Judge: Melvin D. Sandvig, Case: 22CHCV00141, Date: 2022-10-03 Tentative Ruling
Case Number: 22CHCV00141 Hearing Date: October 3, 2022 Dept: F47
Dept. F47
Date: 10/3/22
Case #22CHCV00141
MOTION TO
COMPEL ARBITRATION
Motion filed on 5/23/22.
MOVING PARTY: Defendant Nations
Insurance Company
RESPONDING PARTY: Plaintiff Edward Tadevosian
NOTICE: ok
Additionally,
Defendant requests an order dismissing this action or, alternatively, staying
the action until the completion of the uninsured motorist arbitration.
RULING: The motion is granted as set forth below.
Defendant’s counsel is reminded to review the 5/3/19
First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply
with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through
page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory
Electronic Filing for Civil. See also
CRC 3.1110(f)(4). Defendant has failed
to bookmark the table of contents for the opposition and the proof of service,
declaration and exhibits attached thereto.
Failure to comply with these requirements in the future may result in matters being placed off calendar, matters
being continued so documents can be resubmitted in compliance with these
requirements, documents not being considered and/or the imposition of
sanctions.
This action arises out of Plaintiff Edward Tadevosian’s
(Plaintiff) uninsured motorist bodily injury (UMBI) claim under a policy of
insurance issued to him by Defendant Nations Insurance Company
(Defendant).
Defendant issued an automobile insurance policy to
Plaintiff (the “Policy”), effective May 14, 2021, providing coverage for a 2021
Kia Forte. (Complaint ¶ 9; Daskas Decl.
¶2, Ex.A). The Policy provides uninsured
motorist bodily injury (UMBI) coverage of $15,000 per person/$30,000 per
accident. (Daskas Decl. ¶2, Ex.A). The Policy provides that disputes over the
entitlement to recover uninsured motorist damages and/or the amount of said
damages must be submitted to binding arbitration. (Daskas Decl. ¶3, Ex.A, p.8 “Part III - Uninsured Motorist” “Arbitration – Part
III”).
Additionally, Insurance Code 11580.2 provides in relevant
part:
(a) (1) No policy of bodily injury
liability insurance covering liability arising out of the ownership,
maintenance, or use of any motor
vehicle . . . shall be issued or delivered in this state to
the owner or operator of a motor vehicle, or shall be issued or delivered by
any insurer licensed in this state upon any motor vehicle then principally used
or principally garaged in this state, unless the policy contains, or has added
to it by endorsement, a provision with coverage limits at least equal to the limits
specified in subdivision (m) and in no case less than the financial
responsibility requirements specified in Section 16056 of the Vehicle Code
insuring the insured, the insured’s heirs or legal representative for all sums
within the limits that he, she, or they, as the case may be, shall be legally
entitled to recover as damages for bodily injury or wrongful death from the
owner or operator of an uninsured motor vehicle.
***
(f) The policy or an endorsement
added thereto shall provide that the determination as to whether the insured
shall be legally entitled to recover damages, and if so entitled, the amount
thereof, shall be made by agreement between the insured and the insurer or, in
the event of disagreement, by arbitration. The arbitration shall be conducted
by a single neutral arbitrator.
Plaintiff alleges that on May 7, 2021, while driving his
2021 Kia Forte (the insured vehicle under the Policy), he was struck by an
uninsured motorist in Tarzana, California.
(Complaint ¶9). Plaintiff further alleges he sustained
personal injuries as a result of that accident.
(Complaint ¶9).
Plaintiff made a claim to Defendant for personal injuries
under the Policy’s uninsured motorist benefits. (Complaint ¶¶9, 11; Daskas Decl. ¶4). Defendant questioned the validity of
Plaintiff’s uninsured motorist bodily injury claim (“UMBI Claim”). (Complaint ¶12; Daskas Decl. ¶5). During Defendant’s investigation of
Plaintiff’s UMBI Claim, several discrepancies arose, including, but not limited
to: whether the claim qualifies for uninsured motorist benefits; whether the
alleged accident occurred as claimed; whether the damage sustained to the
insured vehicle was caused by the alleged May 7, 2021, accident; whether
Plaintiff sustained the injuries claimed; and the value of Plaintiff’s claimed
damages. (Daskas Decl. ¶5). Due to Defendant’s concerns and the discrepancies as to the
validity of Plaintiff’s UMBI Claim, Defendant did not accept Plaintiff’s demand
for benefits and has not made any offers to Plaintiff. (Complaint ¶¶11-12). Plaintiff never made a demand for arbitration
of his UMBI Claim, as required by the Policy and Insurance Code 11580.2(f). (Daskas Decl. ¶6).
