Hartford Accident & Indem. Co. v. Civil Service Employees Ins. Co.

• Decision Date: 20 June 1973
• Citation: 108 Cal.Rptr. 737,33 Cal.App.3d 26
• Court: California Court of Appeals Court of Appeals
• Parties: HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff and Appellant, v. CIVIL SERVICE EMPLOYEES INSURANCE COMPANY, Defendant and Respondent. Civ. 13345.

Page 737

108 Cal.Rptr. 737

33 Cal.App.3d 26

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff and Appellant, v. CIVIL SERVICE EMPLOYEES INSURANCE COMPANY, Defendant and Respondent.

Civ. 13345.

Court of Appeal, Third District, California.

June 20, 1973.

Hearing Denied Aug. 16, 1973.

[33 Cal.App.3d 28] Clyde Small, Redding, for plaintiff and appellant.

Coshow & Barr, Redding, for defendant and respondent.

JANES, Associate Justice.

This appeal involves a coverage dispute between a homeowners insurance carrier (plaintiff; hereinafter, 'Hartford') and and automobile insurance carrier (defendant; 'Civil Service').

The matter came before us upon a somewhat inconclusive record. At the heart of the dispute is a claim made by Mrs. Elizabeth Ehrenburg that she suffered personal injury on October 24, 1966. As we hereafter show, her claim was settled by Hartford prior to trial, hence there has been no finding as to the facts underlying her claim. The coverage dispute was submitted to the trial court upon an agreed statement which recited inter alia that Mrs. Ehrenburg Alleged to have been injured in the manner hereinafter described. The judgment from which plaintiff appeals was entered on findings which did not determine how (or whether) Mrs. Ehrenburg was injured; in this respect, the findings merely reiterated her allegations of the fact and manner of her injury. At oral argument in this court, however, counsel stipulated that Mrs. Ehrenburg suffered an injury in the manner and of the type alleged by her, and as more specifically described in depositions which are a part of the record on appeal. Our summary of the events of Mrs. Ehrenburg's injury is taken from the agreed statement as thus explanded by the stipulation.

I. THE RECORD

On the evening of October 24, 1966, Mrs. William Morrison parked her fourdoor sedan in front of her Redding home, and a guest passenger--Mrs. Elizabeth Ehrenburg--started to alight from the stopped car. The Morrisons' male scottie dog had been riding in the back seat; Mrs. Morrison usually took the dog with her in the automobile when she drove at night. While still sitting in the right front seat, Mrs. Ehrenburg started to open the door in order to alight from the car. As she did so, the dog jumped from the back seat onto the front seat and over Mrs. Ehrenburg's right shoulder, biting Mrs. Ehrenburg beside the right eye and on her right arm as he climbed over the seat in an attempt to get out of the car.

Under a homeowners policy in force on the date in question, Hartford insured Mr. and Mrs. Morrison (and agreed to defend them) against liability for bodily injury ¹ arising out of the ownership, occupation, and use of their residence, including the operation, maintenance, and use of automobiles on their premises or on the ways immediately adjoining. The 'other insurance' clause in Hartford's policy provided, however, that 'with respect to loss Arising out of the ownership, maintenance, operation, use, loading or unloading of . . . any automobile . . . at the premises or the ways immediately adjoining . . ., this insurance shall not apply to the extent that any valid and collectible insurance, whether on a primary, excess or contingent basis, is available to the Insured.' (Emphasis added.) The applicable limit of the Hartford policy was $25,000. ²

At the same time, under a standard automobile policy with an applicable limit of $10,000, ³ Civil Service insured Mrs. Morrison Mrs. Ehrenburg subsequently sued Mr. and Mrs. Morrison, seeking damages for the personal injury caused to her by their dog. ⁴ Hartford, on its own behalf and on behalf of the Morrisons, notified Civil Service 'of the claim and the suit' (we quote the findings) and tendered the defense of the Morrisons to Civil Service. Civil Service refused the tender. Thereafter, having furnished a defense to the Morrisons, Hartford paid Mrs. Ehrenburg $15,000 in full settlement of her claim. Hartford and Civil Service stipulated--and the trial court found--that Hartford acted reasonably and in good faith in negotiating and consummating the settlement and in making the payment of $15,000. ⁵ Hartford subsequently commenced the present action against Civil Service, seeking indemnification of the $15,000 as well as reimbursement of Hartford's costs and expenses in defending against the Ehrenburg claim. ⁶

and her husband (a co-owner of the car) against liability for 'bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by [33 Cal.App.3d 30] any person, caused by accident and Arising out of the ownership, maintenance or use of the automobile.' (Emphasis added.) Civil Service further undertook therein to 'defend any suit against the insured alleging such injury, sickness, (or) disease . . . and seeking damages on account thereof, even if such suit is groundless, false or fraudulent. . . .' In regard to losses within the coverage here described, the 'other insurance' clause in the Civil Service policy provided for proration with other 'valid and collectible' insurance but did not purport to be excess insurance.

