Nationwide Mutual Insurance v. Cover

9 Pa. D. & C.4th 411, 1991 Pa. Dist. & Cnty. Dec. LEXIS 379
CourtPennsylvania Court of Common Pleas, Adams County
DecidedMarch 6, 1991
Docketno. 90-S-980
StatusPublished

This text of 9 Pa. D. & C.4th 411 (Nationwide Mutual Insurance v. Cover) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Adams County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationwide Mutual Insurance v. Cover, 9 Pa. D. & C.4th 411, 1991 Pa. Dist. & Cnty. Dec. LEXIS 379 (Pa. Super. Ct. 1991).

Opinion

SPICER, P.J.,

Nationwide Mutual Insurance Company (Nationwide) has brought this declaratory judgment proceeding seeking judicial determination of two issues. One involves the refusal by another carrier to extend coverage and is not presently pertinent. The other involves policy provisions relating to benefits available to the insureds, James E. Cover and Ethel M. Cover. Nationwide alleges that it has paid policy limits for uninsured/underinsured coverage and should not be [412]*412forced to arbitrate Mr. Cover’s demands for loss of consortium damages.

The Covers have filed preliminary objections and seek to dismiss this action because of their previously made demand for arbitration.

Although Nationwide’s request may appear reasonable, this court holds that all questions concerning policy coverage must be determined in accordance with the arbitration clause in the policy. Therefore, we sustain preliminary objections and dismiss this action as it relates to the Covers. This decision is made despite authority urged upon us and discussed, infra.

Policy provisions which apply to this case read as follows:

“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.
“Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act.” Complaint, Exhibit A, at 12.

It is the court’s opinion that this language covers all disputes, including interpretation of policy provisions in light of applicable law.

[413]*413Nationwide cites several federal cases in support of its position that it is entitled to judicial determination about the viability of Covers’ claim. It is, of course, entitled to have its complaint allegations viewed as true, with all favorable inferences to be drawn. Franklin Chalfont Associates v. Kalikow, 392 Pa. Super. 452, 573 A.2d 550 (1990). However, since we deal with matters of contract interpretation, that principle has little impact on our decision.

Federal cases cited by Nationwide seem rooted in the Pennsylvania Supreme Court ruling in Women’s Society for the Prevention of Cruelty to Animals v. Savage, 440 Pa. 34, 269 A.2d 888 (1970), wherein it was said:

“The issue of whether this dispute is one that is covered by the terms of the arbitration agreement is one for the court to determine. Westmoreland H. Assn. v. West. Const. Co., 423 Pa. 255, 223 A.2d 681 (1966); Phila. Mar. Assn. v. Longshoremen’s Assn., 382 Pa. 326, 115 A.2d 733 (1955). As Chief Justice Stern explained in his opinion in Phila. Mar. Assn., supra at 336, 115 A.2d at 738:
“ ‘The construction of a contract to determine what questions the parties have agreed therein to submit to arbitration is one, not for the arbitrators themselves, but for the court to decide, and the court will not readily infer that it was intended to empower the arbitrators to determine the extent of their own jurisdiction: International Association of Machinists v. Cutler-Hammer Inc., 61 N.Y.S. 317 (affirmed 297 N.Y. 519, 74 N.E. 2d 464); B. Fernandez & Hnos., S. en C. v. Rickert Rice Mills Inc., 119 F.2d 809, 814, 815.’” 440 Pa. at 36, 269 A.2d at 890.

In line with this, the Third Circuit has said:

“State Farm’s position is correct. It is well-settled law in Pennsylvania that:
[414]*414“ ‘When a party to an agreement seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the question of (1) whether an agreement to arbitrate was entered into and (2) whether the dispute involved comes within the ambit of the arbitration provision.’ ” Myers v. State Farm Insurance Co., 842 F.2d 705, 707 (1988).

The District Court has echoed these statements:

“It is well established law in Pennsylvania that a party against whom arbitration is sought under an agreement to arbitrate has a right to a judicial determination of two issues: First, the court may determine whether the parties entered into an agreement to arbitrate, and second, the court may determine whether the dispute at issue falls under the agreement. Myers v. State Farm Insurance Co., 842 F.2d 705, 707 (3d Cir. 1988); Allstate Insurance Co. v. Gammon, 838 F.2d 73, 76, (3d Cir. 1988). The Third Circuit has held that Pennsylvania law requires that agreements to arbitrate be strictly construed, and they are not to be extended beyond their terms. Gammon, 838 F.2d at 76.” Nationwide Mutual Insurance Co. v. Bodenschatz, 715 F.Supp. 684, 685 (1989).

If our consideration ended here, we would follow the lead of our distinguished federal brethren and proceed to adjudicate the issue raised by Nationwide. In the words of the District Court, we would determine whether conditions sufficiently trigger policy application before deciding preliminary objections. This, in effect, would decide Nationwide’s declaratory-judgment action.

We agree that the court must determine initially if there is an issue to arbitrate. From that point, we part company with Nationwide’s position. We do not agree that the central issue of this case must be [415]*415adjudicated in deciding arbitrability. Nationwide wants us to hold, as a matter of law and contract interpretation, that once it has paid policy limits, it cannot be forced to pay for loss of consortium. At present, the issue is not whether this position is correct, but who is entitled to make it. Phrased a different way, the question becomes whether this court should look beyond the arbitration clause and interpret other provisions of the policy. Since there is no question that the disagreement between the parties involves coverage, we hold that we are limited to provisions of the arbitration clause.

First of all, it is no longer true that arbitration is viewed with a hoary eye. In insurance matters, there is a “policy favoring the arbitration of all coverage related issues.” Hade v.

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Related

Allstate Insurance Company v. Michael B. Gammon
838 F.2d 73 (Third Circuit, 1988)
Myers, Kevin v. State Farm Insurance Company
842 F.2d 705 (Third Circuit, 1988)
Hade v. Nationwide Insurance
503 A.2d 980 (Supreme Court of Pennsylvania, 1986)
Franklin Chalfont Associates v. Kalikow
573 A.2d 550 (Supreme Court of Pennsylvania, 1990)
Lamar v. Colonial Penn Insurance
578 A.2d 1337 (Supreme Court of Pennsylvania, 1990)
Kester v. Erie Insurance Exchange
582 A.2d 17 (Supreme Court of Pennsylvania, 1990)
Brennan v. General Accident Fire & Life Assurance Corp.
574 A.2d 580 (Supreme Court of Pennsylvania, 1990)
Phila. Mar. Assn. v. Longshoremen's Assn.
382 Pa. 326 (Supreme Court of Pennsylvania, 1955)
National Grange Mutual Insurance v. Kuhn
236 A.2d 758 (Supreme Court of Pennsylvania, 1968)
Westmoreland Hospital Ass'n v. Westmoreland Construction Co.
223 A.2d 681 (Supreme Court of Pennsylvania, 1966)
Women's Society for Prevention of Cruelty to Animals v. Savage
269 A.2d 888 (Supreme Court of Pennsylvania, 1970)
Nationwide Mutual Insurance v. Bodenschatz
715 F. Supp. 684 (E.D. Pennsylvania, 1989)

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Bluebook (online)
9 Pa. D. & C.4th 411, 1991 Pa. Dist. & Cnty. Dec. LEXIS 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-insurance-v-cover-pactcompladams-1991.