Preview
Super' Gum bf Gamma
Law Office of Gwn'lrfBult
James J. Thompson
Attorney at Law 7/8/2020
2535 Ceanothus Ave., Ste. 126
Chico, CA 95973
(530) 342-0886
State Bar #63003
Attorney for Petitioner
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
10
ll CARMEN GIOVANNONI, Case N0.20CV01330
12
Petitioner, PETITION TO COMPEL UNINSURED
MOTORIST ARBITRATION
13
VS. (CCP §1281.2)
14 Date: 2020
I
Hearing August 26,
ALLSTATE NORTHBROOK INDEMNITY Hearin Time: 9:00 AM
l5 Dept: ivil
COMPANY,
'
l6
Respondents,
l7
18
On January 26, 2017, Carmen Giovannoni, a resident of Butte County,
19
(hereinafter referred to as “petitioner”), was involved in an automobile accident with an
20
21
uninsured motorist. At the time of this incident, petitioner had an automobile policy with
22 Allstate Northbrook Indemnity Company (hereinafter referred to as “respondent”).
23 On status
May 22, 2017, respondent wrote petitioner a letter updating her on the
24 of the claim and stated in said letter
25 “We will continue to update you on the status of the claim until itis resolved”
(emphasis added).
26
27
28
PETITION TO COMPEL ARBITRATION —
l
On March 20, 2018, respondent was notified by petitioner’s attorney that an
uninsured motorist claim was being presented by petitioner. For eleven months after the
two-year statute of this claim, respondent corresponded with petitioner claiming its
intention was to resolve this claim. lt wasn’t until petitioner submitted a demand letter to
respondent that respondent notified petitioner that itwould not be paying the claim
because the two-year statute of limitations had run pursuant to Insurance Code §
11580.2(i)(3). During the period oftime from the initial notification by petitioner until
respondent notified petitioner of their position on the two-year statute of limitations,
lO
ll respondent misled petitioner by its numerous and continuous statements that itwanted
12 to resolve the claim and was only requesting damage information. As of May 11, 2020,
l3
respondent continued to correspond to petitioner advising that they are continuing
14
investigation of the claim until resolution. Despite misleading petitioner for more than
15
three years, respondent is taking the position that the claim is barred by the statute of
16
17 limitations and this petition arises as a result of said actions. Petitioner alleges that
18 is barred from the statute of limitations due to the doctrine of
respondent asserting
19
estoppel and lack of prejudice.
20
21
22 I. STATEMENT OF FACTS
23
On March 20, 2018, petitioner’s attorney sent a letter to respondent notifying
24
respondent that he would be representing petitioner in her uninsured motorist claim.
25
The letter concluded with the following:
26
“Please advise if you are in need of any addition information.”
27
28
PETITION TO COMPEL ARBITRATION —
2
On April 16, 2018, respondent wrote petitioner a letter which states in part as
follows:
"Since your client is presenting an uninsured motorist claim, your client will
need to establish some basic facts...First, your client must demonstrate
that he or she is legally entitled to covered damages from the owner or
operator of an insured auto, as defined in the insurance contract. Then
your client must also prove that the damages are recoverable. You can
refer to your client’s policy for more details on how to meet these
conditions. (emphasis added)”
On May 9, 2018, a letter was sent to petitioner’s counsel which indicated the
following:
10 “We will continue to update you on the status of the claim until itis
resolved. (emphasis added)”
ll
12
A similar letter was sent on June 9, 2018, June 29, 2018, July 27, 2018 and
September 4, 2018.
13
On April 25, 2018, attorney for petitioner wrote a letter to respondent requesting
l4
a declaration page showing petitioner’s policy limits, and also indicating that if any
15
additional information isneeded to please advise. On September 11, 2018, respondent
l6
wrote a letter to petitioner’s attorney indicating as follows:
l7 “l am to let know that will now be the claim listed
writing you l handling
18 above. Please be sure to send allcorrespondence related to this claim to
the address listed above and directed to my attention...| look fonivard to
l9 assisting you. l am condent we can resolve this claim quickly. '
(emphasis
20
addedY’
21 Two years after the claim occurred, respondent was stillcorresponding with
22 petitioner requesting an update on the status on the claim and indicated that it will
“continue to update you on the status of the claim until it is resolved.” This
23
correspondence continued up to the time a demand letter was sent to respondent on
24
December 19, 2019, by petitioner’s attorney. After the two-year period, and before the
25
demand letter was sent, respondent sent twelve letters to petitioner indicating that it
26
would be updating petitioner on the status of this matter until the claim was resolved.
