Appeal from decree of Court of Common Pleas of Philadelphia County, June T., 1969, No. 2645, in case of Preferred Risk Mutual Insurance Company v. Lydia Martin et al.
Harold B. Marcus, with him Detweiler, Sherr & Hughes, for appellant.
Gerald Gornish, with him Goodis, Greenfield, Narin & Mann, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones concurs in the result.
This is an appeal by Preferred Risk Mutual Insurance Company (Preferred Risk) from the decree of the Court of Common Pleas of Philadelphia County dismissing a complaint in equity which sought to enjoin an arbitration scheduled under the uninsured motorist provision of an insurance policy contract which it had issued. The appellees are Lydia Martin (the claimant under the policy), the American Arbitration Association, under whose auspices the arbitration was to be held, and the arbitrator chosen by the Association.
The accident which gave rise to the arbitration claim occurred on September 8, 1967, when, it is alleged, Miss Martin was a passenger in an automobile and sustained serious injuries as the result of the negligence of the driver of that automobile who was an "uninsured motorist" within the terms of the policy.
Miss Martin is the foster child of Mr. and Mrs. Eli Swartz, having resided with them for eight years prior to the accident. At the time of the accident, Mr. Swartz was covered by an insurance policy with Preferred Risk which contained uninsured motorist coverage. With respect to such coverage, the policy contained the following language:
"If any person makes claim hereunder and the company does not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or does not agree as to the amount of payment which may be owing under this part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall 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. Such person and the company each agree to consider itself bound
and to be bound by any award made by the arbitrators pursuant to this part." (Emphasis added).
In accordance with the above provision, Miss Martin instituted arbitration proceedings before the American Arbitration Association. Prior to the date of the arbitration, Preferred Risk filed the present action to enjoin the arbitration on the ground that the policy did not cover Miss Martin, a foster child. The policy affords coverage, inter alia, to "the named insured and, while residents of the same household, the spouse of such named insured and the relatives of either".
Appellees preliminarily objected to the complaint in equity on jurisdictional grounds and also by way of demurrer. The objections were sustained and the complaint dismissed. Preferred Risk has now filed this appeal from ...