Judge Daniel M. Crowley, Case Number: 24STCP00044, Date: 2024-05-22 Tentative Ruling

Petitioner Progressive Insurance Company’s motion to compel arbitration of this matter as to Respondents Myrtle Allen and Sandra Wright in this action within 60 days of this ruling and to appoint mutually selected and agreed upon Thomas I. Friedman, Esq., as arbitrator is granted.

Petitioner Progressive Insurance Company (“Progressive”) (“Petitioner”) moves for an order compelling arbitration this matter as to Respondents Myrtle Allen (“Allen”) and Sandra Wright (“Wright”) (collectively, “Claimants”) within 60 days of this ruling and to appoint mutually selected and agreed upon Thomas I. Friedman, Esq. (“Friedman”). (Notice of Motion, pgs. 1-2; C.C.P. §§1281.2, 1281.6.) Petitioner moves on the grounds (1) Claimants entered into a written agreement wherein the parties agreed to arbitrate any dispute regarding the uninsured motorist coverage which arose under their policy; (2) Claimants agreed to arbitrate this matter before Friedman; and (3) Claimants’ preemptory challenge made within 24-hours of the scheduled arbitration is untimely and unfounded. (Notice of Motion, pg. 2.)

Petitioner filed the operative Petition on January 8, 2024, against Claimants pursuant to the uninsured motorist provisions of Claimants’ insurance policy. (See Petition ¶1.)

Petitioner filed the instant motion on January 30, 2024. Claimants filed their opposition on May 9, 2024. Petitioner filed its reply on May 14, 2024.

Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be applicable to these determinations, and all rights, remedies, obligations, liabilities and procedures set forth in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be available to both the insured and the insurer at any time after the accident, both before and after the commencement of arbitration, if any, with the following limitations:

(1) Whenever in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure reference is made to the court in which the action is pending, or provisions is made for application to the court or obtaining leave of court or approval by the court, the court which shall have jurisdiction for the purposes of this section shall be the superior court for the State of California.

Under Insurance Code §11580.2(f), this Court has jurisdiction over the instant uninsured motorist action.

Petitioner’s policy provides the following provision regarding the selection of an arbitrator:

1. the legal liability of the operator or owner of an uninsured motor vehicle or under insured motor vehicle; or

this will be determined by arbitration. If the accident involves an uninsured motor vehicle, any demand for arbitration must be made within two years of the date of the accident. If the accident involves an underinsured motor vehicle, the demand must be made after all applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements and prior to the expiration of the bodily injury statute of limitations in the state in which the accident occurred. An insured person demanding arbitration must send written notice to us, or our agent for process, by certified mail, return receipt requested.

In the event of arbitration, arbitration shall be conducted by a single neutral arbitrator. The costs and fees of the arbitrator will be shared equally.

Unless both parties agree otherwise, arbitration will take place in the county in which the insured person resides. Local rules of procedure and evidence will apply.

A decision by the arbitrator will be binding with respect to a determination of:

1. the legal liability of the operator or owner of an uninsured motor vehicle or under insured motor vehicle; and

The arbitrator will have no authority to award an amount in excess of the limit of liability.

On March 20, 2023, pursuant to the Uninsured Motorist (“UM”) provisions of Petitioner’s insurance policy, Allen demanded Arbitration to Petitioner, which excluded mention of Wright. (See Decl. of Calendo ¶2, Exh. A.) On June 19, 2023, and again on September 7, 2023, Petitioner sent correspondences to Allen’s counsel to meet and confer in selecting a mutually agreeable arbitrator to arbitrate this matter pursuant to the UM provisions of the subject insurance policy. (Decl. of Calendo ¶¶4, 5, Exhs. C, D.) On September 18, 2023, attorney for Allen, Geoffrey Kasler, agreed to arbitrate this matter with Friedman. (Decl. of Calendo ¶¶7, 8, Exhs. F, G.)

On December 19, 2023, Allen’s counsel advised he wanted to continue the arbitration set for January 5, 2023, and advised that Wright was to be included in the UM arbitration, even though nothing in Petitioner’s file in this matter reflected Wright’s demand for arbitration. (See Decl. of Calendo ¶¶14, 15, Exh. M.)

Claimants’ argument that Petitioner has waived its right to compel arbitration is unavailing in light of the evidence submitted to the Court that since June 19, 2023, Petitioner advised Allen it was ready to proceed with the selection of a neutral arbitrator, and Allen failed to respond to the request. (See Decl. of Calendo ¶4, Exh. C.) Further, even after Petitioner agreed to include Wright in the UM Arbitration, Claimants have sought to delay the arbitration. (See Decl. of Calendo ¶¶21, 25, 11, 28, Exhs. S, V, J, Y.)

Under the UM policy, Claimants agreed to participate in arbitration and share equally in Arbitrator’s costs and fees. (Decl. of Calendo ¶3, Exh. B at pg. 14.) Therefore, Claimants are required to pay the outstanding costs for arbitration.

Pursuant to C.C.P. §1281.6, this Court is conferred with the statutory power to select and appoint an arbitrator when parties are unable to agree to one. (C.C.P. §1281.6.) Therefore, the Court appoints Friedman as the arbitrator in the UM Arbitration.

Petitioner’s motion to compel arbitration is granted. Claimants Myrtle Allen and Sandra Wright in this action are compelled to arbitration within 60 days of this ruling and Thomas I. Friedman is appointed as the arbitrator.

Hon. Daniel M. Crowley

Judge of the Superior Court