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PAUL DAY v. STATE FARM MUTUAL INSURANCE COMPANY (12/14/78)

decided: December 14, 1978.

PAUL DAY
v.
STATE FARM MUTUAL INSURANCE COMPANY, APPELLANT



No. 911 October Term, 1978, Appeal From the Order Dated January 19, 1978, of the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 3218, August Term, 1977.

COUNSEL

James J. McCabe, Jr., Philadelphia, for appellant.

Jerome M. Dubyn, Philadelphia, for appellee.

Van der Voort, Watkins and Montgomery, JJ.

Author: Montgomery

[ 261 Pa. Super. Page 218]

In this action of assumpsit brought on the uninsured motorist provision of a policy of automobile insurance written by the appellant and issued to the appellee, an arbitrator acting under the provisions of the Arbitration Act of 1927, 5 P.S. 161 et seq. made a finding in favor of the appellant, State Farm Insurance Company. (State Farm).

On the petition of the appellee, Day, to the Court of Common Pleas of Philadelphia County to modify, correct and/or vacate the arbitrator's award, that court, by the Honorable Stanley Greenberg, after argument, but without taking additional testimony, vacated the award of the arbitrator and entered judgment in favor of Day and against State Farm in the sum of $8500.00.

The incident out of which Day's alleged injury, a broken ankle, was sustained occurred on February 6, 1974 on a grass plot between the northbound and southbound lanes of the Roosevelt Boulevard in the City of Philadelphia. Prior to the incident, Day had been driving his automobile in one of six northbound lanes when he was involved in a collision with a truck operated by Jimmie Williams, who was also driving northbound. Immediately following the collision, both drivers pulled over to the curb and stopped. They then alighted from their vehicles, and engaged in an argument which resulted in a fist fight in which Day's brother, Roland, who had been a passenger in the car, may have participated.

Jimmie Williams was driving a leased vehicle covered by insurance written by the Pennsylvania Manufacturer's Insurance Company which denied liability under its policy for the reason that Day's injury was intentionally inflicted. Consequently, Day brought suit against his carrier, the appellant herein.

[ 261 Pa. Super. Page 219]

We are of the opinion the lower court erred in vacating the arbitrator's award in State Farm's favor, and that its action must be reversed and the arbitrator's award reinstated. In light of this conclusion, it will be unnecessary to consider whether the lower court also erred in determining the amount of damages suffered by Day.

The provision of the policy with which we are concerned reads as follows:

"[State Farm agrees to] pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of ...


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