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OHIO CAS. INS. CO. v. BENSON

87 N.J. 191 (1981)

432 A.2d 905

OHIO CASUALTY INSURANCE COMPANY, PLAINTIFF-RESPONDENT, v. CORNELL J. BENSON, DEFENDANT-APPELLANT.

The Supreme Court of New Jersey.

Decided July 23, 1981.

Attorney(s) appearing for the Case

Steven K. Kudatzky argued the cause for appellant (Tomar, Parks, Seliger, Simonoff & Adourian, attorneys; Steven K. Kudatzky and Michael A. Kaplan, on the brief).

James A. Mullen, Jr. argued the cause for respondent (Montano, Summers, Mullen & Manuel, attorneys).

The opinion of the Court was delivered by POLLOCK, J.

The sole issue is whether, under the arbitration clause of an uninsured motorist endorsement, the question of the existence of a "phantom" hit and run driver should be decided by a court, as a preliminary matter, or by an arbitrator.

We hold that, under the policy in this case, the issue is not a question for the court, but one, together with issues of negligence...

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