Jordan v. Pacific Auto. Ins. Co.

• Decision Date: 08 February 1965
• Citation: 42 Cal.Rptr. 556,232 Cal.App.2d 127
• Court: California Court of Appeals Court of Appeals
• Parties: John L. JORDAN, Plaintiff and Appellant, v. PACIFIC AUTOMOBILE INSURANCE COMPANY, Defendant and Respondent. Civ. 27899. . Division 1, California

Page 556

42 Cal.Rptr. 556

232 Cal.App.2d 127

John L. JORDAN, Plaintiff and Appellant, v. PACIFIC AUTOMOBILE INSURANCE COMPANY, Defendant and Respondent.

Civ. 27899.

District Court of Appeal, Second District. Division 1, California.

Feb. 8, 1965.

Brody, Grayson & Green, Los Angeles, for appellant.

Patterson & Clements, by Albert E. Nelson, Los Angeles, for respondent.

LILLIE, Justice.

Plaintiff was insured by defendant under an automobile accident policy containing uninsured motorist coverage. Thereafter he was involved in a collision with an automobile driven by one Mohacsi. Plaintiff asserted under the policy against defendant, and the latter denied, his claim for personal injury. He then invoked arbitration alleging that he had been injured in an accident involving an automobile driven by an 'uninsured motorist'; award was in favor of defendant against plaintiff. Thereafter he petitioned the Superior Court to vacate the award; supporting and opposing affidavits were filed. The petition was denied. Plaintiff appeals from 'an order dismissing the petition to vacate an award' (Notice of Appeal); whether this misrepresentation was made in order to bring his appeal within the ambit of subdivision (b), section 1294, Code of Civil Procedure, we can only speculate, but if plaintiff has any appeal pending it is from an order denying petition to vacate (Minute Order, April 2, 1963). The trial court made no order dismissing the petition. While appealable orders set up in section 1294 include 'order dismissing a petition to * * * vacate an award' (subd. (b)), an order denying such petition is not therein specified. Perhaps this also accounts for plaintiff's failure to include the Minute Order in his record on appeal. In any event, we deem the appeal to be from order denying petition to vacate and set aside award.

Respondent says that an appeal from an order denying motion to vacate does not lie and should be dismissed, citing subdivision (b), section 1294, Code of Civil Procedure. (Olivera v. Modiano-Schneider, Inc., 205 Cal.App.2d 9, 10-11, 23 Cal.Rptr. 30; and Hyatt v. Eckel Valve Co., 169 Cal.App.2d 35, 39, 336 P.2d 551.) The contention might have merit were this appeal also from an order confirming arbitration award; the appeal is in fact from an order denying petition to vacate. The record before us reflects neither a proceeding to confirm arbitration award in the lower court nor an order confirming an award. Thus, inasmuch as this appeal is solely from an order denying a petition to vacate and set aside an award, we treat the same as 'in effect an appeal from an order confirming an award. Code Civ.Proc., sec. 1293; Pleaters', etc., Ass'n v. Superior Court, 114 Cal.App. 35, 299 P. 555.' (Glesby v. Balfour, Guthrie & Co., Ltd., 63 Cal.App.2d 414, 417, 147 P.2d 60, 61.)

Appellant's main contention is that the arbitrator exceeded his power by admitting evidence relative to the noninsurance of Mohacsi compelling a vacation of the award under section 1286.2, Code of Civil Procedure. He argues that the scope of arbitration is limited to liability and damages, and, in the absence of agreement, whether Mohacsi's automobile was covered is not an arbitrable issue but a preliminary one for the determination of the court.

California Insurance Code, section 11580.2 specifies the requisite for 'uninsured motorist coverage' in automobile insurance policies. At the time plaintiff's policy was issued and the accident occurred, section 11580.2, subdivision (a) (Uninsured Motorist Coverage Act [Stats. 1959, c. 817, p. 2835]) provided: 'No policy of bodily injury liability insurance * * *shall be issued * * * in this State to the owner or operator of a motor vehicle * * * unless the policy contains, or has added to it by endorsement, a provision insuring the named insured * * * for all sums which he shall be legally entitled to recover as damages for bodily injury from the owner or operator of an uninsured motor vehicle * * *'; and subdivision (d): 'The policy * * * shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration. * * *'

Pursuant to these provisions the policy contained uninsured motorist coverage and an arbitration clause. By Coverage J--Family Protection Coverage therein defendant agreed: '1. (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 * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such automobile: [provided] for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured and such representative and the company, or, if they fail to agree, by arbitration.' Thereafter, relative to damages, the term 'uninsured automobile' was defined. '2. * * * c * * * Damages--Uninsured Automobile: The term 'uninsured automobile' means: An automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or operator legally responsible for the use of such automobile.' Concerning arbitration, Section 6, Family Coverage Endorsement, more specifically provided: 'If such 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, or do not agree as to the amount of payment which may be owing under this Part, 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, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company agree to consider itself bound and to be bound by any award made by the Arbitrators pursuant to this Part.'

Upon denial of his claim, plaintiff made written Demand for Arbitration under Section 6, Family Coverage Endorsement, based upon the failure of the insurer and insured to agree that he is 'legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury,' specifically setting out therein the arbitration agreement (§ 6) contained in the policy; and under 'Claim or Relief Sought' on the face of the Demand plaintiff alleged: 'Assured, John L. Jordan was in an accident on 8/26/61 involving an automobile driven by an uninsured motorist according to notification by said motorist.' (Emphasis added.)

Appellant complains that defendant filed no answer to his Demand, and at the arbitration hearing for the first time placed in issue, over his objections, the 'uninsurance' of Mohacsi.

Having invoked arbitration, plaintiff agreed to be bound by the rules of the American Arbitration Association. We know of no rule requiring the filing of an answer to a Demand for Arbitration, although Rule III, section 7, Accident Claims Tribunal Rules, promulgated by the Association, provides: 'The party upon whom the Demand for Arbitration is made may, if he so desires, file an answering statement * * * If no answer is filed within the stated time, it will be assumed that the claim made is denied.' Having alleged in his demand that he suffered injury as the result of an accident involving an automobile driven by an 'uninsured motorist,' plaintiff voluntarily placed in arbitration the validity of his entire claim in which he specifically included the issue of the noninsurance of the other motorist; defendant having filed no answer, the entire claim as set forth in the Demand is deemed to have been controverted. Thus, at the outset, the 'uninsurance' of Mohacsi was raised by plaintiff upon the filing of his Demand, and made an issue by defendant when it failed 'within the stated time' to interpose an answer--long before the arbitration hearing. Moreover, the record does not support the claimed 'objection of counsel' when evidence concerning whether Mohacsi's car was covered was received; to the contrary, it shows that both plaintiff and his counsel, as a part of plaintiff's case, testified before the arbitrator concerning Mohacsi's 'uninsurance' (affidavits in support of petition to vacate). While it is unnecessary for the arbitrator to report the proceedings before him or to spell out the rationale of his award (Interinsurance Exch. of Auto. Club of Southern California v. Bailes, 219 Cal.App.2d 830, 837, 33 Cal.Rptr. 533), it is apparent from defendant's affidavit in opposition to the petition, which we are bound to accept as true (DeWit v. Glazier, 149 Cal.App.2d 75,...