Civil Service Emp. Ins. Co. v. Sticht, 1

• Citation: 14 Ariz.App. 36,480 P.2d 373
• Decision Date: 10 February 1971
• Docket Number: No. 1,CA-CIV,1
• Parties: CIVIL SERVICE EMPLOYEES INSURANCE COMPANY, a corporation, Appellant, v. William R. STICHT and Peggy Gene Sticht, husband and wife, and Olgerd W. Kalyna, Appellees. 1350.
• Court: Court of Appeals of Arizona

Page 373

480 P.2d 373

14 Ariz.App. 36

CIVIL SERVICE EMPLOYEES INSURANCE COMPANY, a corporation, Appellant, v. William R. STICHT and Peggy Gene Sticht, husband and wife, and Olgerd W. Kalyna, Appellees.

No. 1 CA-CIV 1350.

Court of Appeals of Arizona, Division 1.

Feb. 10, 1971.

Boettcher, Crowder & Schoolitz, by William H. Boettcher, Scottsdale, for appellant.

O'Reilly, Pollock, Pizzo & Brash, by Patrick W. O'Reilly, Phoenix, for appellees.

HATHAWAY, Judge.

This appeal challenges the correctness of the trial court's dismissal of appellant's complaint for declaratory judgment and quashal of a temporary restraining order.

The pertinent allegations of the complaint filed below are that the plaintiff-insurer had issued an insurance policy to the defendant-husband, that the defendant-wife had been involved in an automobile accident, that the defendants had filed a demand for arbitration under the uninsured motorist coverage provision of the policy, and denied that there was coverage to the Stichts under the terms of the policy. The insurer's denial of coverage was predicated on an exclusion provision relative to settlement without the consent of the insurer--the complaint alleged a settlement and the execution of a release from liability by the Stichts. The insurer additionally alleged that the vehicle which struck Mrs. Sticht's vehicle was not an uninsured automobile as defined in the policy.

The defendants filed a motion to dismiss the complaint, challenging the trial court's jurisdiction on the grounds that the parties had expressly contracted to submit to arbitration on the coverage issues. The trial court apparently agreed and dismissal followed.

The appellees have filed no answering brief on appeal, an provided in Rule 5(d), as amended, Rules of the Supreme Court, 17 A.R.S. Whether or not we treat such failure as a confession of reversible error depends upon the existence of debatable issues. Del Castillo v. Ray Harbour's Engine and Transmission Rebuilders, 8 Ariz.App. 233, 455 P.2d 181 (1968); National Exhibition Company v. Marx, 9 Ariz.App. 482, 453 P.2d 993 (1969). The pivotal question is--does the insurance policy require submission to arbitration of the questions presented by the insurer for judicial determination?

The pertinent policy provisions are:

'Coverage U--Damages For Bodily Injury Caused By Uninsured Automobiles: To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof,...