Cannizzo v. Guarantee Insurance

TAYLOR, J.

On this appeal by Guarantee Insurance Company, hereafter appellant, from an order denying its motion for an order after judgment, the sole question presented is whether section 11580.2, subdivision (g) of the Insurance Code, entitles appellant to a setoff for payments made to its insured, respondent, under the medical payments provision of the policy against an award made under the uninsured motorist provision of that policy when there is no specific language in the policy providing for such setoff.

The appeal is on an agreed statement which sets forth the following: Sometime after September 15, 1961 (the effective date of section 11580.2, subdivision (g) of the Insurance Code), appellant issued to respondent an insurance policy that was in full force and effect on January 9, 1964, the date of respondent’s accident with an uninsured motorist. Part II of the policy provided for medical payment coverage in the amount of $2,000, and Part IV for uninsured motorist coverage. Appellant paid $2,000 to respondent pursuant to the medical payments provision. Thereafter, a dispute arose between the parties as to the amount due to respondent under the uninsured motorist provision. The matter was submitted to

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an arbitrator who made an award calculated as follows: loss of wages $1,642.88, medical expenses $1,940.79, and general damages $3,916.33, a total of $7,500 plus $30 costs. On respondent’s petition, the award was confirmed by the superior court without prejudice to appellant to pursue its claim for a setoff. To date, appellant has paid $5,530, the total amount of the judgment plus costs, less the claimed $2,000 setoff. This appeal is taken from the order denying appellant’s motion for an order after judgment to compel respondent to execute and acknowledge satisfaction of the judgment, or in the alternative, an order for entry of satisfaction without execution.

The only question presented is whether appellant is entitled to a setoff against its uninsured motorist’s liability for the payments made to respondent under medical coverage even though there is no specific provision for such setoff in the policy. The pertinent portions of section 11580.2 of the Insurance Code are set forth in a footnote.

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