Filed 10/30/20 Emami v. Zurich American Insurance Company CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KHASHAYAR EMAMI,
F078917
Plaintiff and Appellant,
(Super. Ct. No. BCV-18-101307)
v.
ZURICH AMERICAN INSURANCE OPINION
COMPANY,
Defendant and Respondent.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Linda S.
Etienne, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Perona, Langer, Beck, Serbin & Harrison and Ellen R. Serbin for Plaintiff and
Appellant.
Mavredakis Cranert and James F.B. Sawyer for Defendant and Respondent.
-ooOoo-
Appellant Khashayar Emami (Emami) appeals from the trial court’s denial of a
petition to compel arbitration with his insurer, respondent Zurich American Insurance
* Before Levy, Acting P.J., Detjen, J. and Peña, J.
Company (Zurich), of Emami’s underinsured motorist claim (the petition). Because the
petition and the claim alleged therein were not made until approximately seven years
after the automobile accident took place, it is presumed that the trial court’s denial of the
petition was on the ground of unreasonable delay or untimeliness. In his appeal, Emami
contends the trial court erred because the delay in bringing the petition was not shown to
be prejudicial. Zurich disagrees, arguing it was prejudiced by the prolonged passage of
time, including because it will be far more difficult to adequately investigate and verify
whether or to what extent Emami’s present condition can be attributed to the subject
automobile accident. Under the unique facts and circumstances of this case, we conclude
the trial court correctly denied the petition based on unreasonable delay resulting in a
waiver of the right to arbitrate. Accordingly, the order of the trial court denying the
petition is affirmed.
FACTS AND PROCEDURAL HISTORY
On February 8, 2011, Emami was in an automobile accident. A record entitled
Automobile Loss Notice indicated that Emami was driving a tractor-trailer vehicle owned
by his employer, MK Transport Specialist Inc., when the other driver rear-ended the
vehicle. According to a declaration filed by Emami’s attorney over seven years later in
connection with the petition, Emami suffered bodily injuries to his neck, lower back and
left elbow as a result of the accident.
At the time of the 2011 accident, Emami was an insured under an automobile
insurance policy issued by Zurich to MK Transport Specialist Inc., which policy included
provisions for uninsured and underinsured motorist coverage. On February 17, 2011,
Emami’s attorney sent a letter of representation to Zurich referring to the policy number
and the date of the accident. The letter also advised Zurich that it may consider the letter
to be a claim under the “medical payment” provision of the policy and “possibly an
uninsured/underinsured motorist claim as well.”
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However, Emami never submitted any injury or medical expense documentation
to Zurich for its consideration of any claim for medical benefits or for any other type of
claim. By September 24, 2011, with no submission of documentation and no further
communication from Emami’s counsel despite multiple requests, the claim file was
closed by Zurich on the assumption the claim had been abandoned.
On January 3, 2013, Emami settled with the negligent driver for the policy limits
in the sum of $15,000, without filing an action. According to Zurich, it was not informed
by Emami that the adverse driver was underinsured or that Emami reached a policy limit
settlement with that driver.
On October 26, 2017, Emami served a “Demand for Uninsured Motorist
Arbitration” to Zurich. (Italics added.) On December 19, 2017, Zurich responded by
letter denying uninsured motorist coverage because Emami had not timely complied with
Insurance Code section 11580.2, subdivision (i). That subdivision applies to uninsured
motorist claims and specifies action to be taken within two years from the date of the
accident for such a claim or cause of action to accrue.
On March 21, 2018, Emami sent a letter to Zurich stating that Emami was seeking
underinsured motorist arbitration, not uninsured motorist arbitration as had been
previously indicated, and therefore Insurance Code section 11580.2, subdivision (i) was
inapplicable. On April 23, 2018, Emami submitted a demand to Zurich for arbitration of
his underinsured motorist claim. Zurich denied the request.
On May 31, 2018, Emami filed a pleading in the trial court regarding jurisdictional
matters related to Emami’s intention to file a motion or petition to compel arbitration.
The pleading stated that (1) Emami sustained bodily injuries from the February 8, 2011
automobile accident; (2) Emami settled his claim against the negligent driver for the
policy limits on January 3, 2013, which settlement amount was insufficient to properly
compensate Emami for his injuries; and (3) Zurich issued an automobile insurance policy
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under which Emami is an insured, which policy provides for both uninsured and
underinsured motorist coverage.
