Cruger v. Allstate Ins. Co., 63-543

• Decision Date: 14 April 1964
• Docket Number: No. 63-543,63-543
• Citation: 162 So.2d 690
• Parties: Norman A. F. CRUGER, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 690

162 So.2d 690

Norman A. F. CRUGER, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 63-543.

District Court of Appeal of Florida, Third District.

April 14, 1964.

Sinclair & Barfield and Richard L. Zapf, Miami, for appellant.

Dean, Adams & Fischer and Robert M. Sturrup, Miami, for appellee.

Before BARKDULL, C. J., and TILLMAN PEARSON and HENDRY, JJ.

BARKDULL, Chief Judge.

The appellee insurance company issued a policy of insurance to the appellant, as its insured, which contained the following provisions:

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"uninsured automobile' means an automobile:

'1. With respect to the ownership, maintenance or use of which there is no bodily injury liability insurance applicable at the time of accident; * * *

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'1. With respect to Section II.

'a. the term 'uninsured automobile', as defined, shall include (1) an automobile with respect to the ownership, maintenance or use of which bodily injury liability insurance is afforded, but the insurer thereof is unable to make payment with respect to the liability of its insured within the limits specified therein because such insurer besomes insolvent within one year after the accident, provided that bodily injury benefit coverage S of this policy is in effect at the time of such accident, and (2) a 'hit-and-run automobile'.

'b. additional definitions are: 'hit-and-run automobile' means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, * * *

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'The determination as to whether the insured shall be legally entitled to recover damages, and if so entitled the amount thereof, shall be made by agreement between the insured and Allstate.

'In the event of disagreement and upon written demand of the insured, the matter or matters upon which the insured and Allstate do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof. The insured and Allstate each agrees to consider itself bound and to be bound by any award made by the Arbitrator(s) pursuant to this Section II.'

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* * * Subsequent to the issuance of the policy and at a time when the policy was in full force and effect, the insured [while driving his vehicle] veered off the left side of a highway and struck a utility pole, causing damage to himself and his automobile. The accident was investigated by the law enforcement officials, and the insured reported that same was caused by another driver who left the scene as the accident was occurring. In other words, that the cause of the accident was a 'hit-and-run driver'. Appropriate claim was made upon the insurance company by the insured, payment of which was refused. Thereafter, the insured instituted arbitration proceedings, pursuant to the provisions of the insurance policy.

Upon being served with papers requiring arbitration, the insurance company [as plaintiff in the circuit court] instituted a declaratory decree action to determine whether or not it was in fact liable under the policy to its insured, contending that there was no contact with the hit-and-run car and, therefore, no coverage under the policy and, if no coverage, there could be no liability to its insured. The appellant, as the defendant in the declaratory decree action and the insured under the policy, sought to require the insurance company to arbitrate. Upon final hearing, the chancellor entered a final decree finding that there was no physical contact between the insured's automobile and the hit-and-run driver and, therefore, no coverage under the policy provisions set forth in the opening paragraphs of this opinion.

The appellant contends the question of whether or not there was physical contact between the cars related to liability, and the appropriate forum to a determination of this cause was the Board of Arbitration and not the Circuit Court. The appellee replies first, that this point was not raised in the trial court and, second, that the relief sought before the chancellor was a determination of coverage and not liability under the terms of the policy and, therefore, was appropriately a judicial proceedings. See: Murtaugh v. American States Insurance Company, Ohio App., 1963, 187 N.E.2d 518; Rosenbaum v. American Surety Co. of N. Y., 11 N.Y.2d 310, 229 N.Y.S.2d 375, 183 N.E.2d 667; Application of Nationwide Mutual Insurance Co., 39 Misc.2d 782, 241 N.Y.S.2d 589. By the very terms of the policy, the only right to an arbitration arose in the event of an injury to the insured by an 'uninsured motorist'. Also, by the terms of the policy, a 'hit-and-run driver' [under certain circumstances which are admitted to be true in the instant case] may be considered an uninsured motorist.

A material point in issue was whether or not there was contact between the automobile driven by the insured and the alleged hit-and-run automobile. If no contact; no hit-and-run automobile. If no uninsured motorist; no right to arbitration and, likewise, no responsibility on the company to compensate its insured for injuries sustained and, therefore, no coverage.

It seems apparent that the true question being litigated was the question of coverage,...