Grunfeld v. Pacific Auto. Ins. Co.

• Decision Date: 02 February 1965
• Citation: 42 Cal.Rptr. 516,232 Cal.App.2d 4
• Court: California Court of Appeals Court of Appeals
• Parties: Morris GRUNFELD and Theresa Grunfeld, Plaintiffs and Respondents, v. PACIFIC AUTOMOBILE INSURANCE COMPANY, a California corporation, Defendant and Appellant. Civ. 27652.

Page 516

42 Cal.Rptr. 516

232 Cal.App.2d 4

Morris GRUNFELD and Theresa Grunfeld, Plaintiffs and Respondents, v. PACIFIC AUTOMOBILE INSURANCE COMPANY, a California corporation, Defendant and Appellant.

Civ. 27652.

District Court of Appeal, Second District, Division 1, California.

Feb. 2, 1965.

Parker, Stanbury, McGee, Peckham & Garrett, and B. E. Atkisson, Los Angeles, for appellant.

Walter Davis, Redondo Beach, for respondents.

FOURT, Justice.

This is an appeal from a judgment wherein the court held in effect that plaintiffs were entitled to collect certain amounts from defendant under the uninsured motorist provisions of certain insurance policies.

The case was submitted to the trial court upon the complaint, the answer, the pretrial statement and a replica of parts of the policy of insurance in question. Findings of fact and conclusions of law were made in part, and, in part, are set forth in a footnote. ¹

The issue here is substantially the same as that involved in Kirby v. Ohio, Cas. Ins. Co., Cal.App., 42 Cal.Rptr. 509, namely, are plaintiffs entitled to recover under their own policy of insurance with defendant company, the difference between the amount received under the Glick policy and the full value of their damages for injuries up to the limits of their policy with defendant Pacific Company.

The rights of the parties are to be determined by the terms of their policy of insurance provided such policy grants benefits equal to or greater than is stated in the Uninsured Motorist Act and by the terms of the Act just referred to as of the date of the issuance of the policy. (Hendricks v. Meritplan Ins. Co., 205 Cal.App.2d 133, 22 Cal.Rptr. 682; Interinsurance Exchange, etc. v. Ohio Cas. Ins. Co., 58 Cal.2d 143, 23 Cal.Rptr. 592, 373 P.2d 640; Lewis v. Fidelity & Cas. Co., 207 Cal.App.2d 160, 24 Cal.Rptr. 388; White v. Farmers Ins. Exchange, 207 Cal.App.2d 667, 24 Cal.Rptr. 755; Voris v. Pacific Indemnity Co., 213 Cal.App.2d 29, 28 Cal.Rptr. 328; Wildman v. Government Employees' Ins. Co., 48 Cal.2d 31, 307 P.2d 359.)

The controlling legislative enactment here is Insurance Code, section 11580.2, as enacted in Statutes 1959, chapter 817, page 2835, as distinguished from the 1961 Act which became effective September 15, 1961. The Code provided for certain exemptions, in part as follows:

'(c) Exemptions. The insurance coverage provided for in this section does not apply:

'* * *

'(2) To bodily injury of the insured while in or upon or while entering into or alighting from an automobile other than the described automobile if the owner thereof has insurance similar to that provided in this section.'

The Pacific policy provided in part:

"Family Protection (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.'

'* * * With respect to bodily injury to an insured while occupying an automobile not owned by the named insured the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability or this Part exceeds the sum of the applicable limits of liability of all such other insurance.'

The plaintiffs, as heretofore indicated, were injured while riding in an automobile other than the automobile described in their policy of insurance issued by the defendant company. The owner and driver of the car in which plaintiffs were riding had an insurance policy containing uninsured motorist coverage provisions under which the plaintiffs were insured within certain specified limits. It would seem clear under the circumstances and the plain language of the policies that the statutory coverage, that is, that which is implied by law did not apply in this case.

It is readily apparent that plaintiffs' claim is based upon a contract between themselves and defendant insurance company. The company has a right within the confines of the statute in question to write a policy which is limited to certain specified and particular situations. Such limitations ought to be respected if legal. (Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d 423, 432, 296 P.2d 801, 57 A.L.R.2d 914.)

There was available to plaintiffs in this case other 'similar insurance' namely, the coverage under the Glick policy. The Glick policy and the Pacific policy each provided for limits of liability of $10,000.00 for one person and $20,000.00 for one accident. The applicable limits of liability of the uninsured motorist coverage of the Pacific policy did not exceed the 'applicable limits of liability of all such other insurance' and as a consequence there is no uninsured motorist protection available to plaintiffs from the Pacific policy.

Substantially the same question was determined in Travelers Indemnity Co. of Hartford, Conn. v. Wells, 316 F.2d 770, 4th Circuit of Appeals, decided April 22, 1963. The court there held that 'the provision is too inexplicit to give footing for stretching the uninsured endorsement beyond its terms.' (P. 774.) Likewise, the Supreme Court of Iowa in Burcham v. Farmers Insurance Exchange, 255 Iowa 69, 121 N.W.2d 500 (May 7, 1963) has held substantially as we here hold under a similar situation. (See also Globe Indemnity Company v. Baker's Estate, 22 A.D.2d 658, 253 N.Y.S.2d 170.)

The judgment is reversed with instructions to enter a judgment declaring, in effect, that defendant Pacific Automobile Insurance Company under the circumstances as here presented has no liability to plaintiffs under the uninsured motorist provision of the policy of insurance issued by Pacific Automobile Insurance Company to plaintiffs.

WOOD, P. J., and LILLIE, J., concur.

1 'FINDINGS OF FACT

'The Court finds:

'1. At all times mentioned in the complaint plaintiffs were husband and wife.

'2. On July 26, 1961, defendant Pacific Automobile Insurance Company, a California corporation, issued to plaintiffs its policy of public liability insurance entitled 'Family Combination Automobile Policy' being Number F182122, hereinafter referred to as the 'Pacific' policy.

'3. Said Pacific policy contains a provision entitled 'Family...