Appeal from order of Superior Court, Oct. T., 1966, No. 516, affirming judgment of Court of Common Pleas No. 6 of Philadelphia County March T., 1966, No. 2369, in case of Bruce Pattani v. Keystone Insurance Company.
Stephen M. Feldman, with him Joseph G. Feldman, and Feldman and Feldman, for appellant.
John S. Kokonos, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Musmanno and Mr. Justice Eagen join in this concurring opinion. Dissenting Opinion by Mr. Justice Jones. Mr. Chief Justice Bell joins in this dissenting opinion.
Bruce Pattani, appellant, was injured in a collision, which occurred on January 3, 1965, between an automobile
driven by him and one driven by Reversa Taylor. The Taylor automobile, at the time of the accident, was insured by Wissahickon Mutual Casualty Company, and appellant was insured by appellee, Keystone Insurance Company. Appellant's policy, written by appellee, contained uninsured motorist coverage, as required by the Act of August 14, 1963, P. L. 909, § 1, 40 P.S. § 2000.
The statute provides that all automobile liability insurance policies issued within the Commonwealth are required to provide, unless the coverage is expressly rejected in writing, coverage for damages caused by uninsured owners and operators of motor vehicles. The statute does not define uninsured motorists. The policy provision involved does, however, define an uninsured automobile as: "an automobile as to which there is . . . no . . . insurance policy applicable at the time of the accident . . . or with respect to which there is a policy applicable at the time of the accident but the company writing the same denies coverage thereunder."
Appellant filed a suit in trespass against Reversa Taylor, to recover damages for personal injuries sustained in the collision. Wissahickon Mutual entered into a defense on behalf of Miss Taylor, and represented her up to and during a compulsory arbitration hearing, held on February 21, 1966, in the County Court of Philadelphia County. That arbitration hearing resulted in a finding for appellant in the amount of $719. On March 18, 1966, Wissahickon Mutual, being insolvent, went into receivership. Thereupon, appellant made a demand upon appellee that the matter be submitted to arbitration in accordance with the provisions of his uninsured motorist coverage contained in his policy written by appellee. Appellee refused arbitration, and appellant commenced an action in the Court of Common Pleas of Philadelphia County to compel arbitration. The petition was denied, and appellant
appealed to the Superior Court, which affirmed the judgment of the Court of Common Pleas, with one Judge dissenting. On appellant's petition, we granted allocatur.*fn1
The issue before this court was well stated in the majority opinion of the Superior Court as "whether the uninsured motorist provision of [this] automobile [policy] extend to those covered under the policy when at the time of the accident the person causing the accident was covered by liability insurance which subsequently lapsed because of the insolvency of the carrier." The Superior Court majority concluded that the insolvency of the carrier subsequent to the accident did not make the uninsured motorist provision of the policy applicable; we reach an opposite conclusion. We agree with the statement of the dissenting opinion in the Superior Court that: "When an insurer fails ...