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NATIONWIDE MUTUAL INSURANCE COMPANY v. BARBERA (06/01/71)

decided: June 1, 1971.

NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT,
v.
BARBERA



Appeals from decree of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 1283, in case of Nationwide Mutual Insurance Company, a corporation v. Julius A. Barbera and Charles Morrow, American Arbitration Association, Arbitrator.

COUNSEL

Thomas F. Weis, with him Weis & Weis, for appellant.

John E. Evans, Jr., with him Evans, Ivory & Evans, for appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones dissents.

Author: Eagen

[ 443 Pa. Page 93]

An automobile operated by Fred Cancilla left its own side of the highway and collided head-on with an

[ 443 Pa. Page 94]

    automobile traveling in the opposite direction operated by Julius Barbera. Several other vehicles became involved including one operated by Robert Barnett, and another by Donald Wolforth. Barbera, who suffered extremely serious and permanent injuries in the accident, instituted an action for damages against Cancilla, Barnett and Wolforth. The case was consolidated for trial with other actions arising out of the same accident and, after five days of trial, Barbera's claims against Barnett and Wolforth were settled by their insurance carriers for $37,500.

Barbera then instituted an uninsured motorist arbitration proceeding before the American Arbitration Association against Nationwide Insurance Company, his insurer, based on the fact that Cancilla was an uninsured motorist.

Charles Morrow was appointed Arbitrator and a hearing followed at which Nationwide appeared and defended. An award was subsequently entered in favor of Barbera for $9500.

In relevant part the insurance policy issued by Nationwide to Barbera provided the following: "If any person making claim under the Uninsured Motorist Coverage and the Company do not agree that such person is legally entitled to recover damages . . . the matters . . . shall be settled by arbitration." [Opinion, lower court]

The policy included another provision designated "Trust Agreement" which provided: "In the event of payment to any person under this endorsement: a. The Company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization ...


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