27
Petitioner received five more letters after the demand was sent advising of respondent
28 2020.
working towards resolution, up until May 11,
PETITION TO COMPEL ARBITRATION —
3
After petitioner’s attorney sent a demand letter to respondent on December 19,
2019, for the first time, respondent indicated that ithad insufficient information to
evaluate the demand. On February 20, 2020, petitioner’s attorney was contacted by
respondent coverage counsel who stated that the two—year statute of limitations had not
been complied with and therefore the matter would not proceed to arbitration. This
petition arises as a result of the position taken by respondent.
ll. CONTE'NTIONS
A. RESPONDENT CONTENDS THAT PETITIONER DID NOT COMPLY WITH
10
lNSURANCE CODE § 11580.2 (1M1). SPECIFICALLY A. AND C.. AND AS
ll SUCH. THE CLAIM IS BARRED BY THE TWO-YEAR STATUTE OF
12 LIMITATIONS
l3
14 B. PETITIONER CONTENDS THAT ESTOPPEL BARS RESPONDENT FROM
15 ASSERTING THE TWO-YEAR STATUTE OF LIMITATIONS;
16
C. LAW AND ARGUMENT REGARDING ESTOPPEL:
17
California Insurance Code § 11580.2(i)(1)(3) provides as follows:
18
“The doctrines of estoppel, waiver, and possibility, in practicality and
19 futility,apply to excuse a parties non-compliance with a statutory
timeframe as determined by the court.”
20
Evidence Code § 623 provides as follows:
21
“Whenever a party has, by his own statement or conduct, intentionally and
22 deliberately, led another to believe a particular thing and to act upon such
belief, he is not, in any litigation arising out of such statement or conduct,
23 permitted to contradict it.”
24
Merriam-Webster’s Dictionary of Law 1996 defines resolve as follows:
25 “1. To deal with clear 2a. to declare or decide
successfully: up [a dispute];
26 by formal resolution and vote...”
27 In analyzing the applicability of the doctrine of estoppel to the facts of this case,
28 respondent’s actions should be viewed in terms of its obligation of good faith and fair
PETITION TO COMPEL ARBITRATION —
4
dealing to its insured. [Davis v. Blue Cross of Northern California (1979) 25 Cal.3'd 418
and Insurance Code § 790.03]. Normally litigation involves adversarial positions,
but in uninsured motorist with a requirement of good faith and fair dealing,
litigation requires the insurer to deal with the petitioner in a fair and reasonable
manner. In looking at how respondent dealt with petitioner, the court should look at how
itacted toward petitioner.
Respondent continued to tell petitioner and petitioner’s counsel that itwas
updating the claim, and would update the claim until resolved. No time limit was
established for resolution of the claim, and clearly a reasonable person would assume
that respondent was going to evaluate the claim until itwas resolved. The only issue
lO
that was left to be determined in this matter was the nature and extent of petitioner’s
ll and loss which would be evaluated and was not a question
injuries wage money paid. It
12 of whether or not petitioner was entitled to money, but rather what the amount of the
l3 money was needed to settle the case.
l4 As itis clear from the correspondence set forth herein, respondent was
15 misleading petitioner relative to this matter and the examples of this are as follows:
1. ln numerous correspondence from respondent, itindicated that itwould update
16
petitioner until the claim was resolved. Any reasonable person would take this to
17
mean that resolution meant that the case would be ended either by settlement or
18
adjudication.
19
2. On April 16, 2018, respondent wrote a letter to petitioner discussing conditions
20
that should be complied with, but at no time did itindicate to petitioner that these
21 of Insurance Code At no time
conditions included the provision § 11580.2(i)(1).
22 was there that not done
any indication petitioner had everything necessary to
23 comply with presenting an uninsured motorist claim. In the April 16, 2018 letter,
24 respondent acknowledges that petitioner was presenting an uninsured motorist
25 claim, and at no time did respondent indicate to petitioner that the claim was in
26 any way defective.
