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JAMES E. KOLBE v. AEGIS INSURANCE COMPANY (12/28/87)

filed: December 28, 1987.

JAMES E. KOLBE, II, APPELLANT,
v.
AEGIS INSURANCE COMPANY, APPELLEE



Appeal from the Judgment Entered March 31, 1987 in the Court of Common Pleas of Clearfield County, Civil Division, at No. 86-1337-CD.

COUNSEL

James Naddeo, Clearfield, for appellant.

Darryl R. Slimak, State College, for appellee.

Cirillo, President Judge, and Johnson and Montgomery, JJ.

Author: Montgomery

[ 370 Pa. Super. Page 540]

This appeal by the Plaintiff-Appellant arises from a judgment entered following an order by the lower court which sustained preliminary objections in the nature of a demurrer. In his suit, the Plaintiff sought a recovery pursuant to underinsured motorist provisions of a policy of insurance issued to him by the Defendant-Appellee.

In reviewing this appeal, we must accept as true all of the Plaintiff's well-pleaded averments of fact in his Complaint, as well as all inferences reasonably deducible therefrom. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983); Zelik v. Daily News Publishing Co., 288 Pa. Super. 277, 431 A.2d 1046 (1981). Our task is not difficult in the instant case, as

[ 370 Pa. Super. Page 541]

    there appear to be no disputes regarding the salient facts. They show the following: On or about April 1, 1985, the Plaintiff purchased a policy of motorcycle insurance from the Defendant. On April 22, 1985, the Plaintiff was involved in an accident with another vehicle. Subsequently, Plaintiff, through his attorney, sought to recover a payment from the Defendant under the underinsured motorist provision of his policy for damages he had sustained in the aforesaid accident. The Defendant insurer responded that it had no liability under the underinsured motorist provision, and refused coverage. The Plaintiff thereafter negotiated a settlement of his claims against the other driver's insurer, for $25,000, the apparent limit of the liability coverage under that policy. A general release was executed in connection with that settlement on September 24, 1985.

The Plaintiff never sought the consent of the Defendant prior to entering into the aforesaid settlement.*fn1 The policy issued by the Defendant to the Plaintiff contained the following pertinent language, in the provisions dealing with underinsured coverage: "This coverage does not apply to bodily injury sustained by a person: . . . If that person makes any settlement without our written consent."

On November 15, 1985, Plaintiff's attorney again requested payments from Defendant pursuant to the underinsured motorist clause, or, in the alternative, sought Defendant's consent to arbitration to resolve the issue, as mandated by the policy.*fn2 The Defendant refused to join in arbitration and this suit was filed.

[ 370 Pa. Super. Page 542]

The lower court sustained the Defendant's preliminary objections in the nature of a demurrer on the basis that the Plaintiff's failure to secure the insurer's consent to the settlement with the other driver was a breach of the insurance agreement, which excused the insurer from any liability for underinsured benefits under the policy. We ...


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