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Subject: July 20 2006 Weekly Law Resume

Low, Ball & Lynch’s

WEEKLY LAW RESUME

July 20, 2006  Issue  By: Ray Coates

 

U.M. Arbitration - Applicability of C.C.P. Section 998

 

Pilimai v. Farmers Insurance Exchange Company

(July 13, 2006)

 

California Supreme Court

 

In this case, the California Supreme Court took the opportunity to define whether a party to an uninsured motorist arbitration, pursuant to California Insurance Code section 11580.2, is eligible to recover costs and pre-judgment interest.

 

Isofea Pilimai (Pilimai) was injured in an automobile accident with an uninsured motorist. Pilimai filed a petition to compel arbitration with his insurance carrier, Farmers Insurance Exchange Company (Farmers), pursuant to the uninsured motorist provisions of his insurance policy. Pilimai’s U.M. policy limit was $250,000. Prior to arbitration, Pilimai served a Code of Civil Procedure (C.C.P.) section 998 settlement demand in the amount of $85,000. Farmers rejected the demand. At arbitration, Pilimai was awarded damages in the amount of $556,972, an amount in excess of the policy limits. The award was silent on  the subject of costs and pre-judgment interest.

 

Both parties then sought to confirm the award as a judgment in the trial court. Pilimai requested  a judgment for the policy limits, plus costs and pre-judgment interest, pursuant to C.C.P. section 998 and Civil Code section 3291. Pilimai’s costs exceeded $17,000. Pre-judgment interest was calculated to exceed $36,000. The trial court entered the judgment in the amount of $235,000 ($250,000 policy limit minus the credit of $15,000). While the trial court concluded that Pilimai was eligible for costs and pre-judgment interest, the court ruled that it could not allow an award that exceeded the policy limits.

 

The Court of Appeal reversed the trial court’s judgment as to costs and pre-judgment interest. It determined that the language of section 11580.2 did not preclude the award of fees and costs, even if the amount of  fees and costs pushed the total award over the policy limit. The California Supreme Court then granted review.

 

In its decision, the Supreme Court first analyzed whether the cost-shifting provisions of C.C.P. section 998 apply to U.M. arbitrations.  C.C.P. section 998(a) sets forth that a statutory offer may be made prior to trial or arbitration (as provided in C.C.P. section 1281 or 1295). Farmers contended that the Legislative intent was to have CCP section 998 apply to arbitrations that are the result of a voluntary written agreement. A U.M. Arbitration, according to Farmers, is mandated by statute and would not be subject to the cost-shifting provisions of C.C.P. sections 998 and 1281.  The Supreme Court rejected this argument. The Court held that a U.M. arbitration, although mandated by statute, is nonetheless a contractual arbitration, within the scope of section 1281. Therefore, the Court held that a U.M. arbitration is subject to provisions of section 998.

 

The Supreme Court also rejected Farmers argument that the maximum liability provision of Insurance Code section 11580 barred an award pursuant to C.C.P. section 998 in this case. Section 11580(p)(4) sets forth that “the maximum liability of the insurer providing the underinsured motorist coverage shall not exceed the insured’s underinsured motorist coverage limits, less the amount paid to the insured” by the person responsible for the accident. The Court agreed with the Court of Appeal that awardable statutory  costs,  pursuant to section 998,  are separate and distinct from damages paid under a U.M. policy. The Court found nothing in the language or the legislative intent behind 11580.2 that precluded such an award of costs, even if such an award placed the total sum over the policy limits. The Court also concluded that costs include expert fees, and deposition and exhibit preparation costs.

 

Finally, Farmers argued that even if Pilimai could receive C.C.P.. section 998 costs, he should not receive pre-judgment interest under Civil Code section 3291. The Supreme Court agreed. The Court held that under section 3291, pre-judgment interest may be awarded “in any action brought to recover damages for personal injury ...” An action against an insurance company to recover policy benefits is not a personal injury action. Rather, it is a breach of contract action.

 

The Supreme Court, therefore, affirmed the judgment of the Court of Appeal, relating to the award of costs, pursuant to C.C.P. section 998. The Court reversed the judgment inasmuch as it permitted an award of pre-judgment interest, pursuant to Civil Code section 3291. The case was remanded to the trial court to determine the proper cost award.

 

COMMENT

 

In this case, the California Supreme Court has clarified that the cost-shifting provisions of C.C.P. section 998 apply to uninsured motorist arbitrations. Statutory costs  may be awarded even if such costs would place the total award over the policy limit.

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