Kortmeyer

*1288 Opinion

I.

Introduction

This appeal is from a judgment of dismissal favoring defendants filed October 22, 1990, following a hearing on an order to show cause for order that claim be paid filed by appellant and plaintiff, Lynn Kortmeyer (Kortmeyer). The order to show cause was ultimately heard by the trial court on September 7, 1990. The court denied the order to show cause. The case was dismissed. We affirm.

II.

Statement of Facts

Kortmeyer filed a complaint for declaratory relief on April 18, 1990, against the Insurance Commissioner 1 as liquidator of Coastal Insurance Company (Coastal) and California Insurance Guarantee Association (CIGA) seeking an order allowing Kortmeyer’s claim and adjudging her entitlement to be paid by CIGA for injuries received in an accident with an uninsured motorist on October 26, 1988. Kortmeyer alleged coverage under an automobile insurance policy with Coastal effective for the period June 2, 1988, to June 1, 1989. Following her notification to her insurer of the accident, Kortmeyer received a notice of the liquidation of Coastal and filed a proof of claim in the liquidation proceedings on or about May 3, 1989.

Kortmeyer has “stipulated”…

Although I concur in the judgment, I would base it on narrower grounds. Furthermore, I believe this case demonstrates how Insurance Code section 11580.2, subdivision (i) continues to operate as a trap for the unwary and a windfall for insurance companies. As I will explain below, this section is unnecessary to protect the subrogation rights of insurers and should be repealed.

I am not as certain as my colleagues that Ms. Kortmeyer’s claim under her insurance policy is not a “covered claim” within the meaning of Insurance Code section 1063.1. That section defines a “covered claim,” in relevant part, as one “imposed by law and within the coverage of an insurance policy of the insolvent insurer.” CIGA does not deny Ms. Kortmeyer had a valid contract with her insurer; the contract provided uninsured motorist coverage; and Ms. Kortmeyer suffered personal injuries when her car was struck in the rear by a “hit and run” driver. Thus it would seem Ms. Kortmeyer’s claim was “within the coverage of an insurance policy of the insolvent insurer.” The majority reasons because Insurance Code section 11580.2 is incorporated by law into every auto policy an uninsured motorist claim is only…

WOODS (Fred), J. —

This appeal is from a judgment of dismissal favoring defendants filed October 22, 1990, following a hearing on an order to show cause for order that claim be paid filed by appellant and plaintiff, Lynn Kortmeyer (Kortmeyer). The order to show cause was ultimately heard by the trial court on September 7, 1990. The court denied the order to show cause. The case was dismissed. We affirm.

Kortmeyer filed a complaint for declaratory relief on April 18, 1990, against the Insurance Commissioner [1] as liquidator of Coastal Insurance Company (Coastal) and California Insurance Guarantee Association (CIGA) seeking an order allowing Kortmeyer's claim and adjudging her entitlement to be paid by CIGA for injuries received in an accident with an uninsured motorist on October 26, 1988. Kortmeyer alleged coverage under an automobile insurance policy with Coastal effective for the period June 2, 1988, to June 1, 1989. Following her notification to her insurer of the accident, Kortmeyer received a notice of the liquidation of Coastal and filed a proof of claim in the liquidation proceedings on or about May 3, 1989.

Kortmeyer has "stipulated" that "no lawsuit was filed…