April 2, 1960
Nixon, Hargrave, Devans Dey for defendant.
La Verne White for plaintiff.
By his complaint plaintiff seeks damages for personal injuries and property damage alleged to have been sustained by him as a result of the negligent operation of an uninsured automobile.
By the terms of the indorsement contained in the policy of automobile liability insurance issued by the defendant to the plaintiff and entitled "Endorsement providing benefits on account of bodily injury or death caused by uninsured automobiles", the parties agreed that in the event of disagreement, determination as to whether the plaintiff is legally entitled to recover such damages, and if so, the amount thereof, should be made by arbitration.
While it does not appear in the papers submitted upon the motion, it did appear upon the argument that the defendant claims that the automobile alleged to have caused the damage of which plaintiff claims, was in fact insured. By the terms of the indorsement, the parties are obliged to arbitrate only the issues as to whether the owner and operator of the uninsured vehicle is legally liable for the damage sustained by the plaintiff, and if so, the amount of such damage. They are not required to arbitrate the issue as to whether or not the vehicle causing the damage was uninsured.
The motion to dismiss the complaint is accordingly granted without prejudice, however, to the commencement by plaintiff of an action for a declaratory judgment, in which action the owner and operator of the automobile alleged to have caused plaintiff's damage and the carrier claimed by defendant to have insured said automobile, may be made parties, and the issue of whether or not the said automobile was insured, be determined.