In Re Arbitration Between Grover and Universal Underwriters Ins. Co. ( 1979 )

The opinion of the court was delivered by

Schreiber, J.

An arbitration was held before the American Arbitration Association to resolve a dispute between plaintiff, Wilmer Grover, Jr., and defendant, Universal Underwriters Insurance Company, pursuant to provisions in an insurance policy issued by defendant covering Grover’s motorcycle. Subsequent to an award of $15,000, Grover sought to confirm and the Insurance Company to vacate that award in the Superior Court, Chancery Division. The Superior Court remanded the matter to the arbitrator for further hearings. After the rehearing the arbitrator reaffirmed his earlier determination and the Superior Court confirmed the award. The Appellate Division, one judge dissenting, affirmed. 151 N. J. Super. 403 (1977). Thereupon defendant appealed as of right. R. 2:2-1 (a).

The two ultimate questions in this appeal are whether a policy coverage issue was properly before the arbitrator, and, if so, whether his award should be upheld.

The proceedings and facts are detailed in the Appellate Division opinion and need only be summarized here. Defendant had issued a liability policy to plaintiff covering his Kawasaki motorcycle. The policy was in effect on August 4, 1973 when plaintiff had a serious motorcycle accident. According to the plaintiff, he had been riding his motorcycle in an easterly direction on West New Road, South Brunswick, at 30 to 35 miles per hour when, as he began to negotiate a curve, a vehicle traveling in a westerly direction on the wrong side of the road threatened his passage and safety. Plaintiff-veered to his right off the road onto the dirt shoulder and lost control of his motorcycle. He was apparently thrown into some split rail fencing and rendered unconscious. Within two minutes Police Officer Eenske came on the scene. Grover, still unconscious, was taken to Princeton Medical Center by the Monmouth Junction Eirst Aid Squad.

When Eenske arrived, there was no one in the immediate area where Grover was lying, although there were people in the yard at a house nearby. The police officer’s observations and measurements taken at the accident scene gave no indication that another vehicle was involved. He questioned Grover about one week later at the Medical Center. He obtained Grover’s version of what occurred and inserted that information in the police report. Grover meanwhile had been issued a summons for not driving on the improved part of the roadway. On October 15, 1973 he pled guilty and was fined $10.

Grover’s insurance policy contained an uninsured motorist provision under which the insurance carrier agreed to pay all the sums which the insured was legally entitled to recover as damages from the owner or operator of an “uninsured highway vehicle” because of bodily injury caused by accident and arising out of the use of such “uninsured highway vehicle.” The coverage issue centers about the definition of an “uninsured highway vehicle.” Within that category is a hit and run vehicle, which in turn is defined to include a vehicle which had no physical contact with the insured provided certain enumerated conditions were satisfied • — • the crucial condition pertinent here being that the “facts” of the accident “can be corroborated by competent evidence other than the testimony of any person having a claim under this * * * insurance as a result of such accident.” Defendant has contended throughout these proceedings that plaintiff never met this requirement. ■

. The policy also provided that if the parties could not agree (1) that the insured was legally entitled to recover damages from the other party allegedly involved in the accident, and (2) if so, the dollar amount of those damages, then those issues were to be determined by arbitration. When Grover and defendant could not agree on these issues, Grover demanded arbitration and sought $15,000, the policy limit. The demand was made on an American Arbitration Association form which referred to disputes arising under the insurance policy provision involving uninsured or hit and run motorists. Defendant acknowledged the ■ demand.

An arbitrator was designated and the hearings proceeded. It is clear that the insurance policy required arbitration on only two issues — liability of the “hit and run” motorist for the collision and damages which were stipulated at $15,000. Although no reporter was present so that a transcript is not available,' we are satisfied that' the parties submitted to the arbitrator not only those two questions, but also the basic issue of coverage under the policy.

