Cannizzo v. Guarantee Ins. Co.
| Decision Date | 21 September 1966 |
| Citation | 53 Cal.Rptr. 657,245 Cal.App.2d 70 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Joseph J. CANNIZZO, Plaintiff and Respondent, v. GUARANTEE INSURANCE COMPANY, Defendant and Appellant. Civ. 23152. |
Field, DeGoff & Rieman, Gayle M. Plummer, San Francisco, for appellant.
Rinaldo A. Carmazzi, San Francisco, for respondent.
On this appeal by Guarantee Insurance Company, hereafter appellant, from an order denying its motion for an order after judgment, the sole question presented is whether section 11580.2, subdivision (g) of the Insurance Code, entitles appellant to a setoff for payments made to its insured, respondent, under the medical payments provision of the policy against an award made under the uninsured motorist provision of that policy when there is no specific language in the policy providing for such setoff.
The appeal is on an agreed statement which sets forth the following: Sometime after September 15, 1961 (the effective date of section 11580.2, subdivision (g) of the Insurance Code), appellant issued to respondent an insurance policy that was in full force and effect on January 9, 1964, the date of respondent's accident with an uninsured motorist. Part II of the policy provided for medical payment coverage in the amount of $2,000, and Part IV for uninsured motorist coverage. Appellant paid $2,000 to respondent pursuant to the medical payments provision. Thereafter, a dispute arose between the parties as to the amount due to respondent under the uninsured motorist provision. The matter was submitted to an arbitrator who made an award calculated as follows: loss of wages $1,642.88, medical expenses $1,940.79, and general damages $3,916.33, a total of $7,500 plus $30 costs. On respondent's petition, the award was confirmed by the superior court without prejudice to appellant to pursue its claims for a the total amount fo the judgment plus setoff. To date, appellant has paid $5,530, the total amount of the judgment plus costs, less the claimed $2,000 setoff. This appellant's motion for an order after judgment to compel respondent to execute and acknowledge satisfaction of the judgment, or in the alternative, an order for entry of satisfaction without execution.
The only question presented is whether appellant is entitled to a setoff against its uninsured motorist's liability for the payments made to respondent under medical coverage even though there is no specific provision for such setoff in the policy. The pertinent portions of section 11580.2 of the Insurance Code are set forth in a footnote. 1
The Legislature has used the words 'shall' and 'may' at various places throughout this section. Well-recognized rules of statutory construction establish that while the word 'shall' connotes Mandatory action, the word 'may' indicated Permissiveness (§ 14, Gov.Code; National Automobile etc. Co. v. Garrison, 76 Cal.App.2d 415, 173 P.2d 67). Thus where the code section states that the insured coverage 'may be reduced' by the amount of medical payments made to the assured, it simply means that such a reduction is a matter to be determined between the insurance company and its assured. It follows that since there is no mention of the medical deduction in the insurance policy, it cannot be allowed.
It would appear from the terms of the policy itself that the appellant company recognized the necessity of specifically providing therein for any exceptions or exclusions Permitted by the code. The uninsured motorist provision of the policy provided that (Emphasis supplied.) These are the exact words of the statute but for the substitution of the word 'shall' for 'may.' It is noteworthy that the policy contained no such exception as to medical payments.
The rights of the parties are to be determined by the terms of their policy provided it grants benefits equal to or greater than those required by the statute (Grunfeld v. Pacific Auto. Ins. Co., 232 Cal.App.2d 4, 6, 42 Cal.Rptr. 516). The rule is that the exclusions and exceptions are construed strictly against the insurer and liberally in favor of the insured (Hendricks v. Meritplan Ins. Co., 205 Cal.App.2d 133, 22 Cal.Rptr. 682). The insured pays a separate premium for the uninsured motorist coverage and may wish to waive the coverage rather...
To continue reading
Request your trial
-
Hogya v. Superior Court
...them their ordinary meanings (National Automobile etc. Co. v. Garrison, 76 Cal.App.2d 415, 417, 173 P.2d 67; Cannizzo v. Guarantee Ins. Co., 245 Cal.App.2d 70, 73, 53 Cal.Rptr. 657).9 The difference in meaning is sometimes overlooked (see Reed, Legislating for the Consumer: An Insider's Ana......
-
Sciranko v. Fidelity & Guar. Life Ins. Co.
...generous than that which is required by state law and otherwise comports with public policy. See, e.g., Cannizzo v. Guar. Ins. Co., 245 Cal.App.2d 70, 73, 53 Cal.Rptr. 657, 659 (966); Clement v. Atl. Cas. Ins. Co., 25 N.J.Super. 96, 103, 95 A.2d 494, 498 (1953); Liljestrand v. State Farm Mu......
-
Lemrick v. Grinnell Mut. Reinsurance Co., 60317
...of such insurance as medical payments. An appropriate implementing paragraph in the policy is essential. Cannizzo v. Guarantee Ins. Co., 245 Cal.App.2d 70, 53 Cal.Rptr. 657. Each of the present three claims is like the first situation, that is, the insured has damage of at least $10,000 abo......
-
Walters v. Marler
...an insurer to indemnify is determined, measured, and limited by the terms of the insurance contract (see Cannizzo v. Guarantee Ins. Co. (1966) 245 Cal.App.2d 70, 73, 53 Cal.Rptr. 657), and depends upon an ultimate adjudication of coverage. (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263,......