Cantwell v. Safeco Ins. Co.
| Decision Date | 26 March 1984 |
| Docket Number | No. 10841-7-I,10841-7-I |
| Citation | 37 Wn.App. 133,678 P.2d 852 |
| Parties | Debra Jean CANTWELL, Appellant, v. SAFECO INSURANCE COMPANY, Respondent. |
| Court | Washington Court of Appeals |
Chambers & Young, Thomas J. Chambers, Seattle, for appellant.
Brian F. Kreger, Seattle, for respondent.
*
Appellant Debra Jean Cantwell was injured while riding in an uninsured vehicle owned by Carl McKenzie which left the road and rolled over. Cantwell was included as a covered person under her stepfather's Safeco policy. The policy contained an underinsured motorist provision.
Cantwell filed suit under RCW 7.04.040 to compel Safeco to arbitrate and secured an order to show cause. She alleged that she was a passenger in the uninsured vehicle. Safeco filed an answer and counterclaim. Safeco denied Cantwell's allegations, requested affirmative relief under RCW 7.04, including findings and conclusions on the contested issues, and prayed for dismissal of the complaint with prejudice.
The matter came before the court on the motion calendar and was put over to another date because more time was needed. Both sides filed affidavits. Safeco claimed that Cantwell was not entitled to recover or to proceed to arbitration because she had been the driver at the time of the accident. The trial judge considered the affidavits and heard argument of counsel, but took no evidence. The judge entered findings of fact and found as a fact that Cantwell was the driver at the time of the accident, and dismissed Cantwell's complaint with prejudice.
The trial court was in error. There was no basis for the court to enter findings of fact because no evidence had been taken. The court did not follow the procedure mandated by RCW 7.04.040. The court has no power under that statute to decide disputed issues of fact without a trial.
The statute under which the court was proceeding reads as follows:
(1) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the court for an order directing the parties to proceed with the arbitration in accordance with their agreement. Eight days notice in writing of such application shall be served upon the party alleged to be in default. Service thereof shall be made in the manner provided by law for service of a summons in a civil action in the court specified in RCW 7.04.020. If the court is satisfied after hearing the parties that no substantial issue exists as to the existence or validity of the agreement to arbitrate or the failure to comply therewith, the court shall make an order directing the parties to proceed to arbitrate in accordance with the terms of the agreement.
(2) If the court shall find that a substantial issue is raised as to the existence or validity of the arbitration agreement or the failure to comply therewith, the court shall proceed immediately to the trial of such issue. If upon such trial the court finds that no written agreement providing for arbitration was made or that there is no default in proceeding thereunder, the motion to compel arbitration shall be denied.
This statute establishes a motion procedure through which a party, on 8 days notice, can get the case moving to arbitration if there is no dispute over the right to arbitrate, or moving immediately to trial if there is such a dispute. The issue before the court, when hearing an application under RCW 7.04.040, is whether any substantial issue exists as to the right to have an arbitration hearing. If there is no such issue, the court orders the parties to arbitrate pursuant to the agreement. If the court finds that a substantial issue is raised as to the right to have an arbitration hearing, there shall be an immediate trial of that issue. The trial court is not authorized to settle the issue upon a motion without a trial. Whether the court shall compel arbitration depends on the outcome of the trial.
Here, Cantwell's claim against Safeco was dismissed on the basis of a factual finding without a trial. The affidavits presented to the trial court demonstrate a factual conflict. Therefore, a trial is essential....
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