Dominion Ins. Co. Ltd. v. Hart
| Decision Date | 12 June 1972 |
| Docket Number | No. C--131,C--131 |
| Citation | 498 P.2d 1138 |
| Parties | DOMINION INSURANCE COMPANY LIMITED, a corporation, organized under the laws of England, Petitioner, v. Fred M. HART, Respondent. |
| Court | Colorado Supreme Court |
Blunk & Johnson, Forrest S. Blunk, Robert Z. Bohan, Denver, for petitioner.
Maley & Schiff, P.C., John T. Maley, Robert A. Schiff, Denver, for respondent.
This action is on certiorari to the Court of Appeals. Dominion Insurance Company sought review here when that court reversed an Arapahoe County District Court judgment dismissing respondent Hart's suit seeking recovery on an insurance policy issued by Dominion.
Hart--a commercial pilot--was injured in the course of a flight. As a result, he was not able to pass the required physical examination, and a renewal of his pilot's license was refused by the Federal Aviation Administration. Hart was insured under an occupational disability policy with Dominion. When payment thereon was demanded by Hart, Dominion refused until it could obtain a medical evaluation of the claim. Dominion requested Hart to be examined at company expense at the Mayo Clinic in Minnesota. Hart, living in Denver, refused to go to Minnesota and made demand for arbitration pursuant to the policy. As provided by procedure outlined in the policy, on instructions from Dominion Hart appointed a medical referee to act for him. Dominion, in turn, also as provided in the policy, appointed its medical referee, the same Mayo physician to whom they had requested Hart to submit for medical evaluation. Hart's appointee notified the Minnesota physician that it would be necessary for the arbitration hearing to be held in Denver. Dominion's appointee replied in pertinent part as follows:
'Evidently Mr. Hart does not wish to come here for an evaluation and, accordingly, I am afraid I would be of little value in hearings planned in Denver.
'Again, if our services here are ever required please let us know and we will be glad to arrange an appointment for Mr. Hart.'
Thereafter, respondent initiated suit for payment of the proceeds. Prior to trial on this issue, however, petitioner moved to dismiss the complaint on the ground that arbitration procedures, a condition precedent to litigation, had not been followed, and that another medical referee, in Denver, had been appointed, albeit ten months after the suit was instituted. The trial court ordered dismissal, finding that while respondent was not required to be examined in Minnesota, there had been no refusal by Dominion to arbitrate. In reversing this judgment and ordering trial on the merits, the Court of Appeals, 29 Colo. App. 404, 487 P.2d 826, found that the Minnesota doctor's letter amounted to a refusal to arbitrate by petitioner.
Certiorari was granted herein on the ground that the Court of Appeals had probably decided the matter not in accord with applicable decisions of the supreme Court. In this connection, Dominion asserted in its petition that the Court of Appeals--contrary to appellate procedural law--had substituted its own findings of fact for findings made by the trial court which were supportable by the record. We agree and reverse.
Waiver of failure of arbitration occurs when the insurer refuses a demand for arbitration or does not cooperate or proceed with arbitration after...
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