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NATIONAL GRANGE MUTUAL INSURANCE COMPANY v. KUHN (01/03/68)

decided: January 3, 1968.

NATIONAL GRANGE MUTUAL INSURANCE COMPANY
v.
KUHN, APPELLANT



Appeal from order of Court of Common Pleas No. 10 of Philadelphia County, Sept. T., 1966, No. 4607, in case of National Grange Mutual Insurance Company v. Frederick J. Kuhn, Jr., American Arbitration Association and Eli N. Donsky.

COUNSEL

Arthur D. Rabelow, with him Manchel, Lundy & Lessin, for appellant.

Charles Jay Bogdanoff, with him Albert C. Gekoski, for appellee.

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

Author: O'brien

[ 428 Pa. Page 180]

Appellant, Frederick J. Kuhn, Jr., suffered personal injuries in an automobile accident. At the time of the accident, appellant was a passenger in an automobile being operated by Alan H. Feltner. Feltner's vehicle came into collision with one operated by Franklin J. Doyle. The Feltner automobile was covered by a liability insurance policy issued by appellee, National Grange Mutual Insurance Company. Included among the provisions of the insurance policy was uninsured motorist coverage.

Following the accident, appellant engaged counsel who apparently satisfied himself that Doyle was uninsured. He notified appellee and put it on notice of arbitration in accordance with the policy provisions. Appellee denied that Doyle was an uninsured motorist, both to counsel and appellant, and to the American Arbitration Association and Eli N. Donsky, Esquire,

[ 428 Pa. Page 181]

    its arbitrator named to arbitrate the case. The Arbitration Association and its arbitrator nevertheless determined to proceed with the arbitration, with the arbitrator to determine the question of whether Doyle was an uninsured motorist.

Appellee then filed a complaint in equity, seeking to enjoin appellant, the Association, and Donsky from proceeding with the arbitration, on the theory that the issue of whether Doyle was, in fact, an uninsured motorist is not an arbitrable issue within the terms of the insurance policy. The court below granted a preliminary injunction to appellee, restraining the parties from proceeding with the arbitration, and Kuhn appealed.

Initially, we must dispose of appellee's motion to quash the appeal. The motion to quash is predicated on appellee's contention that the order appealed from is interlocutory, since appellant will have an opportunity to determine the question of Doyle's status in a proceeding in the court of common pleas. Appellee argues that if appellant establishes that defendant was uninsured, the matter may then proceed to arbitration. This may well be, but quite obviously, appellant prefers to have the question of Doyle's status decided by the arbitrator, and he has been preliminarily enjoined from proceeding with that arbitration. Inasmuch as appeals are expressly allowed by statute from the grant or refusal of a preliminary injunction, Act of February 14, 1866, P. L. 28, § 1, 12 P.S. § 1101; Act of June 12, 1879, P. L. 177, § 1, 12 P.S. § 1102, appellee's motion to quash will be denied.

The specific issue with which we are now faced, for the first time, is the scope of the arbitration contemplated in uninsured motorist coverage where disputes arise between the insured and the carrier. This question must be decided in the light of ...


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