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decided: March 16, 1984.


No. 105 E.D. Appeal Dkt. 1983, Appeal from the Judgment of the Superior Court entered March 18, 1983, at No. 1789 Philadelphia 1981, affirming Judgment and Order of the Court of Common Pleas of Delaware County at No. 78-17057 Modifying the Award of Arbitrators, Pa. Super. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Mcdermott

[ 504 Pa. Page 331]


On December 26, 1976, Kenneth A. Contrisciane was operating an automobile owned by his employer, Future Cars, Inc., when he was involved in a minor traffic accident with a car operated by Anne Killen. While Mr. Contrisciane was exchanging information with Ms. Killen, a police officer, employed by the Borough of Norwood, arrived. The officer told Mr. Contrisciane to get his driver's license and owner's card from his auto. When he returned, the officer was sitting in the police car completing an accident report. Mr. Contrisciane gave the requested information to the officer, and stood beside the police vehicle while the officer completed the report. The police car was situated approximately 97 feet from Mr. Contrisciane's vehicle. While standing there Mr. Contrisciane was struck and killed by an automobile driven by David Patterson, an uninsured motorist.

Laura Contrisciane, as executrix of the estate of the decedent, filed an action, claiming uninsured motorist coverage against Utica Mutual Insurance Company (hereinafter "Utica"), the motor vehicle insurer for Future Cars, Inc.; and against Aetna Casualty and Surety Company (hereinafter "Aetna"), the motor vehicle insurer for decedent's family. The Utica policy, issued in the name of Future Cars, Inc., covered fifteen vehicles with limits of $15,000-30,000. The Aetna policy, issued in the name of decedent's father, covered three vehicles with the same limits. Decedent was designated as a driver on one of the three vehicles insured under the Aetna policy.

This matter proceeded to arbitration in accordance with the Pennsylvania Arbitration Act of 1927, 5 P.S. § 161 et seq.*fn1 The arbitrators found that the estate was entitled to compensatory damages in the amount of 200,000 dollars, but limited coverage to 15,000 dollars under the Aetna

[ 504 Pa. Page 332]

    policy. They based their conclusion on the fact that decedent was not a "named insured" under either of the policies, and he did not pay any of the premiums. Therefore, they permitted coverage only under that part of the Aetna policy covering the automobile for which he was designated as a driver. Recovery was precluded under the Utica policy because the arbitrators ruled that decedent was not "occupying" the Future Cars vehicle at the time he was killed, and therefore, was not an "insured" within the meaning of that policy.

On November 20, 1978, Laura Contrisciane, on behalf of the estate, filed a Petition to Vacate, Modify or Correct an Arbitration Award, in the Court of Common Pleas of Delaware County. That court, per McGovern, J., finding that the definition of "occupying" and the extent of coverage under multiple vehicle policies were questions of law, reversed the arbitrators award. The court held that decedent was indeed "occupying" his employer's vehicle at the time he was struck, and that the coverages for all fifteen vehicles under the Utica policy could be stacked up to the full amount of compensatory damages, i.e. 200,000 dollars. The court also held that there was no basis for recovery under the Aetna policy, because the full amount of damages could be recovered under the Utica policy. However, the court clearly indicated that had the damages been greater, recovery would have been permitted under that policy as well, up to the cumulative amount of the three coverages.

On appeal the Superior Court affirmed. Thereafter Utica petitioned this Court for allowance of appeal, and we granted allocatur. We now affirm in part, and reverse in part.

This appeal presents four basic issues: whether the Court of Common Pleas of Delaware County exceeded its scope of review in entertaining the appeal from the award of the arbitrators; whether the term "occupying" as contained within the Utica policy, was properly construed to cover the decedent herein; whether the decedent's estate should be permitted to stack the coverages provided under a commercial fleet policy; and whether decedent's estate should be

[ 504 Pa. Page 333]

    permitted to stack the coverages provided under decedent's father's home policy.

The first issue focuses primarily on the review of the arbitrators' decision that decedent was not "occupying" the vehicle insured under the Utica policy.*fn2 Regarding this issue Section 11 of the Arbitration Act of 1927, provides in relevant part:

§ 171. Modifying or correcting award, grounds

In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:

(d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.

