State Farm Mutual Automobile Insurance v. Superior Court

STONE, J.

Petitioner seeks a writ of mandate to compel the Superior Court of the County of Merced to set aside its order directing arbitration in an action brought by the guardian ad litem of the real party in interest.

Petitioner, as insurance carrier, issued a policy of automobile insurance to Dolan Jenkins, the father and guardian ad litem of Jackie Sue Jenkins, a Minor, real party in interest. At the time of the accident, July 16, 1963, Jackie Sue was 12 years of age and while riding a bicycle collided with an automobile registered to and operated by one Refugio Lopez, an uninsured motorist within the meaning of California Insurance Code section 11580.2. Jackie Sue was an additional insured under the policy issued by petitioner to Dolan Jenkins.

[809]

The policy also included uninsured motorist coverage, the aspect of the policy giving rise to this proceeding.

The uninsured motorist statute specifies the period within which proceedings thereunder must be commenced. It is set forth in Insurance Code section 11580.2, subdivision (h), wherein it is provided: “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. ’ ’

Jackie Sue did not comply with subdivision (h) of section 11580.2 in that no action was taken on her behalf until nearly 15 months after the accident. A demand for arbitration was made on her behalf on October 16, 1964, but petitioner refused to arbitrate on the ground that the real party in interest had waived arbitration of the claim by failing to comply with the statute of limitations specified in subdivision (h). Petition for arbitration was then filed in the Superior Court of the State of California in and for the County of Merced, seeking an order to require petitioner herein to arbitrate under the provisions of section 1281.2, Code of Civil Procedure. Petitioner resisted the motion and, after a hearing, the court ordered defendant State Farm Mutual Automobile Insurance Company “to arbitrate concerning the claim of the minor plaintiff Jackie Sue Jenkins.” State Farm Mutual then petitioned this court for a writ of mandate directing the superior court to set aside its order directing arbitration.