Instead, on March 3, 2022, Plaintiff filed this action
for: (1) Bad Faith Breach of Implied Covenant of Good Faith and Fair Dealing;
(2) Breach of Contract; and (3) Unlawful and Unfair Business Practice (B&P
17200, et seq.). On April 14, 2022,
Defendant filed its original answer to the complaint. On April 18, 2022, Defendant filed its
amended answer to the complaint.
Thereafter, on May 13, 2022, Defendant requested that Plaintiff
stipulate to binding arbitration of his Uninsured Motorist Claims asserted
against Defendant in the Complaint pursuant to the Policy and Insurance Code 11580.2(f). (Weinreb Decl. ¶2, Ex.B). Plaintiff’s counsel refused to agree to
submit Plaintiff’s claims to arbitration.
(Weinreb Decl. ¶¶3-4, Ex.C, D). Therefore,
on May 23, 2022, Defendant filed and served the instant motion seeking an
order, pursuant to the arbitration agreement between Defendant and Plaintiff, Insurance
Code 11580.02(f) and CCP 1281.2, compelling the uninsured motorist arbitration
of Plaintiff’s uninsured motorist bodily injury claims, which are the subject
of this action. Additionally, Defendant requests
an order dismissing this action or, alternatively, staying the action until the
completion of the uninsured motorist arbitration. Further, Defendant seeks to recover its costs
and attorney’s fees incurred in relation to the instant motion.
The hearing on this motion was originally set for
September 28, 2022. On August 24, 2022,
the Court continued the hearing on the motion to October 3, 2022, but the Court
ordered all oppositions and replies were due according to the September 28,
2022 hearing date. Plaintiff’s counsel
mistakenly filed and served the opposition according to the October 3, 2022
hearing date. Despite the late filing
and service of the opposition, it was considered by the Court in making its
ruling on the motion. See CRC
3.1300(d).
Pursuant to the agreement of the parties to arbitrate as
set forth in the Policy and the language in Insurance Code 11580.02(f), the
Court finds that Plaintiff’s claims in the complaint in this action are subject
to arbitration. See CCP 1281.2;
Insurance Code 11580.02(f); (Daskas Decl. ¶3, Ex.A, p.8).
Plaintiff has failed to show that the subject arbitration
provision is unconscionable as claimed in the opposition. Under California law, the uninsured motorist
arbitration provision at issue is required to be in every automobile insurance
policy issued in California. See
Insurance Code 11580.2(a)(1), (f).
Plaintiff’s argument that the arbitration provision was
not triggered in this action is also without merit. Since Plaintiff did not agree with Defendant’s
evaluation of his UMBI Claim, Plaintiff was obligated to demand arbitration of
the dispute. When Plaintiff filed this
action instead of demanding arbitration as required under the Policy and
applicable law, Defendant requested that Plaintiff submit his claims to
arbitration, which Plaintiff refused to do.
Similarly, Plaintiff has failed to show that Defendant
waived its right to enforce the arbitration provision. The only actions taken by Defendant were the
filing of an answer, the filing of an amended answer which asserts “UMBI
Arbitration” as Defendant’s Eleventh Affirmative Defense, and the filing of the
instant motion. None of the other
conduct allegedly taken by Defendant in response to Plaintiff’s submission of
his claim constitutes a waiver of the right to arbitration.
Pursuant to CCP 1281.4, the Court stays this action
pending the outcome of the arbitration.
Defendant’s request for costs in bringing this motion is
granted in part. CCP 1293.2 provides:
The court shall award costs upon
any judicial proceeding under this title as provided in Chapter 6
(commencing with Section 1021) of Title 14 of Part 2 of this code. (emphasis added).
CCP 1021 provides that attorney’s fees are only
recoverable pursuant to statute or agreement of the parties. See also CCP 1033.5(a)(10). Here, Defendant seeks to recover $2,120.00 in
attorney’s fees and $61.65 in costs for a total of $2,181.65. (Weinreb Decl. ¶6). Defendant cites no statute or provision of the contract
between the parties which provides for the recovery of attorney’s fees to the
prevailing party. (See Motion,
p.9:1-15; Reply, p.6:11-28). Therefore,
the Court only awards Defendant $61.65 for the costs incurred in relation to
this motion. The award of costs is
payable within 30 days.