Hernandez v. State Farm Insurance

KAUS, P. J.

This is a purported appeal from an order confirming an arbitration award and denying a petition to vacate the award. We construe the appeal as being from the judgment entered pursuant to the award. (Code Civ. Proc., § 1294.)

The first time either side to this dispute sought the aid of the superior court was after the arbitration had been completed and the arbitrators had found that petitioners Joseph A. and Beatrice Hernandez were not entitled to reimburse

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ment under the uninsured motorist provision of their policy issued by respondent State Farm Insurance Company (“State Farm”).

1

There apparently is no doubt concerning the basic facts which give rise to petitioners’ claim. An automobile, the driver of which was never identified, suddenly swerved in front of a vehicle driven by one Booth. This maneuver caused Booth to lose control of his car and bounce into a freeway divider fence, where petitioners’ car collided with the Booth vehicle.

Booth was an uninsured motorist. Unfortunately, from petitioners’ point of view, the arbitrators found that the only negligent party was the unidentified driver whose car never came in contact with either Booth’s or petitioners’ automobile. Applying the provision of section 11580.2 of the Insurance Code which excludes from the definition of “uninsured motor vehicle” a car whose owner or operator is unknown, unless there has been “physical contact of such automobile with the insured or with an automobile which the insured is occupying” (Ins. Code, §11580.2, subd. (b)(1)),

2

the arbitrators found that there was no coverage.

Petitioners then filed their petition for an order vacating the award. As already noted, this was the first pleading which brought this matter to the attention of the court. The petition was denied, the award was confirmed, findings and conclusions (Code Civ. Proc., § 1291) were waived and a judgment was entered. (Code Civ. Proc., § 1287.4.)

On appeal petitioners contend that for various reasons the contact requirement was not applicable to them.