass the appellant, i.e., it stepped into the shoes of the insured/“victim”. See Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021 (1987). Thus, the appellant will be availed the opportunity to have payment for injuries incurred satisfied via § 110(e)(l)’s referral to the “victim’s” state of domicile, which here would be Delaware, in determining one’s subrogation rights.

Even though argument has been made which makes much of the appellant’s failure to have made payments in excess of Pennsylvania’s No-Fualt statute as some sort of condition precedent to securing recovery, this misses the mark.

If the Delaware law is controlling, which we believe it is, then the appellant need not satisfy some threshold payment to be entitled to exercise its subrogation rights and bring a separate action against the tort-feasor to recover the amounts the carrier has paid its insured. See Swezey, supra. Accord International Underwriters, Inc. v. Blue Cross and Blue Shield of Delaware, Inc., 449 A.2d 197, 200 (Del. Supr. 1982); Givens v. Street, 405 A.2d 704 (Del. Super. 1979); DeVincentis v. Maryland Casualty Co., 325 A.2d 610, 612 (1974). Section 2118(f) does not require such a sine qua non to exercise subrogation rights by an insurer.

Accordingly, we read the statutes and law in question to avail the appellant a right to subrogation, and, thus, the ruling of the court below being to the contrary, we reverse.

Jurisdiction is not retained.

JOHNSON, J., filed a dissenting opinion.

1 . "Basic loss benefits" means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicrble limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to pro perty. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle.

40 P.S. § 1009.103 (repealed).