Lofberg v. Aetna Casualty & Surety Co.

ELKINGTON, J.

This appeal from a judgment in a declaratory relief action principally concerns Insurance Code section 11580.2 relating to insurance coverage for injuries caused by the operator of an uninsured automobile. It comes to us on a settled statement under rule 7, California Rules of Court.

From the settled statement it appears that the following was uncontradicted or admitted at the trial. Plaintiff-appellant Reynold Lofberg asked “John Doe,” whom he met in a bar, to drive him home in plaintiff’s car. Shortly after the trip started plaintiff “passed out.” “John Doe” thereafter drove the vehicle into a telegraph pole, causing injuries to plaintiff. “John Doe” ran from the accident and disappeared. Plaintiff does not know the identity of the driver, ‘‘ John Doe ’ ’ being a fictitious name.

At the time of the accident plaintiff was the named insured and his automobile the covered vehicle of a liability insurance policy written by defendant-respondent The Aetna Casualty and Surety Company, hereinafter called “Aetna.” The policy specified that any person driving the automobile with plaintiff’s permission was an “insured.” “John Doe” never gave written notice of the accident or otherwise communicated with Aetna. Plaintiff, however, did give written notice to Aetna but the notice did not contain particulars sufficient to identify “John Doe.” Plaintiff’s attorney testified that Aet

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na’s claims manager told him that

“ the policy did not provide coverage for this accident

and that [Aetna] was denying any liability to plaintiff on this accident.” (Italics added.) The claims manager testified that he told plaintiff’s attorney that Aetna ‘‘

had no liability since its policy did not cover this claim.”

(Italics added.) Plaintiff thereafter commenced an action against “John Doe,” but he could not be found and summons could not be served.

In his declaratory relief action plaintiff sought judgment: “1. Ordering defendant to appear in and defend plaintiff’s suit against JOHN DOB and pay any judgment therein up to $10,000.00, or in the alternative, [[[] 2. Ordering defendant to submit plaintiff’s claim to arbitration under the ‘uninsured motorist’ provisions of said policy.”