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ALFRED P. KITCHEN v. AUTOMOBILE INSURANCE COMPANY HARTFORD (05/07/82)

filed: May 7, 1982.

ALFRED P. KITCHEN, APPELLANT,
v.
THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, A/K/A AETNA LIFE AND CASUALTY INSURANCE COMPANY



No. 1399 Philadelphia, 1981, Appeal from the Order dated May 6, 1981, Court of Common Pleas, Trial Division, Law Philadelphia County at No. 2867 November Term, 1979.

COUNSEL

Eugene A. Spector, Philadelphia, for appellant.

Robert A. Rosin, Elkins Park, for appellee.

Johnson, Montemuro and Montgomery, JJ.

Author: Per Curiam

[ 299 Pa. Super. Page 257]

Alfred P. Kitchen, Appellant, sustained multiple severe injuries as a result of the negligence of an insured automobile operator in whose vehicle he was a passenger. The operator's liability insurance provided coverage to a limit of $50,000 per person and $100,000 per accident. Appellant filed a claim against the operator and, after negotiations, agreed to accept $45,000 in exchange for releasing both the operator and his insurer. This court-approved settlement represented an amount in excess of the minimum amount required by the financial responsibility provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn1

At the time of the accident, Appellant carried his own insurance with the AETNA Life and Casualty Insurance Company (AETNA), where AETNA provided coverage for two automobiles, and further provided uninsured motorist coverage in the amount of $35,000 per vehicle. Appellant sought arbitration of his claim that he was entitled to personal injury damages under his own uninsured motorist coverage in excess of the amount recovered from the operator. His theory was that the uninsured motorist coverage

[ 299 Pa. Super. Page 258]

    was applicable when the third party (the operator) was underinsured.

After AETNA had refused to proceed with arbitration, the lower court entered an order directing arbitration. The arbitration panel, following a hearing on the merits, entered its award denying Appellant's claim, finding that it was not an uninsured motorists' claim since the operator was insured, albeit not to an extent to fully cover all of Appellant's alleged damages.

A petition to vacate or modify the arbitrator's award was then filed in the lower court, alleging error insofar as the arbitrators failed to find that (1) the uninsured motorist provisions of Appellant's policy include underinsured motorist coverage, and (2) AETNA should have been estopped from denying that it provided Appellant with underinsured motorist coverage since he had asked for "full coverage", was not provided with coverage including underinsured motorist coverage, and was not advised that such coverage was available. It is from the lower court's order affirming the award of the arbitrators that this appeal is taken.

This court has recently declared that uninsured motorist coverage required by the Act of August 14, 1963, as amended,*fn2 does not extend to a case where all of the automobiles involved in an accident have at least the minimum amount of liability insurance required by Pennsylvania law but where, because of the number of persons injured and the extent of the injuries, a claimant recovers less than the minimum amount. White v. Concord Mutual Insurance Company, 296 Pa. Super.Ct. 171, 442 A.2d 713 (1982). In a companion case decided the same day, on facts which are on all fours with the instant case, we affirmed an order denying a petition to vacate an arbitration award, where the arbitrators found that an "underinsured automobile" was not an "uninsured automobile" under ...


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