Campidonica v. Transport Indem. Co.
| Decision Date | 20 June 1963 |
| Citation | 31 Cal.Rptr. 735,217 Cal.App.2d 403 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ed CAMPIDONICA and Permanente Cement Company, Plaintiffs and Appellants, v. TRANSPORT INDEMNITY COMPANY, Defendant and Respondent. Civ. 19965. |
Gazzera & Antonioli, Mountain View, Ropers, Majeski & Phelps, Redwood City, for appellants.
Toff & Gordon, Mountain View, for respondent.
Plaintiffs Ed Campidonica and Permanente Cement Company appeal from a judgment of dismissal entered upon the sustaining of a demurrer to their complaint without leave to amend.
The essential allegations of the complaint are as follows: On December 29, 1955, Bridge, a truck driver employed by Miles & Sons Trucking Service, took his employer's truck, which was insured by defendant Transport Indemnity Company, to Permanente Cement Company to have it loaded with cement. During the course of the loading, which was done by Campidonica, an employee of Permanente, Bridge was injured, and he thereafter brought suit against Campidonica and Permanente. Bridge's complaint contained no reference to either the loading operation or the presence of a truck, but alleged only that defendants had negligently 'caused a heavy metal object to fall' on his head. Permanente and Campidonica, knowing that the accident had in fact occurred while they were loading a Miles & Sons truck with the consent and permission of the owner, tendered the defense of the Bridge action to Transport Indemnity Company on the theory that the indemnity policy which it had issued to Miles & Sons ran in favor of any person using an insured vehicle with the consent of the owner. Transport Indemnity Company, despite its actual knowledge that Bridge's injury arose out of the use of a Miles & Sons truck, refused to undertake the defense of the action or to assume liability for any judgment which Bridge might obtain against Permanente and Campidonica. Campidonica thereafter negotiated a settlement with Bridge, gave notice to Transport Indemnity Company, and upon its refusal to pay the same, paid Bridge $6,500 for a full release of his claim.
Plaintiffs sought a judicial declaration that defendant Transport Indemnity Company was obligated to defend the Bridge action and, since it had refused to undertake such defense, was now obligated to reimburse plaintiffs for their costs of suit, attorney's fees, and the $6,500 which Campidonica had been compelled to pay Bridge in full settlement of his claim. Copies of the Bridge complaint and of the indemnity policy issued to Miles & Sons were appended to the complaint.
Defendant demurred to the complaint both generally and specially. The successful general demurrer was based on the grounds that (1) the policy issued to Miles & Sons afforded no coverage to plaintiffs as additional insureds or otherwise, and (2) defendant's duty to defend the Bridge action on plaintiffs' behalf was controlled by the allegations of Bridge's complaint which made no reference to a Miles & Sons truck, or indeed, to any vehicle being involved in the accident.
Turning first to an examination of the policy itself, it is apparent that the judgment may not be upheld on the ground that no liability coverage was extended to permissive users of vehicles owned by Miles & Sons. Pursuant to the coverage clause of the policy, respondent insurer agreed 'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay for damages arising out of the occupation of the named insured, as a result of bodily injury * * *' The policy is expressly made applicable to 'occurrences, except those caused intentionally by or at the direction of the insured, * * * with respect to owned automobiles * * *' An 'owned automobile' is defined as 'a land motor vehicle, trailer or semi-trailer and its equipment and other equipment permanently attached thereto' which shall be 'registered to or newly acquired by the named insured.' The insurer promises that where insurance is 'afforded by the other terms of this policy,' it will 'conduct whatever investigation is necessary, negotiate settlements and defend or settle suits filed against the insured'; and 'pay all costs for investigation and litigation of claims or suits filed against the insured * * *' The policy further provides that 'Such insurance as is afforded by this policy shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the existence, ownership, maintenance or use of any automobile during the policy period, to the extent of the coverage and limits of liability required by such law.'
In the light of the provisions above set forth, the policy does extend coverage to permissive users of trucks owned by Miles & Sons, the named insured. Vehicle Code, section 16451, subdivision (b), a part of the Financial Responsibility Law, requires that 'An owner's policy of liability insurance shall: * * * [i]nsure the person named therein and any other person, as insured, using any described motor vehicle with the express or implied permission of said assured, against loss from the liability imposed by law for damages arising out of ownership, maintenance, or use of such motor vehicle * * *.' This statute must be considered a part of every policy of liability insurance even though the policy itself does not specifically so provide. (Wildman v. Government Employees' Ins. Co. (1957) 48 Cal.2d 31, 39-40, 307 P.2d 359; Bonfils v. Pacific Automobile Ins. Co. (1958) 165 Cal.App.2d 152, 156-158, 331 [217 Cal.App.2d 407] P.2d 766.) 1 We are satisfied that appellants, being permissive users of a Miles & Sons truck at the time of the accident, were additional insureds under the policy.
Respondent contends, however, that the 'exclusions' portion of the policy specifically provides that the policy is not applicable 'to any liability arising out of any bodily injury * * * of any employee of the insured if such occurrence...
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