Fisher v. State Farm Mutual Automobile Insurance

KAUS, J.

•— State Farm Mutual Automobile Insurance Company (“State Farm”) appeals from a judgment entered in conformity with an arbitration award. (Code Civ. Proc., § 1287.4.)

The facts are very simple: State Farm issued an automobile liability policy to William Fisher. It contained the so-called “uninsured motorist coverage” prescribed by section 11580.2 of the Insurance Code. The arbitration agreement contained in the policy under which the subject arbitration was held reads in part as follows:

“Arbitration.

If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured,

or do not agree as to the amount payable hereunder,

then each party shall, upon written demand of either, select a competent and disinterested arbitrator. . . . The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company, . . .” (Italics added.)

Without the necessity of judicial prodding the parties proceeded to arbitration. The award, after the usual recitals, reads as follows: “That Respondent, State Farm Mutual Automobile Insurance Company, is required to pay to the Petitioner, William A. Fisher, the sum of $70.00. That Respondent, State F irm Mutual Automobile Insurance Com-

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pant, is required to pay the Petitioner, Linnie P. Fisher, the sum of $5,756.37. This award is based on the evidence as submitted to the panel at the hearing on January 11, 1964, and includes special damages for the Petitioners William A. Fisher and Linnie P. Fisher as well as general damages for the Petitioner, Linnie P. Fisher. ’ ’

There is no dispute about the fact that Linnie P. Fisher was an insured within the meaning of section 11580.2, subdivision (b).

The Fishers then petitioned the superior court to confirm the award. The affidavits filed by the parties in connection with the proceedings seeking confirmation and State Farm’s opposition thereto show quite clearly that under the so-called “medical payment coverage” of the State Farm policy, the company had paid $1,000 to Linnie Fisher and $70 to William Fisher. These payments were all made before the date of the hearing before the arbitrators. The whole controversy centers on State Farm’s contention that these payments should have been deducted from the award by the superior court.