On August 1, 2018, after additional correspondence was exchanged between
Emami’s counsel and Zurich, Zurich sent a final denial letter with extensive discussion.
After summarizing the facts, including that more than seven years had passed since the
accident, no medical documentation was ever submitted to Zurich at any time, no
evidence was ever submitted that the adverse driver was underinsured, and Zurich was
not notified of the 2013 settlement with the adverse driver, the denial letter concluded
that Emami’s claim or demand was being denied as untimely since Emami’s rights
“lapse[d] due to the passage of more than seven years.”
On August 2, 2018, Emami filed the petition at issue in the present appeal, which
petition was to compel underinsured motorist arbitration and is referred to herein as the
petition. In a nutshell, the petition asserted that under the facts presented—i.e., the
automobile accident, the existence of underinsured motorist coverage, and the policy-
limit settlement with the negligent driver, Emami was entitled to arbitration of his
underinsured motorist claim.
Zurich’s opposition to the petition emphasized the same facts as were set forth in
its August 1, 2018 denial letter (see above). Zurich argued that the facts of Emami’s
claim and how it proceeded constituted a waiver of the right to compel arbitration under
Code of Civil Procedure section 1281.2. Further, Zurich also argued the petition should
be denied under various provisions of Insurance Code section 11580.2, including
subdivision (c)(3) (indicating consent of insurer needed for settlement with negligent
party), subdivision (f) (requiring declaration from insured as to workers compensation
claim), and subdivision (i) (stating a 2-year time limit for one or more specified actions to
be taken, without which the claim does not accrue).
Emami’s reply in support of the petition was filed on September 6, 2018.
Emami’s reply correctly pointed out that, under applicable case law construing Insurance
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Code section 11580.2, neither the consent requirement set forth in subdivision (c)(3) nor
the timing provision in subdivision (i) are applicable to underinsured motorist claims.
(Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318, 329 [consent requirement
excluded from underinsured motorist provisions]; Quintano v. Mercury Casualty Co.
(1995) 11 Cal.4th 1049, 1052, 1066–1067 [Ins. Code, § 11580.2, subd. (i) time limitation
not applicable to underinsured motorist claims].) Emami further argued that Insurance
Code section 11580.2, subdivision (f), did not require a declaration to be filed relating to
any worker’s compensation claim because Emami allegedly had no rights to workers’
compensation benefits resulting from the collision. Finally, Emami argued that in order
for a waiver of the right to arbitrate to be found, there would ordinarily have to be delay
plus prejudice; but here, Zurich failed to present evidence to show any actual prejudice
was caused from the delay in this case.
Additionally, Emami’s reply in support of his petition offered a purported reason
for the delay in seeking arbitration. The following was set forth in a declaration by
Emami’s attorney submitted with the reply papers: “[Emami] suffered injuries to his
neck, low back and left elbow. [¶] … Despite [Emami’s] attempts to seek medical
treatment and comply with the recommended surgery, he was unable to proceed due to
high blood pressure and diabetic complications. Unfortunately, [Emami] was eventually
hospitalized in August 2013 due to health complications and has required hospitalization
several times a year from 2013 to the present. [¶] … [Emami] has been informed by his
doctor that despite the need for left elbow surgery, he is not a surgical candidate until he
controls his diabetes and blood pressure. During the course of the last five (5) or six (6)
years, [Emami] has continued working with his doctors in the hopes of getting healthy
and proceeding with the extensor release of the left elbow.”
The hearing on the petition was conducted in the trial court on September 13,
2018. After oral argument, the trial court granted permission to Zurich’s attorney to
submit further briefing. There was no court reporter present for the hearing; therefore,
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there is no transcript of those proceedings. Zurich filed supplemental briefing on
Quintano v. Mercury Casualty Co., supra, arguing among other things that Quintano left
open the possibility of finding that an “unreasonable delay” may potentially preclude a
tardy claim for underinsured motorist coverage on equitable grounds.
On September 27, 2018, the trial court took the case under submission. On
December 10, 2018, the trial court issued a minute order stating its terse ruling: “The
petition is denied.” No explanation was provided. The minute order directed Zurich “to
submit an order accordingly.” Emami requested a statement of decision, asking the trial
court to explain the legal and factual basis for its decision. The trial court denied the
request.
