Holland v. Universal Underwriters Ins. Co.

• Decision Date: 05 March 1969
• Citation: 270 Cal.App.2d 417,75 Cal.Rptr. 669
• Parties: Loren H. HOLLAND, John L. Holland, a minor, by Loren H. Holland, Guardian ad Litem, Plaintiffs and Appellants, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation, and Logan P. Mann, Defendants and Respondents. Civ. 32373.
• Court: California Court of Appeals Court of Appeals

Page 669

75 Cal.Rptr. 669

270 Cal.App.2d 417

Loren H. HOLLAND, John L. Holland, a minor, by Loren H. Holland, Guardian ad Litem, Plaintiffs and Appellants, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation, and Logan P. Mann, Defendants and Respondents.

Civ. 32373.

Court of Appeal, Second District, Division 5, California.

March 5, 1969.

Hearing Denied April 30, 1969.

Daniel J. DeNorch, Inglewood, Reilly & Holzhauer, Los Angeles, for plaintiffs and appellants.

Ruston & Nance, Donald A. Ruston, Fullerton, for defendants and respondents.

KAUS, Presiding Justice.

Plaintiff, a minor, appeals from a judgment declaring that a certain liability policy issued to him by the defendant Universal Underwriters Insurance Company ('Universal') does not include uninsured motorist coverage. (Ins. Code § 11580.2)

The facts are quite simple. Plaintiff, then sixteen years old, purchased a motorcycle from one Darby, who was the owner of B & D Enterprises. At that time he signed an application for insurance. The application form shows two of plaintiff's signatures. The upper signature appears in the middle of the page, below a schedule which sets forth a premium of $55.00 for a 'combination policy.' A combination policy is elsewhere described as one which provides liability, collision, fire and theft protection for twelve months. At the bottom of the page, in heavy print, there appears the following:

'NOTE: Uninsured Motorist Coverage is NOT REQUIRED to satisfy the Financial Responsibility Law and you may elect, if you wish, to avoid this additional premium charge by signing below in the space provided.

'If you do not sign below it will be necessary for you to add $15.00 annual charge to above premiums if you have applied for liability coverages.

'In consideration of the issuance of this policy without an additional premium charge, I hereby request that Uninsured Motorist Coverage not be added to my liability policy: /s/ John L. Holland.'

There is a conflict in the evidence with respect to whether or not the blanks in the form were filled out at the time plaintiff signed the application. To the extent that this conflict may be relevant to the resolution of any of the problems presented, it was impliedly settled against plaintiff who made no request for special findings. (Code Civ.Proc. § 634.)

On appeal plaintiff advances three contentions:

1. Uninsured motorist coverage was not deleted from the policy;

2. If such coverage was deleted, the agreement deleting it can be disaffirmed by a minor under eighteen; and

3. The trial court did not find on all issues tendered to it by the pleadings.

None of these contentions have merit.

I.

The application for insurance was signed by the minor. The policy that was eventually delivered to him was signed by a representative of Universal. In the box on the face of the policy where a premium charge for uninsured motorist coverage would generally be shown, there is a stamp: 'WAIVED BY SEPARATE AGREEMENT.' Attached to the policy is an endorsement reading as follows: 'In consideration of this policy having been issued without a premium charge for Family Protection Coverage, the named insured and the Company, in accordance with the provision of Section 11580.2(a) of the California Insurance Code which permits the insured and the Company so to agree, do agree that the provision of this policy covering damages for bodily injury which the insured may be entitled to recover from the owner or operator of an uninsured motor vehicle has been waived by a separate agreement and such policy provision is void and of no effect. / s/ Logan P. Mann Authorized Representative.'

This, we think, is adequate compliance with the statutory provision that '(t) he insurer and any named insured may by agreement in writing delete the provision covering damage caused by an uninsured motor vehicle.' (Ins. Code § 11580.2(a).)

Plaintiff argues that there is no single writing signed by the insurer and the insured. No such requirement is in the statute. In Weatherford v. Northwestern etc. Ins. Co., 239 Cal.App.2d 567, 49 Cal.Rptr. 22, the insurer, on April 2, 1962, issued a policy which provided uninsured motorist coverage. On April 27 one of the insureds sent a letter to the insurer authorizing it to delete the coverage. The company then issued a written endorsement, signed by one of its agents, deleting the coverage from the policy. Although the precise argument now made was not advanced on appeal in the Weatherford case, we find it persuasive against plaintiff's contention. There is no magic in having all signatures on the same document.

Plaintiff also argues that the statute requires that the uninsured motorist coverage be 'deleted' rather than not included in the first place. This, with all respect, seems a quibble. It is true that there is a strong policy in favor of the coverage (Mission Ins. Co. v. Brown, 63 Cal.2d 508, 510, 47 Cal.Rptr. 363, 407 P.2d 275), and it is also true that Universal was not exactly pushing it, at least as far as its motorcycle liability policies were concerned, but no conceivable reason appears why the coverage should first be put in the policy and then, in some fashion, deleted. In fact, in those cases where the coverage is provided by operation of law, it would be impossible to do so.

The precise point now advanced was decided in Myers v. National Automobile & Cas. Ins. Co., 252 Cal.App.2d 599, 603, 60 Cal.Rptr. 743, 746: 'National argues in effect that the agreement to delete the uninsured motorist provision can be made only after a policy has been issued providing for the coverage.

'Webster's New International Dictionary (2d ed.) gives these definitions of 'delete': 'to obliterate or blot out; erase; expunge; dele.' 'Dele' is defined as meaning 'To erase; cancel; delete, mark for omission.'

'It would be strained construction of the statute to hold that an applicant for insurance could not voluntarily and understandingly in his written application 'mark for omission' this provision of a policy, the deletion of which is permitted by law. Whether he has done so is a matter of fact.'

II.

Plaintiff claims that, as a minor, he has the power to disaffirm the agreement deleting the uninsured motorist coverage. (Civ.Code § 35.) Although the argument is couched in terms of disaffirmance, what it really amounts to is a contention that uninsured motorist coverage cannot be effectively deleted from a policy issued to a minor: if plaintiff is correct, what minor would fail to disaffirm after an accident with an uninsured motorist?

Plaintiff is aware of the equitable principle that minors, if they would disaffirm a contract, must disaffirm the entire contract, not just the irksome...