Fidelity & Cas. Co. of New York v. Dennis

• Citation: 229 Cal.App.2d 541,40 Cal.Rptr. 418
• Court: California Court of Appeals
• Decision Date: 04 September 1964
• Parties: The FIDELITY & CASUALTY COMPANY OF NEW YORK, Petitioner and Appellant, v. Daniel Scott DENNIS, a minor, etc., Defendant and Respondent. Civ. 28001.

Page 418

40 Cal.Rptr. 418

229 Cal.App.2d 541

The FIDELITY & CASUALTY COMPANY OF NEW YORK, Petitioner and Appellant, v. Daniel Scott DENNIS, a minor, etc., Defendant and Respondent.

Civ. 28001.

District Court of Appeal, Second District, Division 4, California.

Sept. 4, 1964.

Betts & Loomis and Ingall W. Bull, Jr., Los Angeles, for petitioner and appellant.

Jones & Weldon, and Charles R. Weldon, Compton, for defendant and respondent.

KINGSLEY, Justice.

Respondent, a minor, was seriously injured by an automobile driven by Nicholas Frederick Stay, an uninsured motorist. ¹ Contending that he was covered by the uninsured motorist clause of an automobile insurance policy issued by appellant, he filed with the American Arbitration Association his demand for arbitration. Acting through its present counsel, appellant replied to this demand by a letter in which it denied that respondent was an insured under the policy in question and contended that that issue was not one which it had agreed to arbitrate under the arbitration provision of the policy. ² There followed an exchange of correspondence between appellant's counsel and the association, in which the association advised appellant and respondent of the selection of an arbitrator, and counsel for both parties submitted arguments as to the matter of coverage, and of the arbitrability of that issue. On December 12, 1962, the association advised appellant's counsel that 'the Arbitrator * * * has informed the Association he rules that the question of liability of the Respondent [appellant here] to the Claimant is a proper subject for Arbitration,' and asked counsel to agree on a date for hearing. A hearing date having been set, counsel for appellant wrote to the association on February 7, 1963, (with a copy to counsel for respondent), as follows:

'The above matter has been set for hearing on February 19, 1963, before Judge Kenneth C. Newell as Arbitrator. We have raised two questions which must be determined before the issue of liability of the Respondent to the Claimant or the amount of damages can be reached. These two issues are (1) jurisdiction and (2) lack of coverage. Should neither of these questions be determined in favor of Respondent, then it would not be necessary to proceed with the issues of liability and damages.

'It would, therefore, seem to be in the best interest of all concerned that the hearing on February 19 be limited to the questions of jurisdiction and coverage.'

When the hearing was held, counsel for appellant again argued the matter of the arbitrator's jurisdiction and was overruled. Reserving the right thereafter to raise the question of jurisdiction, counsel then participated in the arbitration hearing which culminated in an award in favor of respondent. Appellant's petition to vacate the award, and respondent's cross-petition for confirmation were duly heard in the trial court; an order and judgment of confirmation were entered; ³ appellant appeals.

Appellant contends that the arbitration clause of its policy did not constitute an agreement to arbitrate the issue of coverage and that a valid arbitration can be had only pursuant to a contract for arbitration. While the second contention is sound (Code of Civ.Proc. §§ 1281 and 1281.2), we do not reach the validity of the first. It is well settled that parties may, if they wish, agree to submit to arbitration the issue of arbitrability itself. (O'Malley v. Petroleum Maintenance Co. (1957) 48 Cal.2d 107, 308 P.2d 9.) Both parties agree that, if the ...