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FIREMAN'S INS. CO. v. DUFRESNE

September 2, 1981

FIREMAN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY
v.
Raymond DuFRESNE



The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

Presently before the Court are opposing motions for summary judgment in a civil action initiated by plaintiff, Fireman's Insurance Company of Newark, New Jersey ("Fireman's"), to enjoin defendant, Raymond DuFresne ("DuFresne"), from seeking arbitration of a claim made by DuFresne under the "uninsured motorist" provision of his employer's automobile liability insurance policy, and to obtain a declaratory judgment that DuFresne is not entitled to recover on his claim. Because the plaintiff failed to eliminate all genuine issues of material fact and Pennsylvania law dictates that disputed issues of fact be resolved by arbitration, Fireman's motion for summary judgment will be denied and DuFresne's motion will be granted.

 I. Statement of the Case

 This action arises out of an automobile accident which occurred in Delaware on June 21, 1977. DuFresne was injured when the automobile he was driving, owned by his employer, the Edward J. Ring Detective Agency ("Ring"), collided with an automobile driven by Tanye Watson ("Watson"). DuFresne made a claim against Watson, and thereafter received a check from Nationwide Insurance Company ("Nationwide") for an amount in settlement of his claim. DuFresne believed, however, that the amount paid by Nationwide did not fully compensate him for his injuries. Upon inquiry, he learned that Ring's vehicles were covered by an automobile liability insurance policy issued by Fireman's. He also learned that the policy contained an "uninsured motorist" provision and a clause requiring arbitration of disputes regarding coverage under the uninsured motorist provision. Nevertheless, DuFresne did not see or receive a copy of Ring's policy before this lawsuit was filed. Acting on the theory that Watson was an "uninsured motorist," at least to the extent that the amount paid by Nationwide failed to compensate him for his injuries, DuFresne made a claim under the uninsured motorist provision of Fireman's policy. Fireman's denied the claim. When DuFresne threatened to file an action to compel arbitration, Fireman's instituted this action.

 In denying the claim, Fireman's relied on two provisions of the policy it assertedly issued to Ring. The first, the "uninsured motorist" provision, reads as follows:

 
I. COVERAGE U UNINSURED MOTORISTS (Damages for Bodily Injury)
 
The company will 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 highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
 
V. ADDITIONAL DEFINITIONS
 
"uninsured highway vehicle" means:
 
(a) a highway vehicle with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured highway vehicle is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or is or becomes insolvent; or
 
(b) a hit-and-run-vehicle;
 
but the term "uninsured highway vehicle" shall ...

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