Visselli v. American Fidelity Co.

• Decision Date: 07 December 1967
• Citation: 237 A.2d 561,155 Conn. 622
• Court: Connecticut Supreme Court
• Parties: Gloria S. VISSELLI et al. v. AMERICAN FIDELITY COMPANY.

Page 561

237 A.2d 561

155 Conn. 622

Gloria S. VISSELLI et al. v. AMERICAN FIDELITY COMPANY.

Supreme Court of Connecticut.

Dec. 7, 1967.

Burton M. Weinstein, Bridgeport, with whom was Ralph L. Palmesi, Bridgeport, for appellants (plaintiffs).

Vincent F. Dooley, New Haven, for appellee (defendant).

Before ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.

COTTER, Associate Justice.

The plaintiffs brought an application to the Superior Court, under General Statutes § 52-410, for an order directing the defendant to proceed with arbitration in compliance with the uninsured motorist provisions of an automobile insurance policy issued by the defendant to Gloria Snively, now known as Gloria Snively Visselli, covering the operation of a Ford automobile. The plaintiff Kay William Snively, her former spouse, is a beneficiary of the insurance policy by virtue of a family protection coverage endorsement. The plaintiffs, as owner and passenger in the insurance mobile, are beneficiaries of the insurance policy issued by the defendant. The proceeding before us arises from an accident which occurred in Ohio on June 20, 1957, and involved the insured automobile and another motor vehicle, owned by Patterson Pontiac, Inc., which was leased to Drake Investment Corporation and which was operated at the time by Joseph Kimbrough. The plaintiffs brought a negligence action against Patterson and Drake in Ohio in 1959, and thereafter in 1960 the Ohio court dismissed the proceedings as to Patterson and Drake because Kimbrough was not acting with the authority of Patterson or Drake when he collided with the plaintiffs.

The defendant interposed four special defenses to the plaintiffs' application in which it alleged that the plaintiffs had not demonstrated that Kimbrough was operating an uninsured automobile as defined in the endorsement, that the plaintiffs pursued actions against Drake and Patterson to judgment without the written consent of the company as required under the endorsement provision, that a copy of the summons and complaint or other process served by the plaintiffs in connection with their legal action in Ohio was not forwarded immediately to the company in accordance with the endorsement provisions, and that the right of action set forth in the application did not accrue within six years nearest before the commencement of the present action. The defendant also alleged that the issues raised by these defenses are not subject to arbitration.

After a hearing, the court decided that the issues propounded by the special defenses were not arbitrable under the provisions of the insurance policy and that the plaintiffs, to obtain an order to compel arbitration, must first establish policy coverage in an independent lawsuit.

The obligations and rights of the parties are described and limited by their written agreement. The answer to the question whether or not the court shall direct a party to proceed with arbitration is embodied in the insurance contract. The parties cannot be compelled to arbitrate matters other than those which they have agreed to arbitrate under the provisions of their insurance policy. The arbitration agreement in the present case is contained in paragraph 6 of the endorsement, which provides as follows: '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 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 endorsement, 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...