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NATIONWIDE MUTUAL INSURANCE COMPANY v. DOUGLAS DITOMO (07/20/84)

filed: July 20, 1984.

NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT,
v.
DOUGLAS DITOMO



No. 1534 Philadelphia, 1982, Appeal from the Order Entered April 1, 1982 in the Court of Common Pleas of Delaware County, Civil Division, No. 80-1787

COUNSEL

Edward J. Carney, Jr., Upper Darby, for appellant.

Jeffrey M. Azpell, Media, for appellee.

Cercone, President Judge, and McEwen and Montemuro, JJ. McEwen, J., concurred in the result.

Author: Per Curiam

[ 330 Pa. Super. Page 118]

This is an appeal from an Order granting summary judgment in favor of appellee-defendant, Douglas DiTomo, and denying appellant plaintiff, Nationwide Mutual Insurance Company's cross-motion for summary judgment.

DiTomo, while operating his motorcycle was involved in an accident with an automobile driven by Sylvester Anderson. Anderson was insured by Government Employees Insurance Company (GEICO). Pursuant to its policy with Anderson, GEICO paid its policy limits of $20,000 to DiTomo. Subsequently, DiTomo, made claim against Nationwide,

[ 330 Pa. Super. Page 119]

    his parents' insurer, for uninsured motorists benefits. This claim proceeded to common law arbitration and resulted in an award of $30,000 in favor of DiTomo.

Nationwide petitioned the Court of Common Pleas to set aside the arbitrator's award. The petition was denied and Nationwide filed an appeal with this court at No. 48 Philadelphia 1980. That appeal was thereafter discontinued and Nationwide paid DiTomo the $30,000 awarded. Nationwide then filed suit in assumpsit against DiTomo, seeking to exercise subrogation rights to the $20,000 that DiTomo received from GEICO. DiTomo's answer and new matter averred that many of the allegations in the complaint were conclusions of law and that the suit was barred by res judicata, i.e. the arbitration and award. Nationwide's reply contended, that since the Court of Common Pleas refused to renew the arbitration award, res judicata was not applicable. The parties then sought summary judgment.

The court found that Nationwide was not entitled to exercise its rights to subrogation until DiTomo had been fully compensated for his injuries. As his medical bills and lost wages were ongoing "with no end yet in view", and the $50,000 received from the two insurers did not exceed his losses, subrogation was premature. Therefore, the court granted DiTomo's motion for summary judgment while dismissing Nationwide's request.

[ 330 Pa. Super. Page 120]

This appeal presents two problems, caused by the parties' oversight, which neither party addresses adequately in their briefs. First, we must note that had Nationwide raised a claim, prior to arbitration, that DiTomo was not entitled to uninsured motorists benefits, as Anderson was merely underinsured, it may well have been successful. See Davis v. Government Employees Ins. Co., 500 Pa. 84, 454 A.2d 973 (1982); White v. Concord Mut. Ins. Co., 296 Pa. Superior Ct. 171, 442 A.2d 713 (1982) affirmed 500 Pa. 103, 454 A.2d 982 (1982). However, absent a prearbitration challenge, the findings of both law and fact of the arbitrators are not reviewable. Runewicz v. Keystone Ins. Co., 476 Pa. 456, 383 A.2d 189 (1978); Cargill v. Northwestern Page 120} Nat. Ins. Co., 316 Pa. Superior Ct. 139, 462 A.2d 833 (1983). Hence, ...


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