Originally from Dispute Resolution Journal

UM—ARBITRABILITY OF COVERAGE QUESTION—FEDERAL RULES OF CIVIL PROCEDURE 12(b)(l), 12(b)(6)—MOTIONS TO DISMISS DENIED

The presence of an arbitration clause in the uninsured motorist endorsement of an insurance policy does not act as a bar to judicial review of the insurer's obligations under that portion of the policy. The defendant, Ferraro, was shot in the arm as he was loading or unloading his car. Although there was no dispute about the extent of his injuries or the circumstances under which they arose, the parties disagreed as to whether Fidelity was obligated to provide coverage under the uninsured motorist provisior in the policy- The insurer sought a declaratory judgment that the policy did not provide coverage for the injuries sustained by Ferraro. The defendant, contending that the arbitration clause contained in the uninsured motorist endorsement barred the court from examining questions of coverage, moved for dismissal of Fidelity's action under Federal Rules of Civil Procedure l 2(b)( 1)—lack of subject matter jurisdiction—and I2(b)(6)—failure to state a claim on which relief can be granted. The court denied both motions to dismiss, holding that the provision mandated arbitration of only two issues: (I) the liability of the owner or operator of the uninsured vehicle for bodily injury sustained by the insured, and (2) the amount of payment due under the policy. Since the only dispute in this case was over the existence of coverage for Ferraro, "[t]he language of the policy cannot reasonably be read to require arbitration of this broad issue of coverage, particularly in light of the unusual circumstances under which Mr. Ferraro sustained his injuries . . . The courts of Ohio have routinely decided questions of coverage arising under uninsured motorist provisions of insurance policies, even when such policies have contained arbitration agreements."

U.S. Fidelity & Guaranty Co. v. Ferraro, 452 F Supp. S8f. (S.D. Ohio W.D. 1978).