Fireman's Ins. Co. of Newark, N. J. v. Dufresne

• Decision Date: 15 April 1982
• Docket Number: No. 81-2684,81-2684
• Citation: 676 F.2d 965
• Parties: FIREMAN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. Raymond DuFRESNE.
• Court: U.S. Court of Appeals — Third Circuit

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.

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:

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 matters upon which such person and the company do not agree shall be settled by arbitration, which shall be conducted in accordance with the rules of the American Arbitration Association unless other means of conducting the arbitration are agreed to between the insured and the company, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this insurance.

In response to Fireman's motion, DuFresne asserted that he had no way of knowing either (1) that the policy proffered by Fireman's was in fact the policy issued to DuFresne's employer or (2) that Watson was in fact insured by Nationwide. His refusal to admit these propositions as facts led the district court to deny summary judgment in favor of Fireman's and to suggest that Fireman's might renew its motion after attempting to fill in these factual gaps through discovery or affidavits. Fireman's Insurance Co. of Newark, N. J. v. DuFresne, 513 F.Supp. 675, 677 & n.3 (E.D.Pa.1981).

Fireman's responded by submitting four affidavits. Three of these-by the Ring Detective Agency's general manager, by a Fireman's claims adjuster, and by a claims representative for Ring's insurance broker-were accompanied by a copy of an automobile liability insurance policy containing the above-cited provisions issued to Ring by Fireman's. Each affiant swore that, to his or her own personal knowledge, the attached copy was a true and correct copy of Fireman's policy issued to Ring. The fourth affidavit was a statement by a Nationwide claims adjuster who swore:

(O)n February 5, 1980 Nationwide paid $25,000.00 to Mr. and Mrs. Raymond DuFresne in settlement of Mr. DuFresne's bodily injury claim arising out of an automobile collision with Nationwide's insured Tanye Watson which collision occurred on June 21, 1977 in the State of Delaware. The $25,000.00 payment represents the policy limits.

Despite these affidavits, the district court denied Fireman's renewed motion for summary judgment. The court concluded that DuFresne's continued refusal to admit the facts alleged in the affidavits represented, in these circumstances, a continuing genuine factual dispute inappropriate for disposition through a Rule 56 motion. The court further concluded that, in view of this factual dispute and Pennsylvania law concerning arbitration of such disputes, a DuFresne motion for summary...