In analyzing the concept of estoppel in relation to the case before it,the court
27
should be aware of the fact that at no time did respondent indicate to petitioner that
28
PETITION TO COMPEL ARBITRATION —
5
there was a problem with the claim. What happened in this case was a situation where
the claims representatives at all times viewed this as a case as being appropriately an
uninsured motorist claim until petitioner submitted a demand letter, at which time
someone higher up took the position that this case could save some money for
respondent by playing games with petitioner’s rights.
Clearly the actions set forth above establish estoppel and as such, respondent is
barred from asserting the statute of limitations pursuant to Insurance Code §
11580.2(i)(1).
D. LAW AND ARGUMENT REGARDING LACK OF PREJUDICE:
10
Respondent cannot claim that it was prejudiced as a result of petitioner’s failure
11 Insurance Code
to comply with § 11580.2(i)(1).
12 In analyzing this issue, the court should be aware of the fact that at no time has
l3 respondent provided any evidence that it was prejudiced by petitioner’s failure to give
l4 respondent notice. In fact, respondent admits that itwas aware of the uninsured
15 motorist claim and in fact monitored the progress of the uninsured motorist claim from
May 22, 2017 to February 20, 2020.
l6
The law is clear that while an insurer may assert a defense based upon an
l7
alleged breach of the notice requirement of an insurance policy, the breach cannot be a
l8
valid defense unless the insurer was substantially prejudiced thereby. Clemmer v.
19
Hartford Insurance Company (1978) 22 Cal.3'd 865, 883-884; Campbell v. Allstate
20
Insurance Company (1963) 60 Cal.2"d 303.
21 when
California Torts Volume 5 (1999) page 71 .01 (1) notes the following
22
discussing the history of the pleas of statute of limitations:
23 “Similarly, the principles well establish the statutorily imposed limitations
on actions are technical defenses that should be strictly construed to avoid
24
the forfeiture of a plaintiffs rights. Such limitations are obstacle’s to just
25 claims, and the court may not indulge in strain construction to apply these
statutes to the facts of a particular case. Finally. there is a strong public
26 policy that Iitiqation would be disposed of on the merits whenever
27
possible.” (emphasis added)
28
PETITION TO COMPEL ARBITRATION —
6
At all times herein mentioned, respondent was under an obligation of good faith
and fair dealing in terms with dealing with petitioner. Respondent can show no prejudice
as a result of non-compliance with Insurance Code § 11580.2(i)(1). Respondent admits
being aware ofthe claim, in fact itacted on the claim for three years and had an open
file.
Based upon the evidence deduced, respondent should be barred from asserting
the statute of limitations.
|||. CONCLUSION
The evidence clearly establishes that under the rules of estoppel and prejudice,
10
respondent should be barred from asserting the two—year statute of limitations. The
ll evidence set forth above, and the declaration of James J. Thompson, clearly
12 establishes the following:
13 1. When respondent wrote a letter that itthought the matter would resolve quickly it
l4 clearly shows that respondent had accepted the claim and was looking forward to
15 settling the claim. If ithad not accepted the claim itcertainly would not be
discussing settling this matter;
16
2. ltis clear that respondent herein at all times viewed this case as a case where
17
the claim had been property presented but itwas only until the demand letter had
18
been submitted to the insurance company that they looked for a way out of
19
paying settlement to petitioner. The court is reminded of the nine letters
20
respondent sent to petitioner after the two-year statute of limitations had expired
21 these
indicating itwas still interested in resolving this matter. Why would letters
22 have been sent unless they had in fact taken the that the
position, internally,
23 case had been properly presented?
24 3. Respondent admits being advised ofthe claim, but argues that the claim did not
25 comply with Insurance Code § 11580.2(i)(1).
26
4. At no time did any letters from respondent reject the claim.
27
28
PETITION TO COMPEL ARBITRATION —
7
.
Respondent had allfacts it needed to evaluate the claim, and in fact only
requested information pertaining to the nature and extent ofthe injuries and
wage loss.
. The collision created a debt that needed to be paid by respondent, and the debt
is stillowing and has not been paid.
. At all times herein mentioned, respondent looked to resolve this matter, but at the
end did not resolve the matter, but relied upon trickery to assert the statute of
limitations.
