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RUNEWICZ ET UX. v. KEYSTONE INSURANCE COMPANY (04/22/75)

decided: April 22, 1975.

RUNEWICZ ET UX.
v.
KEYSTONE INSURANCE COMPANY, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1973, No. 2879, in case of Joseph Runewicz and Nellie Runewicz, his wife, v. Keystone Insurance Company.

COUNSEL

Wendell H. Livingston, for appellant.

Joseph D. Shein, with him Shein & Brookman, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J., In Support of Per Curiam Order To Reverse. Hoffman and Spaeth, JJ., join. Opinion by Jacobs, J., In Support of Per Curiam Order to Reverse. Opinion by Spaeth, J., in Support of the Per Curiam Order to Reverse. Dissenting Opinion by Price, J. Watkins, P.j., and Van der Voort, J., join in this dissenting opinion.

Author: Per Curiam

[ 234 Pa. Super. Page 356]

The order of the court below is reversed.

Disposition

Order reversed.

[ 234 Pa. Super. Page 357]

Opinion by Cercone, J., In Support of Per Curiam Order To Reverse:

Although I do not consider the award in this case to be "unconscionable"*fn1 as that term is ordinarily employed, I do consider it to be so plainly contrary to the language of the insurance contract as to constitute a manifest disregard for the law. As Professor Corbin stated: "An award can be set aside for fraud or collusion, or for 'manifest disregard' of law."*fn2 In the instant case the insurance contract defines an uninsured automobile to include "an automobile . . . with respect to . . . which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no . . . insurance policy applicable at the time of the accident . . ." Since the agreement also required that claims under the uninsured motorists clause arise from the operation of an uninsured automobile as defined in the agreement, judgment for the plaintiff manifests a clear disregard for the terms of the agreement between the parties. While it may be logical in the abstract to say that one is uninsured to the extent that his existing insurance coverage is insufficient to meet the amount of a claim, the terms of the instant insurance contract clearly prohibit such a result herein. I, therefore, would vacate the order of the lower court and order that judgment be entered for the insurance company.

[ 234 Pa. Super. Page 358]

Opinion by Jacobs, J., In Support of Per Curiam ...


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