Porter v. United Services Automobile Assn.

108 Cal.Rptr.2d 860 (2001) 90 Cal.App.4th 837 Pamela Warren PORTER, Plaintiff and Appellant,

v.

UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Respondent.

No. B145178. Court of Appeal, Second District, Division Five.

July 16, 2001. Law Offices of Janice Weberman and Janice Weberman, for Plaintiff and Appellant.

[861] Law Offices of David Mains, Long Beach, Margaret A. Klug; and Law Offices of David S. Springer and David S. Springer, for Defendant and Respondent.

WILLHITE, J.[*]

Plaintiff, Pamela Warren Porter, appeals from an order denying her petition to compel arbitration in California under the terms of the underinsured motorist provisions in an automobile insurance policy issued by defendant, United Services Automobile Association. We have the duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal. Rptr.2d 275, 876 P.2d 1074; Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal.Rptr. 843, 673 P.2d 720.) We issued an order to show cause concerning possible dismissal of the appeal. Having reviewed plaintiffs response, we determine that the order denying the petition to compel arbitration in California is appealable under Code of Civil Procedure section 1294, subdivision (a).[1]

On May 26, 2000, plaintiff filed a petition to compel arbitration in California under the terms of the underinsured motorist provisions of an automobile insurance policy issued by defendant. The insured was Douglas V. Porter, a South Orange, New Jersey resident. The petition alleged that on November 11, 1996, plaintiff was involved in an automobile accident in Los Angeles. Suit was filed against another driver, as well as against the company from whom plaintiff rented the car and the manufacturer of the automobile. By June 1999, plaintiffs claims against the other driver as well as the car rental company and its manufacturer had been settled. Plaintiffs counsel attempted to negotiate a settlement with defendant's employees in California. On November 23, 1999, plaintiffs counsel demanded an underinsured motorist arbitration. A series of pre-arbitration discovery disputes developed. Further, the parties disputed whether the arbitration should proceed in California or in New Jersey. As a result, plaintiff requested in her petition that the underinsured motorist arbitration occur in California and she be awarded $2,529.50 in monetary sanctions. The opposition to the petition contained an under oath declaration by defendant's attorney which stated, "On November 11, 1996, [plaintiff], a resident of South Orange, New Jersey was involved in a motor vehicle accident while on a business trip in the State of California." The arbitration venue portion of the automobile insurance policy stated: "Unless both parties agree otherwise, arbitration will take place in the county in which the covered person lives. Local rules of the law as to procedure and evidence will apply."