Opinion
No. 108.
Submitted under sec. (Rule) 251.54 May 8, 1974. —
Decided June 4, 1974.
APPEAL from an order of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Appeal dismissed.
The cause was submitted for the appellant on the brief of Arnold, Murray O'Neill, attorneys, and James P. O'Neill of counsel, all of Milwaukee, and for the respondent on the brief of Cook Franke, S.C., attorneys, and Francis R. Croak and Robert L. Elliott of counsel, all of Milwaukee.
This appeal involves an order entered by the trial court requiring the defendant-appellant, Farmers Insurance Exchange, to proceed with arbitration according to the terms of its policy with the plaintiff-respondent, Morey Worthington, Jr., all occasioned by an automobile accident that occurred January 31, 1970, in Winnebago county, Wisconsin.
The plaintiff-respondent was involved in the automobile accident. Although his car was insured by the defendant-appellant, the other vehicle was not insured. The passengers in his car commenced a suit against him, Farmers Insurance Exchange (his insurer), and the uninsured driver. The uninsured motorist cross-complained for his personal damages and for contribution. The plaintiff-respondent cross-complained against the uninsured motorist for contribution only. A verdict was entered on May 5, 1972, finding the plaintiff 60 percent causally negligent and the uninsured motorist 40 percent negligent. Prior to trial the plaintiff had requested that Farmers agree to or arbitrate his claim for personal injuries under the uninsured motorist provisions of his policy. The company declined to make a decision until after the conclusion of the suit by the passengers. When the company thereafter refused to arbitrate and disclaimed liability on the basis of the outcome of the lawsuit, the plaintiff obtained a court order requiring the company to proceed with arbitration according to the terms of the policy with the plaintiff-respondent. The defendant appeals.
The issue that is dispositive of this appeal is whether the order directing arbitration in this case is appealable.
It is always the duty of this court in considering any appeal to resolve, even sua sponte, the initial question of whether the order involved on the appeal is, in fact, appealable, because, of course, this goes to the very jurisdiction of the court to hear the appeal.
In re Interest of F. R. W. (a minor) (1973), 61 Wis.2d 193, 212 N.W.2d 130; Gallagher v. Schernecker (1973), 60 Wis.2d 143, 208 N.W.2d 437; Teamsters Union Local 695 v. Waukesha County (1973), 57 Wis.2d 62, 203 N.W.2d 707; Estate of Hillery (1970), 46 Wis.2d 689, 696, 176 N.W.2d 376.
Under the terms of sec. 298.15, Stats., an order to proceed with arbitration is not appealable. That section provides as follows:
"298.15 Appeal from order or judgment. An appeal may be taken from an order confirming, modifying, correcting or vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action."
In a recent case we held
". . . Under the construction given the statute, such issues [any and all objections to referral and award] may be raised by either party, following the resort to arbitration, but not before." By the Court. — Appeal dismissed.
Teamsters Union Local 695 v. Waukesha County, supra, footnote 1, at page 70.