No. 1043 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Action, Equity, No. 78-18133.
Charles J. Bogdanoff, Philadelphia, for appellant.
Garland D. Cherry, Jr., Media, for appellees.
Wickersham, Hoffman and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
Appellant contends the lower court erred in not enjoining arbitration of appellees' claims under the "uninsured motorist" provisions of an automobile insurance policy. We agree and, accordingly, reverse the order of the court below and enjoin arbitration.
Appellees Louis P. and Helen Silvestri brought an action against a driver whose automobile had struck and injured Mr. Silvestri. The driver's insurer paid the Silvestris the policy limits of $15,000. Because this amount was insufficient to compensate the Silvestris fully, they filed a claim for benefits under the "uninsured motorist" provision of
their insurance policy, arguing that the driver's automobile was "uninsured" to the extent they had not been fully compensated. After appellant refused their claim, the Silvestris demanded arbitration. Appellant then instituted this equity action seeking to enjoin the arbitration. After a hearing, the lower court denied appellant's request for an injunction, prompting this appeal.
Appellant contends that no arbitrable issue exists because the term "uninsured automobile" as defined in the insurance policy cannot be construed to include an automobile covered by the statutory minimum amount of insurance. We agree. "Whenever one party to an agreement seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to two questions: (1) Was an agreement to arbitrate entered into; and (2) Does the dispute involved fall within the arbitration clause." Independence Development, Inc. v. American Arbitration Association, 460 Pa. 390, 392, 333 A.2d 781, 782-83 (1975). Recently, this Court has held that, as a matter of law, an "underinsured" motorist who is nonetheless covered by the statutory minimum amount of insurance is not an "uninsured" motorist under an essentially identical insurance policy. White v. Concord Mutual Insurance Co., 296 Pa. Superior Ct. 171, 442 A.2d 713 (1982). Accord, Davis v. Government Employees Insurance Co., 296 Pa. Superior Ct. 198, 442 A.2d 727 (1982) (arbitration panel properly declined jurisdiction on question of whether "underinsured" motorist is an "uninsured" motorist). Because this claim did not fall within the ambit of the arbitration clause, the lower court erred in not enjoining the arbitration. Accordingly, we reverse the order of the lower court and enjoin the arbitration.*fn*