Allstate Ins. Co. v. Normandie Club
| Decision Date | 10 October 1963 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. The NORMANDIE CLUB and Globe Indemnity Company, Defendants and Appellants. Civ. 26897. |
Dryden, Harrington, Horgan & Swartz and Vernon G. Foster, Los Angeles, for defendants and appellants.
Parker, Stanbury, McGee, Peckham & Garrett, and Raymond G. Stanbury, Los Angeles, for plaintiff and respondent.
Plaintiff insurance company issued its policy of automobile liability insurance to one Gordon and such policy was in force on April 2, 1960, when the accident which underlies this litigation occurred. By its terms, the policy excluded coverage of 'any automobile while used as a public or livery conveyance.' Gordon, an employee of defendant Normandie Club, regularly carried persons from the so-called 'Hollywood' area in the City of Los Angeles to the premises of the Club in Gardena, California, and returned them to the points where he had picked them up. Normally, the persons so transported paid $1.00 for the round-trip, such payment being made to Gordon and retained by him. Gordon carried only those persons who were about to become, or who had just been, patrons of the Club. The Club, consisting of a restaurant and a draw poker parlor, was open to anyone who desired to use its facilities.
On the day in question, several patrons of the Club, desiring to be transported from the Club to their homes, had entered, or were about to enter, Gordon's automobile when an accident occurred, causing personal injuries to them. They thereupon filed suits against Gordon and against the Club--contending that the latter was liable as Gordon's employer. The insurance company, having been called upon to defend these actions, instituted the present action for declaratory relief, seeking an adjudication that it had no duty either to defend the actions, or to pay judgments if recovered. Named as defendants, in addition to Gordon and the Club, were the several personal injury plaintiffs and appellant Globe Indemnity Company (hereinafter 'Globe'). 1
Gordon and two of the personal injury claimants defaulted and the action proceeded against the Club, Globe and two of the claimants. At the request of the Club, a jury was impanelled to try the issue of coverage. It returned a verdict in favor of plaintiff, the trial court made its findings adopting such a verdict and entered judgment in favor of the plaintiff. Only the Club and Globe have appealed.
The sole issue litigated at the trial was whether or not Gordon's activities in carriage of the personal injury plaintiffs fell within the exclusionary clause above quoted. Evidence was offered on the subsidiary issues as to whether Gordon's transportation business was conducted as an agent of the Club or on his own behalf and as to whether or not the payment of the $1.00 transportation fee was obligatory on those carried or was a mere gratuity. However, as the case is presented in this court, and as we view the major issue, resolution of these secondary matters is not necessary.
Appellants present the case to this court as one involving error in the giving and refusing of instructions to the jury and respondent has answered on the same basis. Since the present case is one in which an action for declaratory relief has been substituted for an action at law for breach of contract, a jury was a matter of right. (State Farm Mutual Automobile Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 304 P.2d 13.) The trial judge adopted the jury verdict as one of his own findings, and it is obvious that his findings proceeded on the same legal theory as that which underlay his jury instructions. Hence, whether we look to the instructions and verdict or to the findings of fact and conclusions of law, the ultimate legal issue is the same.
A review of the record discloses that there was no real dispute as to the type of transportation service performed by Gordon nor as to the fact that he held himself out, within the limits of his area of operations, of his seating capacity and time schedules, to serve any persons who desired travel to or from the Normandie Club, and that he accommodated no one not within that category. The sole issue, thus is whether or not this constituted a 'public' transportation within the meaning of the policy clause. The trial court concluded that it did and, pursuant to that concept, gave the following instructions:
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This is not the first case to construe an exclusionary clause couched in these terms. But it appears to be the first case in California. 6 Our review of the cases cited by counsel...
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Greyhound Lines v. City of New Orleans
...show members, the courts uniformly" determine that such service does not qualify as livery.); Allstate Ins. Co. v. Normandie Club, 221 Cal.App.2d 103, 107, 34 Cal.Rptr. 280 (Cal.Ct.App.1963) (noting that the "chief factor lies in the policy of selection and exclusion of passenger," not in t......
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Pender v. US
...schedules, and only provided the service to club customers and members, the vehicle was held out for public use. 221 Cal.App.2d 103, 107, 34 Cal.Rptr. 280, 282 (2d Dist.1963). Courts have also interpreted the phrase to encompass vehicles used for limited purposes. In Spears the court held t......
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Entin v. Superior Court of L. A. Cnty., B239642.
...a jury in declaratory relief actions involving insurance coverage disputes. For example, in Allstate Ins. Co. v. Normandie Club (1963) 221 Cal.App.2d 103, 34 Cal.Rptr. 280( Normandie ), the defendant was involved [208 Cal.App.4th 779]in an accident that caused injuries to several individual......
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Entin v. Superior Court of L.A. Cnty.
...a jury in declaratory relief actions involving insurance coverage disputes. For example, in Allstate Ins. Co. v. Normandie Club (1963) 221 Cal.App.2d 103, 34 Cal.Rptr. 280( Normandie ), the defendant was involved [208 Cal.App.4th 779]in an accident that caused injuries to several individual......