There are several indicia which lead us to this conclusion. Plaintiff’s formal demand for arbitration sought damages of $15,000, and either at the beginning or during the arbitration, defendant stipulated that plaintiff’s damages were $15,000. Thus, both parties expected that if plaintiff prevailed, the arbitrator’s award would be $15,000. But such an award had to be predicated on the underlying foundation that coverage existed. It is significant that neither party has asserted or claimed that the award was to be contingent upon a judicial finding of coverage. Further, the arbitrator Certainly harbored the same understanding. Not only did his award contain no limitation, but on the subsequent rehearing, the arbitrator stated that “[t]he sole issue for determination [had been] the liability of the Respondent [defendant].”

When the award came before the Superior Court for confirmation, defendant’s brief and argument centered about the contention that the arbitrator’s determination was erroneous, not because the arbitrator lacked authority or jurisdiction to decide the issue, but rather because plaintiff had not adduced the factual proof necessary to support a finding of coverage. In his oral argument before us defendant’s counsel conceded that the testimony and argument before the arbitrator concerned the underlying dispute of coverage.

It was because of defendant’s contention that plaintiff had not furnished the arbitrator with sufficient competent corroborative evidence of the existence of the other vehicle that the trial court held the award would have to be vacated if the only corroborative evidence before the arbitrator was the police report. However, it believed that if plaintiff’s recital of events to the police officer was admissible as an exception to the hearsay rule, such as a spontaneous and contemporaneous statement under Evid. R. 63(4), then the necessary competent corroboration would have been produced. Since it was not apparent on the face of the award or otherwise what other evidence the arbitrator had considered, the trial court ordered that the matter be resubmitted to the arbitrator for a rehearing to establish the admissibility of plaintiff’s statement to the police officer. The trial court also observed that the contract required the award be based on a factual finding “corroborated by competent evidence other than the testimony of” the plaintiff and that the arbitrator had to comply with the terms of the agreement.

At the rehearing Officer Eenske and Grover testified. Fen-ske described what he saw when he arrived at the scene, most of which had been substantially set forth in the police report. He testified that his investigation at the scene had not disclosed that another motor vehicle was involved. His only reference to other motor vehicles was that West Hew Road was well traveled and that he had passed cars before arriving at the scene.

The officer interviewed plaintiff within a week at the Princeton Hospital. There he obtained the description of how the accident occurred which he incorporated in the police report. Although plaintiff was under some pain, he was calm and related in a coherent fashion that an automobile had forced him off the road. Plaintiff testified that he was under sedation and in severe pain Avhen he spoke with the police officer.

The arbitrator again awarded plaintiff $15,000. He conceded the inadmissibility of plaintiffs narrative statement in the police report, but held he was not bound by the rules of evidence. Accordingly, he admitted the report, and concluded it constituted sufficient corroboration.

The trial court then entered an order confirming the award, despite finding that the policy coverage question was not properly before the arbitrator. Relying upon the record made before the arbitrator, it reasoned that a plaintiff could never satisfy a requirement of corroboration other than his own statement. It went on to find sufficient corroboration in the fact that when the policeman arrived at the scene, he found that an accident had occurred.

The Appellate Division affirmed. It held that the arbitrator’s determination was unassailable under N. J. 8. A. 2A:24— 8,(a). Judge Darner in his dissenting opinion found that the arbitrator had no jurisdiction to determine the coverage issue, that the award was procured by “undue means,” N. J. 8. A. 2A:24— 8(a), and that the arbitrator exceeded his “powers,” N. J. 8. A. 2A:24-8(d). We find that although the arbitrator did have jurisdiction, he “imperfectly executed” his power and the award was produced by “undue means.”

