State Farm Mut. Auto. Ins. Co. v. Lykouresis

• Decision Date: 28 July 1977
• Citation: 72 Cal.App.3d 57,139 Cal.Rptr. 827
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Respondent, v. William LYKOURESIS, Defendant and Appellant. Civ. 39960.
• Court: California Court of Appeals Court of Appeals

Page 827

139 Cal.Rptr. 827

72 Cal.App.3d 57

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Respondent, v. William LYKOURESIS, Defendant and Appellant.

Civ. 39960.

Court of Appeal, First District, Division 3, California.

July 28, 1977.

Jettie Pierce Selvig, Belli & Choulos, Robert A. Levin, San Francisco, for defendant and appellant.

Owen, Melbye & Rohlff, Redwood City, for respondent.

SCOTT, Associate Justice.

State Farm Mutual Automobile Insurance Company filed an action for declaratory relief to determine its obligation to pay the claim of appellant, William Lykouresis, under the uninsured motorist provisions of an automobile liability policy. State Farm contended that appellant's claim was barred by the statute of limitations, Insurance Code section 11580.2, subdivision (i). At the conclusion of the evidence, the trial court granted State Farm's motion for a directed verdict, and this appeal followed.

The issue raised is whether State Farm adequately complied with the notice requirements of subdivision (k) of section 11580.2. For the reasons stated herein, we have concluded that it did not, and we reverse the judgment.

Section 11580.2 of the Insurance Code provides, in pertinent part:

'(i) No cause of action shall accrue to the insured under any policy or endorsement provision issued pursuant to this section unless within one year from the date of the accident:

(1) Suit for bodily injury has been filed against the uninsured motorist, in a court of competent jurisdiction, or

(2) Agreement as to the amount due under the policy has been concluded, or (3) The insured has formally instituted arbitration proceedings.

(k) Notwithstanding the provisions of subdivision (i), any insurer whose insured has made a claim under his or her uninsured motorist coverage, and such claim is pending, shall, at least 30 days before the expiration of the applicable statute of limitation, notify its insured in writing of the statute of limitation applicable to such injury or death. Failure of the insurer to provide such written notice shall operate to toll any applicable statute of limitation or other time limitation for a period of 30 days from the date such written notice is actually given.' ¹

On October 6, 1971, appellant was involved in an automobile accident. He was the passenger in a vehicle driven by George Janis, policyholder of State Farm. The driver of the other automobile was uninsured. Some months after the accident, appellant filed a claim with State Farm pursuant to the uninsured motorist provisions of Janis' policy. Appellant thereafter engaged in settlement negotiations with William Kremer, a claims adjuster of State Farm.

On August 28, 1972, Kremer wrote to appellant, stating in pertinent part, 'please do not lose sight of the date your lawsuit must be filed in the event we can not reach a compromise agreement. It is October 6, 1972. I shall do everything in my power to reach agreement with you before that time, but I did not wish you to lose sight of it on my account.'

On September 6, 1972, Kremer again wrote to appellant: 'In my letter of August 28th, I mentioned that you must file a lawsuit by October 6, 1972, if we could not reach a compromise agreement. While I still feel such a compromise is both possible and likely, I wish to correct one error. ( ) It is not necessary for you to have filed such a lawsuit by October 6th, inasmuch as this is an Uninsured Motorist accident; you may sufficiently toll the statute by written demand for arbitration of the matter. These are not cases which are ordinarily tried in court. Rather, the insurance code provides for mutually chosen arbitrators to decide the damage award, if that should become necessary.'

On October 3, 1972, appellant, who is Greek and has difficulty with the English language, enlisted the aid of a friend to compose a response to State Farm's offer of settlement. This letter was typed and dated October 5, 1972, mailed on October 6, and received by State Farm on October 10. This letter states, in pertinent part: 'After receiving both of your letters of August 28, 1972 and September 6, 1972, it's my understanding and the feeling I've gotten from both of those letters that you do not wish to go to court any more than I do. However, what you have offered me is completely and totally out of the question . . . I request a reasonable settlement . . . I request that you come up with an offer of compensation for my injuries reasonable enough, so we stay away from courts and attorneys as well . . . Mr. Kremer, I will wait for your answer and your company's decision for thirty days.'

Meanwhile, on October 3, 1972, Kremer, apparently in response to a telephone call from appellant's wife, wrote to appellant to say: 'We can not agree that your claim merits payment to the extent of your demand. Rather, we have offered to pay $6,600.00, in addition to the medical bills we have already paid. ( ) You have indicated that you wish to discuss this matter with an attorney and I invite your further response after that conference. ( ) Please keep in...