. ltis clear that respondent communicated with petitioner for three years but at no
time indicated that its position was anything other than interest in resolving the
10
matter. Itwas only when a higher-up got involved inthis matter that it decided to
ll statute of limitations.
allege the
l2
13 Based upon the forgoing and the evidence adduced therefrom, and the
l4 declaration of James J. Thompson, itis clear that the petition should be granted.
15
/'
l6 __,__._-.—.._.,
Dated: July 8, 2020 -.
l7 _.Thomp§9n‘
d mes
om yforPetitioner
18
19
20
21
22
23
24
25
26
27
28
PETITION TO COMPEL ARBITRATION —
8
PROOF OF SERVICE
| am employed in the County of Butte, State of California. My business address is
2535 Ceanothus Ave., Ste. 126, Chico, California 95973. | am over the age of 18 years
and not a party to the within action.
0n July 8, 2020, Iserved PETITION To COMPEL UNINSURED MOTORIST
ARBITRATION (ccp § 1281.2)
on the foregoing party(ies)in said action by placing true copies thereof enclosed in a
sealed envelope addressed as follows:
Scott Vida
lO Pollak, Vida, & Barer
11500 W. Olympic Blvd. Ste. 400
11
Los Angeles, CA 90064—1 830
12
The document was served via:
l3
l4 [X ]MAIL: | am familiar with the practices of this office whereby each document
is placed in an envelope, the envelope is sealed, the appropriate postage is placed
15 thereon and the sealed envelope is placed in the office mail receptacle.
l6 [] FAX AND MAIL: |
personally sent to the addressee’s facsimile a true copy of
l7
the above-described document(s) and, thereafter, |
placed a true copy in a sealed
envelope with first class postage affixed and mailed as listed above.
18
[] PERSONAL SERVICE: Delivery by hand to the office of the addressee(s).
19
20 [] OVERNIGHT DELIVERY: |caused delivery by overnight
courier/delivery/US. Postal Service to the person(s) at the address(es)about listed.
21
[] ELECTRONIC MAIL: l
personally sent to the addressee’s email a true copy of
22
the above-described document(s).
23
l declare under penalty of perjury, under the laws of the State of California, that
24 the foregoing is true and correct.
25
Executed on July 8, 2020, at Chico, California.
26
27
28
Proof of Service
Preview
Super' Gum bf Gamma Law Office of Gwn'lrfBult James J. Thompson Attorney at Law 7/8/2020 2535 Ceanothus Ave., Ste. 126 Chico, CA 95973 (530) 342-0886 State Bar #63003 Attorney for Petitioner IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE 10 ll CARMEN GIOVANNONI, Case N0.20CV01330 12 Petitioner, PETITION TO COMPEL UNINSURED MOTORIST ARBITRATION 13 VS. (CCP §1281.2) 14 Date: 2020 I Hearing August 26, ALLSTATE NORTHBROOK INDEMNITY Hearin Time: 9:00 AM l5 Dept: ivil COMPANY, ' l6 Respondents, l7 18 On January 26, 2017, Carmen Giovannoni, a resident of Butte County, 19 (hereinafter referred to as “petitioner”), was involved in an automobile accident with an 20 21 uninsured motorist. At the time of this incident, petitioner had an automobile policy with 22 Allstate Northbrook Indemnity Company (hereinafter referred to as “respondent”). 23 On status May 22, 2017, respondent wrote petitioner a letter updating her on the 24 of the claim and stated in said letter 25 “We will continue to update you on the status of the claim until itis resolved” (emphasis added). 26 27 28 PETITION TO COMPEL ARBITRATION — l On March 20, 2018, respondent was notified by petitioner’s attorney that an uninsured motorist claim was being presented by petitioner. For eleven months after the two-year statute of this claim, respondent corresponded with petitioner claiming its intention was to resolve this claim. lt wasn’t until petitioner submitted a demand letter to respondent that respondent notified petitioner that itwould not be paying the claim because the two-year statute of limitations had run pursuant to Insurance Code § 11580.2(i)(3). During the period oftime from the initial notification by petitioner until respondent notified petitioner of their position on the two-year statute of limitations, lO ll respondent misled petitioner by its numerous and continuous statements that itwanted 12 to resolve the claim and was only requesting damage information. As of May 11, 2020, l3 respondent continued to correspond to petitioner advising that they are continuing 14 investigation of the claim until resolution. Despite misleading petitioner for more than 15 three years, respondent is taking the position that the claim is barred by the statute of 16 17 limitations and this petition arises as a result of said actions. Petitioner alleges that 18 is barred from the statute of limitations due to the doctrine of respondent asserting 19 estoppel and lack of prejudice. 