U.M. Claim Dies Because Insured did not Sue Uninsured Motorist or Demand Arbitration Timely
Jerry Pikover, relying on his lawyer, carried on extensive negotiations and efforts to collect on an Uninsured or Underinsured Motorist Claim (UM/UIM) only to have the claim denied for failure to fulfill the basic conditions precedent to collecting UM/UIM coverage under the California uninsured motorist and underinsured motorist statute.
In Jerry Pikover v. Liberty Mutual Fire Insurance Company et al., B283206, Court Of Appeal Of The State Of California Second Appellate District Division Seven (January 14, 2019) Jerry Pikover was injured when the sports utility vehicle in which he was a passenger was struck by a second vehicle that had just collided with a big rig truck on the eastbound Interstate 210 freeway.
After the SUV owner’s insurance carrier, United Financial Casualty Company (UFCC), and Pikover’s automobile insurer, Liberty Mutual Fire Insurance Company, denied his claims, Pikover sued both insurers for breach of contract and breach of the implied covenant of good faith and fair dealing. The trial court granted UFCC’s and Liberty Mutual’s motions for summary judgment and entered judgments in their favor, ruling the undisputed facts established that Pikover had failed to comply with the statute, Insurance Code section 11580.2, subdivision (i), which sets forth three alternative prerequisites for bringing an action under the uninsured motorist provision of an insurance policy.
Pikover was riding in an SUV being driven by his friend Stanislav Krakovsky on Friday morning, January 11, 2013, heading eastbound on Interstate 210, when the SUV was struck by Hannah Maisel’s vehicle. The CHP report concluded Maisel was the cause of the collision when she engaged in an unsafe lane change.
Maisel was insured by Wawanesa General Insurance Company. Wawanesa denied Pikover’s claim, asserting the truck driver had been solely responsible for the collision.
The SUV was insured by a commercial automobile insurance policy underwritten by UFCC, an entity affiliated with Progressive Casualty Insurance Company. Krakovsky was a rated driver under the policy.
The UFCC policy for the SUV included an uninsured/underinsured (UM/UIM) motorist bodily injury coverage endorsement providing coverage of $30,000 per person and $60,000 per accident. On March 7, 2013 Freiberg, Pikover’s lawyer, submitted a letter to UFCC advising “that a claim for injuries and damages is hereby made on behalf of [Pikover].” On January 20, 2014 Freiberg submitted Pikover’s settlement demand for $475,000 to UFCC.
Pikover had his own automobile insurance policy with Liberty Mutual at the time of the accident, which included uninsured motorist coverage of $1,000,000 per accident. UFCC responded to Freiberg’s demand for arbitration stating UFCC’s position “that there is no uninsured motorist coverage available to your client as you have neither timely demanded arbitration, nor timely filed a complaint against the uninsured driver,” as required by section 11580.2, subdivision (i).
Freiberg’s office and Liberty Mutual continued communicating more than two years after the January 2013 accident.
The Instant Lawsuit
Pikover filed his complaint against Liberty and UFCC. UFCC moved for summary judgment or, in the alternative, summary adjudication, arguing the undisputed facts established Pikover had not satisfied the requirements of section 11580.2, subdivision (i), for accrual of a cause of action under the uninsured motorist provisions in an automobile insurance policy and the cause of action for breach of the implied covenant of good faith and fair dealing was an action on the policy and subject to the same requirements. On March 17, 2017 Liberty Mutual also moved for summary judgment or, in the alternative, summary adjudication on essentially the same grounds.
The trial court granted both motions, issuing a separate ruling for each one.
Section 11580.2 requires bodily injury liability policies in California to include insurance for sums recoverable from the owner or operator of an uninsured motor vehicle. With respect to a dispute concerning an uninsured motorist claim, section 11580.2, subdivision (i)(1), provides:
“No cause of action shall accrue to the insured under any policy or endorsement provision issued pursuant to this section unless one of the following actions have been taken within two years from the date of the accident: [¶] (A) Suit for bodily injury has been filed against the uninsured motorist, in a court of competent jurisdiction. [¶] (B) Agreement as to the amount due under the policy has been concluded. [¶] (C) The insured has formally instituted arbitration proceedings by notifying the insurer in writing sent by certified mail, return receipt requested.”
No evidence suggests, despite Pikover’s contention otherwise, that UFCC indicated a settlement was imminent or even that it would make a settlement offer. Indeed, Freiberg’s office on July 14, 2014 acknowledged to UFCC it was awaiting a settlement offer from Liberty Mutual. In addition, there is no evidence UFCC made any representation Pikover’s instituting arbitration or otherwise complying with the statutory requirements was unnecessary or would have any negative impact on ongoing discussions. Nor did UFCC advise Pikover it was waiving any of its coverage defenses.
Pikover contends there are “numerous” issues of disputed material fact precluding the grant of summary judgment but failed to identify any with reasoned discussion or citation to the record. As a result, Pikover forfeited the issue.
Viewing all the evidence most favorably to Pikover, neither UFCC nor Liberty did or said anything upon which Pikover could reasonably have relied in deciding to delay or refrain from complying with the requirement to timely demand arbitration.
The circumstances of the parties’ settlement negotiations, including negotiations between UFCC and Liberty Mutual, do not support a claim of estoppel. Pikover was represented by an attorney at all times. There is no evidence that the insurers ever requested Pikover delay or refrain from formally instituting arbitration proceedings, filing suit against the uninsured motorist(s) or otherwise acting to ensure compliance with section 11580.2.
The appellate court concluded that as a matter of law, it was not reasonable for Pikover, who was represented by counsel, to refrain from demanding arbitration or seeking agreement to extend section 11580.2, subdivision (i)’s two-year limitations period in purported reliance on the superseded August 21, 2014 promised settlement offer after September 12, 2014.
Equitable tolling is not available to Pikover to excuse his failure to comply with section 11580.2, subdivision (i), by initiating arbitration proceedings within two years from the accident. The complaint also fails to allege Pikover pursued an action against Maisel, obtained settlement with or judgment against Maisel, or submitted proof of any payment made on behalf of Maisel to Liberty Mutual, all requirements for an underinsured motorist claim. Nor does Pikover suggest, let alone present evidence, that he could satisfy the requirements.
In sum, Pikover has not merely failed to plead facts essential to support a theory of underinsured motorist coverage; he is unable to do so. Pikover’s action against Liberty Mutual does not, and cannot, arise from a claim of underinsured motorist coverage.
The trial court did not err in ruling in favor of the insurers on Pikover’s bad faith cause of action. As discussed, in his January 2014 settlement demand to UFCC, Pikover claimed damages of at least $475,000. Separate from issues of liability and coverage, neither UFCC nor Liberty Mutual agreed with Pikover as to the amount of his loss. A denial of coverage, therefore, was not necessary for Pikover to demand arbitration during the statutory two-year period to determine the amount of damages to which he might be entitled for his injuries.
Because Pikover’s cause of action for breach of the implied covenant of good faith and fair dealing arises under UFCC’s and Liberty Mutual’s uninsured motorist policies, the requirements of section 11580.2, subdivision (i), applied to his second cause of action, as well as to his first. Because he failed to satisfy those requirements, summary judgment was properly granted in favor of UFCC and Liberty Mutual.
Pikover was really injured by an uninsured motorist and an underinsured motorist. He put his claim in the hands of a lawyer who made demands upon the insurers but never did what was necessary to toll the two year limitation period or comply with the conditions that the statutory policy required. He gets nothing from the insurers as a result. Jerry Pikover is not, however, without a remedy – he can seek damages from his attorney.
© 2019 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
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