Pacific Auto. Ins. Co. v. Lang
Citation | 71 Cal.Rptr. 637,265 Cal.App.2d 837 |
Court | California Court of Appeals |
Decision Date | 19 September 1968 |
Parties | PACIFIC 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.
*
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
The arbitration provisions of the Insurance Code in effect at the time of the accident, and so far as pertinent here, are as follows:
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