20 21 22 I. STATEMENT OF FACTS 23 On March 20, 2018, petitioner’s attorney sent a letter to respondent notifying 24 respondent that he would be representing petitioner in her uninsured motorist claim. 25 The letter concluded with the following: 26 “Please advise if you are in need of any addition information.” 27 28 PETITION TO COMPEL ARBITRATION — 2 On April 16, 2018, respondent wrote petitioner a letter which states in part as follows: "Since your client is presenting an uninsured motorist claim, your client will need to establish some basic facts...First, your client must demonstrate that he or she is legally entitled to covered damages from the owner or operator of an insured auto, as defined in the insurance contract. Then your client must also prove that the damages are recoverable. You can refer to your client’s policy for more details on how to meet these conditions. (emphasis added)” On May 9, 2018, a letter was sent to petitioner’s counsel which indicated the following: 10 “We will continue to update you on the status of the claim until itis resolved. (emphasis added)” ll 12 A similar letter was sent on June 9, 2018, June 29, 2018, July 27, 2018 and September 4, 2018. 13 On April 25, 2018, attorney for petitioner wrote a letter to respondent requesting l4 a declaration page showing petitioner’s policy limits, and also indicating that if any 15 additional information isneeded to please advise. On September 11, 2018, respondent l6 wrote a letter to petitioner’s attorney indicating as follows: l7 “l am to let know that will now be the claim listed writing you l handling 18 above. Please be sure to send allcorrespondence related to this claim to the address listed above and directed to my attention...| look fonivard to l9 assisting you. l am condent we can resolve this claim quickly. ' (emphasis 20 addedY’ 21 Two years after the claim occurred, respondent was stillcorresponding with 22 petitioner requesting an update on the status on the claim and indicated that it will “continue to update you on the status of the claim until it is resolved.” This 23 correspondence continued up to the time a demand letter was sent to respondent on 24 December 19, 2019, by petitioner’s attorney. After the two-year period, and before the 25 demand letter was sent, respondent sent twelve letters to petitioner indicating that it 26 would be updating petitioner on the status of this matter until the claim was resolved. 27 Petitioner received five more letters after the demand was sent advising of respondent 28 2020. working towards resolution, up until May 11, PETITION TO COMPEL ARBITRATION — 3 After petitioner’s attorney sent a demand letter to respondent on December 19, 2019, for the first time, respondent indicated that ithad insufficient information to evaluate the demand. On February 20, 2020, petitioner’s attorney was contacted by respondent coverage counsel who stated that the two—year statute of limitations had not been complied with and therefore the matter would not proceed to arbitration. This petition arises as a result of the position taken by respondent. ll. CONTE'NTIONS A. RESPONDENT CONTENDS THAT PETITIONER DID NOT COMPLY WITH 10 lNSURANCE CODE § 11580.2 (1M1). SPECIFICALLY A. AND C.. AND AS ll SUCH. THE CLAIM IS BARRED BY THE TWO-YEAR STATUTE OF 12 LIMITATIONS l3 14 B. PETITIONER CONTENDS THAT ESTOPPEL BARS RESPONDENT FROM 15 ASSERTING THE TWO-YEAR STATUTE OF LIMITATIONS; 16 C. LAW AND ARGUMENT REGARDING ESTOPPEL: 17 California Insurance Code § 11580.2(i)(1)(3) provides as follows: 18 “The doctrines of estoppel, waiver, and possibility, in practicality and 19 futility,apply to excuse a parties non-compliance with a statutory timeframe as determined by the court.” 