J-A08026-16

 2016 PA Super 274

*Retired Senior Judge assigned to the Superior Court.

PROFESSIONAL FLOORING COMPANY, 

INC.

 Appellant

v.

BUSHAR CORPORATION

APPEAL OF: ROSE LINE, INC.

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

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, 
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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 Nofault 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 noneconomic 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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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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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.