American Ins. Co. v. Gernand

Citation262 Cal.App.2d 300,68 Cal.Rptr. 810
CourtCalifornia Court of Appeals
Decision Date20 May 1968
PartiesAMERICAN INSURANCE COMPANY, a corporation, Plaintiff and Respondent, v. Alice Lucille GERNAND and Sandra J. Gernand, Defendants and Appellants. Civ. 31318.

Rainer & Moriarity, and I. Warren Rainer, North Hollywood, for defendants and appellants.

Stockdale, Atkisson & Estes, and B. E. Atkisson, Los Angeles, for plaintiff and respondent.

WOOD, Presiding Justice.

This is a declaratory relief action to determine the rights and duties of plaintiff American Insurance Company and defendants Alice and Sandra Gernand under the uninsured-motorist provisions of a policy of liability insurance issued by plaintiff to defendant Alice Gernand and her husband. Defendants claim that the policy provisions cover damages which they received in an automobile accident wherein an unidentified automobile caused a Thunderbird automobile to swerve in front of the Chevrolet automobile which Alice was driving and in which Sandra was a passenger. The court found that there was no physical contact between the unidentified automobile and the Thunderbird or between the unidentified automobile and the Chevrolet, and concluded that defendants 'have no coverage' under the insurance policy. The court also determined that plaintiff was entitled to a permanent injunction restraining defendants from proceeding with the arbitration of their claims under the policy. Defendants appeal from the judgment.

Appellants contend that the court erred in enjoining the arbitration of their claims and in determining that they were not entitled to coverage under the uninsured-motorist provisions of the policy.

The policy of insurance provides in part as follows: 'If any person making claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured * * * then, upon written demand of either, the matter or matters upon which such person and the Company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association * * *.'

On May 17, 1963, after the accident had occurred (and prior to the filing of the complaint herein), defendants submitted a formal 'Demand For Arbitration' to the American Arbitration Association.

On August 23, 1963, while the claim or demand was pending, plaintiff (insurance company) filed the complaint for declaratory relief. The complaint alleges, among other things, that an actual controversy exists between plaintiff and defendants in that plaintiff contends that no coverage is available to defendants under the policy because there was no physical contact between the uninsured automobile and the insured automobile, and defendants contend that coverage is available and 'the matter should proceed in arbitration.' A copy of defendants' 'Demand For Arbitration' is attached to, and incorporated in, the complaint as Exhibit 'A'. The prayer is for an injunction enjoining defendants from proceeding with the claim for arbitration.

Defendants filed an answer alleging, among other things, that 'the matter should proceed to arbitration which has jurisdiction to hear the matter and determine the rights and duties of the parties.'

On October 18, 1963, the court, upon plaintiff's motion, issued a preliminary injunction enjoining defendants 'during the pendency of this action, or until the court shall otherwise order' from '(p)roceeding to determine the arbitration demand and claim now before the American Arbitration Association * * *.'

Defendants did not appear at the pretrial conference. Plaintiff filed a separate statement of issues, which was incorporated in the pretrial order. The statement provides that the issue remaining for trial is: 'Whether or not coverage was afforded by plaintiff to defendants under the facts and circumstances set forth in the complaint.'

At the trial, evidence was presented as to whether there had been physical contact between the unidentified (uninsured) automobile and the Thunderbird automobile which, in order to avoid colliding with the unidentified automobile, had swerved in front of the Chevrolet (insured automobile). It was stipulated that there was no contact between the Thunderbird and the Chevrolet. After the evidence had been presented, defendants' counsel referred to a pending superior court action which related to the question of arbitration of uninsured-motorist provisions of insurance policies, and the court granted permission to defendants to file further points and authorities. The matter was taken under submission, and the defendants filed points and authorities to the effect that the matter should be arbitrated and that the court lacked jurisdiction to determine the matter upon the merits.

As above stated, the court found that there was no physical contact between the unidentified (uninsured) automobile and the Thunderbird or between the unidentified automobile and defendants' automobile within the meaning of section 11580.2 of the Insurance Code. A conclusion of law was that plaintiff is entitled to a permanent injunction restraining defendants from proceeding with any claim or demand under the uninsured- motorist provisions of the policy. The judgment was that defendants have no coverage under the uninsured-motorist provisions of the policy, and that they are permanently enjoined from proceeding with arbitration of any claim or demand under the uninsured-motorist provisions of the policy.

Defendants made a motion for a new trial and argued to the effect that the matter should have been arbitrated and that the court lacked jurisdiction. The motion was denied.

Appellants contend that the court erred in enjoining arbitration of their claims.

Section 11580.2 of the Insurance Code provides that policies of automobile liability insurance shall contain provisions covering liability for damages caused by uninsured motor vehicles. Subdivision (e) of said code section provides that the policy shall provide that the...

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11 cases
  • Freeman v. State Farm Mut. Auto. Ins. Co.
    • United States
    • California Supreme Court
    • May 30, 1975
    ...the physical contact issue. (Felner v. Meritplan Ins. Co., Supra, 6 Cal.App.3d 540, 86 Cal.Rptr. 178; American Ins. Co. v. Gernand, Supra, 262 Cal.App.2d 300, 302, 68 Cal.Rptr. 810; cf. Esparza v. State Farm Mut. Auto. Ins. Co., Supra, 257 Cal.App.2d 496, 65 Cal.Rptr. 245; contra, Pacific A......
  • Chico Feminist Women's Health Center v. Scully
    • United States
    • California Court of Appeals Court of Appeals
    • February 28, 1989
    ...in California, in which an appeal such as that pressed by defendants has been allowed. Defendants rely on American Ins. Co. v. Gernand (1968) 262 Cal.App.2d 300, 68 Cal.Rptr. 810 which held that a failure to appeal provisions of a preliminary injunction did not preclude later review of a su......
  • Felner v. Meritplan Ins. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • April 13, 1970
    ...properly confirmed the award. (Jordan v. Pacific Auto. Ins. Co., 232 Cal.App.2d 127, 132, 42 Cal.Rptr. 556; American Ins. Co. v. Gernand, 262 Cal.App.2d 300, 68 Cal.Rptr. 810; Esparza v. State Farm Mut. Auto. Ins. Co., 257 Cal.App.2d 496, 500--501, 65 Cal.Rptr. 245 (hear. den.); Federal Mut......
  • Freeman v. State Farm Mut. Auto. Ins. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • September 17, 1974
    ...496, 65 Cal.Rptr. 245; Campbell v. Farmers Ins. Exch., supra, 260 Cal.App.2d 105, 110, 67 Cal.Rptr. 175; American Ins. Co. v. Gernand (1968) 262 Cal.App.2d 300, 302, 68 Cal.Rptr. 810; Felner v. Meritplan Ins. Co. (1970) 6 Cal.App.3d 540, 543, 86 Cal.Rptr. 178. An additional category of case......
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