Judge Thomas Falls, Case 22PSCP00615 2023-03-14 Tentative Ruling

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Petitioner Barbara Jastrab ("Petitioner") PETITION TO COMPEL ARBITRATION AND APPOINT ARBITRATOR

Responding Party: Unopposed as of 3/6 at 9 AM (due 9 court days before hearing [Wed. 3/1]

Petitioner Barbara Jastrab ("Petitioner") PETITION TO COMPEL ARBITRATION AND APPOINT ARBITRATOR is GRANTED.

On December 28, 2022, Petitioner BARBARA JASTRAB filed the instant Petition against UNITED SERVICES AUTOMOBILE ASSOCIATION.

Petitioner brings forth the instant petition pursuant to Code Civ. Proc. § 1281.2, Insurance Code section 11580.2, and CCP section 1281.6. (Petition p. 1:20-25.)

In turn, the statute provides that “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exist.” (Code Civ. Proc., § 1281.2.) “The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement.” (Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263.)

On or about 5/10/2016, Petitioner sustained bodily injuries as a result of a collision with an automobile operated by Roberto Alejandro Gonzalez ("Gonzalez"). Petitioner was insured by a bodily injury insurance policy issued by Respondent for uninsured motorist coverage limits of $300,000 per person and $500,000 per accident. Gonzalez was insured with Liberty Mutual for a policy limit of $25,000, making Gonzalez an uninsured motorist as to Petitioner.[1]

On or about 4/30/2018, Petitioner filed an action for damages against Gonzalez with the Los Angeles Superior Court docketed as LASC Case No. BC704697. In or about July 14 2018, Liberty Mutual offered and Petitioner agreed to settle the case against Gonzalez for Gonzalez's full policy limit of $25,000. The full amount of the policy was paid by Liberty Mutual to Petitioner on 10/1/2018.

As for Petitioner’s own insurance (provided by Respondent), Petitioner explains that the Policy provides that Respondent will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury from a motor vehicle accident. (Petition p. 8, see Declaration of Barbara Jastrab, Exhibit 2, page 16.)[2] Moreover, the agreement contains a valid arbitration agreement. (See Ex. 2 p. 17 [“Upon request of either party, the matter or matters upon which either party do not agree shall be settled by a single neutral arbitrator. The decision made by the arbitrator may be entered in any court having jurisdiction. Each party will pay the expenses it incurs and bear the expenses of the arbitrator equally.”].) Furthermore, despite negotiations conducted over a period of 4 years (commencing on 10/05/2018), the parties have been unable to come to an agreement on settlement value. (Petition p. 9.)

Accordingly, as there appears to be a dispute whether and/or to what extent the insured is legally entitled to collect damages from the driver of the uninsured motor vehicle, the court finds that Petitioner has met her burden in establishing that the controversy is within the purview of mandatory arbitration.[3]

As for the appointment of an arbitrator, as neither the agreement provides for a method of appointing a arbitrator nor have the parties agreed on such a method, the court appoints an arbitrator pursuant to Code of Civil Procedure section 1281.6, which will further be discussed at the hearing.[4]

Based on the foregoing, and absent an opposition to explain why the matter should not be arbitrated, the court grants this Petition and issues an order compelling Respondent USAA to arbitrate Petitioner's underinsured motorist claim and appoints an arbitrator.

[1] According to California Insurance Code § 11580.2, a motorist is underinsured if his or her policy limits are less than the uninsured motorist limits carried on the motor vehicle of the injured party, in this case the Petitioner. Since Petitioner carried uninsured motorist limits of $300,000, Gonzalez was an underinsured motorist as to Petitioner.

[2] The agreement states that “We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of Bl sustained by a covered person and caused by an auto accident.”

[3] See agreement ‘Arbitration’ provision which states that arbitration applies when the parties disagree “Whether a covered person is legally entitled to recover Bl or PD damages from the owner or operator of an uninsured motor vehicle or an underinsured motor vehicle.” (Ex. 2, p. 17 or 49 of 72 of PDF.0

[4] Code of Civil Procedure section 1281.6 provides: If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator. When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.