Oliva v. Aetna Cas. and Sur. Co.
| Decision Date | 27 May 1980 |
| Citation | 434 A.2d 304,181 Conn. 37 |
| Court | Connecticut Supreme Court |
| Parties | Katherine OLIVA v. AETNA CASUALTY AND SURETY COMPANY. |
John J. Luckart, Bridgeport, with whom was Richard P. Bepko, Bridgeport, for appellant (plaintiff).
Edward Maum Sheehy, Bridgeport, for appellee (defendant).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.
The plaintiff applied to the Superior Court for an order compelling the defendant Aetna Casualty and Surety Company (Aetna) to proceed with arbitration pursuant to the uninsured motorist clause of the automobile liability insurance policy issued by the defendant to the plaintiff in 1976. 1 By way of a special defense, the defendant Aetna alleged that the plaintiff failed to properly notify Aetna that she had a claim under the uninsured motorist provision of that policy. 19 Couch, Insurance 2d, § 82.1:6, p. 1072 (1979 Supp., pp. 208-210). Aetna further alleged that the furnishing of such notice is a condition precedent to arbitration. The trial court agreed with Aetna concluding that the giving of notice within thirty days from the date of the accident is a condition precedent to arbitration and denied the application. From that judgment, the plaintiff has appealed.
The following facts are not in dispute: On January 27, 1977, the plaintiff's automobile was struck by a vehicle operated by an unidentified driver who fled the scene of the accident. The police were summoned and an accident report was prepared. At that time the plaintiff was insured with Aetna under a policy containing an uninsured motorist clause which provided as follows: An "uninsured highway vehicle" means a hit and run vehicle subject to the proviso that in case of a hit and run accident the insured give notice to the insurer by affidavit within thirty days from the date of the accident that he has a cause of action against a person whose identity is unknown. It is conceded that the plaintiff did not properly comply with this notice provision.
On appeal, the plaintiff claims that the effect of noncompliance with such a contractual notice provision is an arbitrable matter.
The defendant, on the other hand, argues that if an insured elects to proceed pursuant to General Statutes § 52-410 for an order compelling arbitration, the insured is bound by the court's decision on the merits. The function of the court, however, is to determine, in the first instance, whether the issue is arbitrable. If the court so decides, an order compelling arbitration is issued. If, on the other hand, the court decides that the issue is not arbitrable, it can proceed to decide the issue on the merits. In such a case, however, the plaintiff can appeal on the ground that the court erred in concluding that the issue was not arbitrable. That is the posture of the present case before this court.
The trial court implicitly based its decision on the case of Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967) (Frager I ), wherein this court held that only those issues specifically set out in the arbitration clause of an uninsured motorist policy provision were in fact arbitrable. 2
The legislature, however, amended § 38-175c 3 of the General Statutes to read in pertinent part: "Every (automobile liability policy containing the mandatory provision for uninsured motorist coverage) issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding." (Emphasis added.) The holding in Frager I, therefore, has been legislatively overruled to the extent that it held that an insurer could contractually limit those issues relating to coverage which the arbitration panel could decide.
Clearly, § 38-175c mandates not only the inclusion of a provision for uninsured motorist coverage in automobile liability insurance policies, but that coverage under such provisions be determined through arbitration when the policy provides that the parties will arbitrate. The question of whether nonfulfillment of a policy provision concerning the timely presentment of claims bars recovery is essentially one of coverage. Furthermore, while the defendant Aetna purportedly limited the extent to which questions of coverage would be determined at arbitration proceedings, 4 § 38-175d specifically provides that policies affording uninsured motorist coverage are deemed to include all statutorily required provisions. In sum, the legislature has mandated that the amended provision of §...
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...could contractually limit those issues relating to coverage which the arbitration panel could decide." Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). We therefore held in Oliva that "[t]he expressed intent and effect of the aforesaid amendment to § 38-175c is t......
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