Fireman’s Ins. Co. of Newark, New Jersey v. DuFRESNE, 676 F.2d 965 (3d Cir. 1982)

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Fireman’s Insurance Company of Newark, New Jersey (Fireman’s) appeals from the grant of summary judgment in favor of Raymond DuFresne, requiring Fireman’s to submit to arbitration DuFresne’s claim for uninsured motorist coverage. Since the undisputed affidavits on file establish that the accident on which DuFresne’s claim is based did not involve an uninsured motorist, we reverse and direct that summary judgment be entered in Fireman’s favor.

I.

On June 21, 1977, DuFresne was injured in an accident occurring in Delaware, when the automobile he was driving collided with one' driven by Tanye Watson. DuFresne made a claim against Watson and received a check for $25,000 from Nationwide Insurance Company in settlement. Believing that this amount did not fully compensate him for his injuries, he made inquiries concerning the insurance coverage of his employer, the Edward J. Ring Detective Agency, which owned the car DuFresne was driving at the time of the accident. Although he neither saw nor received a copy of his employer’s policy issued by Fireman’s before the commencement of this litigation, he did learn that the policy contained an “uninsured motorist” provision and a clause requiring arbitration of disputes regarding coverage.

Asserting that Watson was an uninsured motorist to the extent that the check from Nationwide failed to compensate him for his injuries, DuFresne made a claim under the uninsured motorist provision of Fireman’s policy in April of 1980. When Fireman’s denied the claim, DuFresne threatened to file an action to compel arbitration. Fireman’s then filed suit to enjoin DuFresne from seeking arbitration and to obtain a declaratory judgment that he is not entitled to recover on his claim, and moved for summary judgment. Its affidavit in support of that motion alleges that the uninsured motorist provision of the policy issued to Ring reads as follows:

I. COVERAGE U — UNINSURED MOTORISTS

The policy’s arbitration clause provides:

In response to Fireman’s motion, DuFresne asserted that he had no way of knowing either (1) that the policy proffered by Fireman’s was in fact the policy issued to DuFresne’s employer or (2) that Watson was in fact insured by Nationwide. His refusal to admit these propositions as facts led the district court to deny summary judgment in favor of Fireman’s and to suggest that Fireman’s might renew its motion after attempting to fill in these factual gaps through discovery or affidavits. Fireman’s Insurance Co. of Newark, N. J. v. DuFresne, 513 F.Supp. 675, 677 & n.3 (E.D.Pa.1981).

Fireman’s responded by submitting four affidavits. Three of these — by the Ring Detective Agency’s general manager, by a Fireman’s claims adjuster, and by a claims representative for Ring’s insurance bro

ker — were accompanied by a copy of an automobile liability insurance policy containing the above-cited provisions issued to Ring by Fireman’s. Each affiant swore that, to his or her own personal knowledge, the attached copy was a true and correct copy of Fireman’s policy issued to Ring. The fourth affidavit was a statement by a Nationwide claims adjuster who swore:

Despite these affidavits, the district court denied Fireman’s renewed motion for summary judgment. The court concluded that DuFresne’s continued refusal to admit the facts alleged in the affidavits represented, in these circumstances, a continuing genuine factual dispute inappropriate for disposition through a Rule 56 motion. The court further concluded that, in view of this factual dispute and Pennsylvania law concerning arbitration of such disputes, a DuFresne motion for summary judgment requesting dismissal of Fireman’s action and requiring Fireman’s to submit DuFresne’s uninsured motorist claim to arbitration should be granted. Fireman’s Insurance Co. of Newark, N. J. v. DuFresne, 523 F.Supp. 863 (E.D.Pa.1981).

II.

In Safeco Insurance Co. of America v. Wetherill, 622 F.2d 685 (3d Cir. 1980), this court considered a case similar in a number of respects to the present case. There an insurance company also sued to enjoin an injured claimant from proceeding to arbitration of a dispute concerning its policy’s provision applicable to uninsured motorists. The claimant sought to recover under her father’s insurance policy for the difference between her settlement with the insurer of the owner of the other automobile involved in the accident and the actual value of her personal injury damages. There was no dispute that she was insured under her father’s policy, or that the other driver was in fact insured to the minimum required by the Pennsylvania financial responsibility law.1 The issue was whether Pennsylvania law would allow a person, covered by a policy with uninsured motorist and arbitration provisions indistinguishable from those involved in this case, to seek arbitration under that policy for the amount the other driver was “underinsured” (i.e., the difference between her recovery from the other driver and her actual personal injury damages). While agreeing that Pennsylvania courts had expressed a strong preference for arbitration of certain factual disputes concerning uninsured motorist coverage, this court concluded that the Pennsylvania Supreme Court would itself decide, as a matter of state law, that “uninsured” does not mean “underinsured.” Thus the dispute would not be a matter for arbitration under the policy. 622 F.2d at 688-922

The district court in the present case stated that “if the facts contained in the affidavits submitted by Fireman’s are true, Safe-co would compel the court to enter judgment in favor of Fireman’s.” 523 F.Supp. at 866, supra. But the court went on to hold that since DuFresne “has no reason to know whether the [Fireman’s] policy — first seen in litigation — is the policy issued to Ring” and since the affidavit from the Nationwide claims adjuster “fails to provide facts showing that the affiant has personal knowledge that Tanye Watson was, in fact, a Nationwide insured,” these disputed issues necessitated a denial of Fireman’s summary judgment motion. 523 F.Supp. at 867, supra.

Decisions of this court construing Fed.R. Civ.P. 56, however, indicate that the district court was mistaken in finding disputed issues of fact in the face of the affidavits submitted by Fireman’s. Rule 56(e) provides, in part:

[I, 2] Although courts are to resolve any doubts as to the existence of genuine issues of fact against the parties moving for summary judgment,3 Rule 56(e) does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegations or suspicions.4 Once the moving party has supplied sufficient affidavits in support of its motion, the opposing party must respond by supplementing the record in some manner — whether by its own affidavits or otherwise — setting forth specific facts demonstrating that there is a genuinely disputed factual issue for trial.5

In this case DuFresne has merely continued to deny knowledge of the facts, without offering any further material that might call into question the truth of Fireman’s affidavits. These affidavits give ample factual support to Fireman’s contentions regarding the insurance coverage both of DuFresne’s employer and of Tanye Watson. DuFresne’s continued denials of knowledge do not meet Rule 56(e) standards. Thus our agreement with the district court that Safe-co does control in the absence of a genuine factual dispute, compels us to direct the entry of judgment in favor of Fireman’s.

III.

The judgment of the district court is reversed with directions to grant Fireman’s motion for summary judgment.