Filed 1/22/07 Dalby v. 21st Century Ins. Co. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Horvitz & Levy, David S. Ettinger, John A. Taylor; Crandall, Wade & Lowe, James L. Crandall, Edwin B. Brown and Victor R. Anderson for Defendant and Appellant.
Daniel C. Leib; Leib & Katt and Samuel J. Leib for Plaintiff and Respondent.
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INTRODUCTION
Defendant 21st Century Insurance Company appeals from the trial court's denial of its motion to compel an uninsured motorist (UM) arbitration[1] in a bad faith insurance action by plaintiff Donald Dalby, as Executor of the Estate of Mary Ann Dalby,[2] on the basis that defendant had waived its right to arbitration. The case arises out of defendant's handling of plaintiff's claim for UM benefits. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 2002, plaintiff was in a two-car accident. Plaintiff notified defendant of her UM claim by a May 17, 2002 letter. On September 9, 2002, plaintiff provided defendant with a list of her medical and special damages and requested settlement discussions. By letter dated September 30, 2002, defendant requested that plaintiff clarify the content of the medical and special damages letter.
The parties agree that plaintiff requested arbitration by letter in April or July 2003.[3] Subsequently, by an August 25, 2003 letter, defendant's attorneys notified plaintiff's counsel that they would be representing defendant, began discovery by submitting to plaintiff interrogatories, a demand for inspection of documents and authorization to obtain medical records, and requested that plaintiff select one of three proposed arbitrators. Plaintiff's counsel replied on September 12, 2003 that none of the proposed arbitrators was acceptable and proposed three other arbitrators for defendant's selection. By his May 25, 2004 letter, defendant's counsel indicated that he was in the process of taking the deposition of the uninsured motorist involved in the accident, and to expedite plaintiff's claim, plaintiff's counsel should either select an arbitrator from the three listed in the August 25, 2003 letter or provide other nominees.[4] By June 18, 2004 letter, plaintiff's counsel responded to defendant's counsel by proposing that the parties choose an arbitrator from the panel at Judicate West.
On August 2, 2004, plaintiff's counsel confirmed to defendant's counsel plaintiff's demand for policy limits of $100,000 to settle the claim and specified the basis for the demand. Counsel also noted plaintiff's age and frail health and suggested that defendant's failure to submit a settlement offer could be construed by some as bad faith. Defendant's counsel acknowledged receipt of the demand but stated that defendant would not respond until it reviewed summaries of the depositions of the uninsured motorist and plaintiff's physician; the depositions were scheduled to be held on August 23 and 24, 2004 respectively.
On August 13, 2004, Judicate West sent three nominations for arbitrator to both parties. Defendant's counsel struck one of the three. Plaintiff's counsel found the remaining two unacceptable.
In his August 30, 2004 letter to defendant's attorney, plaintiff's counsel summarized the recently completed deposition of the uninsured motorist involved in the collision as showing that the motorist was inattentive when pulling into the intersection, thereby causing the accident. Plaintiff's counsel reiterated plaintiff's frail condition, her previous policy limits demand, and request for defendant to make a reasonable settlement offer to resolve the case.
In his September 21, 2004 letter, defendant's counsel informed plaintiff's counsel that the deposition of plaintiff's physician had not yet been taken due to requests for information from the physician, and that defendant would discuss resolution or arbitration of the matter only after discovery was completed. In his October 1, 2004 reply, plaintiff's counsel responded by noting that defendant had notified plaintiff's physician of its interest in determining whether plaintiff's aortic aneurism could have caused her to black out before the accident. Plaintiff's counsel pointed out that the physician's deposition was unnecessary, in that specific medical records and other records available to defendant's counsel gave no indication that plaintiff blacked out before the accident.
Judicate West sent a second panel of five arbitrator nominees on December 20, 2004. Defendant's counsel and plaintiff's counsel each struck two names from the list, leaving one name, Judge James Jackman, to serve as arbitrator.[5] On March 22, 2005, Judicate West gave notice that the arbitration with Judge Jackman was set for June 6, 2005.
Approximately one week later, plaintiff's counsel notified defendant's counsel that plaintiff had died. Subsequently, plaintiff's counsel served a notice of intent to introduce evidence at the June 2005 arbitration. On May 20, 2005, in preparation for the arbitration, defendant took the videotaped deposition of an eyewitness, Barbara Wade Beneyune, with plaintiff's counsel present. Shortly after the deposition, plaintiff's counsel unilaterally contacted Judicate West and cancelled plaintiff's participation in the June 6, 2005 arbitration. Defendant's counsel left telephone messages for plaintiff's counsel on June 22 and 23, 2005, and sent a letter dated June 29, 2005 to plaintiff's counsel asking him about his intent to pursue plaintiff's claim.
On August 3, 2005, plaintiff filed a complaint against defendant, alleging breach of contract, breach of the duty of good faith and fair dealing, negligent infliction of emotional distress, and violation of Insurance Code section 790.03. Defendant filed a demurrer, a motion to stay the action pending arbitration, and a motion to strike the causes of action to which defendant demurred. One of the grounds for the demurrer was that plaintiff failed to submit the case to arbitration as mandated by the Insurance Code and the parties' insurance contract.
On October 17, 2005, the trial court sustained defendant's demurrer as to plaintiff's third cause of action for negligent infliction of emotional distress and the fourth cause of action for breach of Insurance Code section 790.03, and it granted plaintiff leave to amend. Defendant's motion to strike was rendered moot by the ruling on the demurrer. The trial court denied defendant's motion to stay.
Plaintiff served defendant with form interrogatories, demand for inspection and production of documents, request for admissions, and special interrogatories. Then on October 27, 2005, defendant filed a motion to compel arbitration and a motion for reconsideration of the previous denial of its motion to stay the action pending arbitration. The motions were to be heard on December 8, 2005.
On November 23, 2005, defendant's counsel requested that plaintiff give it an extension of time to respond to plaintiff's discovery requests until after defendant's motion to compel arbitration had been resolved. Defendant's counsel stated that â€
Description
Defendant 21st Century Insurance Company appeals from the trial court's denial of its motion to compel an uninsured motorist (UM) arbitration in a bad faith insurance action by plaintiff Donald Dalby, as Executor of the Estate of Mary Ann Dalby, on the basis that defendant had waived its right to arbitration. The case arises out of defendant's handling of plaintiff's claim for UM benefits. Court affirm.
