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In re Arbitration of Jane Fortin

filed: May 3, 1996.

IN RE THE ARBITRATION OF: JANE FORTIN, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND ALLSTATE INSURANCE COMPANY, RESPONDENTS.



Superior Court of Pierce County. Superior Court Docket No. 93-2-09668-8. Date Filed In Superior Court: February 11, 1994. Superior Court Judge Signing: Vicki Hogan.

Written By: Seinfeld, C.j., Concurred IN By: Morgan, J., Bridgewater, J.

Author: Seinfeld

SEINFELD, C.J. -- Jane Fortin appeals an order vacating an arbitrator's award and a judgment in favor of State Farm Mutual Automobile Insurance Company, her uninsured/underinsured motorist (UIM) carrier. We conclude that the arbitrator did not exceed the scope of his authority and that the superior court erred in determining that a phantom driver is not an entity to whom fault can be apportioned under former RCW 4.22.070 (Laws of 1986, ch. 305, ยง 401). Thus, we reverse.

FACTS

This case involves a collision between Jane Fortin and Joseph Smith. Fortin was driving on the inside lane of a city street; Smith was traveling parallel to her in the outside lane. An unidentified driver (the phantom driver) suddenly pulled in front of Smith from an adjacent parking lot. Smith veered to avoid the phantom driver and collided with Fortin. The phantom driver left the scene and the parties have been unable to learn his identity.

Smith had a liability policy with Allstate Insurance Company with coverage limits of $100,000. Fortin had a UIM motorist policy with State Farm; the coverage limits were $50,000 per person and $100,000 per occurrence.

Fortin sued Smith for damages arising out of the accident; she also filed a UIM claim with State Farm for damages caused by the phantom driver. The State Farm UIM policy provides: "[State Farm] will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle." The policy defines "underinsured motor vehicle" to include "a 'hit-and-run' land motor vehicle whose driver remains unknown and which was the proximate cause of bodily injury to an insured."

The policy further provides that before State Farm will

pay a claim the insured and State Farm must reach agreement on two questions:

1. Is the insured legally entitled to collect damages from the owner or driver of the underinsured motor vehicle; and

2. If so, in what amount?

In the event the parties are unable to agree, the policy provides that the question will be decided through arbitration upon the request of either party.

After Fortin presented a formal written demand to arbitrate the UIM claim, she, Allstate on behalf of Smith, and State Farm agreed to a single binding arbitration of both controversies.*fn1 They stipulated that Fortin suffered $20,000 damages. They also agreed to have the arbitrator memorialize his decision in the following form:

I, DONALD KELLEY, arbitrator, make the following answers to the questions submitted:

1. As to the issue of whether Fortin is legally entitled to collect damages from Smith or an unknown driver, if you find there was in fact an unknown driver, please answer the following:

1a. Were either of the following negligent?

Joseph Smith Yes No

Unknown driver Yes No

1b. If your answer to question 1a is "yes" as to either person, was such negligence a proximate cause of damage to Fortin?

Joseph Smith Yes No

Unknown driver Yes No


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