Johnson v. Fireman's Fund Insurance Co.

272 N.W.2d 870, 1978 Iowa Sup. LEXIS 933
CourtSupreme Court of Iowa
DecidedDecember 20, 1978
Docket60931
StatusPublished
Cited by9 cases

This text of 272 N.W.2d 870 (Johnson v. Fireman's Fund Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Fireman's Fund Insurance Co., 272 N.W.2d 870, 1978 Iowa Sup. LEXIS 933 (iowa 1978).

Opinions

McCORMICK, Justice.

The trial court sustained defendant’s motion to dismiss plaintiff’s petition on the ground she did not submit her uninsured motorist claim to arbitration before bringing suit on it. We hold that arbitration was not a condition precedent to her action. Therefore we reverse and remand.

Plaintiff Carolyn M. Johnson filed a petition in three counts seeking recovery from defendant Fireman’s Fund Insurance Company on its uninsured motorist coverage of Dave Ostrem Imports, Inc. She alleged she was an insured under the policy while operating a vehicle owned by Ostrem which was struck by one driven by an uninsured motorist. She asserted the negligence of the uninsured motorist proximately caused injuries for which she is entitled to recover damages under the uninsured motorist endorsement of the Fireman’s Fund policy. She recited that Fireman’s Fund refused to pay her claim on the ground the matter [872]*872would have to be arbitrated but that, despite her written demand for arbitration, Fireman’s Fund failed to put the arbitration process in motion.

In the first count of the petition she asked $10,000 under the uninsured motorist coverage. In the second count she alternatively alleged that she was a third-party beneficiary of the insurance contract, that it was breached by Fireman’s Fund through its failure to pay or to arbitrate, and that as a result she was entitled to damages. In the third count she alleged that she had demanded arbitration in accordance with the policy but that Fireman’s Fund had sought to impose the costs of arbitration on her. She asked that Fireman’s Fund be enjoined from now attempting to arbitrate.

A copy of the uninsured motorist endorsement was made a part of plaintiff's petition. She also attached a copy of her letter demanding arbitration, which was dated approximately one month before suit was commenced.

In its motion to dismiss, Fireman’s Fund alleged the petition showed on its face a failure of plaintiff “to abide by and perform in accordance with the rules of the American Arbitration Association . . ” A purported copy of those rules was attached to the motion. The only other material allegation of the motion is: “That Plaintiff is bound by the provisions of the policy of insurance under which she claims benefits, and accordingly, must pursue the initiation of a claim with the appropriate arbitration authority, the American Arbitration Association, as a condition precedent to any cause of action.”

The trial court’s ruling on the motion was as follows:

Plaintiff’s commencing arbitration with American Arbitration Association is a contractual condition precedent to her entitlement to bring an action on the insurance contract re uninsured motorist coverage. Plaintiff’s Petition fails to allege compliance as condition satisfied by defendant’s failure to arbitrate after she has duly commenced proceedings. Plaintiff’s Petition is dismissed at Plaintiff’s costs without prejudice to file against carrier should it fail to arbitrate after Plaintiff duly commences same with AAA or it fails to honor arbitration award or is in breach of its insurance agreement otherwise.

In this appeal plaintiff does not challenge the validity or enforceability of the arbitration clause of the Fireman’s Fund policy. Instead she contends she attempted to invoke arbitration but Fireman’s Fund did not perform its duty to arbitrate and she is therefore entitled to maintain her lawsuit. We have no occasion to determine in this case whether plaintiff could have been required to submit her claim to arbitration if she did not wish to do so. See Joseph L. Wilmotte & Co. v. Rosenman Bros., 258 N.W.2d 317, 325 (Iowa 1977).

Principles governing the scope of review of a ruling on a motion to dismiss are delineated in Weber v. Madison, 251 N.W.2d 523, 525 (Iowa 1977). The motion may not be supported by its own allegations of fact nor jnay it rely on facts not alleged in the petition, except those subject to judicial notice. Berger v. General United Group, Inc., 268 N.W.2d 630, 634 (Iowa 1978).

I. The language of the arbitration clause. The relevant provisions of the uninsured motorist endorsement of the Fireman’s Fund policy are as follows:

The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the Company or, if they fail to agree, by arbitration.
[873]*873If any person making claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this insurance, then upon written demand of either, the matter or matters upon which such person and the Company do not agree shall be settled by arbitration, which shall be conducted in accordance with the rules of the American Arbitration Association unless other means of conducting the arbitration are agreed to between the insured and the Company, and judgment upon the award rendered by the arbitrators may be entered in any Court having jurisdiction thereof. Such person and the Company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this insurance.

The first provision purports to require the insured and insurer to submit the issue of the uninsured motorist’s liability for damages and their amount to arbitration when the insured and insurer are unable to agree. Under the second provision, arbitration may then be invoked “upon written demand of either. . . . ” The insured and insurer also purport “to be bound by any award made by the arbitrators. . . . ”

These provisions do not make arbitration a condition precedent to suit as alleged by Fireman’s Fund in its motion to dismiss and as held by the trial court in its order sustaining the motion. Instead, when arbitration is utilized it becomes the sole method of resolving the dispute. It is a substitute for litigation rather than an essential prelude to it.

Moreover, these provisions do not make arbitration a substitute for litigation in all cases. The clause purports to make arbitration mandatory only upon written demand of either party to the dispute. Otherwise the case may proceed to suit.

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Johnson v. Fireman's Fund Insurance Co.
272 N.W.2d 870 (Supreme Court of Iowa, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
272 N.W.2d 870, 1978 Iowa Sup. LEXIS 933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-firemans-fund-insurance-co-iowa-1978.