Fazio v. Employers' Liability Assur. Corp.

• Decision Date: 03 April 1964
• Citation: 347 Mass. 254,197 N.E.2d 598
• Parties: Barbara J. FAZIO v. The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 598

197 N.E.2d 598

347 Mass. 254

Barbara J. FAZIO v. The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 3, 1964.

Decided April 3, 1964.

Philander S. Ratzkoff, Boston, for defendant.

William J. Conboy, West Roxbury, and Patrick H. Tenney, Boston, for plaintiff, submitted a brief.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.

WILKINS, Chief Justice.

The plaintiff has a claim under the coverage entitled, 'Protection against Uninsured Motorists' in a Massachusetts motor vehicle liability policy issued by the defendant to the plaintiff. Her claim is that on March 13, 1962, while operating her car in Peabody, she was injured when an unknown car sideswiped her car. The defendant denied liability.

In accordance with the policy, the plaintiff filed a demand for arbitration with the American Arbitration Association. ¹ In its answer to her demand for arbitration the defendant stated, 'All coverage questions which are in controversy, including but not limited to the question whether is hit and run motor vehicle was involved in the alleged accident, are not the subject matter of arbitration and the insurer expressly reserves and does not waive its right to set up as a defense any and all coverage defenses which it has to this claim.' As the parties are in accord that coverage questions are not a subject for arbitration under the statute to be considered, ² and as such questions have not been in fact made a subject of the submission presently before us, there is no such issue for us to decide.

A hearing was held before an arbitrator duly appointed in accordance with the 'Accident Claims Tribunal Rules' of the association. After the arbitrator made his award the plaintiff filed a motion to vacate, G.L. c. 251, § 12(a)(3), § 12(c), as appearing in St.1960, c. 374, § 1, ³ and the defendant filed a motion to confirm. G.L. c. 251, § 11, as appearing in St.1960, c. 374, § 1. The motion to vacate was allowed, the motion to confirm was denied, and the defendant excepted and appealed. We shall consider the exceptions and dismiss the appeal. G. L. Rugo & Sons, Inc. v. Lexington, 338 Mass. 746, 748, 157 N.E.2d 521.

Uninsured motorist coverage is authorized by G.L. c. 175, § 111D, inserted by St.1959, c. 438, § 2. Under this the insurer agrees to indemnify against all damages which the insured shall be legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury to the insured caused by accident and arising out of the ownership or use of the uninsured vehicle. The statute prescribes: 'Such policy * * * shall provide that determination as to whether the insured * * * is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured * * * and the insurer or, if they fail to agree, by arbitration.' These statutory requirements appear in the policy, in which a definition of an uninsured motor vehicle embraces a hit-and-run automobile.

The crucial part of the award reads: '1. The claim of Barbara Fazio against Employers' Group Insurance Companies is denied in its entirety.' ⁴ The exact name of the insurer, which is The Employers' Liability Assurance Corporation, Ltd., on motion was substituted to correct an imperfection in form not affecting the merits of the controversy. G.L. c. 251, § 13, as appearing in St.1960, c. 374, § 1.

The order of the judge upon the motion to vacate reads: 'The arbitrator having exceeded his powers by considering and determining 'the claim of Barbara Fazio against [The] Employers * * * [Liability Assurance Corporation, Ltd.]' the award is vacated. It is ordered that there be a rehearing before a new arbitrator chosen according to the agreement for arbitration in the insurance policy on the question of whether Barbara Fazio is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle because of bodily injury * * * and if so, the amount * * *.'

The evidence at the hearing on the motion consisted entirely of the exhibits before us. The plaintiff's motion is based upon supposed defects apparent upon the face of the award.

A ground of the motion to vacate, as well as the sole ground of the order of the judge granting that motion, was that the arbitrator exceeded his authority. The motion also alleged that the finding did not comply with the terms of submission; that the arbitrator failed to decide the issues submitted to him; and that the award is not within the scope of the agreement of the parties.

The only basis for the contention that the arbitrator exceeded his authority is the phraseology of paragraph 1 of the award to the effect that the claim of the plaintiff against the insurer is denied 'in its entirety.' It is urged that the matters to be decided were the fault of the hit-and-run motorist and damages, and that following the determination of those facts there remained for the court to decide whether the plaintiff had complied with the policy. No question of coverage was submitted to the arbitrator, as clearly appears from the terms of the insurer's answer to the demand for arbitration. While evidence could have been received to try to prove the various delinquencies charged against the arbitrator (Gaylord v. Norton, 130 Mass. 74), none was offered. 'It is the legal presumption, unless the contrary appears, that arbitrators pursue the submission and decide only the matters therein contained, and also that they decide all matters submitted to them. And it is incumbent on a party who seeks to impeach an award, on the ground that the arbitrators have not so done, to show that they have not.' Sperry v. Ricker, 4 Allen, 17, 19-20.

We think that the language of the arbitrator, while open to improvement, does not overcome the presumption and show that he considered questions of coverage or exceeded his authority. In a broad sense the claim was against the insurer upon which the demand for arbitration was made...