J-A08026-16
                             2016 PA Super 274

PROFESSIONAL FLOORING COMPANY,            :   IN THE SUPERIOR COURT OF
INC.                                      :         PENNSYLVANIA
                                          :
              Appellant                   :
                                          :
     v.                                   :
                                          :
BUSHAR CORPORATION                        :
                                          :
APPEAL OF: ROSE LINE, INC.                :
                                          :   No. 1594 EDA 2015

               Appeal from the Order Entered April 21, 2015
           in the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 05-20924

BEFORE:    BOWES, OLSON, and STRASSBURGER,* JJ.

DISSENTING OPINION BY STRASSBURGER, J.: FILED DECEMBER 06, 2016

     Although not binding on this Court, I find persuasive the cases cited by

Appellant on the issue of whether Brethren is entitled to subrogation when

the fees and costs assessed by the Claims Administrator exceeded the

insurance payment. In Nationwide Mut. Ins. Co. v. Butler, 28 Pa. D. & C.

3d 627 (Westmoreland Cty. 1983), Nationwide issued an automobile

insurance policy to Butler which provided $15,000 in basic loss benefits and

$10,000 in supplemental work coverage. Following an automobile accident,

Nationwide paid Butler $15,000 and an additional $8,348.83 in work loss

benefits. Butler sued the tortfeasor and, following a non-jury trial, verdict

was entered on Butler’s behalf in the amount of $165,000. The tortfeasor’s

insurance company paid its policy limit of $25,000 and the action was settled

and discontinued.     Nationwide then initiated an action in assumpsit,

*Retired Senior Judge assigned to the Superior Court.
J-A08026-16


requesting reimbursement in the amount of $8,348.83. The matter was

heard by the trial judge, the Honorable Joseph A. Hudock, prior to his

elevation to this Court.   Sitting non-jury on stipulated facts, he held that

Nationwide was not entitled to subrogation where Butler was not “made

whole.” The court explained as follows.

     This court agrees with [Nationwide] that the Pennsylvania No-
     fault Act provides for a right of subrogation when the victim
     recovers for economic losses above the basic loss benefits. The
     problem here, however, is that it cannot be said that the [Butler]
     has made a recovery for “economic losses” when he has only
     received $25,000 from the tortfeasor and his economic and non-
     economic losses are in the amount of $165,000. Had [Butler]
     received the full amount of his verdict from the tortfeasor, this
     court would have no difficulty in finding that [Nationwide] is
     entitled to reimbursement for the amount of additional work loss
     benefits it paid to [Butler].

            General principles of subrogation law must be studied in
     order to determine the issue. Subrogation is intended to be used
     to avoid a double recovery by the insured victim. Most courts in
     determining reimbursement rights of the insurer limit the
     recovery against the insured to the amount by which the sum
     received by the insured from the wrongdoer, together with the
     insurance payments made, exceeds the loss and expense
     incurred by the insured in realizing the claim against the
     wrongdoer. See 44 Jur 2d Insurance §1820. Generally speaking,
     the insured is first entitled to be compensated for his total loss
     before the right of subrogation attaches. In Willard v.
     Automobile Underwriters, Inc., 407 N.E. 2d 1192 (Inc. App.
     1980) the insured was injured in an automobile accident and
     brought suit against the negligent driver. Judgment was entered
     in the sum of $15,000. The victim’s insurer, which had paid the
     victim $9,000 in benefits for lost wages, claimed that it was
     entitled to $9,000 of the damage award pursuant to its right of
     subrogation. The court, in holding against the insurer’s position,
     stated:

            The general rule applicable to actions based on the
           ground of subrogation is that the right does not exist

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J-A08026-16


            unless the whole debt has been paid . . . Even if a
            surety is liable for only part of the debt and pays
            that part for which he is liable, he cannot be
            subrogated until the whole demand or debt is
            satisfied.

      Here, since [Butler] has not been made whole since his loss has
      been determined to be $165,000, and his recovery has only
      been $48,348.83 ($25,000 from the tortfeasor plus $23,348.83
      in work loss benefits from [Nationwide]). Thus, no right of
      subrogation arises.

Id. at 630–31.

      Similarly, in Nationwide Mutual Insurance Co. v. Kintz, 27 Pa. D.

& C. 3d 164 (Cumberland Cty. 1983), the Honorable Dale F. Shughart held

that Nationwide was not entitled to subrogation in the amount of $15,000 in

uninsured motorist benefits where no “excess fund” existed after Kintz paid

his costs and attorneys’ fees. In granting Kintz’s motion for judgment on the

pleadings, the court held as follows.

      [T]he only material fact is the amount which [Kintz] expended to
      recover his $129,870.00 verdict. Paragraph 27 of the [Kintz’s]
      answer with new matter puts the cost at $46,469.97 ($43,840
      attorney’s fees plus $2,629.97 other expenses). This allegation
      is admitted in [Nationwide’s] reply.

            Since this sum exceeds the $15,000 Nationwide paid
      [Kintz] as an uninsured motorist benefit, there is no excees fund
      to which Nationwide has a subrogation right. [Kintz’s] net
      recovery in his survival and wrongful death actions was
      $83,400.03 ($129,870 verdict less $46,469.97 expenses). That
      $83,400.03 plus the $15,000 uninsured motorist benefits paid by
      Nationwide brings his total compensation to $98,400.03. This
      sum is less than the loss that the jury determined that he
      sustained. Hence, [Kintz] has not been made whole, and for this
      reason Nationwide’s subrogation claim must fail.



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J-A08026-16


Id. at 168.

      Instantly, Appellant’s total gross loss was valued at $135,205.

Appellant’s gross award from the Claims Administrator was $145,477.30.

However, as the Majority’s footnote 8 points out, after deduction of

$41,305.12 in costs and fees, Appellant’s net award is reduced to

$104,172.18, an amount far under the value of its gross loss. Accordingly,

because Appellant has not been made whole, Brethren should not be entitled

to subrogation. Thus, I respectfully dissent.




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