5 P.S. § 171.

Appellant has argued that the determination of whether decedent was "occupying" the Future Cars vehicle was a question of fact, and thus not subject to modification by a reviewing court. In support of their argument they rely on our decision in Community College of Beaver County v. Community College of Beaver, Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977).

In Community College, we held that "where a task of an arbitrator . . . has been to determine the intention of the contracting parties as evidenced by their collective bargaining agreement and the circumstances surrounding its execution, then the arbitrator's award is based on a resolution of a question of fact and is to be respected by the judiciary if the 'interpretation can in any rational way be derived from the agreement, viewed in light of its language, its and any

[ 504 Pa. Page 334]

    other indicia of the parties intention' . . . (citations omitted)." Id., 473 Pa. at 593-594, 375 A.2d at 1275.

We think the present case is clearly distinguishable from the collective bargaining scenario of which the Court in Community College spoke. Here we do not have a contract in which each term was bargained for. Rather, as with most insurance policies, the terms of the policies at issue here were written by the respective companies. Under such circumstances, where a contract exists without a history of bargaining over the terms, the construction of individual terms of that contract is a question of law. See Standard Venetian Blind, Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983); Baldwin v. Magen, 279 Pa. 302, 123 A. 815 (1924); Adelman v. State Farm Mutual Auto Insurance Co., 255 Pa. Super. 116, 386 A.2d 535 (1978). See also Hewes v. McWilliams, 412 Pa. 270, 194 A.2d 339 (1963); Blocker v. Aetna Casualty and Surety Co., 232 Pa. Super. 111, 332 A.2d 476 (1975). Therefore, it was proper for the court of common pleas to review the conclusions of the arbitrators.

The second issue concerns the interpretation of the term "occupying" which the court of common pleas adopted, and the Superior Court affirmed. The definition of "occupying" which was provided in the Utica policy read as follows: "'occupying' means in or upon or entering into or alighting from." This language is fairly standard in the insurance industry, yet it has been the subject of extensive litigation in a number of our sister states. We, however, have not previously addressed this issue.

[ 504 Pa. Page 335]

Among those jurisdictions which have resolved the issue, there seems to be two basic approaches to interpreting the definition of "occupying". The first is the strict literal approach whereby a person cannot be "occupying" a vehicle unless he, or part of him is inside or in physical contact with the vehicle. See Testone v. Allstate Insurance Co., 165 Conn. 126, 328 A.2d 686 (1973); Jarvis v. Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Co., 244 N.C. 691, 94 S.E.2d 843 (1956); Green v. Farm Page 335} Bureau Mutual Auto Insurance Co., 139 W.Va. 475, 80 S.E.2d 424 (1954). See also Greer v. Kenilworth Insurance Co., 60 Ill.App.3d 22, 17 Ill.Dec. 347, 376 N.E.2d 346 (1978). The second approach, focuses upon whether the person claiming benefits was performing an act (or acts) which is (are) normally associated with the immediate "use" of the auto. See Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 224 N.W.2d 896 (1975); Hathcox v. Liberty Mutual Insurance Co., 90 Mich.App. 511, 282 N.W.2d 374 (1979); Sayers v. Safeco, 628 P.2d 659 (Mont. 1981); Rau v. Liberty Mutual Insurance Co., 21 Wash.App. 326, 585 P.2d 157 (1978); Sentry Insurance Co. v. Providence Washington Insurance Co., 91 Wis.2d 457, 283 N.W.2d 455 (1979); Robson v. Lighting Rod Mutual Insurance Co., 59 Ohio App.2d 261, 393 N.E.2d 1053 (1978).

We believe that the second approach represents the better view, for it is most consistent with the Uninsured Motorist Act,*fn3 which we have held was intended to protect those "persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others." (Emphasis added.) Pattani v. Keystone Insurance Co., 426 Pa. 332, 328, 231 A.2d 402, 404 (1967), quoting Katz v. American Motorists Insurance Co., 244 Cal.App.2d 886, 53 Cal.Rptr. 669 (1966). In light of this purpose we believe a liberal interpretation of the term

[ 504 Pa. Page 336]

"occupying" is required and we cannot accept the narrow and restrictive interpretation which has been urged upon us by appellant.

Therefore, we hold that when a person is engaged in the lawful use of an insured vehicle, he will be considered to be "occupying" that vehicle within the meaning of the ...

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