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HARLEYSVILLE MUTUAL CASUALTY CO. v. ADAIR (04/19/66)

decided: April 19, 1966.

HARLEYSVILLE MUTUAL CASUALTY CO., APPELLANT,
v.
ADAIR



Appeal from decree of Court of Common Pleas No. 1 of Philadelphia County, March T., 1965, No. 4117, in case of Harleysville Mutual Casualty Co. v. Robert Adair, American Arbitration Association and John Edward Sheridan.

COUNSEL

Paul A. Lockrey, for appellant.

Albert Schlessinger, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result.

Author: O'brien

[ 421 Pa. Page 142]

Robert Adair, a minor, was involved in an automobile accident on October 16, 1964, in which he allegedly sustained personal injuries, following which, his attorney advised his insurer, Harleysville Mutual Casualty Company (Harleysville), by letter, that it appeared that the other motorist was uninsured and a claim would be made under the insured's uninsured motorist coverage.

In December of 1964, Robert Adair submitted to a physical examination by appellant's physician and gave a statement consisting of 2 1/2 pages, which had been requested by appellant, Harleysville. This was all that appellant had requested from appellee prior to the arbitration.

In February of 1965, Harleysville advised appellees' counsel that any offer of settlement would be refused because the driver of the other vehicle stated that the assured, appellee, had backed into her. Appellee then requested arbitration in accordance with the terms of the policy on February 19, 1965. On March 1 appellant's counsel entered his appearance and filed an answering statement. On March 16, 1965, Harleysville's counsel forwarded 83 interrogatories with sub-parts to appellees' counsel, answer to which was requested under

[ 421 Pa. Page 143]

    the "reasonable cooperation" clause of the policy and its right to examine the insured under oath. This demand was based on the following provision of the policy: "Proof of Claim; Medical Reports: As soon as practicable, the insured or other person making claim shall give to the company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment and other details entering into the determination of the amount payable hereunder. The insured and every other person making claim hereunder shall submit to examinations under oath by any person named by the company and subscribe the same, as often as may reasonably be required. Proof of claim shall be made upon forms furnished by the company unless the company shall have failed to furnish such forms within 15 days after receiving notice of claim.

"The injured person shall submit to physical examinations by physicians selected by the company when and as often as the company may reasonably require and he, or in the event of his incapacity his legal representative, . . . or persons entitled to sue therefor, shall upon each request from the company execute authorization to enable the company to obtain medical reports and copies of records."

The arbitrator ruled that appellee was not required to answer their interrogatories and set a hearing date for April 29, 1965. On April 26, 1965, appellant instituted an action for an injunction, restraining the arbitration hearing from proceeding and petitioning for a declaratory judgment. The Court of Common Pleas No. 1 of Philadelphia County sustained appellees' preliminary objections in the nature of a demurrer and dismissed the complaint in equity; this appeal followed.

Appellant has entirely misconceived the issue in this matter, which is whether pretrial discovery or "prehearing" discovery under ...


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