2013-00146269-CU-PT

Yuriy Mavrinskiy vs. Nationwide Insurance Company of America

Nature of Proceeding: Petition to Compel Arbitration

Filed By: Mavrinskiy, Yuriy

Self-represented Claimant Yuriy Mavrinskiy’s Motion to Compel Defendant to
Arbitration is GRANTED as set forth below:

Auto insurance policies are required by statute to contain provisions for binding
arbitration of uninsured and underinsured motorist coverage (UMC) claims. Ins. Code
section 11580.2(f). The subject policy is not provided, in its entirety, in the papers
presented to the Court–only limited excerpts. However, the parties both appear to
agree that there is a policy with a UIM provision, and Nationwide does not dispute or
claim that petitioner is not its insured. Claimant seeks to compel arbitration of his first party underinsured motorist claim
against Nationwide Insurance Company. As noted in the Declaration of Mavrinskiy
attached to the subject motion, his property damage claims were “paid in full” in the
underlying claim, but “The defendant had limited bodily injury coverage which did not
compensate me [him] in full, therefore I demand of my insurance Company
[Nationwide] to open the UIM provision of my policy to resolve my bodily injury claim.”

Procedural Posture

Claimant’s underinsured motorist claim arises as a result of a motor vehicle accident
that occurred on January 9, 2011 between vehicles driven by claimant, Yuriy
Mavrinskiy, a 2000 Ferrari 360 Modena and Bradley Simi, a 1993 Honda Civic.

On September 11, 2012, Claimant Mavrinskiy wrote to Nationwide, (Ex. B to Reply)
noting that the tortfeasor’s insurer had paid its policy limit ($15,000), and further noting
that his total medical bills were $15,320.60 and that the settlement with the underlying
tortfeasor “did not cover all of my medical bills.” A demand of $30,000 was made to
settle his bodily injury claim.

On or about April 17, 2013, claimant Yuriy Mavrinskiy, through his designated
representative, Igor Chepel, who claimant asserts is a relative, provided Nationwide
with a certified and mailed correspondence demanding underinsured motorist
arbitration.

On May 13, 2013, pursuant to the underinsured motorist provisions of the Nationwide
automobile liability insurance policy providing coverage to claimant at the time of the
January 9, 2011 motor vehicle accident, counsel for Nationwide provided claimant with
a letter scheduling claimant’s examination under oath (EUO) to take place on May 31,
2013. (Ex. A to Opposition)

The letter addresses that claimant bring to the EUO various documents relating to the
vehicle damaged in the accident. None of the documents requested address claimant’s
medical bills or bodily injury claims.

On May 29, 2013, Nationwide’s counsel’s office contacted Mr. Chepel regarding the
scheduling of claimant’s examination. On June 5, 2013, Mr. Chepel gave Nationwide’s
counsel dates on which claimant was available for his examination under oath. On
June 11, 2013, Nationwide rescheduled claimant’s examination under oath to June 19,
2013. Nationwide’s counsel requested that claimant produce various documents
related to its investigation into claimant’s underinsured motorist claim.

On June 19, 2013, claimant’s examination under oath took place at which time
Nationwide’s counsel inquired into areas claimed to be relevant to claimant’s
underinsured motorist claim. Claimant failed to produce the documents requested by
Nationwide which it asserts needed to evaluate claimant’s claim for UIM benefits.

On July 12, 2013, Nationwide’s counsel provided claimant with a copy of his
examination under oath transcript for his review and any necessary changes.
Additionally, Nationwide’s counsel again requested that specific documents be
produced. (Exhibit C)

Following the July 12, 2013 letter from Nationwide’s counsel to claimant, neither
claimant nor Igor Chepel made any contact with Nationwide’s counsel until service of
the present Motion.

Insurance policy

According to Nationwide, Claimant’s insurance policy with Nationwide requires him,
inter alia, to “Cooperate fully with us and assist us in the investigation of, or any matter
concerning a claim… Allow us to take written or recorded statements describing all
facts and circumstances, including statements under oath, outside the presence of any
other insured, sign the statements, and answer all questions by us as often as we may
reasonably require.” (Exh D.)

In opposition to the motion to compel arbitration, Nationwide submits evidence that to
date, the insured has not cooperated in providing the requested documents needed to
assist Nationwide in the investigation of his claim.