We return to the first question of whether the arbitrator’s jurisdiction included the authority to decide if defendant’s policy provided coverage. The answer is found simply by analyzing what the parties have agreed should be submitted to arbitration. In the absence of a consensual understanding, neither party is entitled to force the other to arbitrate their dispute. Subsumed in this principle is the proposition that only those issues may be arbitrated which the parties have agreed shall be. Stated another way, the arbitrator’s authority is circumscribed by whatever provisions and conditions have been mutually agreed upon. Any action taken beyond that authority is impeachable. Goerke Kirch Co. v. Goerke Kirch Holding Co., 118 N. J. Eq. 1, 4 (E. & A. 1935); Wm. J. Burns Int'l Detective Agency, Inc. v. N. J. Guards Union, Inc., 64 N. J. Super. 301, 307 (App. Div. 1960), certif. den. 34 N. J. 464 (1961).

As indicated above, the insurance policy called for an arbitrator to decide if the no-contact “hit and run” motorist was responsible for the accident, and, if so, the amount due plaintiff for injuries sustained in the accident. See Government Employees Ins. Co. v. Bovit, 142 N. J. Super. 268 (App. Div.), certif. den. 71 N. J. 502 (1976); N. J. Manufacturers Ins. Co. v. Franklin, 160 N. J. Super. 292 (App. Div. 1978). Plaintiff’s proofs at the first hearing before the arbitrator consisted only of his own testimony and the police report. Obviously that evidence could have been sufficient and indeed was sufficient to convince the arbitrator to agree with plaintiff on those two issues.

However, defendant, relying upon the policy language that existence of the other motor vehicle had to be corroborated by competent evidence other than the plaintiff’s testimony, contended that plaintiff’s proofs were insufficient. It thereby raised and relied upon the coverage issue. Coverage, having been raised by defendant and tried before the arbitrator without objection by plaintiff, thereby came within the scope of those matters which the arbitrator could properly decide. Of. B. 4:9-2 which states that “[w]hen issues not raised by the pleadings and pretrial order are tried by consent or without the objection of the parties, they shall be treated in all respects as if they had been raised in the pleadings and pretrial order.” The parties had the right to modify the arbitrator’s authority by mutual agreement and to add another issue for his determination. That is what occurred here.

Defendant could have objected to arbitration of the coverage issue and protected its position in a number of ways. It could have instituted an action for a judicial decision on that issue and requested that the arbitration be stayed. Cf. Battle v. General Cellulose Co., Inc., 23 N. J. 538 (1957), where the judicial proceeding was instituted at the conclusion of the arbitration in which the objecting party had refused to participate. See Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N. J. 144, 155 (1978). Defendant also had the choice of making an objection to the propriety of the arbitration on the ground of no coverage and participating in the arbitration proceeding under protest to decide the other two questions. See Polshek & Associates v. Bergen Cty. Iron Works, 142 N. J. Super. 516, 523 (Ch. Div. 1976). Use of either of these procedures would have preserved the' issue of arbitrability for the court.

Ho possible confusion would have existed if at the outset of the arbitration proceedings the parties had agreed on the precise issues to be submitted to the arbitrator. See. American Arbitration Association, Suggestions for the Practice of Commercial Arbitration in the United States 18-25 (1928); see also Carhal Factors, Inc. v. Salkind, 5 N. J. 485, 489-490 (1950). A submission not only serves the practicality of memorializing the issues, but also finalizes the matter submitted. See Leslie v. Leslie, 50 N. J. Eq. 103 111 (Ch. 1892); W. Sturges, A Treatise on Commercial Arbitrations and Awards 613-618 (1930); see also Gerisch v. Herold, 82 N. J. L. 605 (E. & A. 1912).

Having concluded that the arbitrator had jurisdiction' to determine the coverage issue, we now turn to the validity of the award. We have previously pointed out that what may be arbitrable depends upon the consent of the parties. In addition it is the agreement of the parties which delineates the scope of that authority. Thus, where the parties have set forth in their agreement certain terms and conditions which must be satisfied, the arbitrator may not disregard those terms. He may not rewrite the contract terms for the parties. In the absence of directions to the contrary his award should be consonant with the matter submitted. Otherwise, the determination is contrary to the authority vested in him. Such an award cannot stand representing as it does an “imperfectly executed” power and having been procured by “undue means.” N. J. 8. A. 2A:24r-8. Cf. Held v. Comfort Bus Line, Inc., 136 N. J. L. 640, 641-642 (Sup. Ct. 1948) (“undue means” where arbitrator’s mistake of law or fact results in failure of intent).

