Allstate Insurance v. Superior Court

Opinion

BROWN (H. C.), J.

Petitioner seeks a writ of mandate or prohibition enjoining and restraining real parties in interest and the superior court from permitting arbitration of a matter now pending in San Francisco Superior Court.

On October 26, 1962, Allstate Insurance Company issued an automobile insurance policy to real party in interest Floyd R. Peterson; the policy period was one year. On November 9, 1962, within the effective date of the policy, Susan Peterson, a minor daughter of Floyd Peterson, was injured in an accident involving an uninsured motor vehicle. Allstate was advised of the uninsured status of the other automobile, and negotiations commenced between the real partes in interest and Allstate. On July 2, 1964, one year and eight months after the accident occurred, Allstate wrote a letter to counsel for the Petersons in which it offered to settle the uninsured motorist claim. The offer was apparently rejected by the Petersons, and nothing more in the case occurred until September 18, 1972, some eight years later, when counsel for the Petersons filed a demand for arbitration. On January 30, 1973, petitioner herein filed in the respondent court (San Francisco Superior Court) a complaint alleging (1) that Insurance Code section 11580.2, subdivision (h), set a statute of limitations which barred the arbitration and seeking (2) that the arbitration proceeding be barred pending determination of the suit.

[139]

The motion for preliminary injunction sought by petitioners was heard by the trial court, at which time a temporary restraining order was dissolved, and the preliminary injunction was denied. The trial court apparently determined that

Orpustan

v.

State Farm Mut. Auto. Ins. Co.,

7 Cal.3d 988 [103 Cal.Rptr. 919, 500 P.2d 1119] was controlling on the determination of the question of the power of the arbitrator to decide whether the statute of limitations barred the action. We agree that the arbitrator had that power.

Section 11580.2, subdivision (h), of the Insurance Code read on November 9, 1962, as follows: “(h) Prerequisites to Suit. 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.”