On January 24, 2019, Zurich filed and served a notice of entry of the trial court’s
order on the petition. On March 1, 2019, Emami timely filed a notice of appeal from the
order denying the petition.
DISCUSSION
I. Standard of Review
“ ‘There is no uniform standard of review for evaluating an order denying a
motion to compel arbitration. [Citation.] If the court’s order is based on a decision of
fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the
court’s denial rests solely on a decision of law, then a de novo standard of review is
employed. [Citations.]’ ” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218
Cal.App.4th 50, 60.) Threshold factual issues bearing on arbitrability are reviewed under
the substantial evidence test (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th
674, 686), while the interpretation of the written arbitration agreement generally presents
an issue of law that is reviewed de novo. (Avery v. Integrated Healthcare Holdings, Inc.,
supra, 218 Cal.App.4th at p. 60.) The interpretation or application of a statute presents a
question of law subject to our independent review. (Robertson v. Health Net of
California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)
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Importantly, “ ‘ “[W]e review the trial court’s order, not its reasoning, and affirm
an order if it is correct on any theory apparent from the record.” ’ [Citation.]” (Ramos v.
Westlake Services LLC, supra, 242 Cal.App.4th at p. 686.)
II. The Statute Governing Underinsured Motorist Coverage
Uninsured and underinsured motorist policies are governed generally by Insurance
Code section 11580.2, which requires automobile liability insurers to offer insurance for
bodily injury or wrongful death caused by both uninsured and underinsured motorists. 1
(Quintano v. Mercury Casualty Co., supra, 11 Cal.4th at p. 1053.) The provisions of the
statute are deemed a part of every uninsured and underinsured motorist policy. (Hartford
Fire Ins. Co. v. Macri, supra, 4 Cal.4th 318, 324.) As used in the statute, the term
“uninsured motor vehicle” generally includes “underinsured motor vehicle.” (§ 11580.2,
subd. (b).)
Subdivision (p) of section 11580.2 specifically applies to underinsured motorist
coverage, and to the extent that its terms conflict with the provisions of subdivisions (a)
through (o), the terms of subdivision (p) prevail. (§ 11580.2, subd. (p).) Underinsured
motorist coverage “does not apply to any bodily injury until the limits of bodily injury
liability policies applicable to all insured motor vehicles causing the injury have been
exhausted by payment of judgments or settlements, and proof of payment is submitted to
the insurer providing the underinsured motorist coverage.” (§ 11580.2, subd. (p)(3),
italics added.) This “requires exhaustion of the tortfeasor’s policy limits and submission
of proof of payment to the insurer.” (Wedemeyer v. Safeco Ins. Co. of America (2008)
160 Cal.App.4th 1297, 1303.) Once this requirement is met, “the insurer is liable for
underinsured motorist coverage only to the extent the insured’s coverage exceeds the
amount paid to the insured by or on behalf of the underinsured motorist.” (Ibid.;
1 Unless otherwise indicated, all further statutory references are to the Insurance
Code.
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§ 11580.2, subd. (p)(4).) Further, “[t]he insurer paying a claim under this subdivision
shall, to the extent of the payment, be entitled to reimbursement or credit in the amount
received by the insured from the owner or operator of the underinsured motor vehicle or
the insurer of the owner or operator.” (§ 11580.2, subd. (p)(5).)
Because of differences between how uninsured motorist coverage and
underinsured motorist coverage operate, certain requirements set forth in section 11580.2
have been held to apply only to uninsured motorist coverage, not to underinsured
motorist coverage. (See, e.g., Quintano v. Mercury Casualty Co., supra, 11 Cal.4th at
pp. 1066–1067 [timing requirements of § 11580.2, subd. (i) held inapplicable to
underinsured motorist claims]; Hartford Fire Ins. Co. v. Macri, supra, 4 Cal.4th at
pp. 326–328 [advance consent requirement of § 11580.2, subd. (c)(3) held inapplicable to
underinsured motorist coverage].)
Section 11580.2, subdivision (f), provides for arbitration where an insurer and the
insured are unable to agree on whether (1) the insured is entitled to recover against the
uninsured motorist; and (2) if so, the amount of the damages. (§ 11580.2, subd. (f);
Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 480.) Unless the
insured and insurer agree to a broader scope of arbitration, the mandated arbitration is
limited to these two issues; other issues—such as coverage issues—are not arbitrable.
(Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190, 1200–1201; Case v. State
Farm Mutual Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397, 403.) Section
11580.2, subdivision (f) is applicable to both uninsured and underinsured motorist
coverage. (Bouton v. USAA Casualty Ins. Co., supra, 43 Cal.4th 1190, 1201.).
III. The Trial Court Did Not Err in Denying the Petition
As noted, the trial court’s order denying the petition did not explain the basis for
the ruling. However, our task is to review the trial court’s order, not its reasoning, and
we will affirm the order if it is correct on any theory apparent from the record. (Ramos v.
Westlake Services LLC, supra, 242 Cal.App.4th at p. 686.) In claiming the trial court
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erred, Emami primarily argues that delay alone, without an adequate showing of
prejudice, does not provide a sufficient basis for finding a waiver of the right to arbitrate.
Emami also argues that none of the provisions of section 11580.2 preclude his right to
arbitration of the underinsured motorist claim. In response, Zurich contends the record
shows the trial court’s order denying the petition was correct on several distinct grounds
and, thus, should be affirmed. Zurich argues that denial of the petition was proper
because, among other reasons, (i) the nature of the parties’ dispute was not arbitrable,
(ii) a statutory requirement of section 11580.2 was unmet, and (iii) the unreasonable
delay in this case resulted in a waiver of the right to arbitrate.
As explained more fully below, we conclude the trial court’s ruling was correct on
two of the grounds pointed out by Zurich, including that unreasonable delay resulted in a
waiver of the right to arbitrate. Preliminarily, we discuss the issue of whether the subject
matter of the parties’ dispute was not arbitrable.
A. Whether the Parties’ Dispute Was Not Arbitrable
Zurich argues the trial court’s denial of the petition was correct because, according
to Zurich, the parties’ dispute was not within the scope of the arbitration agreement set
forth in the policy. Of course, if that were the case, no basis for compelling arbitration
would exist. The law is clear that although there is a strong policy in favor of enforcing
agreements to arbitrate, “there is no policy compelling persons to accept arbitration of
controversies which they have not agreed to arbitrate and which no statute has made
arbitrable.” (Freeman v. State Farm Mut. Auto. Ins. Co., supra, 14 Cal.3d at p. 481.)
Here, the policy language, consistent with section 11580.2 subdivision (f), only
provides for arbitration of disagreements as to two narrow issues: whether the insured is
legally entitled to recover damages from the owner or driver of the underinsured vehicle,
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and if so, the amount of damages that are recoverable by the insured.2 The policy further
states that “disputes concerning coverage under this endorsement may not be arbitrated.”
Zurich argues that Emami and Zurich were not engaged in a dispute within the
narrow scope of the arbitration language. According to Zurich, the parties’ dispute was
not whether Emami has a valid claim for recovery against the other motorist, or if so,
what the amount of damages against that person were, but rather it was fundamentally a
dispute about coverage. In other words, Zurich posits that the gravamen of the parties’
dispute was a coverage issue of whether the claim for uninsured motorist benefits under
the policy may be treated as lapsed or time-barred by Zurich under equitable doctrines
such as laches, waiver or estoppel in light of Emami’s lengthy delay in seeking such
benefits.
The record is not as clear on this question as Zurich maintains. Although it is true
that Zurich, in both its denial letter and in the trial court proceedings, referred to the legal
effect of Emami’s delay, Zurich’s discussion of that issue primarily related to the timing
requirements of section 11580.2 subdivision (i), which are not applicable to underinsured
motorist claims. Moreover, there is nothing in the record to reflect that Zurich
specifically asserted that equitable doctrines such as waiver, laches or estoppel defeated
coverage of the claim of underinsured motorist coverage. However, Zurich did assert
that the right to compel arbitration had been waived.3 Thus, even assuming the parties
have not yet sought to resolve such arbitrable issues as the amount of damages which
may be recoverable from the other driver, that may simply be because Zurich has insisted
that the right to arbitrate was waived. In light of these several considerations, this court is
2 Under the policy, the term uninsured motor vehicle includes an underinsured
motor vehicle.
3 Of course, where a party refuses to arbitrate on the ground that the right to
arbitrate a dispute has been waived, the trial court may resolve the waiver issue in
deciding a petition to compel arbitration. (Code Civ. Proc., § 1281.2, subds. (a) & (b)
[grounds for waiver or rescission determined on petition].)
