Ellison v. Safeguard Mutual Insurance Company, Appellant.
Superior Court of Pennsylvania
April 12, 1967
209 Pa. Super. 492 | 229 A.2d 482
We have serious doubt whether this amendment of the record is appealable. However, rather than quash this appeal we have examined the record made on appellant‘s petition and find it fully supports the finding made by Judge KALP that appellant‘s automobile was used as one of the get-away cars after this burglary had been committed. Appellant‘s complaint as to unfairness or lack of due process has now been answered. He has had his opportunity to contest this fact.
Order affirmed.
Malcolm H. Waldron, Jr., with him Alan R. Kutner, for appellant.
Norman Shigon, for appellee.
OPINION BY MONTGOMERY, J., April 12, 1967:
This is an appeal from a judgment entered pursuant to the order of Judge MICHAEL J. O‘DONNELL of
On January 9, 1966, the minor plaintiff was involved in an automobile accident with an alleged uninsured motorist. The defendant, the insurer of Ernest Ellison, the plaintiff‘s husband, refused to pay the loss on the ground that the policy did not contain coverage for loss occasioned by an uninsured motorist. The effective date of this policy was January 7, 1966, two days before the accident.
The plaintiff then instituted arbitration proceedings before the American Arbitration Association and in submitting the dispute to arbitration relied on Section 1 of the Uninsured Motorist Coverage Act of August 14, 1963, P. L. 909,
Regulation 14 as issued by the Insurance Department implements the Act of 1963 requirement that all uninsured motorist coverage be written under provisions approved by the Insurance Commissioner. Section 2 to Regulation 14 in fact states that, “This Regulation is issued for the purpose of establishing provisions that will be acceptable to the Insurance Commissioner in compliance with the above Act...” This regulation also states, “The extent of the coverage which shall be offered as ‘Uninsured Motorists Coverage’ shall be at least that coverage contained in Form No. 1, attached hereto and incorporated herein by ref-
We can find no legislative intent or judicial rule which supports the interpretation placed on this insurance by the plaintiff so as to require the arbitration clause of Form 1 to be incorporated into this insurance contract. In fact, the rule is to the contrary and requires that standard insurance form provisions be manifested by statute if they are to be incorporated by law into a certain type of insurance contract. In H. D. O‘Neil v. Am. Fire Ins. Co., 166 Pa. 72, 30 A. 943 (1895), the legislature by the Act of April 16, 1891, P. L. 22, delegated to the Insurance Commissioner the duty to prepare a standard fire insurance policy which when completed would be incorporated into all contracts of insurance made on property within Pennsylvania. Our Supreme Court held that this was an unlawful delegation of power because the act did not fix terms and conditions of the policy, the use of which it commanded, saying, 166 Pa. 72 at 77: “The effect of our cases is to settle firmly the rule that the law must be complete in all its terms and provisions when it leaves the legislative branch of the government, and that nothing must be submitted to the judgment of the electors or other appointee of the legislature except an option to become or not to become subject to its requirements and penalties....” 2
We hold that the compulsory arbitration provisions of Form No. 1 were not part of the insurance contract between the parties. To do otherwise would attribute to the legislature an unlawful delegation of power. When the General Assembly failed to include this essential requirement in its enactment neither the execu-tive nor the judiciary may under the guise of inter-
An additional reason why the defendant‘s appeal must succeed is the wording of the arbitration clause itself. This provision provides only for arbitration of the questions of the insured‘s right to recover against the uninsured motorist and the amount of the payment owing under such uninsured coverage. It does not provide for the arbitration of all disputes and least of all whether uninsured motorist coverage is part of the insured‘s liability policy. Even if we were to decide that this arbitration clause was part of the insurance contract the defendant had no duty to arbitrate its decision denying uninsured motorist coverage to plaintiff.
The defendant having no duty to arbitrate and not having submitted to arbitration or having been compelled to do so by statute or agreement, there was no valid award for the court below to approve. There being no jurisdiction over the dispute between these parties the present judgment must be reversed and the award of the arbitrators stricken.
Judgment reversed and the award of the arbitrators is stricken, without prejudice to the right of plaintiff to proceed in the proper forum.
WRIGHT, J., would affirm on the opinion of Judge O‘DONNELL.
I concur in the decision of the majority for the following reason.
Even if the insurance policy before us had contained an arbitration clause, the question whether uninsured motorist coverage should be read into the policy, despite the omission of such coverage, does not seem a proper subject for arbitration. The insurer asserted this jurisdictional defect, and he is, therefore, entitled to have the award stricken.
In reaching my conclusion, I place no reliance on the decision in H. D. O‘Neil v. Am. Fire Ins. Co., 166 Pa. 72, 30 A. 943 (1895). Furthermore, I wish to express no view on the critical question of whether a court could read the omitted coverage into this policy. I do not believe that the insured is foreclosed by our action today from pressing his claim in a proper forum.
SPAULDING, J., joins in this concurring opinion.