Here the arbitrator made a determination at the conclusion of both hearings contrary to the authority granted him in the contract. This he cannot do. The arbitrator was not free to disregard the contractual requirements of corroboration and competence.

We see no need to resubmit to an arbitrator the issue of whether corroborative competent evidence of the accident within the intendment of the contract was produced in the hearings. The issue poses only a legal question which the parties intended by their contract to be resolved in accordance with the law. Cf. Government Employees Ins. Co. v. Bovit, supra. Under these circumstances it is appropriate for us to resolve the issue and conclude the matter.

The policy affords coverage when a “hit and run” vehicle has caused an accident without physical contact when:

1. The identity of the owner or operator of the other vehicle cannot be ascertained.

2. The accident was reported within 48 hours to the police and a statement under oath shall have been filed with the company within 30 days after the accident describing the event.

3. If requested, the insured vehicle will be made available for inspection.

4. The facts of the accident can be corroborated by competent evidence other than the claimant’s testimony.

The first three conditions apply to all “hit and run” accidents, the last only to non-contact “hit and run” situations. Con-cededly, plaintiff satisfied the first three provisions.

The fourth condition requires corroboration other than by Grover’s testimony that another motor vehicle forced his motorcycle off the road. Prom the standpoint of the insurance company, such corroboration serves a valid purpose by requiring some other tangible evidence of the existence of the unidentified vehicles and thereby eliminating some possible fraudulent claims. It is for this reason that some states exclude unidentified cars from their uninsured motorist coverage statutes. Annotation, “Uninsured motorist indorsement: validity and construction of requirement that there be ‘physical contact’ with unidentified or hit-and-run vehicle,” 25 A. L. R. 3d 1299, 1303 (1969).

We agree with Judge Larner’s analysis:

The record does not reveal any other corroborative evidence, direct or circumstantial, that another vehicle proceeding in the opposite direction caused the claimant to veer off the road. The investigation at the scene by the police officer, the location of the insured vehicle near the fence and the injury to the insured, represent evidence that the assured left the road and crashed into a fence. None of these facts, however, corroborates the existence of a phantom ear as the cause for the collision.

Thus the occurrence of an accident involving a no-contact, hit-and-run vehicle rests solely upon the testimonial version of the assured himself and lacks the requisite corroboration mandated by the policy. On such a record there is no coverage and therefore no right of reimbursement under the policy. A court cannot disregard the plain terms of the policy in order to adopt a construction which favors the assured against the insurance company. See Petronzio v. Brayda, 138 N. J. Super. 70, 75 (App. Div. 1975). [151 N. J. Super. at 421-422]

To this we would add that the insured’s version of the accident as related in the police report was not competent as well as not corroborative evidence under the insurance policy. Hearsay, objected to and which does not fall within an exception to the hearsay rule, is not competent evidence.

Our conclusion does not foreclose whatever rights plaintiff may have under the Unsatisfied Claim and Judgment Fund Law. N. J. 8. A. 39 :6 — 61 et seq. Compare Obst v. State Farm Mut. Auto. Ins. Co., 127 N. J. Super. 458 (App. Div. 1974), with Beltran v. Waddington, 155 N. J. Super. 264 (App. Div. 1978). We also note that the parties have not raised, briefed, or discussed the problem whether the corroboration clause in the policy conflicts with N. J. S. A. 17:28-1.1 which incorporates by reference the hit and run provisions of N. J. S. A. 39:6-78. Compare Jones v. Heymann, 127 N. J. Super. 542 (App. Div. 1974), with Pasterchick v. Insurance Co. of No. America, 150 N. J. Super. 90 (App. Div. 1977), and Commercial Union Assurance Co. v. Kaplan, 152 N. J. Super. 273 (Law Div. 1977).

Reversed. No costs.