Aetna Cas. & Sur. Co. v. Superior Court of Los Angeles County

• Court: California Court of Appeals
• Writing for the Court: FRAMPTON; FILES, P. J., and JEFFERSON
• Citation: 43 Cal.Rptr. 476,233 Cal.App.2d 333
• Parties: AETNA CASUALTY & SURETY COMPANY, a corporation, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, and Martha Ellen LANE and American Arbitration Assoclation, Real Parties in Interest. Civ. 29035.
• Decision Date: 30 March 1965

Page 476

43 Cal.Rptr. 476 233 Cal.App.2d 333 AETNA CASUALTY & SURETY COMPANY, a corporation, Petitioner,
v.
SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent,
and Martha Ellen LANE and American Arbitration Assoclation, Real Parties in Interest. Civ. 29035. District Court of Appeal, Second District, Division 4, California. March 30, 1965.

Page 477

[233 Cal.App.2d 334] Veatch, Thomas, Carlson & Dorsey and Frederick C. Quimby, Jr., Henry F. Walker, Los Angeles, for petitioner.

No appearance for respondent.

Coyle & Dunford for real parties in interest.

[233 Cal.App.2d 335] FRAMPTON, Justice pro tem. ^*

Petitioner seeks a writ of mandate, or in the alternative, prohibition, directing respondent court (1) to vacate and set aside an order made November 27, 1964, and set out below, ¹ (2) to accept jurisdiction of the causes of action set forth in plaintiff's complaint, and (3) to determine in said action those matters therein presented which are not the subject of arbitration; or in the alternative that respondent court be restrained (1) from enforcing said order of November 27, 1964, (2) from refusing to accept jurisdiction of those matters presented in petitioner's suit which are not subject to arbitration, and (3) from compelling arbitration to be had of issues which are not subject to arbitration.

The controversy arises out of the following factual background as appears from the undenied allegations of the petition. Petitioner issued to Marguerita Celento, hereinafter referred to as Celento, its policy of public liability insurance covering her motor vehicle. This policy was in full force and effect on October 17, 1962, when the vehicle, then being driven by her, collided with a vehicle operated by George Albert Stone, an uninsured motorist. Martha Ellen Lane, hereinafter referred to as Lane, an occupant of the Celento vehicle, was injured in the accident. The policy issued by petitioner provided for uninsured motorist coverage in the amount and to the extent required by Insurance Code section 11580.2 and Lane was an insured under the policy.

So far as appears, no action of any kind was taken until September 23, 1964, almost two years after the accident, at which time Lane instituted arbitration proceedings before the American Arbitration Association, and served a demand for arbitration upon petitioner. No arbitration proceedings have as yet been held. On October 14, 1964, petitioner filed its complaint in the respondent court against Lane in which it sought in the first cause of action to enjoin Lane from [233 Cal.App.2d 336] further prosecuting the arbitration proceedings, and in the second cause of action, a declaration that Lane has no valid cause of action against plaintiff therein under the uninsured motorist provisions of plaintiff's policy and arising out of the accident of October 17, 1962.

The complaint referred to the pendency of the arbitration proceedings and included as an exhibit a copy of Lane's demand for arbitration. Lane then filed a general demurrer to the complaint as a whole. Following a hearing on the demurrer, the court

Page 478

made the order which has been set forth in the margin. ²

It should be noted at the outset that the superior court action was not one in which either party invoked the aid of the court to compel arbitration under Code of Civil Procedure section 1281.2. The action was brought in court to obtain judicial relief upon a cause of action arising out of a contract between the parties. The decision of the trial court was, in effect, to close its doors to the plaintiff in that action, upon the assumption that full relief would and should be given in the pending arbitration. The question now to be determined is whether there are issues between the parties which are not subject to arbitration, which issues the court was under a duty to try and decide.

Unless the provisions of section 11580.2 of the Insurance Code, relating to damage caused by an uninsured motor vehicle, are deleted by an agreement in writing between the insurer and any named insured, such provisions become a part of every contract of bodily injury liability insurance issued or delivered in this state covering liability arising out of the ownership, maintenance or use of any motor vehicle. (Traders, etc., Ins. Co. v. Pac. Emp. Ins. Co., 130 Cal.App.2d 158, 164, 278 P.2d 493.) The statute sets forth the minimum requirements and its provisions are controlling on the subject of arbitration unless broadened by agreement of the parties. Here the contract of insurance was limited to the minimum requirements prescribed by the statute.

This section, as it relates to the issues presented here, provides as follows: '(a) No policy of bodily injury liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be issued or delivered in this State to the owner or operator of a motor [233 Cal.App.2d 337] vehicle * * * unless the policy contains, or has added to it by endorsement, a provision with coverage limits at least equal to the financial responsibility requirements specified in section 16059 of the Vehicle Code insuring the insured * * * for all sums within such limits which he * * * shall be legally entitled to recover as damages for bodily injury * * * from the owner or operator of an uninsured motor vehicle. * * * (e) The policy or an endorsement added thereto shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof,...