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RICHARD L. WINTERS v. ERIE INSURANCE GROUP (10/23/87)

filed: October 23, 1987.

RICHARD L. WINTERS, JR. AND MARCEIL A. WINTERS COONEY, IN THEIR INDIVIDUAL CAPACITIES AND AS CO-ADMINISTRATORS OF THE ESTATE OF LEONARD BENJAMIN WINTERS, APPELLANTS,
v.
ERIE INSURANCE GROUP, ERIE INSURANCE EXCHANGE, AND ERIE INSURANCE COMPANY



Appeal from the Order Entered on September 30, 1986, in the Court of Common Pleas of Tioga County, Civil Division, at No. 152 C.D. 1986.

COUNSEL

William A. Hebe, Wellsboro, for appellants.

Raymond E. Ginn, Jr., Wellsboro, for appellees.

Cirillo, President Judge, and Olszewski and Hester, JJ.

Author: Hester

[ 367 Pa. Super. Page 255]

This appeal involves a dispute as to whether Erie Insurance Company is obligated to pay stipulated damages of $30,000 in uninsured motorist benefits to Richard L. Winters, Jr. and Marceil A. Winters Cooney, appellants. As we are persuaded that the arbitrators' award in favor of Erie Insurance Company was contrary to law, we reverse and direct entry of judgment in the amount of $30,000 in favor of appellants.

The facts are not in dispute. Erie Insurance Company ("Erie"), appellee, issued an automobile insurance policy to appellants which included uninsured motorist coverage. On September 19, 1982, appellants' son, Leonard Benjamin Winters, was killed when he fell from the rear of a 1957 Willys Jeep while his family was cutting firewood at a logging site. The decedent's uncle, Randel Winters, was the operator of the vehicle, which was owned by decedent's grandmother. Decision of board of arbitrators at 1. The vehicle was not covered by any automobile insurance policy. Id. at 2. Appellants' claim for uninsured motorist benefits from Erie was submitted to arbitration, with damages stipulated to be $30,000, the maximum coverage under the policy.

On July 17, 1986, the arbitrators entered judgment in favor of Erie on two bases. First, they concluded that the Jeep was not a motor vehicle within the meaning of the policy, reasoning that the Winters' use of the Jeep principally for off-road logging activities precluded characterization of it as a motor vehicle*fn1 under the following policy language: "'motor vehicle' . . . means any two to six wheel land motor vehicle or trailer except: (a) a vehicle designed

[ 367 Pa. Super. Page 256]

    for use principally off public roads, while not on public roads . . . ." They also found that appellants failed to prove that the vehicle was uninsured. The policy defines an uninsured motor vehicle, in relevant part, as "one for which there is no liability bond or insurance at the time of the accident in the amounts required by the financial responsibility law where the car we insure is principally garaged . . . ." The Court of Common Pleas of Tioga County confirmed the award on September 30, 1986, and this timely appeal followed.

Our threshold inquiry involves the proper scope of review as the parties have taken different positions on which standard applies. Erie argues that pursuant to 42 Pa.C.S. §§ 7314 and 7315, the arbitration award cannot be vacated absent a showing of fraud, failure of jurisdiction or other grounds therein enumerated, all of which are clearly inapplicable to this case.

Appellants counter that the applicable standard of review is found in 42 Pa.C.S. § 7302(d)(2), which provides that an arbitrator's award may be modified or corrected where "the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict."

Appellants further contend that Erie waived its right to argue that any other scope of review is applicable since it failed to raise this issue before the trial court. We agree. McDonald v. Keystone Insurance Co., 313 Pa. Super. 404, 407 n. 3, 459 A.2d 1292, 1294 n. 3 (1983); Kenworthy v. Burghart, 241 Pa. Super. 267, 271, 361 A.2d 335, 337 (1976) (where standard of review to be applied was not briefed or argued to the lower court, it was abandoned); see also Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Ropka v. Government Employees Insurance Co., 347 Pa. Super. 507, 514, 500 A.2d 1171, 1175 (1985); Barton v. Penco, 292 Pa. Super. 202, 203 n. 2, ...


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