Republic Indem. Co. of America v. Barn Furniture Mart, Inc.

LILLIE, J.

In August of 1962, plaintiff issued a policy to defendants on a 1961 Ford automobile, enforceable for one year from the date of issuance and extending coverage under its uninsured motorists provisions to defendant Andrea Tuberman, a minor. On September 16, 1962, the minor sus

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tained personal injuries in an accident assertedly caused by an uninsured motorist. On December 17, 1963, more than one year after the accident, she instituted suit through her guardian against the uninsured motorist; thereafter, on May 27, 1964, she also filed with the American Arbitration Association a Demand for Arbitration, which claim is now pending. The present proceeding, commenced in November of 1964, sought a declaratory decree that the defendant minor was entitled to no benefits under the policy by reason of her failure to comply with section 11580.2, subdivision (h), Insurance Code,

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the provisions of which are made a part of the policy under Condition No. 9 thereof. Injunctive relief, restraining defendants from proceeding further with the arbitration claim, was also sought. From a judgment in plaintiff's favor, defendants have appealed.

The facts are without dispute—the answer admits the factual matters above set forth and alleged in the complaint. The sole question, therefore, is one of law—it was raised below by the -allegation in an affirmative defense that defendant Andrea Tuberman, as claimant in the arbitration proceeding, was at that time a minor 15 years of age and accordingly subject to the provisions of section 352, subdivision 1, Code of Civil Procedure.

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Unless it can be said that such section is applicable to arbitration proceedings commenced pursuant to section 11580.2 of the Insurance Code, the judgment below was proper and should be sustained. The authorities, presently to be discussed, unanimously support the determination of the trial court that section 352, subdivision 1 may not be so applied.

While special consideration has been extended to minors respecting the time within which certain proceedings must be commenced, it is expressly limited to the proceedings therein mentioned.