Doyle v. Giuliucci

TRAYNOR, C. J.

Plaintiff April Robin Doyle, a minor, appeals from a judgment entered pursuant to an order confirming an arbitration award. (See Code Civ. Proc., §§ 1287.4, 1294,1294.2.)

Plaintiff’s father entered into a contract for medical and surgical services with defendant Ross-Loos Medical Group obligating that group “to provide the same care and service to dependents of the Subscriber [plaintiff’s father] as is available for the Subscriber.” The agreement also provided, “In the event of any controversy between a Subscriber or a dependent ... as the ease may be, and Ross-Loos, whether involving a claim in tort, contract or otherwise, the same shall

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be settled by arbitration.” The contract specified a method for initiating arbitration proceedings and selecting the arbitrators. It also stated that the decision of the arbitrators shall be binding upon the parties subject to the power of a court to confirm, modify, or vacate the award as provided in the Code of Civil Procedure.

In 1961 plaintiff’s father notified defendants of a malpractice claim against them in connection with services to plaintiff. He wrote that he wished to submit the claim to the American Arbitration Association instead of invoking the arbitration procedures of the health care agreement. Defendants consented, but stated that they did not waive their right to arbitrate under the contractual procedures if the American Arbitration Association proceedings were abandoned or terminated without an award.

In late 1961 the board of arbitrators issued a written statement that pointed out that plaintiff’s parents had reserved the right to be appointed guardians ad litem for the child and to bring a civil action against defendants if the results of the arbitration were not satisfactory to them. It also recommended that a guardian ad litem be appointed for the arbitration proceedings and that the parents and the child have competent counsel to represent them.

In early 1962, before the arbitrators reached a decision, counsel retained by plaintiff’s father filed a malpractice action in the superior court. The court granted the father’s petition to be appointed guardian ad litem. Defendants moved for an order staying further proceedings and submitting the matter to arbitration. The court granted this motion over the objection that plaintiff was a minor and therefore not bound by the agreement to arbitrate. Plaintiff attempted to appeal from the order, but the appeal was properly dismissed. (Code Civ. Proc., § 1294;