observing, in response to the Superior Court majority's assertion that Dr. Slezak's opposition to payment was merely his assertion of a statutory right to extinguish his obligation on the claim, that such entitlement, where it may exist, is expressly vested in PPCIGA and not with a defendant-physician
How later courts described this case
- observing, in response to the Superior Court majority's assertion that Dr. Slezak's opposition to payment was merely his assertion of a statutory right to extinguish his obligation on the claim, that such entitlement, where it may exist, is expressly vested in PPCIGA and not with a defendant-physician
- expressing the view, in line with the reasoning of the common pleas court, that the actual or effective molding of a verdict to reflect an offset on account of an insurer's insolvency constituted an improper interference with a lawfully rendered jury verdict
- rejecting resort to commonlaw contract principles, and noting contrarily that “to the extent there was insurance coverage, the right to payment constitutes nothing-more than a claim against a tortfeasor who was insured by that insurer” (emphasis added)
- noting that the loss occasioned by offsetting the insolvency fund's liability falls not to the claimant, but to the solvent insurers who paid the claimant's claims under other forms of insurance
Written by the judges who cited it.
Distinguished
Distinguished by Osborne v. Neville, 65 Pa. D. & C.4th 225 (2004)
To date, no insurer, statutory fund or other collateral source has paid the $84,718.56 shortfall in Osborne’s malpractice judgment, and for that reason, Panea is clearly distinguishable.3
The opinion
DEL SOLE, J.,
concurring.
¶ 1 I join the Majority opinion of Judge Orie Melvin but write separately to address the concerns raised by my colleague Judge Todd in her dissent.
¶ 2 Because in my view the Pennsylvania Property and Casualty Insurance Guaran *797 ty Act was designed to balance the equities between an injured claimant and an insured whose carrier becomes insolvent, I agree with the Majority’s holding that the remedy for a claimant faced with a reduction in payment following settlement is to rescind the settlement once PPCIGA seeks a setoff. Majority Opinion at 789, fn. 3.
¶3 The dissent correctly suggests that where a claimant has negotiated a compromise or waiver of subrogated interests, the claimant’s anticipated economic benefit from the original settlement would be reduced if PPCIGA were permitted to offset the sum of the subrogated interests from the settlement amount. However, providing a claimant with the ability to rescind the settlement in these circumstances alleviates this concern.
¶ 4 Also, when an insurer offers to settle within its policy limits on behalf of its insured, I cannot conclude that the insured would, or should, insist on language in the agreement which restricts the source of the payment to the insurer’s funds. Even in certain professional liability policies where an insured must approve settlement terms, the reality is that settlements within policy limits are assumed to be the responsibility of the insurer. To suggest an insured must insist on language limiting the source of payment to the insurer’s funds would, I believe, place an unnecessary burden on the insured. Further, to permit recovery of a settlement sum from an insured where the insurer becomes insolvent following settlement, but before payment, frustrates one of the purposes of the Act.