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
McEWEN, President Judge,
concurring and dissenting.
¶ 1 I hasten to join in the results achieved by the perceptive analysis presented in the dissenting opinions in Panea and Bell, since I agree that these cases must be resolved through application of settled principles of contract law. At the same time, I join in the able and discerning majority opinion of Judge Orie Melvin in Baker insofar as (1) it calls for application of the statutory set-off accorded PIGA, (2) it finds that judgment n.o.v. was improperly entered in favor of Dr. Davne and, (3) it concludes that the defendants are entitled to the benefit of any set-off to which PIGA is entitled. However, since the set-off to which PIGA is entitled is limited to those sums received from insurance proceeds which cover the same type of loss as was later claimed against Dr. Myers, McCarthy v. Bainbridge, 739 A.2d 200, 203 (Pa.Super.1999), appeal granted, 563 Pa. 647 , 758 A.2d 1200 (2000) I would remand Baker to the trial court for a hearing on the issue of the amount of the set-off to which PIGA is entitled.