California State Automobile Ass'n v. Blanford

Opinion

ELKINGTON, J.

This appeal, by defendant Ellen Blanford alone, is from a judgment and separately entered permanent injunction in a declara

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tory relief action commenced against her and Bertha M. Schwan by California State Automobile Association (C.S.A.A.). Her attempted appeal from a nonappealable “Memorandum Opinion” which ordered “judgment... as prayed” and that an “injunction issue,” must be dismissed.

By the action C.S.A.A. sought a determination that one of its automobile liability insurance policies did not extend “uninsured motorist” coverage to either defendant, for injuries claimed to have been suffered in a collision with a “hit-and-run” automobile. The contention was based upon the failure of defendants, or anyone on their behalf, to report the subject accident within 24 hours, or to file a statement thereof within 30 days with C.S.A.A., as required by the policy and by Insurance Code section 11580.2, subdivision (b), subsection (2), as effective in 1966, the year of the alleged accident.

1

C.S.A.A. also sought a declaration that defendant Blanford had no right under the policy to arbitrate a claim for the injuries alleged to have been sustained by her in the accident.

2

By her answer defendant Blanford sought judgment declaring her right to arbitrate the claim. However, in a trial memorandum filed with the court she stated as the

sole

issue: “Is defendant Blanford precluded from pursuing her claim against the plaintiff for failure to comply with the policy requirements?” And at the commencement of the trial her counsel stated: “Your

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Honor, as I put it in the brief, I think the only issue here is going to be whether or not as far as Mrs. Blanford is concerned the plaintiff can show any prejudice, and, if they can show prejudice, then that’s right. If not, I think under the existing cases, I think we have a right to arbitrate all the remaining issues in this case.”