California Cas. Indem. Exch. v. Hoskin

• Decision Date: 13 July 1978
• Citation: 147 Cal.Rptr. 348,82 Cal.App.3d 789
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA CASUALTY INDEMNITY EXCHANGE, a California Corporation, Plaintiff and Respondent, v. Carol HOSKIN, Individually and as Guardian ad Litem of Terry Hoskin and Diana Hoskin, minors, Rodney Huxley, Individually, Kenneth Hoskin, Individually, and Does I through V, inclusive, Defendants and Appellants. Civ. 3273.

Page 348

147 Cal.Rptr. 348

82 Cal.App.3d 789

CALIFORNIA CASUALTY INDEMNITY EXCHANGE, a California Corporation, Plaintiff and Respondent, v. Carol HOSKIN, Individually and as Guardian ad Litem of Terry Hoskin and Diana Hoskin, minors, Rodney Huxley, Individually, Kenneth Hoskin, Individually, and Does I through V, inclusive, Defendants and Appellants.

Civ. 3273.

Court of Appeal, Fifth District, California.

July 13, 1978.

As Modified July 26, 1978.

R. W. Levy, Theodore L. Slinkard, Fresno, for appellant.

Sandell, Young & St. Louis and Leon E. Tirapelle, Fresno, for respondent.

OPINION

NAIRN, ^* Associate Justice.

This is a case of first impression in the State of California.

The California Casualty Indemnity Exchange (hereinafter respondent) sued for a declaration that Carol Hoskin (appellant) was not afforded liability coverage or uninsured motorist protection under her automobile insurance policy with respondent with respect to an accident occurring on March 22, 1973. The matter was submitted to the trial court on an agreed statement of facts, and thereafter the court made findings of fact and conclusions of law in favor of respondent and judgment was entered. We affirm.

The agreed statement of facts is as follows:

"That on March 22, 1973, defendant KENNETH MICHAEL HOSKIN, was driving a 1967 Datsun automobile which was owned by defendant, CAROL HOSKIN, with the consent and permission of the owner; KENNETH HOSKIN is the son of CAROL HOSKIN and was a resident of the same household.

"That defendants CAROL HOSKIN, TERRY HOSKIN and DIANA HOSKIN were occupants of said vehicle.

"That said vehicle collided with an automobile driven by RODNEY PAUL HUXLEY, and owned by MARK HARRY HOFFMAN, which vehicle and its driver were uninsured at the time of said accident.

"That at the time of said accident that the 1967 Datsun automobile was the motor vehicle described in a policy of automobile liability insurance issued by plaintiff, CALIFORNIA CASUALTY INDEMNITY EXCHANGE to CAROL HOSKIN as named insured, a copy of which is attached hereto marked Exhibit A and by this reference made a part hereof.

"On February 14, 1974 defendants CAROL HOSKIN, TERRY HOSKIN and DIANA HOSKIN filed an action against RODNEY HUXLEY, KENNETH HOSKIN and certain fictitiously named defendants, being action No. 162699 in the above entitled Court, alleging damages for personal injuries sustained as a result of the above accident and seeking damages therefor."

The policy of the State of California with regard to exclusion of the named insured or members of his family is clear and unequivocal.

"In a line of cases extending at least back to 1966, supported by authorities from other jurisdictions extending back considerably further than that, the courts of this state had indicated that a liability insurance provision excluding the named insured or members of his family from coverage was valid and not in contravention of public policy. (See Travelers Indem. Co. v. Colonial Ins. Co. (1966) 242 Cal.App.2d 227, 234, 51 Cal.Rptr. 724; Farmers Ins. Exch. v. Geyer (1967) 247 Cal.App.2d 625, 629-632, 55 Cal.Rptr. 861; Farmers Ins. Exch. v. Brown (1967) 252 Cal.App.2d 120, 122, 60 Cal.Rptr. 1; Hale v. State Farm Mut. Auto. Ins. Co. (1967) 256 Cal.App.2d 177, 180-181, 63 Cal.Rptr. 819; Paul Masson Co. v. Colonial Ins. Co. (1971) 14 Cal.App.3d 265, 269, 92 Cal.Rptr. 463; cf. Farmers Ins. Exch. v. Frederick (1966) 244 Cal.App.2d 776, 781, fn. 3, 53 Cal.Rptr. 457; see generally Annot., 46 A.L.R.3d 1061.) In view of these authorities the Legislature in 1970 had amended section 11580.1 of the Insurance Code to expressly permit such an exclusion. (Stats.1970, ch. 300, § 4, p. 573.) ⁹ Moreover it was aware that section 11580.2 of the same code precluded recovery by the owner under the uninsured motorist provisions of his policy.¹⁰ (See Hale v. State Farm Mut. Auto. Ins. Co., supra, 256 Cal.App.2d 177, 181-183, 63 Cal.Rptr. 819; see also State Farm Mut. Auto. Ins. Co. v. Jacober (1973) 10 Cal.3d 193, 205, 110 Cal.Rptr. 1, 514 P.2d 128.)