Nationwide asserts the insured is required to cooperate with Nationwide as outlined in
his policy which expressly requires that he appear for, answer questions, and produce
documents at his Examination Under Oath if requested to do so. This view was
th
reaffirmed in Abdelhamid v. Fire Insurance Exchange (2010) 182 Cal. App. 4 990. Of
course, Abdelhamid does not address the UM or UIM coverages available to an
insured under his or her automobile policy. Nor is the Court directed to any case in
which an EUO is required as a condition precedent to the arbitration under an UIM or
UM provision contained within the policy.

For its part, Claimant asserts that the documents requested are not relevant, as they
relate to property damage to the vehicle, not personal injuries for which this claim is
made.

Discussion

Section 11580.2, subdivision (f), requires policy language providing for arbitration of
disputes: “The policy or an endorsement added thereto shall provide that the
determination as to whether the insured shall be legally entitled to recover damages,
and if so entitled, the amount thereof, shall be made by agreement between the
insured and the insurer or, in the event of disagreement, by arbitration. …” The
purpose of section 11580.2, subdivision (f), “is to offer a means of resolving disputes
that is more expeditious and less expensive than litigation. [Citations.] Its beneficiaries
include the insurer and the insured….” (Mercury Ins. Group v. Superior Court (1998)
19 Cal.4th 332, 342 .) Because an insurance policy is a contract, the strong public
policy in favor of contractual arbitration applies to the policy arbitration provision
required by section 11580.2, subdivision (f). (Mercury Ins. Group, at p. 342;
Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9]; Ericksen, Arbuthnot, McCarthy,
Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322; Bouton v. USAA
Casualty Ins. Co., (2008) 167 Cal. App. 4th 412.)

“When a petitioner files a petition to compel arbitration … , a trial court must make
preliminary factual determinations whether (1) there is an arbitration agreement; and
(2) the petitioner is a party to that agreement or can otherwise enforce that agreement.
(Code Civ. Proc., § 1281.2.) Code of Civil Procedure section 1281.2 authorizes
petitions to compel arbitration, providing in part: ‘On petition of a party to an arbitration
agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the
petitioner and the respondent to arbitrate the controversy if it determines that an
agreement to arbitrate the controversy exists … .’ (Italics added.) Therefore, in
considering a Code of Civil Procedure section 1281.2 petition to compel arbitration, a
trial court must make the preliminary determinations whether there is an agreement to
arbitrate and whether the petitioner is a party to that agreement (or can otherwise
enforce the agreement).” M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011)
196 Cal. App. 4th 554, 559. As noted, the parties appear to concede there is a UIM
provision in the Nationwide policy and that petitioner is a named insured.

The Court further perceives that both parties’ positions miss the mark. Nationwide
conflates its right to discover information (See, e.g. Ins. Code 11580.2(f)) relevant to
the UIM claim with the insured’s entitlement to Arbitration under the policy. Claimant
misperceives that because his property damage claim was settled, Nationwide is not
entitled to relevant discovery relating to the property damage. It is. The Discovery Act
is applicable to the arbitration of uninsured (and underinsured) motorist cases.
American Home Assurance Co. v. Benowitz (1991) 234 Cal App 3d 192.

Nationwide asserts that it “has never refused to arbitrate the matter….” (Opposition, p.
8, l.8) but wishes to have discovery completed. As noted, granting this motion does not
interfere with the discovery process to which each party is entitled, and the Court, in
granting this motion, does not specify the Arbitration shall occur immediately.

The Court, in granting the Petition, orders the matter to Arbitration, commencing no
later than April 25, 2014. This shall provide the parties sufficient time to conduct
necessary discovery. The parties shall meet and confer to attempt to select an
arbitrator, pursuant to the policy provisions or by stipulation.

The Court’s ruling is, of course, without prejudice to any subsequent motions, including
those relating to discovery, which may be brought by the parties (see, e.g. Miranda v.
21st Century Ins. Co., (2004) 117 Cal. App. 4th 913), nor does the Court foreclose the
possibility that the parties may require more time to arbitrate the cause. The parties
may stipulate to such additional time as may be required, or apply to the Court for
additional time, if necessary, upon a showing of good cause.

Claimant’s request for sanctions against Nationwide lacks merit. Claimant has failed
to file any motion to compel discovery and request sanctions in connection therewith.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.