Felner v. Meritplan Ins. Co.

6 Cal.App.3d 540 (1970) 86 Cal. Rptr. 178 BEREK N. FELNER et al., Plaintiffs and Respondents,

v.

MERITPLAN INSURANCE COMPANY, Defendant and Appellant.

Docket No. 34758. Court of Appeals of California, Second District, Division Two.

April 13, 1970. [542] COUNSEL

Steck & Marston and Paul H. Marston for Defendant and Appellant.

Sanford M. Gage for Plaintiffs and Respondents.

OPINION

FLEMING, J.

Meritplan Insurance appeals a superior court judgment confirming an arbitration award of $4,100 in favor of the Felners, an award based on the uninsured motorist coverage of their liability insurance policy.

At the arbitration hearing Meritplan disclaimed liability under the policy, claiming that no physical contact had occurred between the Felner automobile and the unidentified automobile which caused the accident and therefore the uninsured motorist coverage of the policy did not apply. Both sides presented evidence on this issue, and the arbitrator decided in favor of the Felners, finding that physical contact between vehicles had occurred. [543] Meritplan, in opposing confirmation of the arbitration award in the superior court, contended the court should conduct a new evidentiary hearing on the issue of physical contact, but the court rejected this contention and affirmed the award. On appeal, Meritplan argues procedural error because the superior court refused an evidentiary hearing on the issue of physical contact.

Section 11580.2 of the Insurance Code requires a motor vehicle liability insurance policy to provide coverage for injuries to the insured caused by an uninsured automobile. An uninsured automobile includes a hit-and-run automobile which had physical contact with the insured. Subdivision (f) declares that the parties to the policy shall determine — by agreement or by arbitration — whether the insured is legally entitled to recover damages, and, if so, the amount of the damages.