9 Section 11580.1, subdivision (c), has provided since the enactment of the section in 1970 that a policy of automobile liability insurance may by appropriate policy provision be made inapplicable to: '. . . (5) Liability for bodily injury to an insured.'

10 As here relevant, Insurance Code section 11580.2, subdivision (b)(2), provides today, as it provided in 1970: 'The term "uninsured motor vehicle" shall not include an automobile owned by the named insured or any resident of the same household. . . .' " (Schwalbe v. Jones (1976) 16 Cal.3d 514, 521-522, 128 Cal.Rptr. 321, 325, 546 P.2d 1033, 1037.)

As the trial court determined, the liability section of the policy does not provide coverage for appellant's claims against Kenneth. Part I provides that respondent will "pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: (P) A. bodily injury . . . sustained by any person."

"PERSONS INSURED: The following are insureds under PART I:

"(a) with respect to the owned automobile,

"(1) the named insured and any resident of the same household,

"(2) any other person using such automobile with the permission of the named insured . . ."

Kenneth Hoskin was a member of appellant's household and was driving her car with her permission. Therefore, Kenneth Hoskin was an insured under respondent's policy.

"EXCLUSIONS: This policy does not apply under Part I:

"(k) to bodily injury to the named insured or spouse."

Appellant is also a named insured. It follows that part I of the policy expressly excludes from coverage any claim appellant asserts against Kenneth as an insured. The judgment is in accord with Meritplan Ins. Co. v. Woollum (1975) 52 Cal.App.3d 167, 123 Cal.Rptr. 613 and California State Auto. Assn. Inter-Ins. Bureau v. Warwick (1976) 17 Cal.3d 190, 130 Cal.Rptr. 520, 550 P.2d 1056.

Under the uninsured motorists section of the policy (part IV) and Insurance Code section 11580.2, a similar result is reached. Section 11580.2 becomes a part of every insurance policy as if it were written into its provisions. (Page v. Insurance Co. of North America (1967) 256 Cal.App.2d 374, 376, 64 Cal.Rptr. 89.) Under part IV, the respondent contracted to pay any claims appellant might have against the operator of an "uninsured vehicle."

"(T)he term 'uninsured motor vehicle' shall not include:

"(i) an insured automobile, . . ."

Subsection (b) provides that " 'insured automobile' means an automobile:

"(1) described in the declarations as an insured automobile to which the bodily injury liability coverage of the policy applies;"

The Datsun car in which appellant was injured was expressly described in the policy as being covered under its provisions. Therefore, the Datsun was not an "uninsured" automobile. Under part IV, respondent was only obligated "(t)o pay all sums which the insured (appellant) . . . shall be legally entitled to recover as damages from the . . . operator of an uninsured highway vehicle." Appellant is therefore not covered under part IV for the injuries she sustained.

A similar result is reached in applying Insurance Code section 11580.2. Subsection (a) of this section provides that:

"No (automobile insurance) policy . . . shall be issued . . . in this state . . . unless the policy contains . . . a provision with coverage . . . for all sums . . . (the insured) shall be legally entitled to recover as damages for bodily injury . . . from the owner or operator of an uninsured motor vehicle."

Subsection (b)(2) provides that:

"The term 'uninsured motor vehicle' shall not include an automobile owned by the named insured . . ."

The Datsun in which appellant was riding was owned by the named insured appellant. The Datsun was therefore not an "uninsured motor vehicle" under the definitions of section 11580.2.

Furthermore, the Datsun in which appellant was injured is expressly defined by this section as an "insured motor vehicle" for the purposes of "uninsured motorists coverage." Subsection (b) provides that:

"(T)he term 'insured motor vehicle' means the motor vehicle described in the . . . policy . . . if the motor vehicle is used by the named insured or with his permission or consent."

The Datsun was described in the policy issued to appellant and was used with her permission. The Datsun, by definition, was an "insured" motor vehicle and cannot, therefore, be an "uninsured" motor vehicle under section 11580.2.

Therefore, under the express terms of section 11580.2 and the policy, respondent is not obligated to compensate appellant under the uninsured motorist provisions of the policy.

The case of Lofberg v. Aetna Cas. & Sur. Co. (1968) 264 Cal.App.2d 306, 308-309, 70 Cal.Rptr. 269, compels the same result. The court held that the uninsured automobile coverage of an automobile liability policy was inapplicable to the named insured's injury sustained while a passenger in his own automobile. The car was being driven by another person with the named insured's consent, which made that person an insured under the policy. After discussing provisions of the policy and section 11580.2 which were substantially identical to the ones discussed above, the court concluded that "(s)ince an insurer is permitted by the statute to exclude such an automobile (of the insured under the uninsured motorists provisions), the language used by Aetna effectively eliminates plaintiff's automobile from its 'uninsured automobile' coverage. . . . (P) Accordingly, we hold that the uninsured automobile coverage of plaintiff's policy is inapplicable to his accident and injuries." (Id. at 309, 70 Cal.Rptr. at 271.)

Appellant attempts to distinguish the Lofberg case on the basis of a subsequent amendment to section 11580.2 which added the following exclusion:

"(c) The insurance coverage provided for in this section does not apply:

". . .e i

"(6) To bodily injury of the insured while occupying a motor...