PROGRESSIVE SELECT INSURANCE COMPANY VS ACE AMERICAN INSURANCE COMPANY

Tentative Rulings

Case Number: 20STCP02408    Hearing Date: December 02, 2020    Dept: 26

Progressive Select Ins. Co. v. Ace American Ins. Co., et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Progressive Select Insurance Company’s Petition to Confirm Arbitration Award is GRANTED. JUDGMENT TO BE ENTERED IN FAVOR OF PETITIONER IN THE AMOUNT OF $9,757.93, PLUS COSTS AND ATTORNEY FEES ACCORDING TO PROOF.

ANALYSIS:

On February 10, 2020, an arbitrator issued an Arbitration Award in favor of Progressive Select Insurance Company (“Petitioner”) and against Ace American Insurance Company (“Respondent”). On July 29, 2020, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”).

Legal Standard

Per Code of Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”

Per Code of Civil Procedure section 1285.4, “A petition under this chapter shall: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) Set forth the names of the arbitrator; and (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”

Per Code of Civil Procedure section 1286, “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”

Discussion

Service of the Petition and Notice of Hearing

Code of Civil Procedure, section 1290.4 requires the Petition and Notice of Hearing to be served on Respondent “in the manner provided in the arbitration agreement for the service of such petition and notice” or “[i]f the arbitration agreement does not provide the manner in which such service shall be made . . . [s]ervice within this State shall be made in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subds. (a), (b).)

While Petitioner has not attached a copy of the arbitration agreement, it did file a proof of personal service of the Petition and Notice of Hearing on August 14, 2020. (Proof of Service, filed 8/14/20.) This demonstrates that the Petition and Notice of Hearing were served on Respondent on August 6, 2020, in the manner provided by law for the service of summons in an action. Therefore, the Court finds that the requirements of Code of Civil Procedure section 1290.4 have been satisfied.

Service of the Arbitration Award and Timing of Service of Petition (CCP §§ 1283.6, 1288, 1288.4)

A copy of the Arbitration Award is attached to the Petition and, therefore, was also personally served on Respondent on August 6, 2020. (Pet., Exh. B.) This demonstrates compliance with Code of Civil Procedure section 1283.6 because proper service of the arbitration award with the Petition can stand in for service of the arbitration award by the arbitrator. (Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800).

Furthermore, a party seeking a court judgment confirming an arbitration award must file and serve the petition no more than four years, but not less than 10 days, after the award is served. (CCP §§ 1288, 1288.4.) While service of the Petition on August 6, 2020 was less than four years after concurrent service of the Arbitration Award, it was not more than ten days after service of the Petition. However, because there is no apparent prejudice to Respondent from non-compliance with the ten-day requirement, the Court finds it is not a bar to confirmation of the Award.

The Court finds that the requirements of Code of Civil Procedure sections 1283.6, 1288 and 1288.4 are satisfied.

Confirmation of the Arbitration Award

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) Code of Civil Procedure, section 1285.4 states a petition under this chapter shall:

a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.

b) Set forth the names of the arbitrators.

c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.

(Code Civ. Proc., § 1285.4.) The Petition complies with the above requirements. It sets forth the nature of the agreement to arbitrate, which is an Automobile Subrogation Arbitration Agreement. (Pet., p. 1:23-28.) It also sets forth the name of the Arbitrator, Jose Correa and attaches a copy of the Arbitration Award to the Petition. (Pet., Exh. B.) The Petition demonstrates that on February 10, 2020, the arbitrator issued an award requiring Respondent to pay Petitioner $9,757.25. Therefore, the substantive portion of the Petition has been satisfied.

Finally, to the extent the Petition requests an award of attorney fees and costs according to proof (Pet., p. 13:1-4), Petitioner may file a memorandum of costs pursuant to Cal. Rules of Court Rule 3.1700 and a noticed motion for fees pursuant to Cal. Rules of Court Rule 3.1702.

Conclusion

Based on the foregoing, the Petition to Confirm Arbitration Award is GRANTED. JUDGMENT TO BE ENTERED IN FAVOR OF PETITIONER IN THE AMOUNT OF $9,757.25, PLUS COSTS AND ATTORNEY FEES ACCORDING TO PROOF.

Moving party to give notice.