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NATIONWIDE MUT. INS. CO. v. MEGILL

March 3, 1978

NATIONWIDE MUTUAL INSURANCE COMPANY
v.
HAROLD F. MEGILL, JR., and MARY MEGILL, his wife



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This is a declaratory judgment action instituted by the plaintiff, Nationwide Mutual Insurance Company (hereinafter "Nationwide"), for a judicial determination concerning its uninsured motorist coverage under a motor vehicle liability policy issued to the defendant, Harold Megill, Jr. *fn1" Nationwide filed a motion for summary judgment, which, for the reasons hereinafter set forth, will be denied, and the complaint will be dismissed.

 For the purposes of this motion the parties have agreed to certain facts, which we summarize as follows. On August 17, 1975, defendant Mary Megill, was a passenger on a motorcycle which became involved in a collision with an automobile operated by Vincent Ehlman on Route 611 in Bucks County, Pennsylvania. Mr. Ehlman had a motor vehicle liability policy which covered the automobile which he was operating. The motorcycle was owned and operated at the time of the collision by Mrs. Megill's husband, the defendant Harold Megill, Jr. For the purpose of this motion it is agreed that Mr. Megill was solely responsible for the collision. Mr. Megill was the owner of a motor vehicle liability policy which insured his Cadillac and the motorcycle on which his wife was a passenger. The policy contained the following standard language as to uninsured motorist coverage:

 
Under this coverage, we will pay bodily injury damages that you or your legal representative are legally entitled to recover from the owner or driver of an uninsured motor vehicle. Damages must result from an accident arising out of the ownership, maintenance, or use of the uninsured vehicle. Bodily injury means bodily injury, sickness, disease, or death. Relatives living in your household also have this protection. Anyone else is protected while occupying:
 
1. your auto
 
* * *
 
4. any other motor vehicle while it is being operated by you or a relative living in your household. However, the vehicle must not be owned or furnished to you or a relative living in your household for regular use. . . .
 
An uninsured motor vehicle is:
 
b) one for which the insuring company denies coverage or becomes insolvent . . .

 Nationwide contends that since the motorcycle operated by Mr. Megill and the automobile operated by Mr. Ehlman were both covered by motor vehicle liability insurance, the above quoted uninsured motorist coverage is not applicable. It is also Nationwide's position that in order for Mrs. Megill to recover, Mr. Ehlman's vehicle would have to be uninsured and, in addition, he must have been responsible for the accident. On the other hand, it is contended by the defendants that since under the law of Pennsylvania a wife may not maintain a cause of action against her husband for personal injuries (48 P.S. ยง 111), the husband was an "uninsured motorist," and since coverage was denied her, the motorcycle was an "uninsured motor vehicle."

 The defendants also contend that pursuant to the terms of the policy, this matter should be referred to arbitration. As to arbitration, the policy specifically provides in the "Coverage" portion:

 
In an uninsured motorist claim, we will jointly determine with the insured or his legal representative whether there is a legal right to recover damages, and if so, what amount. If agreement cannot be reached with regard to liability or ...

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