Pacific Indem. Co. v. Ornellas

CHRISTIAN, J.

Appellants Joseph and Genevieve Ornellas appeal from a judgment declaring that they had no cause of action against respondent insurance company under the uninsured motorists provisions of the Insurance Code (Ins. Code, § 11580.2). The trial court based its decision upon the failure of appellants to comply with section 11580.2, subdivision (h), which provides: “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.” Appellants contend that section 351 of the Code of Civil Procedure

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tolled the one-year period, the uninsured motorist having been absent from the state.

An insurance policy (including uninsured motorist coverage) issued by respondent to appellants was in effect on October 3, 1963 when an automobile accident occurred, involving appellant Genevieve Ornellas and one Santiago Irizarry. The latter was uninsured and “financially irresponsible” and has since left California. On October 8, 1964 appellants filed suit against Irizarry for injuries suffered in the accident. On March 24, 1965 appellants commenced arbitration proceedings pursuant to section 11580.2, subdivision (e), of the Insurance Code.

[877]

Appellants contend that the effect of section 11580.2, subdivision (h), should be limited by section 351 of the Code of Civil Procedure. However, a companion provision of the Code of Civil Procedure (§ 352: statute of limitations tolled during minority) has been held not to create an exception to the requirement in subdivision (h).

(Allstate Ins. Co.

v.

Orlando

(1968) 262 Cal.App.2d 858 [69 Cal.Rptr. 702];

Republican Indem. Co.