II. THE ISSUE

The trial court adjudged that Civil Service had no duty either to defend the Morrisons in the Ehrenburg suit or to indemnify Hartford for its outlays therein. The judgment reflects the court's express determination that, contrary to Hartford's contention, Mrs. Ehrenburg's injury was not one 'arising out of the . . . use' of the Morrisons' automobile, within the meaning of the two policies, but rather that the incident 'occurred as a result of the ownership of a dog.'

Although the issue is not free of difficulty, we are of the opinion that the trial court erred.

3] In determining whether the events of the accident were within the coverage of the Civil Service policy, that policy must be considered alone as though the Morrisons had no other insurance available. (Monolith Portland Cement Co. v. American Home Assur. Co. (1969) 273 Cal.App.2d 115, 123, 78 Cal.Rptr. 113; Universal Underwriters Ins. Co. v. Aetna '6] In deciding whether peripheral activity involving a vehicle amounts to a 'use,' the courts follow the rule that uncertainties in policy language are construed in favor of imposing liability on the insurer; hence, that 'use' must be understood in its most comprehensive sense. The term is not confined to motion on the highway, but extends to any activity in utilizing the insured vehicle in the manner intended or contemplated by the insured.' (Pacific Indem. Co. v. Truck Ins. Exch. (1969) 270 Cal.App.2d 700, 703, 76 Cal.Rptr. 281, 283.) (Fns. omitted.) '(T)he acts coming within such use are not necessarily those arising out of or related to the Operation of the vehicle.' (Glens Falls Ins. Co. v. Consolidated Freightways (1966) 242 Cal.App.2d 774, 783, 51 Cal.Rptr. 789, 796.) (Original emphasis.) The word 'use' may apply though the insured vehicle is at rest. (St. Paul Fire & Marine Ins. Co. v. Hartford Acc. & Indem. Co. (1966) 244 Cal.App.2d 826, 831, 53 Cal.Rptr. 650.)

Ins. Co. (1967) 249 Cal.App.2d 144, 148--149, 57 Cal.Rptr. 240.) 'If the insurer uses language which is uncertain any reasonable doubt will be resolved against it; if the doubt relates to extent or fact of coverage, . . . (such) as to peril insured against . . ., the language will be understood in its most inclusive sense, for the benefit of the insured.' (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 437--438, 296 P.2d 801, 809--810; see also, Universal Underwriters Ins. Co. v. Aetna Ins. Co., supra.) We must ascertain 'that meaning of the contract which the insured would reasonably expect.' (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 270, 54 Cal.Rptr. 104, 108, 419 P.2d 168, 172.)

,8] The concept of loss Arising out of the use of an insured vehicle 'imports some kind of sequential relationship between the vehicle and the accident. The decisions posit varying descriptions of this relationship. One is that the vehicle need not be the proximate cause of the injury in the legal sense, but 'the events giving rise to the claim must arise out of, and be related to, its use.' Another is that the injury be a 'natural and reasonable incident or consequence of the use of the (automobile) for the purposes shown by the declarations . . . (and not) directly caused by some independent act, or intervening cause wholly disassociated from, independent of and remote from the use of the (automobile).' The phrase 'arising out of' is equated with origination, growth or flow from the event.' (Pacific Indem. Co. v. Truck Ins. Exch., supra, 270 Cal.App.2d at p. 704, 76 Cal.Rptr. at p. 283 (fns. omitted); see also, International Business Machines Corp. v. Truck Ins. Exch. (1970) 2 Cal.3d 1026, 1031, fn. 6, 89 Cal.Rptr. 615, 474 P.2d 431.

9] The transportation of household pets in family cars is commonplace. In the case at bench, the fact that the scottie was riding in the Morrisons' automobile clearly involved a 'use' of that vehicle. In National Indemnity Co. v. Corbo (Fla.App.1971) 248 So.2d 238, in a case of nation-wide first impression, the court held that the plaintiff's injury arose out of the use of the insured's automobile where the plaintiff-a guest passenger--was bitten in the parked car by the insured's watchdog while the car was transporting the dog to the insured's place of business. In so holding, the Florida court relied on the proposition that 'arising out of' is a phrase of much broader significance than 'caused by,' and is ordinarily understood to mean 'incident to, or having connection with' the use of the car. (Id. at p. 240.)

The biting of Mrs. Ehrenburg presents as strong a case for coverage as did the facts in National Indemnity Co. v. Corbo, supra, 248 So.2d 238, for here the injury occurred while the Morrisons' dog was trying to get out of the car.

0,11] The 'use' of a vehicle includes its loading and unloading, even though, as in the Civil Service policy in ...