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TOMCZAK v. ERIE INS. EXCH.

May 18, 1967

Joseph V. TOMCZAK, Administrator of the Estate of Walter J. Mish, Deceased, on behalf of the next of kin of Walter J. Mish, Deceased, and Joseph V. Tomczak, Administrator of the Estate of Walter J. Mish, Deceased, on behalf of the Estate of Walter J. Mish, Deceased
v.
ERIE INSURANCE EXCHANGE



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 On June 5, 1964, the plaintiff, Joseph V. Tomczak, administrator of the Estate of Walter J. Mish, deceased, filed suit under the "Innocent Victim Insurance" coverage of an automobile liability policy issued to the plaintiff's decedent, Mish, by the defendant, Erie Insurance Exchange.

 The claim under the Innocent Victim Insurance coverage is for $10,000, and the claim under "Expenses for Medical Services and Death Benefit" coverage is $3,000. After the complaint was filed, $2,016 was paid into court, being an undisputed amount due the plaintiff administrator under the Expenses for Medical Services and Death Benefit. In dispute was the liability of defendant to pay the administrator $10,000, plus the remainder of the Expenses for Medical Services and Death Benefit coverage in the sum of $984. *fn1" The parties stipulated that the amount involved in this litigation is $13,000. *fn2"

 The defendant denied diversity of citizenship. A hearing was held on this issue and from the evidence the court finds that the plaintiff administrator was a citizen of North Carolina at the time suit was filed, *fn3" and that the defendant was a citizen of Pennsylvania. *fn4"

 Thus diversity and jurisdictional amount exist and the court has jurisdiction of the parties and the subject matter.

 In its Answer filed July 15, 1964, the defendant set out five defenses. Its third defense alleged that the defendant, through its attorney-in-fact, Erie Indemnity Company, on June 22, 1964 (12 days after the Complaint had been served), filed a demand for arbitration of any claim that decedent, his estate or next of kin, may have had against the defendant by reason of any claim arising under the policy in suit. *fn5" The policy provided as a condition precedent to recovery that the innocent victim or someone on his behalf shall:

 
"[If] the ERIE so elects, submit the claim to be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The Innocent Victim or surviving kin and the ERIE each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this coverage * * *."

 The fourth defense, in addition to denying diversity of citizenship, alleges in substance that Mr. Tomczak's appointment as administrator in North Carolina was a nullity; that only the Register of Wills of Beaver County, Pennsylvania, could grant Letters since the decedent was a resident of that county at the time of death. Mr. Tomczak is a brother of decedent's widow who requested him to take out Letters of Administration on the decedent's estate; hence there is no real contention that he has not been acting all along on behalf of the decedent, his estate and next of kin. *fn6"

 In order to satisfy the court *fn7" and the defendant of plaintiff's right to represent the Mish Estate, the widow on January 3, 1967, in a communication to the Register of Wills of Beaver County, renounced her right to Letters and requested that same be granted to plaintiff. On January 4, 1967, the Register granted Letters of Administration ("Suit Only") to plaintiff. *fn8"

 Previously, on January 9, 1962, the plaintiff had been duly appointed administrator of the Mish Estate by the Clerk of the Superior Court of Craven County, North Carolina. *fn9" This appointment was regular and proper and cannot be collaterally attacked.

 In our opinion plaintiff was at the time of filing this suit and is a proper and legal representative of the Estate of Walter J. Mish, deceased. We hold that he was a proper party to submit the claims of decedent on behalf of his widow and his estate to the defendant, and that he was a proper party to commence this suit in this court.

 At the pretrial conference the defendant requested a ruling on the issue of arbitration which it had raised in its Answer. *fn10" An order was entered that "the above case shall proceed to non-jury trial * * * limited to the issue of arbitration." *fn11"

 Before the trial was held, the parties stipulated to submit the matter to arbitration. *fn12" But instead of requesting the court to dismiss the action, *fn13" ...


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