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not in a position to clearly ascertain whether the matter of Emami’s lengthy delay was
raised by Zurich (in its communications with Emami and papers filed in the trial court) as
a basis to resist arbitration on the ground of waiver of the right to arbitrate, or conversely,
whether it was raised as a total bar to coverage on equitable grounds.
For these reasons, and because we find Zurich’s appellate briefing on this issue to
be perfunctory and inadequately developed, we are unable to conclude from the record
that Emami was seeking to arbitrate issues that were not arbitrable under the policy
language. Therefore, this particular argument falls short and does not provide a rationale
for concluding the trial court’s order was correct. However, as explained below, the
record shows that other grounds do exist for affirming the trial court’s order.
B. Failure to Meet Statutory Requirement for Relief
As pointed out by Zurich in the trial court and on appeal, Emami failed to comply
with one of the statute’s prerequisites to seeking arbitration. Zurich argues that this
failure provides a sufficient basis for affirming the trial court’s order denying the petition.
We agree.
Section 11580.2, subdivision (f), requires that “[a]ny demand or petition for
arbitration shall contain a declaration, under penalty of perjury, stating whether (i) the
insured has a workers’ compensation claim; (ii) the claim has proceeded to findings and
award or settlement on all issues reasonably contemplated to be determined in that claim;
and (iii) if not, what reasons amounting to good cause are grounds for the arbitration to
proceed immediately.” The intent of the provisions in subdivision (f) regarding worker’s
compensation are to prevent double recovery. (See Rangel v. Interinsurance Exchange
(1992) 4 Cal.4th 1, 8–9; see also § 11580.2, subd. (h)(1).) Here, contrary to the above
stated statutory requirement for seeking arbitration, Emami failed to present a declaration
under penalty of perjury concerning whether he has a worker’s compensation claim in
connection with this matter.
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Emami’s attorney argues the worker’s compensation declaration requirement
should not be deemed applicable to his client because, according to the attorney, his
client did not have a claim for worker’s compensation benefits. Even if true, no reason is
given for not filing the required declaration under penalty of perjury. Especially in view
of the fact that Emami was driving his employer’s vehicle at the time of the collision—a
situation in which worker’s compensation might reasonably be expected to be involved—
there does not appear to be any principled basis to simply ignore the statutory
requirement. Moreover, the Legislature saw fit to require a declaration under penalty of
perjury, not a bare assertion of counsel. (See Allstate Ins. Co. v. Gonzalez (1995) 38
Cal.App.4th 783, 792 [request deemed insufficient to trigger arbitration if requisite
declaration not included].)
Therefore, we conclude the trial court’s denial of relief was supported by the fact
that Emami’s petition was deficient or incomplete because it failed to comply with the
statutory requirement of presenting a declaration under penalty of perjury stating whether
Emami has a worker’s compensation claim.
C. Unreasonable Delay Resulted in Waiver of Right to Arbitrate
According to Zurich, a further reason the trial court correctly denied the petition in
this case is that of waiver caused by unreasonable delay in seeking arbitration. We agree.
Although arbitration is favored and waiver is not to be lightly inferred, California
courts have found a waiver of the right to demand arbitration in a variety of contexts,
ranging from situations in which the petitioning party has unreasonably delayed in
undertaking the procedure to instances in which the petitioning party has previously taken
steps inconsistent with an intent to invoke arbitration, as well as to situations of bad faith
or willful misconduct. (St. Agnes Medical Center v. PacifiCare of California (2003) 31
Cal.4th 1187, 1196.) Waiver is not a mechanical process and no single test delineates
what will constitute a waiver of arbitration. (Id. at p. 1195; Fleming Distribution Co. v.
Younan (2020) 49 Cal.App.5th 73, 80.)
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“When an arbitration agreement does not specify the time within which arbitration
must be demanded, a reasonable time is allowed; a party who does not demand
arbitration within a reasonable time is deemed to have waived the right to arbitration.
[Citations.] ‘[W]hat constitutes a reasonable time is a question of fact, depending on the
situation of the parties, the nature of the transaction, and the facts of the particular case.
[Citations.]’ [Citation.] Among the facts a court may consider is any prejudice the
opposing party suffered because of the delay.” (Spear v. California State Auto. Assn.
(1992) 2 Cal.4th 1035, 1043.)
