No. 140 March Term 1976, Appeal from the Decree dated September 19, 1975, of Perry County at No. 174-1137 Civil Action Law.
Frederick W. Andrews, Harrisburg, for appellant.
Franklin Lee Shipman, Harrisburg, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Jacobs, President Judge, files a concurring opinion in which Van der Voort, J., joins.
[ 254 Pa. Super. Page 219]
On July 29, 1972, Judith T. Wilbert, operating an automobile registered in her name, was involved in an accident with an automobile driven by an uninsured motorist. Three Wilbert children were with their mother; mother and children were all injured.
On the date of the accident a family combination automobile policy was in effect, issued by The Harleysville Mutual
[ 254 Pa. Super. Page 220]
Insurance Company to Edward J. Wilbert, husband of Judith. Mr. and Mrs. Wilbert filed a claim under the uninsured motorist coverage clause of the policy, individually and on behalf of their three children. Harleysville denied coverage on the ground that the automobile owned and operated by Mrs. Wilbert was not listed in or insured by the policy, and that the claim was therefore barred by the following provision:
Exclusions. This policy does not apply under Part IV ["Protection Against Uninsured Motorists"]:
(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile;
The Wilberts petitioned the lower court for declaratory judgment,*fn1 arguing that the exclusion was in violation of the Uninsured Motorist Act*fn2 and of the rules and regulations adopted and promulgated by the Insurance Commissioner pursuant to the Act. The lower court agreed and granted the petition, thereby holding that the Wilberts were entitled to coverage. Harleysville filed this appeal. We affirm.*fn3
Harleysville is correct that the Wilberts are not entitled to coverage under the policy as issued. To repeat the exclusion (with interpolations):
This policy does not apply . . . .
[ 254 Pa. Super. Page 221]
(a) to bodily injury to an insured [Judith Wilbert and the children] while occupying an automobile (other than an insured automobile) owned by the named insured [Edward Wilbert] or a relative [Judith Wilbert] . . . .
Here Judith and the children were occupying an automobile that had both of the characteristics of an automobile not covered by the policy: first, it was an automobile "other than an insured automobile," i. e., it was not named in the policy; and second, it was an automobile "owned ...