Fireman's Ins. Co. of Newark, N. J. v. Dufresne, No. 81-2684

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before GIBBONS, SLOVITER and BECKER; GIBBONS
• Citation: 676 F.2d 965
• Parties: FIREMAN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. Raymond DuFRESNE.
• Docket Number: No. 81-2684
• Decision Date: 15 April 1982

Page 965

676 F.2d 965 FIREMAN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant,
v.
Raymond DuFRESNE. No. 81-2684. United States Court of Appeals,
Third Circuit. Argued April 1, 1982.
Decided April 15, 1982.

Page 966

Charles W. Craven (argued), Jo Fineman White, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for appellant.

Allen L. Feingold (argued), Philadelphia, Pa., for appellee.

Before GIBBONS, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Fireman's Insurance Company of Newark, New Jersey (Fireman's) appeals from the grant of summary judgment in favor of Raymond DuFresne, requiring Fireman's to submit to arbitration DuFresne's claim for uninsured motorist coverage. Since the undisputed affidavits on file establish that the accident on which DuFresne's claim is based did not involve an uninsured motorist, we reverse and direct that summary judgment be entered in Fireman's favor.

I.

On June 21, 1977, DuFresne was injured in an accident occurring in Delaware, when the automobile he was driving collided with one driven by Tanye Watson. DuFresne made a claim against Watson and received a check for $25,000 from Nationwide Insurance Company in settlement. Believing that this amount did not fully compensate him for his injuries, he made inquiries concerning the insurance coverage of his employer, the Edward J. Ring Detective Agency, which owned the car DuFresne was driving at the time of the accident. Although he neither saw nor received a copy of his employer's policy issued by Fireman's before the commencement of this litigation, he did learn that the policy contained an "uninsured motorist" provision and a clause requiring arbitration of disputes regarding coverage.

Asserting that Watson was an uninsured motorist to the extent that the check from Nationwide failed to compensate him for his injuries, DuFresne made a claim under the uninsured motorist provision of Fireman's policy in April of 1980. When Fireman's denied the claim, DuFresne threatened to file an action to compel arbitration. Fireman's then filed suit to enjoin DuFresne from seeking arbitration and to obtain a declaratory judgment that he is not entitled to recover on his claim, and moved for summary judgment. Its affidavit in support of that motion alleges that the uninsured motorist provision of the policy issued to Ring reads as follows:

Page 967

I. COVERAGE U-UNINSURED MOTORISTS

(Damages for Bodily Injury)

The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purpose of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

V. ADDITIONAL DEFINITIONS

When used in reference to this insurance (including endorsements forming a part of the policy):

"uninsured highway vehicle" means:

(a) highway vehicle with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured highway vehicle is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or is or becomes insolvent; or

(b) a hit-and-run vehicle;

but the term "uninsured highway vehicle" shall not include:

(i) an insured highway vehicle.

The policy's arbitration clause provides:

VI. ADDITIONAL CONDITIONS

F. Arbitration.

If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this insurance, then, upon written demand of either, the matter or...