APPEAL FROM THE ORDER ENTERED MARCH 19, 1985 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 5402 SEPT. 1983
Mary L. Schmidt, Philadelphia, for appellants.
Lawrence L. Robinson, Philadelphia, for appellee.
Cirillo, President Judge, and Cavanaugh, Brosky, McEwen, Del Sole, Beck, Tamilia, Kelly and Johnson, JJ. McEwen, J., files a concurring opinion.
[ 356 Pa. Super. Page 534]
Is an employee who collects workmen's compensation benefits following a work-related motor vehicle accident precluded from obtaining uninsured motorist benefits under his employer's fleet policy?
Appellant Charles Boris (his wife, Deborah, is co-appellant) was driving a truck for his employer, Buckley and Company, when he was run off the road by an uninsured motorist. He suffered injuries to his knee and back. Despite extensive medical treatment, he continues to suffer from the pain of those injuries.
Buckley and Company carries both workmen's compensation and uninsured motorist insurance through appellee
[ 356 Pa. Super. Page 535]
Liberty Mutual Insurance Company. Under the latter policy, each of Buckley's 67 vehicles is insured to the extent of $30,000.00 against injuries caused by uninsured motorists; if there is a dispute between the insurer and insured over coverage liability, a standard arbitration clause in the contract dictates that the controversy be submitted to arbitration. This clause was invoked when Mr. Boris sought uninsured motorist benefits, and pursuant to that clause, the third arbitrator on the panel was appointed by the court, since the parties could not agree on one. The subsequent arbitration resulted in an $841,569.00 award to appellant.
Upon petition by Liberty Mutual, the Honorable Alfred J. DiBona of the Philadelphia Court of Common Pleas reviewed the award and concluded the panel made an egregious error of law in awarding uninsured motorist benefits to Mr. Boris. Judge DiBona found workmen's compensation to be the sole remedy,*fn1 and accordingly vacated the award. This is an appeal from that order. In support of appellant's position, the Pennsylvania Trial Lawyers Association has filed a separate brief as amicus curiae.
Initially, we consider appellants' contention that Liberty Mutual waived its defense of workmen's compensation as sole remedy. In appellants' view, Liberty Mutual improperly waited until the arbitration hearing to present the defense; it should have first been raised under a "new matter" hearing in an answer to Mr. Boris' petition seeking appointment of an arbitrator.
It is true that Pa.R.Civ.P. 1030 requires all affirmative defenses to be set forth in a responsive pleading. We also agree that Liberty Mutual's defense is an affirmative one, although it is not one of "immunity", as appellants ...