Judge: Michelle C. Kim, Case: 22STCP00498, Date: 2023-10-10 Tentative Ruling

Case Number: 22STCP00498    Hearing Date: October 10, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

LEROY H. MCCLINTON and TABATHA A. HUNTER, 

Petitioner(s),  

vs. 

 

LIBERTY MUTUAL INSURANCE, 

 

Respondent(s). 

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      CASE NO: 22STCP00498 (R/T 22STCV21245) 

 

[TENTATIVE] ORDER RE: MOTION TO COMPEL ARBITRATION  

 

Dept. 31 

1:30 p.m.  

October 10, 2023 

 

I. Background 

On February 27, 2023, Petitioners Leroy H. McClinton and Tabatha A. Hunter filed this Petition to compel Liberty Mutual Insurance to arbitrate an underinsured/uninsured motorist dispute relating to a July 2, 2020 automobile collision with uninsured driver Wendell A. Swisher.   

On November 15, 2021, Petitioners served a Demand for Arbitration on Respondent.  However, after confirmation of receipt of the Demand for Arbitration, Respondent requested examinations under oath of both Petitioners and advised that Petitioners’ arbitration demand would be held in abeyance. Petitioners argue they both agreed to submit to the examinations under oath, but Respondent has refused to proceed. On April 25, 2022, Respondent declined coverage.  

Petitioners now move to compel arbitration.  Respondent opposes the motion, and Petitioners filed a reply. 

 

II. Request for Judicial Notice 

Respondent requests the Court to take judicial notice of the Complaint filed in McClinton et al. v. Swisher, et, al. Case No. 22STCV21245. The request is denied.  

 

III. Legal Standard 

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.”  (Code Civ. Proc. §1281.2, subds. (a), (b).) 

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence.  (Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1363.)  Courts “use general principles of California contract law to determine the enforceability of the arbitration agreement.”  (Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1153.) 

The California Insurance Code requires an insurer to provide uninsured motorists coverage in each bodily injury liability insurance policy it issues covering liability arising out of the ownership, maintenance, or use of a motor vehicle.  (Ins. Code., § 1158.2, subd. (a)(1), (a)(2).)  The policy “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.”  (Ins. Code., § 1158.2, subd. (f).) 

“Any demand or petition for arbitration shall contain a declaration, under penalty of perjury, stating whether (i) the insured has a workers’ compensation claim; (ii) the claim has proceeded to findings and award or settlement on all issues reasonably contemplated to be determined in that claim; and (iii) if not, what reasons amounting to good cause are grounds for the arbitration to proceed immediately.”  (Ins. Code., § 1158.2, subd. (f).) 

“If an application has been made to a court . . . for an order to arbitrate a controversy . . . the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.”  (Code of Civ. Proc., § 1281.4.) 

 

IV. Discussion 

Respondent does not deny that an arbitration clause exists in the policy but argues there is an issue of coverage because Petitioners failed to submit to examinations under oath (“EUOs”) and cooperate with investigations as required by the policy. “The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.”  (Civ. Code §1641.) Reading the insurance policy as a whole, Respondent has no duty to provide coverage under the policy unless there has been full compliance with the duties provided in the policy. Page 6 of the amendatory endorsement provides the following duties: 

“B. A person seeking any coverage must: 

  1. Cooperate with us in the investigation, settlement or defense of any claim or suit. This includes, but is not limited to, allowing us to inspect damage to a vehicle covered by this policy. 

…. 

  1. Submit, as often as we reasonably require, within 30 days of our request: 

  1. To physical and mental exams by physicians we select under terms we require. We will pay for these exams. 

  1. To interviews and recorded statements without the need for us to conduct an examination under oath. 

  1. To examination under oath and subscribe the same.” 

Because the arbitration provisions in Part C, “Uninsured Motorists Coverage,” and Part E, “Duties After An Accident or Loss” are part of the policy, Petitioners are not entitled to the benefits of uninsured motorist arbitration until they cooperate with respondent in the investigation of the subject collision and submits to an examination.  (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1192 [“Generally, a party's failure to perform a condition precedent will preclude an action for breach of contract.”].)   

Petitioners argue they are willing to cooperate and to submit to EUOs. Petitioners also contend that Respondent’s counsel affirmed that Petitioners would not have to sit for an EUO, and make reference to a January 7, 2022 letter and February 15, 2022 letter. However, the January 7, 2022 letter does not state Petitioners would not have to sit for an EUO; the letter states Petitioners’ arbitration demand has been held in abeyance because Petitioners failed to cooperate with the investigation. (Reply, Exh. A.) The February 15, 2022 letter from Petitioners’ counsel to Respondent’s counsel merely states that Petitioners are willing to submit to their EUOs. (Reply, Exh. B.) Respondent argues it arranged for Petitioners’ EUOs to occur on November 23, 2021 and on February 23, 2022, but Petitioners did not appear at either of these arranged dates. (Decl. Kelley, ¶¶ 6, 12.) 

In Bouton v. USA Casualty Ins. Co. (2008) 43 Cal.4th 1190, the California Supreme Court held “that section 11580.2, subdivision (f), ‘read literally, requires arbitration of two issues only:  (1) whether the insured is entitled to recover against the uninsured motorist, and (2) if so, the amount of the damages.’  [Citation.]”  (Id. at p. 1201.) “Questions of coverage – that is, whether the claimant is insured and therefore entitled to take advantage of the protection provided by the policy at issue – must be resolved before an arbitrator reaches the two arbitrable questions pursuant to section 11580.2, subdivision (f).” (Ibid.)  Here, the dispute of whether Petitioners failed to comply with requirements for coverage is not subject to arbitration. That issue must be decided first in Court before the issues of whether Petitioners are entitled to recover against the uninsured motorist and the amount of damages. Here, Petitioners failed to comply with the requirements for coverage because they did not submit to the EUOs. 

 

Petitioners’ motion to compel arbitration is DENIED without prejudice. 

 

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the Court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 9th day of October 2023 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court