Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 3906 May Term 1985.
Dennis Veneziale, Philadelphia, for appellant.
Roger J. Harrington, Philadelphia, for appellee.
Beck, Popovich and Hoffman, JJ.
[ 358 Pa. Super. Page 68]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying a petition to compel arbitration by the appellant, Linda Rocca. We reverse.
The facts of record indicate that the appellant was a passenger in a vehicle which collided with another vehicle. The second driver's insurance limited recovery to $25,000.00, which was ultimately secured by the appellant in an
[ 358 Pa. Super. Page 69]
out-of-court settlement. However, because the injuries sustained exceeded the policy limits of the second driver's insurance, the appellant filed a claim with her parents' insurance carrier, which provided for underinsured motorist coverage. This policy was issued by the appellee, Pennsylvania General Insurance Co., and listed the appellant as a named insured on the declaration sheet.
When the appellee refused to honor the appellant's claim, the appellant notified it of her selection of an arbitrator to activate the dispute-resolution process afforded by the terms of the policy of insurance. Because the demand for arbitration was not answered, the appellant filed a petition to appoint arbitrators with the Court of Common Pleas. See 42 Pa.C.S. §§ 7305, 7342 (Supp.1986).
The appellee's response, in the form of an answer and new matter, contended that the petition was "premature" in that the appellant, under the terms of its policy, was "required to pursue a claim against the [driver of the vehicle she was a passenger in] prior to bringing th[e] underinsured claim, because nothing [was] payable under th[e] endorsement*fn1 until Petitioner ha[d] exhausted her claims against the tortfeasors who had liability insurance." The court below agreed and entered an order confirming the denial of the petition. This appeal was timely filed and is properly before us. See 42 Pa.C.S. § 7302(a).
The sole issue raised relates to whether a claimant can compel an insurer to arbitrate a claim for benefits, in accordance with the terms of a policy, if the policy requirement of exhaustion of remedies -- the "limits of liability" under any ...