The opinion of the court was delivered by: DAVIS
JOHN MORGAN DAVIS, Senior District Judge.
This is a diversity of citizenship case brought pursuant to 28 U.S.C. § 1332 to enforce an insurance contract. Plaintiff, the Government Employees Insurance Company (GEICO) was the personal insurer of one James Donohue at the time he was struck and injured by an uninsured motorist, Charles Easton. Defendant, Keystone Insurance Company, was the insurer of the automobile in which Donohue had been a passenger just prior to the accident. Donohue filed a claim against GEICO pursuant to his policy. GEICO notified Keystone of the claim, and informed Keystone that it considered the Keystone policy to provide the primary coverage. Keystone rejected this contention.
Donohue then filed an arbitration demand with the American Arbitration Association against GEICO. GEICO filed a declaratory judgment action in this court seeking to have Keystone declared primarily liable for coverage. Judge Broderick ruled that the suit was premature, and dismissed the action, suggesting GEICO could bring another action if necessary after completion of arbitration proceedings. GEICO then settled with Donohue, and filed this action.
We are called upon to make findings of fact and conclusions of law after a non-jury trial. The gravamen of plaintiff's claim is that Donohue, though some distance from the car in which he had been riding was still a passenger therein under the terms of defendant's policy. We reject this contention and, therefore, find in favor of the defendant.
1. On September 9, 1973, at approximately 12:25 A. M. James Donohue was a passenger in a motor vehicle being operated by Daniel Murray and owned by Alberta Murray.
2. On September 9, 1973, James Donohue was an insured under an automobile liability policy issued by Government Employees Insurance Company, policy No. 68-34-45, which policy contained coverage for PROTECTION AGAINST UNINSURED MOTORIST.
3. The car owned by Alberta Murray, on September 9, 1973, was insured by Keystone Insurance Company, which policy contained coverage for PROTECTION AGAINST UNINSURED MOTORIST.
5. Charles Easton, on September 9, 1973, at approximately 12:25 A.M. was operating his motor vehicle in an easterly direction on Linden Avenue near Academy Road, Philadelphia, Pennsylvania.
6. Charles Easton, on September 9, 1973, did not carry automobile liability insurance on the motor vehicle that he was operating at the time.
7. Charles Easton had been driving erratically for some distance.
8. At some point on Linden Avenue, the motor vehicle operated by Charles Easton slowed down, or came to a complete stop, with the motor vehicle operated by Daniel Murray directly behind said vehicle.
9. The motor vehicle operated by Daniel Murray had been following the car operated by Charles Easton for at least ...