Frager v. Pennsylvania General Ins. Co.

Decision Date26 June 1967
Citation231 A.2d 531,155 Conn. 270
CourtConnecticut Supreme Court

Charles G. Albom and George L. Eastman, New Haven, for appellant (defendant).

William B. Ramsey, with whom was Edward H. Cantor, New Haven, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

This appeal involves an application, duly served on the defendant, for an order under General Statutes § 52-410 to compel arbitration under the uninsured motorist provisions in Part IV of an automobile insurance policy issued by the defendant to Page and Doris Porter, husband and wife, covering the operation of their Corvair automobile.

The plaintiff, Sarah Frager, was operating the insured automobile with the permission of its owners when it ran off the left side of the road and collided with a utility pole, resulting in injury to the plaintiff. The plaintiff alleged in her application that this accident occurred because the Corvair was struck by an oncoming automobile which did not stop and the owner and operator of which remain unidentified. The defendant, inter alia, denied that the Corvair had been in contact with another vehicle. This question of contact is, under the terms of the policy as hereinafter pointed out, a decisive issue in this appeal.

The only portion of the policy directly involved in this appeal is entitled 'Part IV-Protection Against Uninsured Motorists', and in this part the insurer contracted to pay all sums which an insured person shall be legally entitled to recover, as damages for certain bodily injuries, from the owner or operator of an 'uninsured automobile'. 1 See, generally, note, 79 A.L.R.2d 1252; 6 Later Case Service 368 and current pocket supplement. The policy definition of 'uninsured automobile' includes 'a hitand-run automobile', which in turn is defined as '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: * * * there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile". Thus, an automobile may be a hit-and-run automobile, and consequently an uninsured automobile within the policy definition of that term, if, but only if, it makes physical contact with an insured claimant or with an automobile in which an insured claimant is an occupant. 2

The trial court concluded that the question whether there was contact between the vehicle operated by the plaintiff and the unidentified vehicle, as she claimed, so as to make that other vehicle a 'hit-and-run' vehicle and so an 'uninsured automobile' under the terms of the policy was a matter to be determined by arbitration. 3 The defendant appealed.

While the defendant, in its answer, specially denied each of the material allegations of the plaintiff's application, apparently improperly and in violation of §§ 73, 116, 117 and 118 of the Practice Book, on this appeal it is conceded that the plaintiff is an insured party under the policy and that the only issue is whether the question of contact should be resolved, as the plaintiff claims, by the arbitrators or, as the defendant claims, by the trial court. The answer to this question depends upon the proper interpretation of the terms relating to arbitration as set forth in Part IV of the policy.

The duty to arbitrate may be created by contract. But a party cannot be compelled to arbitrate a dispute unless he has contracted so to do. Ginsberg v. Coating Products, Inc., 152 Conn. 592, 596, 210 A.2d 667, and cases cited; cf. International Union, etc. v. General Electric Co., 148 Conn. 693, 700, 174 A.2d 298. A party who has contracted to arbitrate certain matters has no obligation to arbitrate any matters other than those he has agreed to arbitrate. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 5, 110 A.2d 464. Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also. Connecticut Union of Telephone Workers, Inc. v. Southern New England Telephone Co., 148 Conn. 192, 198, 169 A.2d 646; College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 206 A.2d 832.

The clause in the policy now under consideration which constitutes the agreement to arbitrate, and which, necessarily, determines what issues are to be submitted to arbitration, appears in Part IV under the subtitle 'Arbitration' and provides as follows: '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 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 * * * and judgment upon the award rendered by the arbitrators may be entered. * * * Such person and the company each agree to * * * be bound by any award made by the arbitrators pursuant to this Part.'

This agreement for arbitration is not a broad, all-encompassing provision of the types found in Gores v. Rosenthal, 150 Conn. 554, 555, 192 A.2d 210, and College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 206 A.2d 832, and cases cited. The provision applies only to a claim under Part IV of the policy as to an uninsured motorist. Unless the claim relates to an uninsured motorist, the arbitration provision is inapplicable. Under this provision, the only issues to be arbitrated are: (1) the insured's right to recover damages from the owner or operator of an uninsured automobile, and (2) the amount of such damages. Hartford Accident & Indemnity Co. v. Travelers Ins. Co., 25 Conn.Sup. 414, 417, 206 A.2d 847; Matter of Motor Vehicle Accident Indemnification Corporation (Downey), 11 N.Y.2d 995, 229 N.Y.S.2d 745, 183 N.E.2d 758; Matter of Rosenbaum (American Surety Co. of New York), 11 N.Y.2d 310, 313, 229 N.Y.S.2d 375, 183 N.E.2d 667; Murtaugh v. American States Ins. Co., Ohio App., 187 N.E.2d 518, 25 Ohio Op.2d 106, 107; Cruger v. Allstate Ins. Co., 162 So.2d 690, 693 (Fla.App.).

It is not the right to recover damages from the defendant insurance company which is made arbitrable but the right to recover damages from the uninsured motorist. If the arbitrators find this issue in favor of the plaintiff, then they determine the amount of those damages, and it is that amount which the defendant has contracted to pay under Part IV of its policy. The words 'matter or matters upon which such person and the company do not agree' in the arbitration clause clearly refer to the two issues previously mentioned in that clause, namely, the right to recover damages from the owner or operator of an 'uninsured automobile' and the amount of such damages.

That the unidentified vehicle was an 'uninsured automobile' is a condition precedent to the applicability of Part IV of the policy which includes the arbitration provision. The policy does not provide generally for arbitration of disputes between the plaintiff and the defendant but provides only for arbitration of the foregoing two issues involving an 'uninsured automobile', which, as previously noted, includes, in certain cases, a 'hit-and-run' automobile. Whether an unidentified automobile is an 'uninsured automobile' within the terms of the policy is a question independent of whether the plaintiff would be legally entitled to recover damages from the owner or operator thereof if he could have been identified and sued. Murov v. Lumbermens Mutual Casualty Co., 25 Conn.Sup. 504, 507, 209 A.2d 517. The former question pertains to coverage under Part IV of the policy. Cruger v. Allstate Ins. Co., supra. The latter concerns liability of the owner or operator of the uninsured car.

The defendant's liability to the...

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