Cabral v. Los Angeles County Metropolitan Transp. Authority

• Decision Date: 16 September 1998
• Docket Number: No. B113154,B113154
• Citation: 78 Cal.Rptr.2d 385,66 Cal.App.4th 907
• Parties: , 98 Cal. Daily Op. Serv. 7262, 98 Daily Journal D.A.R. 10,017 Jesus CABRAL, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 385

78 Cal.Rptr.2d 385

66 Cal.App.4th 907, 98 Cal. Daily Op. Serv. 7262,

98 Daily Journal D.A.R. 10,017

Jesus CABRAL, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.

No. B113154.

Court of Appeal, Second District, Division 5, California.

Sept. 16, 1998.

Certified for Partial Publication. ^*

Joel R. Bander, Los Angeles, and Robert Asa Crook, for Plaintiff and Appellant.

Melanie E. Lomax, Karen G. Sarames, Oakland, Greines, Martin, Stein & Richland, Martin Stein and Carolyn Oill, Beverly Hills, for Defendant and Respondent.

GRIGNON, Acting Presiding Justice.

Plaintiff, an uninsured motorist, brought his car to a stop at the side of a busy city street and parked at the curb, as he was permitted to do. As plaintiff was exiting his car, defendant's bus collided with plaintiff's car, causing property damage and personal injury. Pursuant to Civil Code section 3333.4, ¹ the trial court determined plaintiff could not recover non-economic damages, because plaintiff was an uninsured motorist and his damages arose out of the operation or use of a motor vehicle. In the published portion of this opinion, we conclude plaintiff's recovery is limited to his economic damages. In the unpublished portion of this opinion, we reverse the judgment of nonsuit, concluding plaintiff presented sufficient evidence of defendant's negligence.

FACTS ² AND PROCEDURAL BACKGROUND

On Olympic Boulevard near the site of the accident are three lanes of eastbound traffic. During rush hour, all three lanes are driving lanes and no parking is permitted at the curb. At the time of day when the accident occurred, cars may legally park in the third lane, the lane closest to the curb. On April 20, 1996, plaintiff and appellant Jesus Cabral parked his car on Olympic Boulevard approximately three inches from the curb. He observed in his rearview mirror defendant and respondent Los Angeles County Metropolitan Tranportation Authority's bus in the second lane approximately one block behind him. While still wearing his seat belt and without checking on the position of the bus, plaintiff opened his door approximately five inches. He did not open his door into the middle lane of traffic. The bus collided with the car door near the door handle, pulling plaintiff's arm and body forward. The impact pushed the car forward one foot. Plaintiff immediately felt pain in his hand, arm, back, neck, and shoulder. Plaintiff had not seen the bus between the time it was a block away and the time it hit his door. Moreover, he never saw the bus changing lanes.

Plaintiff got out of his car. Defendant's bus had stopped a block ahead of plaintiff's car, and the bus driver also got out to see what had happened. The rear bus wheel had been damaged. Plaintiff and the bus driver exchanged information. The bus driver apologized and said he had not seen plaintiff's car. The bus driver stated he had been merging into the third lane, the lane in which plaintiff had been legally parked. A photographic exhibit demonstrates that the door of plaintiff's car parked in the curb lane does not extend into the middle lane even when fully opened.

Plaintiff did not have automobile liability insurance.

On September 17, 1996, plaintiff filed a complaint against defendant for negligence. On March 18, 1997, plaintiff filed a motion for a determination of law. Plaintiff contended At the conclusion of plaintiff's presentation of evidence, defendant moved for nonsuit pursuant to Code of Civil Procedure section 581c. The trial court found that since the car door had collided with the rear wheel well of the bus, as opposed to the front of the bus, plaintiff's claim that the bus had encroached on his lane was not credible. In addition, the trial court found that there was insufficient evidence to show that the bus had been driven improperly. The trial court found that the cause of the accident was plaintiff's negligence in violation of Vehicle Code section 22517, which provides that no person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so. The trial court granted the motion for nonsuit. On June 13, 1997, the trial court entered judgment in favor of defendant. Plaintiff appealed from the order denying the motion for a determination of law and the order granting nonsuit. We construe the notice of appeal as from the appealable judgment and review the issues on appeal from the judgment.

that Civil Code section 3333.4, which had been enacted after the filing of the complaint, was not applicable. A jury trial commenced on April 21, 1997. Before the trial began, the trial court denied plaintiff's motion for a determination of law and instead found that plaintiff could not recover non-economic damages pursuant to Civil Code section 3333.4.

