Superior Court of San Diego County

Procedural Posture In a case under an underinsured motorist (UM) policy, plaintiff, the brother of the insured sued defendant insurer for UM benefits. The Superior Court of San Diego County, California, denied the brother's motion to compel arbitration of the claim, and the brother appealed. Overview The brother argued that the dispute as to whether he was an insured under the policy had to be arbitrated pursuant to Ins. Code, § 11580.2 , subd. (f), as interpreted by case law. The reviewing court agreed. Case law addressing the same issue held that under § 11580, subd. (f), and arbitration provisions that tracked or incorporated the language of § 11580.2, subd. (f), jurisdictional facts, including the status of the claimant as an insured, were subject to determination by an arbitrator. Although the policy at issue contained arguably applicable exclusionary language, any language in an insurance policy that attempted to restrict the scope of arbitration of disputes required by § 11580.2, subd. (f), was void and unenforceable as contrary to public policy. Thus, despite an exclusion of \"coverage questions,\" arbitration was required as to whether the brother was an insured (or covered person). That dispute involved one of the \"jurisdictional facts\" subject to mandatory arbitration under § 11580.2, subd. (f), and could not be restricted or limited by policy language. Outcome: failure of consideration affirmative defense The court reversed the order denying the petition to compel arbitration and remanded with directions to grant the petition. Procedural Posture Petitioner employer sought a writ of mandate challenging the decision of respondent Superior Court of Ventura County (California), which overruled demurrers to the causes of action filed by employee, the real party in interest, alleging discrimination and wrongful termination against petitioner for her dismissal after she returned to work following a work-related injury. Overview Employee real party in interest filed suit against petitioner employer when she was terminated from her employment after her return to work from a work-related injury. Respondent trial court overruled petitioner's demurrers to the causes of action for discrimination and wrongful termination. Petitioner sought a writ of mandate, claiming that the California Workers' Compensation Act, Cal. Lab. Code § 132a, which provided for specific damages before the Workers' Compensation Appeals Board when an employee was discriminated against for a work-related injury, was the exclusive remedy for such claims.

The court denied the petition, holding that § 132a provided less protection to the real party in interest than did the California Fair Employment and Housing Act (FEHA). Thus, the court held that § 132a was inoperable and preempted by FEHA pursuant to Cal. Gov't Code § 12933's express repeal of any provisions of law that offered less protection than FEHA's remedies to eliminate discrimination. The court found that petitioner was subject to FEHA because it had more than five employees, and that the public interest was well-served by allowing the wrongful termination claim to proceed. Outcome The court denied petitioner employer's request for a writ of mandate challenging the overruling of its demurrers to employee real party in interest's causes of action for discrimination and wrongful termination, because the Workers' Compensation Act (Act) offered less protection than did the Fair Employment and Housing Act (FEHA), and thus the Act was preempted by the FEHA and did not provide an exclusive remedy.