Murov v. Lumbermens Mut. Cas. Co.

• Decision Date: 04 January 1965
• Docket Number: No. 122341,122341
• Citation: 25 Conn.Supp. 504,209 A.2d 517
• Court: Connecticut Superior Court
• Parties: Isaac MUROV v. LUMBERMENS MUTUAL CASUALTY COMPANY.

Page 517

209 A.2d 517

25 Conn.Supp. 504

Isaac MUROV v. LUMBERMENS MUTUAL CASUALTY COMPANY.

No. 122341.

Superior Court of Connecticut, Fairfield County.

Jan. 4, 1965.

Isaac Murov, pro se.

Shapiro & Belinkie, Bridgeport, for defendant.

PASTORE, Judge.

This is an application to this court, made pursuant to General Statutes § 52-415, for advice upon a question of law which is claimed to have arisen in a controversy in which the applicant is serving as an arbitrator. The question involves the interpretation of an uninsured motorist coverage clause in a policy issued by Lumbermens Mutual Casualty Company to Anne Tutoli, who claims to have been injured in an automobile collision involving two uninsured automobiles on August 7, 1963, in Bridgeport, and who has requested arbitration of her claim for damages for such injuries in accordance with an arbitration clause in her policy.

A civil action pending in this court at Bridgeport alleges that while she and Eileen Delaney were passengers in a car, owned by and also occupied by Margaret Delaney, which was parked on a highway in Bridgeport on August 7, 1963, it was struck as a result of the negligence of Arthur Stewart and Peter Kenny, each of whom was operating a separate automobile, and both of whom were uninsured, whereby said three plaintiffs, viz. Tutoli and both Delaneys, were injured. The action is against both the uninsured drivers.

It appears that the Delaney vehicle was insured by American Insurance Company, which policy included an uninsured motorists coverage clause, in the amounts of $20,000/$20,000, which covers the passengers in the Delaney vehicle, including Anne Tutoli. At the time of the collision, Anne Tutoli held a policy with Lumbermens Mutual Casualty Company which also had an uninsured motorists coverage clause in the amounts of $20,000/$20,000. According to Tutoli's counsel, all three claimants have demanded arbitration of their claims and no coverage question has been raised by American Insurance Company, further specificity of this, however, being to the court not known. In arbitration, a dispute having arisen between Tutoli and Lumbermens as to the coverage afforded her under her uninsured motorist coverage clause, they agreed to submit the question to this court, agreeing further that the decision of the court would be 'final and binding upon the arbitrators in any further action upon this policy.'

The application of the arbitrator to the court states, inter alia: 'Before the issues of damages can be determined, an issue of coverage has arisen which is a question of law.' The Lumbermens policy held by Tutoli, under part 4, coverage J, uninsured motorists, provides as follows: 'OTHER INSURANCE. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under part 4 shall apply only as excess insurance over any such similar insurance available to such insured and applicable to such automobile as primary insurance and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.'

Notwithstanding the agreement of the parties to submit the coverage question to the court for determination, a threshold question arises whether the court should entertain the application at all. The arbitration provision connected with the uninsured motorist coverage clause provides for arbitration if the claimant and the company do not agree that such claimant 'is entitled to recover damages from the owner or operator of the uninsured automobile because of bodily injury to the insured or do not agree as to the amount of payment which may be owing.' The issues are whether damages are due to the claimant from the uninsured motorist or the amount of the payment, or both. The scope of the arbitration clause and of the duties of the arbitrator include such issues as the negligence of the uninsured motorist and of the claimant, if any, and proximate...