Fidelity & Casualty Co. v. Dennis

KINGSLEY, J.

Respondent, a minor, was seriously injured by an automobile driven by Nicholas Frederick Stay, an uninsured motorist.

1

Contending that he was covered by the uninsured motorist clause of an automobile insurance policy issued by appellant, he filed with the American Arbitration Association his demand for arbitration. Acting through its present counsel, appellant replied to this demand by a letter in which it denied that respondent was an insured under the policy in question and contended that that issue was not one which it had agreed to arbitrate under the arbitration provision of the policy.

2

There followed an exchange of correspondence between appellant’s counsel and the association, in which the association advised appellant and respondent of the selection of an arbitrator, and counsel for both parties submitted arguments as to the matter of coverage, and of the arbitrability of that issue. On December 12, 1962, the association advised appellant’s counsel that “the Arbitrator . . . has informed the Association he rules that the question of liability of the

[543]

Respondent [appellant here] to the Claimant is a proper subject for Arbitration, ’ ’ and asked counsel to agree on a date for hearing. A hearing date having been set, counsel for appellant wrote to the association on February 7, 1963, (with a copy to counsel for respondent) as follows:

“The above matter has been set for hearing on February 19, 1963, before Judge Kenneth C. Newell as Arbitrator. We have raised two questions which must be determined before the issue of liability of the Respondent to the Claimant or the amount of damages can be reached. These two issues are (1) jurisdiction and (2) lack of coverage. Should either of these questions be determined in favor of Respondent, then it would not be necessary to proceed with the issues of liability and damages.

“It would, therefore, seem to be in the best interest of all concerned that the hearing on February 19 be limited to the question of jurisdiction and coverage.”

When the hearing was held, counsel for appellant again argued the matter of the arbitrator’s jurisdiction and was overruled. Reserving the right thereafter to raise the question of jurisdiction, counsel then participated in the arbitration hearing which culminated in an award in favor of respondent. Appellant’s petition to vacate the award, and respondent’s cross-petition for confirmation were duly heard in the trial court; an order and judgment of confirmation were entered ;