Atlantic Mut. Ins. Co. v. Ruiz

• Decision Date: 05 November 2004
• Docket Number: No. H025852.,H025852.
• Court: California Court of Appeals Court of Appeals
• Parties: ATLANTIC MUTUAL INS. CO., Plaintiff and Appellant, v. Roberto RUIZ, Defendant and Appellant.

20 Cal.Rptr.3d 628

123 Cal.App.4th 1197

ATLANTIC MUTUAL INS. CO., Plaintiff and Appellant, v. Roberto RUIZ, Defendant and Appellant.

No. H025852.

Court of Appeal, Sixth District.

November 5, 2004.

Review Denied February 16, 2005.

Selvin Wraith Halman and Gary R. Selvin, Oakland, and Mark E. Inbody, for Plaintiff and Appellant.

Law Offices of Daniel T. Staggs, Redwood City, and Natalie K. Mutz and Gwilliam, Ivary, Chiosso and Cava and Steven R. Cavalli, Oakland, for Defendant and Appellant.

R. Lawrence Bragg, Roseville, and Law Offices of Donald J. Deshaw, Foster City, for Defendant and Respondent.

ELIA, J.

This declaratory relief action arises from a multiple vehicle accident occurring on Highway 101 that was followed by a secondary collision and concerns the uninsured motorist (UM) provisions of two different policies. The trial court declared in its judgment that Robert Ruiz, the injured party, was an insured under the policy issued by Atlantic Mutual Insurance Company (Atlantic Mutual) and he was not an insured under a policy issued by American States Insurance Company (American States). Atlantic Mutual and Ruiz both appeal.

In its appeal, Atlantic Mutual asserts that Ruiz is not an insured under its policy but he is an insured under American States' policy. In his appeal, Ruiz maintains that he is an insured under both policies and each insurer has an obligation to pay its prorated share.

We affirm.

A. Stipulated Facts

The parties submitted the case for court trial on the following stipulated facts. On October 7, 1997, Cristobol Tavares, who was driving a Toyota Camry, struck the pickup truck driven by Ruiz and then struck a van owned by Group Manufacturing Services, Inc. of California (Group Manufacturing). Ruiz, who was uninjured at this point, exited his employer's truck and "walked approximately 200 feet to where the Group Manufacturing van had stopped, to inquire about the driver's condition, to learn what had happened, and to exchange driver's license/insurance information." It was Ruiz's intention to return to the truck after obtaining documentation from the van's occupants and "wait for the police to arrive as he had been trained to do by his employer."

"Ruiz determined that the right front passenger of the Group Manufacturing van had been injured. He walked around to the passenger side door, opened the door and assisted the passenger out of the van." "As he was approximately one foot from the passenger door, attempting to talk with the driver, he was struck by an underinsured motorist, Alma Ogana," who was driving a minivan. Ruiz never entered Group Manufacturing's van.

As a result of being struck by Ogana, Ruiz suffered "a compression burst fracture at L1, torn ligaments and meniscus in his left knee, a fracture of his left tibia, a fracture of his right tibial plateau, and abdominal trauma as well as post-traumatic stress disorder."

At the time of the initial collision, "Ruiz was driving a vehicle owned by his employer, Fast UnderCar, and he was acting in the course and scope of his employment with Fast UnderCar." Ruiz sought and recovered workers compensation benefits.

American States had issued a commercial auto policy to Fast Pro, Inc., and Fast UnderCar, Inc., as the named insured. Atlantic Mutual had insured Group Manufacturing under a business auto policy. Both policies provided $1 million in underinsured motorists (UIM) benefits¹ and were in effect at the time of the accidents.

The "California Uninsured Motorist Coverage—Bodily Injury" endorsement, which is contained in both policies at issue, provides coverage as follows: "We will pay all sums the `insured' is legally entitled to recover as compensatory damages from the owner or driver of an `uninsured motor vehicle.' The damages must result from `bodily injury' sustained by the `insured' caused by an `accident.' The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the `uninsured motor vehicle.'"

The term "insured" is defined, as relevant, to include "[y]ou" or "[a]nyone else `occupying' a covered `auto' . . . ." "Occupying" is further defined to mean "in, upon, getting in, on, out or off."

"On July 21, 1998, Mr. Ruiz and his wife filed a personal injury lawsuit against the other drivers" and "recovered a total of $65,000 in policy limits from the other drivers . . . ." "Ruiz made a claim for UIM benefits against Atlantic Mutual and American States, demanding a total of $1 million in damages." Both insurers denied the claim.

B. Statement of Decision

The trial court determined that Ruiz was not "occupying" his employer's pickup truck and, therefore, was not covered under the UM provisions of American States' policy. The court noted that the injury occurred "approximately 200 feet from this vehicle" and Ruiz was "not engaged in `performance of acts "physically and directly related to the car" or its use' . . . ."

