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ALLSTATE INS. CO. v. GAMMON

August 19, 1986

ALLSTATE INSURANCE COMPANY
v.
MICHAEL GAMMON, MICHAEL GAMMON v. ALLSTATE INSURANCE COMPANY



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 This is an action for a declaratory judgment that defendant Michael Gammon ("Gammon") is not a person insured under a policy issued by the plaintiff Allstate Insurance Company ("Allstate") to a person not a party on the ground that Gammon is not a relative residing in the household of the insured. Mr. Gammon has demanded uninsured motorist coverage and arbitration under the policy. He contends that whether he is a person insured under the policy is itself a dispute that under the policy must be decided by arbitration and not by this court. It is unclear whether Gammon's pending motion for summary judgment pursuant to Fed.R.Civ.P. 56(b) should be treated as such or as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) or (6). In either event, Gammon's motion is denied for the following reasons.

 Allstate is an insurance company. Leo Parks is the policyholder of an automobile insurance policy issued by Allstate. (Plaintiff's Response to Defendant's Motion for Summary Judgment, Ex. C). The policy issued to Mr. Parks provides certain uninsured and underinsured motorist coverage for "persons insured" under the policy. "Persons insured" under the policy include the policyholder "and any relative who resides in [the policyholder's] household. . . ." Gammon alleges that he was injured in an automobile accident on December 27, 1985 while he was a passenger in an automobile owned and operated by Scotty Jones, an uninsured driver. Gammon further alleges that he is a "person insured" under the automobile insurance policy of Leo Parks because Leo Parks is his stepfather and Gammon resides with Mr. Parks. On May 22, 1986, Gammon filed an action in the Court of Common Pleas of Philadelphia County, Pennsylvania, to compel arbitration under the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S.A. ยง 7301 et seq. (Purdon 1982) pursuant to the arbitration provisions of Mr. Parks' insurance policy.

 On June 3, 1986, Allstate filed a "Complaint in Action for Declaratory Judgment" in this court (Civil Action No. 86-3268). Allstate's prayer for relief required that this court:

 
Declare the uninsured motorist claims brought by the defendant herein against the plaintiff terminated and quashed. Further, plaintiff demands that this court declare defendant's uninsured motorist claims against the plaintiff improper and enjoin the defendant from reinstitution of these claims.

 On June 19, 1986, Gammon filed his original motion for summary judgment. On June 23, 1986, the state action was removed to this court (Civil Action No. 86-3700). On June 27, 1986, Allstate filed an amended complaint pursuant to Fed.R.Civ.P. 15(a). *fn1" The amended complaint's prayer for relief:

 
Demands that this Court enter a declaratory judgment in its favor and against defendant that defendant was not a person insured under the Allstate Insurance Company policy at the time of the accident on December 27, 1985 and that defendant be enjoined from pursuing any claim by defendant for any benefits under said policy including, but not limited to, uninsured motorist arbitration and damages, and medical or lost earning benefits.

 Although Allstate's amended prayer for relief is somewhat broader than its original demand, the central request in each instance is that this court hold Gammon not a "person insured" under Mr. Parks' automobile insurance policy; this would preclude defendant from exercise of the policy's arbitration provisions.

 The court may not grant summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Cf. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) ("[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.").

 Gammon does not contend that there is no genuine issue of fact as to whether he is a "person insured" under Mr. Parks' automobile insurance policy. Rather, defendant contends that that issue is not material because:

 
(1) whether Gammon is a "person insured" can be decided only by arbitration under the Pennsylvania Uniform Arbitration Act pursuant to the insurance policy; or, presumably in the alternative,
 
(2) whether Gammon is a "person insured" can be decided only by a Court of Common Pleas of the ...

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