20 Evidence Code § 623 provides as follows: 21 “Whenever a party has, by his own statement or conduct, intentionally and 22 deliberately, led another to believe a particular thing and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, 23 permitted to contradict it.” 24 Merriam-Webster’s Dictionary of Law 1996 defines resolve as follows: 25 “1. To deal with clear 2a. to declare or decide successfully: up [a dispute]; 26 by formal resolution and vote...” 27 In analyzing the applicability of the doctrine of estoppel to the facts of this case, 28 respondent’s actions should be viewed in terms of its obligation of good faith and fair PETITION TO COMPEL ARBITRATION — 4 dealing to its insured. [Davis v. Blue Cross of Northern California (1979) 25 Cal.3'd 418 and Insurance Code § 790.03]. Normally litigation involves adversarial positions, but in uninsured motorist with a requirement of good faith and fair dealing, litigation requires the insurer to deal with the petitioner in a fair and reasonable manner. In looking at how respondent dealt with petitioner, the court should look at how itacted toward petitioner. Respondent continued to tell petitioner and petitioner’s counsel that itwas updating the claim, and would update the claim until resolved. No time limit was established for resolution of the claim, and clearly a reasonable person would assume that respondent was going to evaluate the claim until itwas resolved. The only issue lO that was left to be determined in this matter was the nature and extent of petitioner’s ll and loss which would be evaluated and was not a question injuries wage money paid. It 12 of whether or not petitioner was entitled to money, but rather what the amount of the l3 money was needed to settle the case. l4 As itis clear from the correspondence set forth herein, respondent was 15 misleading petitioner relative to this matter and the examples of this are as follows: 1. ln numerous correspondence from respondent, itindicated that itwould update 16 petitioner until the claim was resolved. Any reasonable person would take this to 17 mean that resolution meant that the case would be ended either by settlement or 18 adjudication. 19 2. On April 16, 2018, respondent wrote a letter to petitioner discussing conditions 20 that should be complied with, but at no time did itindicate to petitioner that these 21 of Insurance Code At no time conditions included the provision § 11580.2(i)(1). 22 was there that not done any indication petitioner had everything necessary to 23 comply with presenting an uninsured motorist claim. In the April 16, 2018 letter, 24 respondent acknowledges that petitioner was presenting an uninsured motorist 25 claim, and at no time did respondent indicate to petitioner that the claim was in 26 any way defective. In analyzing the concept of estoppel in relation to the case before it,the court 27 should be aware of the fact that at no time did respondent indicate to petitioner that 28 PETITION TO COMPEL ARBITRATION — 5 there was a problem with the claim. What happened in this case was a situation where the claims representatives at all times viewed this as a case as being appropriately an uninsured motorist claim until petitioner submitted a demand letter, at which time someone higher up took the position that this case could save some money for respondent by playing games with petitioner’s rights. Clearly the actions set forth above establish estoppel and as such, respondent is barred from asserting the statute of limitations pursuant to Insurance Code § 11580.2(i)(1). D. LAW AND ARGUMENT REGARDING LACK OF PREJUDICE: 10 Respondent cannot claim that it was prejudiced as a result of petitioner’s failure 11 Insurance Code to comply with § 11580.2(i)(1). 12 In analyzing this issue, the court should be aware of the fact that at no time has l3 respondent provided any evidence that it was prejudiced by petitioner’s failure to give l4 respondent notice. In fact, respondent admits that itwas aware of the uninsured 15 motorist claim and in fact monitored the progress of the uninsured motorist claim from May 22, 2017 to February 20, 2020. l6 The law is clear that while an insurer may assert a defense based upon an l7 alleged breach of the notice requirement of an insurance policy, the breach cannot be a l8 valid defense unless the insurer was substantially prejudiced thereby. Clemmer v. 19 Hartford Insurance Company (1978) 22 Cal.3'd 865, 883-884; Campbell v. Allstate 20 Insurance Company (1963) 60 Cal.2"d 303. 