Appeal from judgment of Court of Common Pleas of Luzerne County, March T., 1969, No. 1860, in case of Carol Erb Bankes v. State Farm Mutual Automobile Insurance Company.
William R. Keller, with him Stephen A. Teller, for appellant.
Charles L. Casper, with him William J. Fahey and Fahey & Casper, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Watkins, Jacobs, and Spaulding, JJ., dissent.
[ 216 Pa. Super. Page 163]
This is an appeal from a judgment in the lower court entered in behalf of defendant State Farm Mutual Automobile Insurance Company [State Farm].
[ 216 Pa. Super. Page 164]
The matter had been submitted as a case stated in the lower court.*fn1
The facts may be set out briefly as follows:
On August 23, 1966, State Farm issued to Paul Bankes, Jr., an automobile insurance policy on his automobile which was to expire on April 3, 1967. The policy was renewed and was in effect on August 6, 1967. On August 2, 1967, Bankes purchased a motorcycle. Four days later, on August 6, 1967, while operating the motorcycle Bankes was struck and killed by an automobile driven by an uninsured motorist.
Under the uninsured automobile coverage of Bankes' policy, State Farm agreed, "[t]o pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile."
State Farm claimed, however, that it was not liable under its uninsured automobile coverage by reason of the following exclusion in the policy which stated:
"Insuring Agreement III (the Uninsured Automobile provision) does not apply . . . (b) to bodily injury to an insured while occupying . . . a land motor vehicle owned by the named insured . . ...