No. 1539 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division, Civil Section of Phila. County at No. 5663 April Term 1979.
Jerome M. Dubyn, Philadelphia, for appellants.
David M. McCormick, Philadelphia, for appellee.
Richard C. Angino, Harrisburg, for participating party.
Cercone, President Judge, and Spaeth, Hester, Wickersham, Brosky, Johnson, Popovich, DiSalle and Shertz, JJ. Shertz, J., files a concurring opinion in which the President Judge joins. The decision in this case was rendered prior to the expiration of Shertz and DiSalle's, JJ., commission on the Superior Court of Pennsylvania.
[ 296 Pa. Super. Page 200]
This is an appeal from an order denying a petition to vacate an arbitration award. The principal issue is whether the lower court was correct in concluding that "uninsured automobile" does not mean "underinsured automobile." Since, in a somewhat different context, this was also the principal issue in White v. Concord Mut. Ins. Co., et al., 296 Pa. Superior Ct. 171, 442 A.2d 713 (1982), we ordered this case and White argued before the court en banc together. We now affirm.
Appellants were injured when their automobile was struck head-on by another automobile. The driver of the other automobile was insured under a $35,000 single limit policy issued by Travelers Insurance Company. Travelers paid $3,862.50 for the damage to appellants' automobile, $6,670.50 to appellant Clare Davis in full settlement of her claim, and the balance of the $35,000, or $24,467, to appellant Gus Davis
[ 296 Pa. Super. Page 201]
in partial settlement of his claim, which he alleges to be in excess of $100,000.
Thus, appellant Gus Davis received more than the minimum amount of coverage required by the financial responsibility law. 75 Pa.C.S.A. § 1747 ($15,000 per person, $30,000 per accident).*fn1 However, appellants' policy with appellee covers three separate automobiles, each with uninsured motorist coverage of $15,000 per person up to $30,000 per accident. If the automobile that struck appellants' automobile was an "uninsured automobile," appellant Gus Davis may claim coverage under these policies, and by "stacking," receive up to $45,000. State Farm Mut. Ins. Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). The question, therefore, is whether the other automobile was an "uninsured automobile." Appellant Gus Davis argues that it was because from The Travelers policy covering it he received only $24,000 on a claim in excess of $100,000.*fn2
The arbitrators, by a vote of 2 to 1, rejected appellants' argument, holding that an "underinsured automobile" was not an "uninsured automobile," and that they therefore had no jurisdiction. Appellants filed a petition to vacate the award, arguing that they had been denied a full and fair hearing and that the arbitrators' conduct "constituted an 'irregularity' which caused them to enter an unjust, inequitable ...