21 when California Torts Volume 5 (1999) page 71 .01 (1) notes the following 22 discussing the history of the pleas of statute of limitations: 23 “Similarly, the principles well establish the statutorily imposed limitations on actions are technical defenses that should be strictly construed to avoid 24 the forfeiture of a plaintiffs rights. Such limitations are obstacle’s to just 25 claims, and the court may not indulge in strain construction to apply these statutes to the facts of a particular case. Finally. there is a strong public 26 policy that Iitiqation would be disposed of on the merits whenever 27 possible.” (emphasis added) 28 PETITION TO COMPEL ARBITRATION — 6 At all times herein mentioned, respondent was under an obligation of good faith and fair dealing in terms with dealing with petitioner. Respondent can show no prejudice as a result of non-compliance with Insurance Code § 11580.2(i)(1). Respondent admits being aware ofthe claim, in fact itacted on the claim for three years and had an open file. Based upon the evidence deduced, respondent should be barred from asserting the statute of limitations. |||. CONCLUSION The evidence clearly establishes that under the rules of estoppel and prejudice, 10 respondent should be barred from asserting the two—year statute of limitations. The ll evidence set forth above, and the declaration of James J. Thompson, clearly 12 establishes the following: 13 1. When respondent wrote a letter that itthought the matter would resolve quickly it l4 clearly shows that respondent had accepted the claim and was looking forward to 15 settling the claim. If ithad not accepted the claim itcertainly would not be discussing settling this matter; 16 2. ltis clear that respondent herein at all times viewed this case as a case where 17 the claim had been property presented but itwas only until the demand letter had 18 been submitted to the insurance company that they looked for a way out of 19 paying settlement to petitioner. The court is reminded of the nine letters 20 respondent sent to petitioner after the two-year statute of limitations had expired 21 these indicating itwas still interested in resolving this matter. Why would letters 22 have been sent unless they had in fact taken the that the position, internally, 23 case had been properly presented? 24 3. Respondent admits being advised ofthe claim, but argues that the claim did not 25 comply with Insurance Code § 11580.2(i)(1). 26 4. At no time did any letters from respondent reject the claim. 27 28 PETITION TO COMPEL ARBITRATION — 7 . Respondent had allfacts it needed to evaluate the claim, and in fact only requested information pertaining to the nature and extent ofthe injuries and wage loss. . The collision created a debt that needed to be paid by respondent, and the debt is stillowing and has not been paid. . At all times herein mentioned, respondent looked to resolve this matter, but at the end did not resolve the matter, but relied upon trickery to assert the statute of limitations. . ltis clear that respondent communicated with petitioner for three years but at no time indicated that its position was anything other than interest in resolving the 10 matter. Itwas only when a higher-up got involved inthis matter that it decided to ll statute of limitations. allege the l2 13 Based upon the forgoing and the evidence adduced therefrom, and the l4 declaration of James J. Thompson, itis clear that the petition should be granted. 15 /' l6 __,__._-.—.._., Dated: July 8, 2020 -. l7 _.Thomp§9n‘ d mes om yforPetitioner 18 19 20 21 22 23 24 25 26 27 28 PETITION TO COMPEL ARBITRATION — 8 PROOF OF SERVICE | am employed in the County of Butte, State of California. My business address is 2535 Ceanothus Ave., Ste. 126, Chico, California 95973. | am over the age of 18 years and not a party to the within action. 0n July 8, 2020, Iserved PETITION To COMPEL UNINSURED MOTORIST ARBITRATION (ccp § 1281.2) on the foregoing party(ies)in said action by placing true copies thereof enclosed in a sealed envelope addressed as follows: Scott Vida lO Pollak, Vida, & Barer 11500 W. Olympic Blvd. Ste. 400 11 Los Angeles, CA 90064—1 830 12 The document was served via: l3 l4 [X ]MAIL: | am familiar with the practices of this office whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed 15 thereon and the sealed envelope is placed in the office mail receptacle. l6 [] FAX AND MAIL: | personally sent to the addressee’s facsimile a true copy of l7 the above-described document(s) and, thereafter, | placed a true copy in a sealed envelope with first class postage affixed and mailed as listed above. 18 [] PERSONAL SERVICE: Delivery by hand to the office of the addressee(s). 19 20 [] OVERNIGHT DELIVERY: |caused delivery by overnight courier/delivery/US. Postal Service to the person(s) at the address(es)about listed. 21 [] ELECTRONIC MAIL: l personally sent to the addressee’s email a true copy of 22 the above-described document(s). 23 l declare under penalty of perjury, under the laws of the State of California, that 24 the foregoing is true and correct. 25 Executed on July 8, 2020, at Chico, California. 26 27 28 Proof of Service