Defendant has also moved to dismiss plaintiff's second cause of action based directly on the insurance policy. Liberty Mutual argues that, under the terms of the policy, the exclusive method for resolution of disputes concerning claims for benefits is arbitration. This argument has something of a hollow ring coming from a defendant which has steadfastly refused to submit a claim to arbitration, even to the point of disregarding a court order to appoint an arbitrator. Nevertheless, several factors suggest that this court should defer to the arbitration process rather than consider immediately the issue whether plaintiff is entitled to benefits under the policy.
First, while plaintiff argues, citing Commercial Union Assurance Co. v. Hocking, 115 Pa. 407, 8 A. 589 (1887), that defendant's conduct amounts to a waiver of its right to arbitration, Pennsylvania doctrine on the waiver of arbitration provisions is not as clear as plaintiff suggests. Hocking is not on point. The ruling that the agreement to arbitrate there in issue could be revoked turned on the fact that the parties had merely agreed to appoint arbitrators and had not named any specific tribunal; the Hocking court did not announce a doctrine of constructive waiver based on a bad-faith refusal to arbitrate. Boyle v. Hamburg-Bremen Fire Ins. Co., 169 Pa. 349, 32 A. 553 (1895) is somewhat closer to the mark; however, it also fails to articulate a constructive waiver doctrine as broad as plaintiff's theory. The defendant-insurer in Boyle had failed to attempt to negotiate a settlement of the disputed insurance claim; and the court, finding that such negotiation was a condition precedent to invoking the policy's arbitration provisions, held that the defendant had no right under the contract to demand arbitration. Beyond these nineteenth century decisions, there appears to be no further guidance on the subject from the Pennsylvania Supreme Court. In fact, the only recent decision is Guerriero v. Potomac Ins. Co., 69 Pa. D. & C. 2d 77, 80 (Lycoming County Comm.Pl.1974), which holds that an insurance company's refusal to submit to arbitration permits the insured to treat the arbitration provision as waived and to proceed in court for breach of the policy. This case, however, provides no analysis and cites no authority for the waiver doctrine. Given the paucity of authority in this area, I will not accept plaintiff's invitation to fashion a doctrine of constructive waiver when a party refuses to submit to arbitration. See also Gavlik Construction Co. v. H. F. Campbell Co., 526 F.2d 777, 783 (3d Cir. 1975) (federal and Pennsylvania law favors resolution of disputes through arbitration; therefore, waiver is not to be lightly inferred); Nuclear Installation Services Co. v. Nuclear Services Corp., 468 F. Supp. 1187, 1194 (E.D.Pa.1979) (same).
Second, deference to the arbitration procedure appears warranted in light of Pennsylvania's clear general policy in favor of enforcing agreements to arbitrate disputes. See National Grange Mutual Ins. Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758; Preferred Risk Mutual Ins. Co. v. Martin, 436 Pa. 374, 260 A.2d 804 (1970); 42 Pa.Cons.Stat.Ann. §§ 7303-7305 (procedure to compel arbitration).
Deference to the arbitration procedure is particularly appropriate where the state courts have determined that arbitration is the proper path. In this instance there is outstanding an order of the Court of Common Pleas of Delaware County directing the defendant to appoint an arbitrator-an order which defendant has not obeyed. This court will not simply ignore that order. Its enforcement should yield plaintiff the relief he is entitled to. Since plaintiff has not pursued that presumably available remedy, defendant's motion to dismiss the second cause of action will be granted.
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