Fichtner v. Mutual of Enumclaw Insurance

998 P.2d 332, 100 Wash. App. 649
CourtCourt of Appeals of Washington
DecidedMarch 27, 2000
DocketNo. 44327-5-I
StatusPublished
Cited by1 cases

This text of 998 P.2d 332 (Fichtner v. Mutual of Enumclaw Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fichtner v. Mutual of Enumclaw Insurance, 998 P.2d 332, 100 Wash. App. 649 (Wash. Ct. App. 2000).

Opinion

Per Curiam

— Although Mutual of Enumclaw paid the limits of the insurance policy it issued to Carol Fichtner for underinsured motorist (UIM) coverage, Fichtner moved to compel arbitration. The superior court erred when it granted the motion because no issues remained that were appropriate for the arbitrators to resolve. We, therefore, reverse.

Fichtner was injured in a car accident. The driver of the other car was found liable for Fichtner’s damages. She settled her claim against the at-fault driver for $50,000, the limit of the at-fault driver’s liability coverage.

Fichtner had underinsured motorist coverage under an insurance policy issued by Mutual of Enumclaw. The limit of that policy was $100,000. Fichtner submitted to the company a demand, supported by appropriate documentation, for UIM benefits. The company disputed the amount of damages and initiated arbitration.

The insurance policy set forth the conditions for arbitration:

If we and a covered person disagree whether that person is legally entitled to recover damages from the owner or operator of any underinsured motor vehicle or do not agree as to the amount of damages, either party may make a written demand for arbitration.

[651]*651Each party was to select an arbitrator, and those arbitrators would select a third arbitrator. When Mutual of Enumclaw failed to name an arbitrator, Fichtner moved to compel arbitration. Eventually the company named an arbitrator, and a date for arbitration was set. But before that date, Mutual of Enumclaw tendered to Fichtner $100,000, which was the limit of the policy.

Later, Fichtner filed a complaint against Mutual of Enumclaw, asserting that she had a right to UIM damages, as well as damages for Mutual of Enumclaw’s negligence, and for the company’s breaches of good faith, its fiduciary duty, statutory duties, and the consumer protection act. She moved again to compel arbitration. Because the company had tendered the full amount of the policy, it contended that it was not obligated to proceed to arbitration.

The lower court granted Fichtner’s motion to compel arbitration and ordered the arbitration date to be reset. Mutual of Enumclaw then filed a motion for discretionary review with this court. The company argued that the superior court had committed an obvious error that would render further proceedings useless. A commissioner of this court concluded that the superior court had committed obvious error, but that Mutual of Enumclaw had failed to show that further proceedings would be useless. The commissioner, therefore, denied the motion. A three-judge panel, however, granted Mutual of Enumclaw’s motion to modify the commissioner’s ruling and granted discretionary review.

The Superior Court Erred

Mutual of Enumclaw’s policy indicated that regardless of the number of cars or people insured under its policy, or the claims made, the most it would pay for bodily injury or property damage resulting from any one accident was [652]*652$100,000. The company paid that amount. Nevertheless, the superior court granted Fichtner’s motion to compel arbitration. The court erred.

A party is required to arbitrate only those disputes it has agreed to arbitrate. Meat Cutters Local 494 v. Rosauer’s Super Mkts., Inc., 29 Wn. App. 150, 154, 627 P.2d 1330 (1981) (citing Atkinson v. Sinclair Ref. Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 8 L. Ed. 2d 462 (1962)). Fichtner and Mutual of Enumclaw agreed to arbitrate disputes over how much, if any, money was to be paid under the policy. Because Mutual of Enumclaw paid the maximum amount available, there were no issues appropriate for the arbitrators to resolve.

Relying upon RCW 7.04.060, Fichtner argues that the company had no choice but to arbitrate because it did not file a notice of motion to stay within 20 days of receiving a notice of intent to arbitrate. RCW 7.04.060 provides that when a written agreement calls for arbitration in the event of a controversy, and one of the parties to the agreement demands arbitration, that party must serve the other party with notice of its intention to arbitrate. The notice of intent to arbitrate must state that unless the party served with the notice in turn serves a notice to stay the arbitration, that party is “barred from putting in issue the existence or validity of the agreement or the failure to comply therewith.”

Mutual of Enumclaw did not put the existence or validity of the agreement or the failure to comply with the agreement in issue and, therefore, its failure to file a notice of motion to stay the arbitration is of no consequence. Moreover, even if Mutual of Enumclaw’s objection to the arbitration could be construed as an issue regarding “the existence or validity of the arbitration agreement or the failure to comply therewith,” RCW 7.04.040(4) provides that a party may raise such issues either by making a motion for [653]*653a stay of arbitration or by contesting a motion to compel arbitration. The company contested Fichtner’s motion to compel arbitration. Therefore, it is not required to arbitrate the remaining issues In dispute merely because it did not file a notice of motion to stay within 20 days of receiving a notice of intent to arbitrate.

Fichtner contends, however, that the superior court’s granting of her motion to compel is consistent with this court’s decision in Kelsey v. Mutual of Enumclaw Insurance Co., 44 Wn. App. 49, 720 P.2d 858 (1986). In Kelsey, the court construed the same arbitration clause as is at issue in this case and held that arbitration was required. However, Kelsey is distinguishable.

Kenneth Kelsey was injured when his car collided with a car driven by Douglas Burkes, who was not insured. Later, Kelsey was injured in a second accident. His injuries in each accident were similar. He filed an action against the second driver, and against Mutual of Enumclaw, his insurer, to recover UIM benefits, but the driver in the first accident, Burkes, was not named as a defendant.

Mutual of Enumclaw demanded arbitration. As in this case, the policy stated that if the company and the insured disagreed whether the insured was entitled to recover damages from the owner or operator of any underinsured motor vehicle, or they did not agree as to the amount of damages, either party “may make a written demand for arbitration.”

When Kelsey refused to comply with Mutual of Enumclaw’s demand for arbitration, the company filed a motion to compel arbitration. Kelsey opposed the motion, contending that arbitration was optional, not mandatory, and that severing the UIM claim would double his legal expenses and could lead to inconsistent results. The trial court held that the policy was ambiguous and denied the motion to compel arbitration.

Division Two of this court held that the insurance policy [654]

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Related

Fichtner v. Mutual of Enumclaw Insurance
100 Wash. App. 1008 (Court of Appeals of Washington, 2000)

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998 P.2d 332, 100 Wash. App. 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fichtner-v-mutual-of-enumclaw-insurance-washctapp-2000.