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ARBITRATION AMERICAN ARBITRATION ASSOCIATION BETWEEN CHRISTINE GALLAGHER v. EDUCATOR AND EXECUTIVE INSURERS (12/28/77)

decided: December 28, 1977.

IN RE ARBITRATION OF AMERICAN ARBITRATION ASSOCIATION BETWEEN CHRISTINE GALLAGHER, ADMX. OF ESTATE OF RAYMOND J. GALLAGHER, DECEASED AND CHRISTINE GALLAGHER, INDIVIDUALLY, APPELLEE,
v.
EDUCATOR AND EXECUTIVE INSURERS, INC., APPELLANT



NO. 283 OCTOBER TERM, 1977, Appeal from the Order of the Court of Common Pleas of Bucks County at No. 75-8574-05-6, Civil Action, Law

COUNSEL

John J. Hart, Doylestown, for appellant.

James M. Schildt, Doylestown, with him Alan D. Williams, Jr., Doylestown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Van Der Voort

[ 252 Pa. Super. Page 415]

This is an appeal from an Order of the court below vacating an award of a panel of three arbitrators which denied any recovery to the appellee on a claim for damages under the uninsured motorist provisions of an insurance policy issued by the appellant to the appellee's deceased husband. We must reverse the Order of the court below and reinstate the decision of the arbitrators for reasons hereinafter explained.

[ 252 Pa. Super. Page 416]

On or about August 5, 1973, appellee and her now deceased husband were the passenger and operator, respectively, of a motor vehicle involved in an accident with another motor vehicle which at that time was not covered by liability insurance. As a result of that accident, the appellee was injured and her husband was killed. It has been stipulated that the accident resulted solely from the negligence of the operator of the other motor vehicle. The motor vehicle operated by the appellee's deceased husband was owned by the appellee's father, one Robert Carey. The appellee and her husband's estate, of which the appellee is administratrix, recovered the sum of $21,000 from the Ohio Casualty Group on the basis of the uninsured motorist provisions of a policy issued by that group to Carey.

The appellee's husband carried liability insurance issued by the appellant herein which contained the uninsured motorist clause at issue in this case. The appellee, acting both as an individual and as administratrix of her husband's estate, demanded payment of the appellant under the uninsured motorist provision of its policy but appellant refused to pay. The appellant requested binding arbitration in accordance with the terms of its policy. A panel of three arbitrators was appointed under the rules and regulations of the American Arbitration Association, hearings were held, briefs filed and ultimately a ruling entered by the arbitrators denying recovery. No explanation was given by the arbitrators either in their ruling or later as to its basis.

The appellee obtained from the court below a rule to show cause why the arbitration award should not be vacated and, in due course, that order was made absolute and the award of the arbitrators vacated. The arbitration award was set aside by the lower court on the argument that the uninsured motorist provisions of the appellant's policy were illegal because unduly restrictive in the light of a ruling made by the Insurance Commissioner. The appellant's policy excludes from coverage bodily injury sustained by the insured --

[ 252 Pa. Super. Page 417]

". . . while occupying an automobile . . . (other than an insured automobile) owned by the named insured or a relative . . .".

The appellee contends that this is an illegal limitation because it does not contain an exception to the exclusion which appellee contends was mandated by the Insurance Commissioner in Regulation No. 14, Chapter No. 1, effective January 1, ...


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