DISCUSSION

I. Operation or Use

Civil Code section 3333.4 limits the damages of an uninsured motorist injured in an automobile accident to economic losses. Civil Code section 3333.4 provides in pertinent part: "[I]n any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if ... [p] ... [p] ... [t]he injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state." ³

Plaintiff concedes he was the owner of the vehicle involved in the accident and the vehicle was not insured. He contends, however, his damages did not arise out of the "operation" or "use" of the vehicle. He argues the car was parked at the time of the accident and was being neither operated nor used. The statute does not expressly define the terms "operation" or "use." Therefore, we apply the usual rules of statutory construction in interpreting the statute.

" 'We begin with the fundamental rule that our primary task is to determine the lawmakers' intent. [Citation.] ... To determine intent, " 'The court turns first to the words themselves for the answer.' " [Citations.] "If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the [lawmakers]...." ' [Citation.] We give the language of the statute its 'usual, ordinary import and accord significance, if possible, to every word, phrase and sentence in pursuance of the [lawmakers'] purpose. A On November 5, 1996, Civil Code section 3333.4 and its companion, Civil Code section 3333.3, ⁴ were added by initiative measure Proposition 213 entitled, The Personal Responsibility Act of 1996. "This initiative prohibits uninsured motorists and drunk drivers from collecting noneconomic damages in any action arising out of the operation or use of a motor vehicle. Further, it prohibits recovery of any damages by felons for injuries caused in the commission of or flight from a felony. [Citation.] The voter's pamphlet reveals numerous interests the electorate considered in enacting this initiative. Essentially such interests can be narrowed down to two broad concerns the voters took into account: (1) the interest in restoring balance to our justice systems and (2) the interest in reducing costs of mandatory automobile insurance." (Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 978, 68 Cal.Rptr.2d 553.) "[T]he interest in restoring balance to our justice system includes such interests [as] decreasing the number of lawsuits, reducing annual court-related costs to state and local governments, increasing the costs of drunk driving and disobeying California's Financial Responsibility Law, curtailing commission of felonies and avoiding unreasonable damages being awarded to the uninsured. The interest in reducing costs of mandatory automobile insurance addresses the need to reduce skyrocketing insurance premiums by encouraging motorists to buy liability insurance." (Id. at p. 984, 68 Cal.Rptr.2d 553.) "In the wake of an insurance premium crisis, the electorate's interests in controlling the high costs of insurance are significant." (Id. at p. 984, 68 Cal.Rptr.2d 553.) "The interest in restoring balance to our justice system is also significant. Proposition 213 makes it more difficult for citizens to ignore the Financial Responsibility Law, where motorists are required to obtain insurance if they wish to drive. Once in effect, law abiding citizens are not forced to pay for the injuries of those who choose to disobey the law." (Ibid.)

construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose.... Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent.' " (Kane v. Hurley (1994) 30 Cal.App.4th 859, 862, 35 Cal.Rptr.2d 809.)

The provisions of Civil Code section 3333.4, relating to damages arising out of the operation or use of an uninsured vehicle, are clear and unambiguous. The term "operate" is an ordinary word meaning "to cause to function." (Webster's Collegiate Dict. (10th ed.1995) p. 815.) A person operates a motor vehicle when the person causes the motor vehicle to function in the manner for which the automobile is fitted. The term "use" is also an ordinary word. It means to employ, put into action or service, or utilize. (Id., p. 1301.)

Plaintiff attempts to limit the terms "operation" and "use" to driving. Although driving is included within the concepts of operation and use of a vehicle, operation is a broader concept than driving and does not require that the vehicle be in motion or even have the engine running. (Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1028, fn. 1, 229 Cal.Rptr. 310.) Operation includes stopping, parking on the highway, and other acts fairly...