Firemen's Ins. v. Petrie, 819349

• Citation: 226 N.E.2d 808,10 Ohio Misc. 188
• Decision Date: 08 April 1966
• Docket Number: No. 819349,819349
• Parties: , 39 O.O.2d 286 FIREMEN'S INS. v. PETRIE.
• Court: Court of Common Pleas of Ohio

Page 188

10 Ohio Misc. 188

226 N.E.2d 808, 39 O.O.2d 286

FIREMEN'S INS. v. PETRIE.

No. 819349.

Court of Common Pleas of Ohio, Cuyahoga County.

April 8, 1966.

R. L. Kenen, Cleveland, for plaintiff.

Leon M. Plevin and Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson, Cleveland, for defendant.

CORRIGAN, Judge.

This case came on to be heard on plaintiff's petition for declaratory judgment and defendant's answer to said petition. The parties were in agreement as to the following facts:

1. That the plaintiff, Firemen's Insurance Company of Newark, New Jersey, is a corporation organized under the laws of the state of New Jersey and authorized to engage in the insurance business in the state of Ohio.

2. That on or about the 9th day of November, 1962, the plaintiff issued a policy of insurance under No. AFW 230814 to the defendant, Alpheus L. Petrie, effective from said issuance to the 9th day of November, 1963, and which contained the following among its provisions:

'PART IV-FAMILY PROTECTION COVERAGE

'Coverage G-Family Protection (Damages for Bodily Injury)

'To 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 automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes 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.

'* * *

"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, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile'; (b) the Insured or someone on his behalf shall have reported the accident within twenty-four hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the Company within thirty days thereafter a statement under oath that the Insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons who identity is unascertainable, and setting forth the facts in support thereof; and (c) at the Company's request, the Insured or his legal representative makes available for inspection the automobile which the Insured was occupying at the time of the accident.

'* * *

'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 insured automobile because of bodily injury to the Insured, or do not agree as to the amount of payment which may be owing under this Part, 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 in accordance with the rules of the American Arbitration Association, 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 Part.

'* * *.'

3. That on or about July 14, 1963, the defendant, Alpheus L. Petrie, was the owner of a 1962 Corvair automobile which was involved in an accident on said date while Mr. Petrie was driving in a northerly direction of West 117th Street resulting in injuries to said defendant.

4. That the defendant, Alpheus L. Petrie is asserting claims for his injuries as a result of the above described collision against the plaintiff under the family protection clause of his policy of insurance.

5. That said defendant filed a demand for arbitration requesting that an arbitrator be appointed by the defendant, American Arbitration Association; that said arbitrator hold a hearing to determine and award damages for the injuries sustained by the defendant, Alpheus L. Petrie.

6. That the defendant, The American Arbitration Association, has set said matter for arbitration, said cause being entitled 'Alpheus L. Petrie and Firemen's Insurance Company of Newark, New Jersey' and further identified by the following numbers: AC17514 CLE-AC-58-65.

7. That the defendant, American Arbitration Association, has appointed the defendant, Joseph Sindell, as arbitrator and has instructed the parties to select a date for a hearing of said matter.

8. That the plaintiff filed certain letters with the American Arbitration Association objecting to the arbitration of this matter.

The record further reflects that plaintiff's motion for injunction staying arbitration was granted pending the determination of the issues raised in this case.

Counsel for the parties are not in agreement as to how the issues are to be worded. Plaintiff concludes that the only matters involve questions of fact: (1) Whether there was physical contact with 'a hit and run automobile' as required by the policy and (2) If there was physical contact with a 'hit and run automobile,' did the insured file with the Company within thirty days after the alleged accident a statement under oath that the insured has a cause of action arising out of such accident for damages against a person whose identity is unascertainable and setting forth the facts in support thereof. The attorney for the defendant-insured sees the questions as follows: (1) Whether a hit-skip accident is a question of fact to be determined by the American Arbitration Association in accordance with the terms of the policy or a question of law relating to policy coverage and, therefore, decided by a court of law; and (2) Whether the failure of the insured to submit a written statement under oath within thirty days after the occurrence of the accident is such a condition precedent to the contract as to cause and work a forfeiture against him.

The plaintiff company admits it issued a liability insurance policy to indemnify the defendant-insured against injury caused by an uninsured (hit and run) automobile, but maintains that the fact that the alleged motorist causing the injury was uninsured is clearly a condition precedent to its duty to indemnify the defendant. If that position is correct then the determination of this fact is a condition precedent to the plaintiff's duty to arbitrate and the issue must be decided outside of the policy. However, if the issue as to an alleged uninsured (hit and run) automobile and the physical contact of the vehicles, if any, is a matter for determination within the terms of the policy, it must be resolved within Part IV-Family Protection Coverage, Coverage G, and the arbitration clause contained therein.

In this declaratory judgment action it becomes the duty of the court to attempt to construe the meaning of this policy of insurance that begins: 'The Company agrees with the Insured, in consideration of the payment of premiums and in reliance upon the statements in the declaration and subject to all terms of this policy: * * * (and then follows hundreds upon hundreds of words detailing the terms of the agreement).' Interestingly enough it should be pointed out that the company and the insured worked out the collision, the liability, and the medical payment features to the mutual satisfaction of all concerned. The only remaining claim is that of the defendant under the family protection coverage. However, a cardinal axiom, in the construction of written contracts, is that all parts must be examined and consideration given to every word. As it has been stated by many courts, the object is to arrive at the intention of the parties and this is to be deduced from the language employed by them to express their intention. If the language is not free from doubt or uncertainty, resort may be had to the condition of the respective parties, the subject matter of the contract and the circumstances surrounding the transaction and connected with it.

When the defendant-insured paid his premiums of the company what benefits did he expect under the family protection coverage? The language (Coverage G) states the company agrees 'to pay all sums which the Insured, * * * shall be legally entitled to recover as...