The question of waiver is ordinarily a question of fact and will be upheld if it is
supported by substantial evidence. (Fleming Distribution Co. v. Younan, supra, 49
Cal.App.5th at p. 81.) “Where the relevant facts are undisputed and only one inference
may reasonably be drawn from the facts, the waiver issue may be reviewed do novo.”
(Ibid.)
Under either standard, we affirm the trial court’s order based on waiver of the
right to arbitrate as shown by the record. As noted in our summary of the factual
background, after the 2011 accident no documentation of any medical expense or of any
injury allegedly sustained by Emami in the accident was ever provided to Zurich. Zurich
eventually closed its file as there were no claims to consider or investigate. Additionally,
Zurich was not provided any information that the other driver was underinsured or that,
in 2013, Emami settled with the other driver for the policy limit of $15,000. By the time
Emami finally made it known to Zurich that he was claiming entitlement to underinsured
motorist benefits and a demand for arbitration thereof had been made, it had been more
than seven years since the time of the accident.
According to Zurich, not only was the long delay in seeking arbitration of the
underinsured motorist claim unreasonable, it was also prejudicial. As explained by
Zurich: “Zurich closed its file regarding this Accident due to lack of communication
from [Emami]. As a result, Zurich did not conduct discovery or investigate [Emami’s]
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claimed injuries in the months or even year after the Accident. Defending against such
claims numerous years after injuries allegedly occurred and treatment was received will
make it difficult, if not impossible, to get accurate information regarding injuries suffered
by [Emami] and necessary treatment actually caused by the Accident. Indeed, it is
unknown if any injuries or conditions that [Emami] now alleges were actually caused by
the 2011 Accident, or if they have arisen since that date. It will be difficult, if not
impossible, to establish through treatment providers that saw [Emami] seven years ago
whether his condition today can be attributed to the Accident, and to what extent..… In
other words, [Emami’s] delay in bringing his underinsured motorist claim has prejudiced
Zurich’s ability to defend against the claim at hand, and to ensure that benefits are only
paid to the extent provided under its commercial auto policy.”
Due to the extraordinary length of the delay here, we agree that Zurich’s ability to
adequately discover, investigate and verify the underlying medical issues and causes
relating to Emami’s claim has been negatively affected. More than that, we observe that
Emami has failed to provide any reasonable explanation for his delay. Indeed, according
to a declaration by Emami’s attorney, Emami has been aware of his alleged need for left
elbow surgery, but surgery has been prevented from year to year since at least 2013 due
to complications from his high blood pressure and diabetes. This reflects that Emami
knew of his elbow injury and his asserted need of surgery over those many years, and yet
he failed to inform Zurich of such facts or of his intention to claim underinsured benefits
for the same at any time until 2018.
Emami argues that waiver should not be found because there is not an adequate
showing of prejudice. We disagree. The determination of what constitutes unreasonable
delay for purposes of finding a waiver of the right to arbitrate depends upon the facts of a
particular case, and prejudice is only one factor to be considered. (Spear v. California
State Auto. Assn., supra, 2 Cal.4th at p. 1043.) No single test controls. (Davis v. Blue
Cross of Northern California (1979) 25 Cal.3d 418, 426; St. Agnes Medical Center v.
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PacifiCare of California, supra, 31 Cal.4th at p. 1195.) In some cases, prolonged
unreasonable delay or inaction was enough by itself to result in a waiver. (Allstate Ins.
Co. v. Gonzalez, supra, 38 Cal.App.4th 783, 793 [prolonged delay of more than three
years to make formal demand to initiate arbitration process concerning an uninsured
motorist claim held to be unreasonable under the circumstances, thereby giving rise to a
waiver of the right to arbitration].) Here, in any event, due to the extraordinary length of
the delay involved in this unique case, we are convinced the prejudice described by
Zurich was much more than hypothetical.4
We conclude that Emami’s 2018 demand for arbitration of its underinsured
motorist claim was waived due to unreasonable delay. Our conclusion on this issue
further establishes that the trial court correctly denied the petition.
DISPOSITION
The order of the trial court is affirmed. Costs on appeal are awarded to Zurich.
4 Zurich also argues the trial court’s order should be affirmed on the additional
grounds that laches and/or equitable estoppel created a bar or defense to coverage as a
matter of law. We decline to reach such additional issues because they are unnecessary
to our disposition of this appeal, and because those precise issues were never raised or
presented in the trial court.
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