Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Blankenship v. Allstate Insurance Co.

June 29, 2010

DAKOTA BLANKENSHIP, A MINOR, ETC., PLAINTIFF AND APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Shasta County, Steven E. Jahr, Judge. Affirmed. (Super. Ct. No. 162222).

The opinion of the court was delivered by: Nicholson, J.

CERTIFIED FOR PUBLICATION

Although an insured may have made a claim with his uninsured motorist (UM) liability insurance carrier for damages suffered in an auto accident with an uninsured motorist, he may not subsequently file a legal action against his UM insurer unless, within two years after the date of the accident, he first files an action against the uninsured motorist, demands arbitration with his UM insurer, or reaches an agreement with his UM insurer. (Ins. Code, § 11580.2, subd. (i) (hereafter § 11580.2(i).) If he fails to satisfy one of these conditions within the two-year period, he forfeits his claim against his UM insurer. (Ibid.)

The issue raised in this appeal is whether the insured's minority excuses noncompliance with the two-year limitations period of section 11580.2(i). We conclude minority does not excuse noncompliance with the limitations period, and we affirm the trial court's judgment in this matter.*fn1

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. Plaintiff, a minor, did not satisfy any of the preconditions imposed on him by section 11580.2(i) within two years of his accident. He nonetheless filed this petition to compel arbitration against his UM insurer. The trial court denied his petition, ruling his minority did not excuse noncompliance with the limitations period of section 11580.2(i).

The specific facts are these: On September 10, 2004, then 13-year-old plaintiff Dakota Blankenship was riding his bicycle on the wrong side of the road when he suddenly turned into traffic. He collided with a car and suffered injuries. The car was driven by Jennifer Outcalt and was owned by Edward McEnespy. Outcalt carried no insurance. McEnespy's insurer denied coverage.

Blankenship's stepfather, Michael Moore, made a claim on behalf of Blankenship with his auto insurer, defendant Allstate Insurance Company, on January 19, 2005, under his policy's UM coverage.*fn2

After reviewing Blankenship's medical records and files, Allstate made an offer of settlement. By letter dated May 25, 2006, and addressed to "the parents of Dakota Blankenship," Allstate confirmed a settlement offer to them of $10,000. Allstate also warned the parents that Blankenship's limitations period would expire on the accident's second anniversary: "Please understand that your son's statute will run on September 10, 2006. Please contact me to resolve your claim."

On the same day, May 25, 2006, Allstate also sent a letter directly to Mr. Moore that reminded him of the two-year deadline to perfect his stepson's claim: "Your child has Two year(s) from the date of the accident, September 10, 2004, to settle the claim, file suit or institute formal arbitration proceedings."

Not the Moores, Blankenship, or anyone representing them contacted Allstate by the accident's two-year anniversary, September 10, 2006. Allstate heard nothing on this claim until August 2007 when Blankenship's attorney informed Allstate he was representing Blankenship. Subsequently, by a letter to Allstate dated October 18, 2007, more than three years after the date of the accident, Blankenship's attorney demanded arbitration.*fn3

Before acting on the demand, Allstate requested evidence that Blankenship had satisfied one of the preconditions imposed by section 11580.2(i). In response, Blankenship's attorney forwarded to Allstate a copy of a complaint for damages Blankenship had filed in Shasta County Superior Court against Outcalt and McEnespy on February 26, 2007, more than five months after section 11580.2(i)'s two-year limitations period had expired.

After receiving the complaint, Allstate denied Blankenship's demand for arbitration. Allstate explained that because the complaint against Outcalt and McEnespy had not been filed prior to the two-year anniversary of the accident, and because Blankenship had not settled his claim, filed suit, or instituted arbitration within the two-year limitations period, Blankenship had forfeited any right of recovery under his UM claim.

Blankenship filed a Petition to Compel Uninsured Motorist Arbitration in Shasta County Superior Court. Following full briefing and a hearing, the trial court denied the petition with prejudice. It determined plaintiff had failed to perfect his claim against Allstate within the time required by section 11580.2(i). Relying on Allstate Ins. Co. v. Orlando (1968) 262 Cal.App.2d 858 (Orlando), the trial court also held that Blankenship's minority had not excused his noncompliance with section 11580.2(i).

Blankenship appeals, claiming the trial court's decision is in error. He asserts his minority excused his noncompliance with section 11580.2(i). He acknowledges that nothing in the statute's language supports his argument, and he acknowledges that the Orlando case, and other authorities cited therein, concluded the limitations period is not excused due to noncompliance on account of minority. Nevertheless, he argues (1) we must interpret section 11580.2(i) such that minority excuses noncompliance because amendments to the statute since Orlando was decided imply that minority excuses noncompliance and, he claims, not excusing noncompliance for minority is inconsistent with any purpose the statute may serve.

Additionally, Blankenship claims that (2) excluding minority as a basis for excusing noncompliance violates constitutional guarantees of equal protection, and (3) the language used in Mr. Moore's Allstate policy indicated minority would in fact excuse noncompliance with the limitations period.

We discuss, and reject, each argument.

DISCUSSION

I. Construction of Section 11580.2(i)

Blankenship claims we must excuse noncompliance with section 11580.2(i)'s requirement during the two-year limitations period on account of minority due to amendments made to the statute in 1995 and 2003, and the statute's purported purpose. The amendments, however, do not support his argument, and the statute's clear language indicates the Legislature intended that minority would not excuse noncompliance with the limitations period.

The trial court's interpretation and construction of a statute is a question of law which we review de novo. (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492.) The rules of statutory interpretation are well known. "When construing a statute, we must 'ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] The words of the statute are the starting point. 'Words used in a statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . .' [Citation.]" (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977.)

Section 11580.2(i)'s language is clear and unambiguous. The statute reads in pertinent part:

"(i)(1) 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.