Pacific Auto. Ins. Co. v. Lang

Citation71 Cal.Rptr. 637,265 Cal.App.2d 837
CourtCalifornia Court of Appeals
Decision Date19 September 1968
PartiesPACIFIC AUTOMOBILE INSURANCE COMPANY, a corporation, Plaintiff and Respondent, v. Patricia R. LANG, individually, Patricia R. Lang, as widow and sole surviving heir of Kenneth J. Lang, Defendant and Appellant. Civ. 31696.

Hiram W. Kwan, Los Angeles, for defendant and appellant.

Kinkle, Rodiger, Graf, Dewberry & Spriggs, Los Angeles, for plaintiff and respondent.

COLLINS, Associate Justice. *

This is an action by plaintiff (respondent) Pacific Automobile Insurance Company, a licensed liability insurance carrier in California, against the estate, widow, and sole heir of her coinsured, Kenneth J. Lang, deceased, and the American Arbitration Association.

After issue was joined on a complaint and answer, there was filed a written stipulation of counsel that the action, commenced as one for declaratory relief, should 'proceed as an action filed pursuant to Code of Civil Procedure, Section 1285, to-wit: An action to confirm, correct, or vacate an arbitration award (and) (t)hat all pleadings heretofore filed be considered filed' pursuant to the Code of Civil Procedure. 1

So far as pertinent the facts developed at an arbitration hearing are summarized as follows:

On November 5, 1962, plaintiff issued to Kenneth J. Lang and Patricia R. Lang a policy of liability insurance which contained provisions for uninsured motorist coverage pursuant to Insurance Code, section 11580.2.

On September 7, 1963, the Langs were occupants of an automobile insured by plaintiff which was traveling on a two-lane public highway near Saugus, California, when a following automobile tried to overtake and pass the Lang vehicle; in order to avoid a collision Mr. Lang, the operator, turned his vehicle toward the soft right shoulder of the roadway; the automobile then 'tumbled' resulting in an accident which caused the death of Mr. Lang and serious injuries to his wife, Patricia. Although Mrs. Lang testified at the hearing that she felt a slight pushing of the rear of the Lang automobile prior to the accident, it became apparent on her cross-examination that she really had no independent recollection of an impact. The only disinterested eyewitness was the operator of an oncoming automobile whose safety was temporarily threatened by the action of the automobile overtaking the Lang vehicle. He was so preoccupied in avoiding a collision that he had no opportunity to see any impact. The operator of the overtaking automobile never stopped and was never identified. The arbitrator concluded that there was no credible evidence of any contact between any of the three automobiles.

The arbitrator's decision and award were adverse to several legal contentions of the plaintiff insurer. The arbitrator found that Mr. Lang, the decedent, was not guilty of contributory negligence and that there had been no physical contact between the Lang vehicle and the overtaking uninsured vehicle. In his written decision the arbitrator concluded that the provisions of the subject insurance policy could not supersede but, of necessity, had to yield to the provisions of the Insurance Code, and the underlying legislative intent. Accordingly, his award allowed $10,000 for the death of Mr. Lang and $7,500 for Patricia Lang's injuries and loss of earnings, less the amounts paid her under the medical coverage provision of the policy. In addition, the expenses of arbitration were assessed against plaintiff insurer.

Plaintiff attacked the award on the ground that the arbitrator acted in excess of his judicial authorization under the law and the subject policy. Section 11580.2, subsection (b), of the Insurance Code requires, among other things, coverage 'with respect to an 'uninsured motor vehicle' whose owner or operator is unknown: (1) The bodily injury has arisen out of physical contact of such automobile with the insured or with an automobile which the insured is occupying.' The policy provides (in Part IV thereof) coverage arising out of the ownership, maintenance or use of an uninsured automobile. It defines an uninsured automobile as '(a) 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 organization legally responsible for the use of such automobile, * * * or (c) a hit and run automobile; * * *.' It defines a 'hit-and-run automobile' as 'an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, * * *.'

The trial court, relying on the arbitrator's finding that there had been no physical contact between the Lang automobile and the alleged uninsured vehicle, concluded that the arbitrator's award exceeded his scope of jurisdiction in that it went 'beyond the lawful agreement of the parties.' Accordingly, the court held that the award was without force or effect and granted plaintiff's motion to vacate the award in its entirety. The appeal is from that order.

The arbitration agreement contained in the policy provides as follows: 2

'Arbitration: If any 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 each agree to consider itself bound and to be bound by any award made by the arbitrators to this Part.'

The arbitration provisions of the Insurance Code in effect at the time of the accident, and so far as pertinent here, are as follows:

'(e) Agreement as to recovery; arbitration; limitations. The policy or an endorsement added thereto 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. The arbitration shall...

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13 cases
  • Freeman v. State Farm Mut. Auto. Ins. Co.
    • United States
    • United States State Supreme Court (California)
    • 30 Mayo 1975
    ......Co. (1966) 243 Cal.App.2d 749, 751, 52 Cal.Rptr. 721; Commercial Ins. Co. v. Copeland (1967) 248 Cal.App.2d 561, 564, 56 Cal.Rptr. 794; Pacific Indem. Co. v. Superior Court (1966) 246 Cal.App.2d 63, 67, 54 Cal.Rptr. 470; Farmers Ins. Exch. v. Ruiz (1967) 250 Cal.App.2d 741, 744, 59 Cal.Rptr. ...177; Campbell v. Farmers Ins. Exch. (1968) 260 Cal.App.2d 105, 110, 67 Cal.Rptr. 175; Pacific Automobile Ins. Co. v. Lang (1968) 265 Cal.App.2d 837, 841, 71 Cal.Rptr. 637; Allstate Ins. Co. v. Shmitka (1970) 12 Cal.App.3d 59, 62, 90 Cal.Rptr. 399; National Indemnity Co. ......
  • Felner v. Meritplan Ins. Co.
    • United States
    • California Court of Appeals
    • 13 Abril 1970
    ...533; Lofberg v. Aetna Cas. & Sur. Co., 264 Cal.App.2d 306, 309, 70 Cal.Rptr. 269.) Appellant relies on Pacific Automobile Ins. Co. v. Lang, 265 Cal.App.2d 837, 71 Cal.Rptr. 637, to establish the proposition that a judicial finding of fact on physical contact is required. In that case the ar......
  • Freeman v. State Farm Mut. Auto. Ins. Co.
    • United States
    • California Court of Appeals
    • 17 Septiembre 1974
    ...62 Cal.Rptr. 177; Campbell v. Farmers Ins. Exch. (1968) 260 Cal.App.2d 105, 110, 67 Cal.Rptr. 175; Pacific Automobile Ins. Co. v. Lang (1968) 265 Cal.App.2d 837, 841, 71 Cal.Rptr. 637; Allstate Ins. Co. v. Shmitka (1970) 12 Cal.App.3d 59, 62, 90 Cal.Rptr. 399; National Indemnity Co. v. Supe......
  • Hernandez v. State Farm Ins. Co.
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    • California Court of Appeals
    • 23 Abril 1969
    ...by proceeding to arbitration, the following issues between insurer and insured have been held not to be arbitrable: Pacific Automobile Ins. Co. v. Lang, 265 Cal.App.2d --- (265 A.C.A. 946, 952), 71 Cal.Rptr. 637 (factual question of contract); Campbell v. Farmers Ins. Exch., 260 Cal.App.2d ......
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