Niagara Fire Insurance v. Cole

[42]

STONE, J.

— This appeal is from a judgment for respondent insurance company in an action for declaratory relief, and for an injunction to restrain appellant from proceeding under the uninsured motorist statute with an arbitration hearing on her claim for injuries.

Respondent issued to appellant an automobile insurance policy with uninsured motorist coverage for the period March 10, 1960, to March 10, 1961. On April 4, 1960, while driving a vehicle covered by the policy, appellant was injured; the driver of the other vehicle involved was and is unknown. Within 30 days appellant filed with respondent a statement concerning the accident, as required by the policy provisions relating to uninsured motorist coverage. On July 17, 1963, appellant made a claim and demand upon respondent for damages for bodily injuries, and a demand for arbitration with the American Arbitration Association. No action was filed against the uninsured motorist, and no arbitration proceeding was instituted prior to July 17, 1963.

Following appellant’s demand for arbitration, respondent filed this action for declaratory relief and for an injunction staying arbitration proceedings, alleging that appellant’s cause of action under the uninsured motorist provisions of the policy was barred by section 11580.2, subdivision (h), of the Insurance Code.

When the accident occurred the uninsured motorist statute embodied no period of limitations governing causes of action accruing thereunder, so that general statutes limiting the filing of actions were applicable. Effective September 15, 1961, which was after the occurrence of the accident, subdivision (h) was added to section 11580.2. It provides:

“ (h) 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.”