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ELLISON v. SAFEGUARD MUTUAL INSURANCE COMPANY (04/12/67)

decided: April 12, 1967.

ELLISON
v.
SAFEGUARD MUTUAL INSURANCE COMPANY, APPELLANT



Appeal from order of County Court of Philadelphia, June T., 1966, No. 3246A, in case of Sandra Ellison, a minor, by her husband, Ernest Ellison, v. Safeguard Mutual Insurance Company.

COUNSEL

Malcolm H. Waldron, Jr., with him Alan R. Kutner, for appellant.

Norman Shigon, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J. Wright, J., would affirm on the opinion of Judge O'Donnell. Opinion by Hoffman, J., Concurring in the Result. Spaulding, J., joins in this concurring opinion.

Author: Montgomery

[ 209 Pa. Super. Page 493]

This is an appeal from a judgment entered pursuant to the order of Judge Michael J. O'Donnell of

[ 209 Pa. Super. Page 494]

    the County Court of Philadelphia confirming an award of the American Arbitration Association and authorizing the entry of judgment in favor of the appellee-plaintiff. The appellant-defendant challenges the right of the plaintiff to compel arbitration and the jurisdiction of the County Court to confirm such an award.

On January 9, 1966, the minor plaintiff was involved in an automobile accident with an alleged uninsured motorist. The defendant, the insurer of Ernest Ellison, the plaintiff's husband, refused to pay the loss on the ground that the policy did not contain coverage for loss occasioned by an uninsured motorist. The effective date of this policy was January 7, 1966, two days before the accident.

The plaintiff then instituted arbitration proceedings before the American Arbitration Association and in submitting the dispute to arbitration relied on Section 1 of the Uninsured Motorist Coverage Act of August 14, 1963, P. L. 909, 40 P.S. ยง 2000, which provides that all motor vehicle liability insurance policies delivered or issued in Pennsylvania shall provide coverage for uninsured motor vehicles, unless expressly rejected in writing; and the regulations of the Insurance Department of Pennsylvania setting forth the standard form for such uninsured motorist coverage, Regulation 14, Chapter No. 1, Form No. 1. Paragraph eight of the Conditions to Form No. 1 requires arbitration in accordance with the American Arbitration Association rules when there is a dispute about whether a person is legally entitled to recover damages from the owner or operator of an uninsured automobile or there is a dispute as to the amount of payment under the uninsured motorist protection.*fn1

[ 209 Pa. Super. Page 495]

The arbitration hearing at which the defendant failed to appear after timely notice resulted in an award for the plaintiff in the sum of $4,336.38. The plaintiff then filed a petition for confirmation of this award in the County Court of Philadelphia whereupon the court ordered a rule to show cause why the rule for confirmation of the arbitration award should not be made absolute, and in default of an answer by the defendant made the rule absolute on August 5, 1966. The defendant had indeed filed an answer on August 1, 1966, but due to an incorrect court number thereon it was not brought to the court's attention before the rule was made absolute. The defendant never requested the lower court to reconsider its order of August 5, 1966, in order to consider the misfiled answer. Instead, the defendant appealed to this Court.

Regulation 14 as issued by the Insurance Department implements the Act of 1963 requirement that all uninsured motorist coverage be written under provisions approved by the Insurance Commissioner. Section 2 to Regulation 14 in fact states that, "This Regulation is issued for the purpose of establishing provisions that will be acceptable to the Insurance Commissioner in compliance with the above Act . . ." This regulation also states, "The extent of the coverage which shall be offered as 'Uninsured ...


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