Bouton v. USAA Casualty Ins. Co. 12/21/06 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D048522

Case Date: 03/14/2007

Preview:Filed 12/21/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

LLOYD BOUTON, Plaintiff and Appellant, v. USAA CASUALTY INSURANCE COMPANY, Defendant and Respondent.

D048522

(Super. Ct. No. GIN048508)

APPEAL from orders of the Superior Court of San Diego County, Joel M. Pressman and Richard G. Cline, Judges. Reversed and remanded with directions. Shipley & Kirch, Jacques J. Kirch, Law Offices of Daniel S. Rosenberg and Daniel S. Rosenberg for Plaintiff and Appellant. Daniels, Fine, Israel, Schonbuch & Lebovits, Paul R. Fine, Erin O. Hallissy and Leila M. Reed for Defendant and Respondent. Lloyd Bouton (Bouton) appeals an order denying his petition to compel arbitration of his claim against USAA Casualty Insurance Company (USAA) for underinsured motorist benefits under the automobile insurance policy USAA issued to his sister.

Apparently alternatively, Bouton also appeals an order granting USAA's motion to strike Bouton's subsequently filed amended complaint that alleged causes of action for declaratory relief and breach of that insurance policy. On appeal, Bouton contends the trial court erred by denying his petition to compel arbitration because: (1) the dispute whether he is an insured under USAA's policy is required to be arbitrated pursuant to Insurance Code section 11580.2, subdivision (f),1 as interpreted by Van Tassel v. Superior Court (1974) 12 Cal.3d 624 (Van Tassel); and (2) the undisputed facts show he is an insured under USAA's policy entitled to arbitration of his claim. Bouton also contends the trial court erred in granting USAA's motion to strike his amended complaint because: (1) the court had jurisdiction over the parties and controversy and had a duty to decide all matters before it; (2) if the court does not decide all of those matters, res judicata will bar those causes of action he may allege in a new (or second) complaint; (3) his amended complaint was properly filed as an amended pleading and any defect was trivial; and (4) even were his pleadings defective, the court should have granted him leave to amend. Because we conclude section 11580.2, subdivision (f), as interpreted by Van Tassel, requires arbitration of the dispute whether Bouton is an insured under USAA's policy despite exclusionary policy language arguably to the contrary, we reverse the order denying Bouton's petition to compel arbitration and remand with directions to issue a new order granting that petition.

1

All statutory references are to the Insurance Code unless otherwise specified. 2

FACTUAL AND PROCEDURAL BACKGROUND On November 8, 2005, in San Diego County Superior Court Case No. GIN048508, Bouton filed a petition to compel arbitration (Petition) of his claim against USAA for underinsured motorist benefits under the automobile insurance policy (Policy) USAA issued to his sister Samela Bouton. The Petition alleged that on May 7, 2004, an automobile owned and operated by Kevin Daniels (Daniels) injured him in an automobile accident. On or about May 4, 2005, Bouton settled his claims against Daniels and his insurer (Mercury Insurance) for his policy's limit of $15,000. On May 20, Bouton demanded that USAA submit to arbitration his claim under the Policy, which included a provision for uninsured or underinsured motorist benefits. The Petition further alleged, and Bouton's supporting declaration stated, that at the time of the accident (i.e., May 7, 2004), Bouton was a permanent resident of the household of, and a blood relative of, his sister, Samela Bouton. Bouton submitted a copy of the Policy in support of the Petition. The Policy provides uninsured or underinsured motorist (UM) benefits for "covered person[s]."2 That part of the Policy defines a "covered person" as "1. You [i.e., the named insured] or any family member. . . ." The Policy defines "family member" as "a person related to you [i.e., the named insured] by blood, marriage, or adoption who is

2 The Policy stated: "[USAA] 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] sustained by a covered person and caused by an auto accident. [

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