As to the Group Manufacturing vehicle, the court indicated that it was important to consider "the fact that Defendant Ruiz, who despite being approximately one foot from this vehicle at the time of his injury, was never an occupant of this vehicle, had no intention of occupying it, had only minimal contact with the vehicle (opening the passenger door), and was totally unknown to either Group Manufacturing, Inc., its insurance carrier, Atlantic Mutual, or the driver and its passenger." Nevertheless, the court concluded that Ruiz was an insured under the UM provisions of Atlantic Mutual's policy. Its conclusion was predicated upon "location of the Group Manufacturing, Inc., vehicle (and how it came to be so located)," the fact that Ruiz was placed in harm's way because he was "assisting someone from `getting out' of the insured vehicle," "the public policy of affording coverage to the injured," and the rule requiring ambiguities to be resolved in favor of coverage.

C Meaning of "Occupying" and "Upon" in Defining "Insured"

1. Atlantic Mutual's UM Endorsement

To be entitled to coverage under Atlantic Mutual's endorsement for uninsured motorist coverage, Ruiz had to qualify as an "insured" within the meaning of the UM coverage provisions. As mentioned, the term "insured" included "[a]nyone else `occupying' a covered `auto'" and "occupying" was further defined to "mean[] in, upon, getting in, on, out, or off." The question in this case is whether Ruiz was "upon" Group Manufacturing's van when he was struck by the underinsured motorist.

Atlantic Mutual argues that the trial court improperly disregarded the plain meaning of the policy in finding UM coverage for Ruiz because "Ruiz is a stranger to the Atlantic Mutual policy" and he never occupied or intended to enter or occupy the vehicle it insured. It maintains that Ruiz was not an "insured" because "physical proximity" to Group Manufacturing's van was not enough and because he was not a "permissive user" of the van. Atlantic Mutual refers us to two Virginia cases, which adopted a narrow construction of the term "upon" and required some immediate connection related to "occupying" the insured vehicle. (See Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Bristow (1966) 207 Va. 381, 150 S.E.2d 125, 126-128 [Samaritan injured while looking under the hood at the motor of a stalled vehicle not "upon" the insured vehicle because "[h]is touching of the vehicle was merely incidental to his kindly act as a Good Samaritan"]; Edwards v. Government Employees Ins. Co. (1998) 256 Va. 128, 500 S.E.2d 819, 819-822 [acquaintance injured while attempting to replace a tire on insured vehicle was not "upon" the insured vehicle because his act was not "immediately related to occupancy of the vehicle" even though he "ultimately intended to occupy the vehicle"].)

The general rules of policy construction guide our determination whether Ruiz was an insured by virtue of "occupying" Group Manufacturing's van. "If the policy language `is clear and explicit, it governs.' (Bank of the West, supra, 2 Cal.4th at p. 1264 [10 Cal.Rptr.2d 538, 833 P.2d 545].)" (Palmer v. Truck Ins. Exchange (1999) 21 Cal.4th 1109, 1115, 90 Cal.Rptr.2d 647, 988 P.2d 568.) "When interpreting a policy provision, we must give its terms their `"ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage."' (AIU Ins. [Co. v. Superior Court (1990)], supra, 51 Cal.3d [807] at p. 822 [274 Cal.Rptr. 820, 799 P.2d 1253], quoting Civ.Code, § 1644.)" (Palmer v. Truck Ins. Exchange, supra, 21 Cal.4th at p. 1115, 90 Cal.Rptr.2d 647, 988 P.2d 568.)

"A policy provision is ambiguous only if it is susceptible to two or more reasonable constructions despite the plain meaning of its terms within the context of the policy as a whole. (See Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 868 [77 Cal.Rptr.2d 107, 959 P.2d 265] (Foster-Gardner).) The court may then `invoke the principle that ambiguities are generally construed against the party who caused the uncertainty to exist (i.e., the insurer) in order to protect the insured's reasonable expectation of coverage.' (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 37 [36 Cal.Rptr.2d 100 884 P.2d 1048].)" (Palmer v. Truck Ins. Exchange, supra, 21 Cal.4th at p. 1115, 90 Cal.Rptr.2d 647, 988 P.2d 568.)

"The mere fact that a word or phrase in a policy may have multiple meanings does not create an ambiguity. [Citation.]" (Palmer v. Truck Ins. Exchange, supra, 21 Cal.4th at p. 1118, 90 Cal.Rptr.2d 647, 988 P.2d 568.) "[A] word with a broad meaning or multiple meanings may be used for that very reason—its breadth—to achieve a broad purpose." (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 868, 21 Cal.Rptr.2d 691, 855 P.2d 1263.) "`"[L]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be...