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Russell v. State Farm Insurance Co.3/7/2000
Appeal by defendant from order and judgment filed 4 March 1999 by Judge Oliver Noble in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 January 2000.
Defendant State Farm Insurance Company purports to appeal the trial court's order compelling arbitration and denying defendant's motion for summary judgment. Defendant's appeal is interlocutory and must be dismissed.
In view of our disposition, lengthy exposition of the underlying facts is unnecessary. We note plaintiff Raymond B. Russell was injured in a motor vehicle accident (the accident) 6 September 1995 while operating a motorcycle insured by defendant under a policy containing uninsured motorist coverage (the policy). Plaintiff maintains the accident was caused by a second, unidentified vehicle which fled the scene, while defendant contends plaintiff "slid in loose gravel . . . and was involved in a single vehicle accident."
Plaintiff subsequently notified defendant of the accident and his resultant personal injury , requesting compensation under Part C of the policy, "Uninsured Motorists Coverage," which dealt with collisions caused, inter alia, by "a hit and run vehicle." The policy provided that
person seeking Uninsured Motorists Coverage must
. . . :
1. Promptly notify police if a hit and run driver is involved.
Plaintiff concedes he did not report this accident to a police officer because following the accident he was taken immediately from the scene to the hospital where he spent some time due to the injuries sustained.
Defendant denied coverage 14 March 1997.
Plaintiff thereafter requested arbitration pursuant to the following provision of the policy:
If we and an insured do not agree:
1. Whether that person is legally entitled to recover compensatory damages from the owner or driver of an uninsured motor vehicle; or
2. As to the amount of such damages; the insured may demand to settle the dispute by arbitration.
However, defendant rejected plaintiff's request for arbitration, and plaintiff filed the instant declaratory judgment action 16 February 1998, praying that the trial court "remov this action to binding arbitration." In its answer, defendant asserted that
plaintiff must commence a civil action against [defendant] to determine whether there is uninsured motorist coverage before it can resort to the arbitration provision, and that plaintiff's failure to notify police of the accident violated provisions of the policy which constituted "a condition precedent to making an uninsured motorists claim" against defendant.
Defendant moved for summary judgment 6 January 1999. The trial court rendered its decision 4 March 1999, ordering
that all issues raised herein shall be referred to arbitration . . . with the parties having the right to have a judgment upon any arbitration award entered in any court having jurisdiction. . . .
. . . laintiff's failure to report his accident to a law enforcement officer does not and will not bar his uninsured motorist claim against defendant and, therefore, defendant's motion for summary judgment is denied as a matter of law.
These decisions constitute a final judgment as to the issues of arbitrability and the continued viability of plaintiff's uninsured motorist claim and there is no just cause or reason for delaying any appeal herefrom under Rule 54 of the North Carolina Rules of Civil Procedure.
Defendant timely appealed.
Although not raised by the parties, we are obliged first to consider sua sponte whether defenda
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