Nationwide Mut. Ins. Co. v. Pitts
| Decision Date | 14 December 1990 |
| Citation | 583 A.2d 489,400 Pa.Super. 269 |
| Parties | NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee, v. Juanita PITTS, Appellant. |
| Court | Pennsylvania Superior Court |
Barry A. Rosen, Philadelphia, for appellant.
William Kennedy, Philadelphia, for appellee.
Before CIRILLO, President Judge and MONTEMURO and MONTGOMERY, JJ.
The instant declaratory judgment action was filed by the plaintiff-appellee, Nationwide Mutual Insurance Company, seeking a determination of whether or not the defendant-appellant, Juanita Pitts, had an entitlement to certain uninsured motor vehicle insurance benefits under her policy issued by the plaintiff. The defendant filed preliminary objections, which were denied by the trial court. In addition to dismissing the defendant's preliminary objections, the trial court certified that its order involved a controlling question of law as to which there is a substantial ground for difference of opinion and also stated that an immediate appeal from the order may materially advance the ultimate termination of the matter. Subsequently, our court granted the defendant permission to proceed with this appeal. After review, we conclude that the trial court erred in denying the defendant's preliminary objections.
The record shows that defendant was a passenger who was injured in a motor vehicle accident which occurred in July, 1984. Her injuries were very significant. In December, 1986, she accepted the tender of the full amount of the driver's bodily injury liability insurance coverage. Thereafter, the defendant made a claim against plaintiff insurer for benefits under her policy's underinsured motorist vehicle coverage. The parties were unable to resolve the defendant's underinsured motorist claim, and she elected to proceed with arbitration. The Nationwide policy included the following arbitration provisions, applicable to underinsurance claims disputes:
If we and the insured do not agree about the insured's right to recover damages or the amount of damages, the following arbitration procedure will be used:
After written demand for arbitration by either party, each party will select a competent and disinterested arbitrator. The two so selected will select a third. If selection of the third arbitrator cannot be agreed upon within 30 days, the insured or the company may request that selection be made by a Judge of a Court of Record in the County and State in which arbitration is pending. Each party will pay its chosen arbitrator and bear equally expenses for the third and all other expenses of arbitration.
When the insurer did not respond by naming its own arbitrator, the defendant instituted a proceeding in the Court of Common Pleas of Philadelphia County to compel the appointment of an arbitrator by the insurer. The lower court granted the defendant's request and ordered Nationwide to appoint an arbitrator to proceed with the arbitration process. Nationwide appointed an arbitrator and the two arbitrators designated by the parties selected a third arbitrator, in accordance with the policy's arbitration provisions.
After such procedures were complete, but before any arbitration hearing was held, Nationwide instituted the instant declaratory judgment action, seeking a determination that it was not contractually bound to provide underinsured motorist coverage with regard to the defendant's July, 1984 injuries. Ms. Pitts filed the preliminary objections, contending that the arbitration clause pertaining to underinsured motorist coverage in the Nationwide policy made it improper for the insurer to seek the court's interpretation of the provisions of the underinsured motorist provisions of the policy. She maintained that the arbitration provisions of the...
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