Insurance Co. of North America v. U.S. Fire Ins. Co.
| Decision Date | 05 September 1973 |
| Citation | 110 Cal.Rptr. 48,34 Cal.App.3d 391 |
| Court | California Court of Appeals Court of Appeals |
| Parties | INSURANCE COMPANY OF NORTH AMERICA, Plaintiff, Cross-Defendant and Appellant, v. U.S. FIRE INSURANCE COMPANY, Defendant, Cross-Complainant and Respondent, Del Monte Properties Co. et al., Cross-Defendants and Appellants. Civ. 32451. |
Popelka, Allard, Humphreys, Williams & Stenberg, Dean E. Stenberg, San Jose, for appellant.
Bledsoe, Smith, Cathcart, Johnson & Rogers, Robert A. Seligson, San Francisco, for respondent.
On September 12, 1969, appellant Insurance Company of North America filed a complaint for declaratory relief against respondent U.S. Fire Insurance Company, to determine the rights and duties of the two insurers towards various defendants in a personal injury action (S.F. Civil No. 579750) which had been concluded by judgment. Appellant contended that it was not responsible for payment of any of the judgment, attorneys' fees, court costs or expenses involved in the personal injury action on the basis that the insurance coverage provided by respondent was primary. On January 15, 1970, respondent filed an answer and cross-complaint seeking contribution, pursuant to Code of Civil Procedure sections 875 and 876, of payments it had made in excess of what it claimed to be its pro rata one-third share of liability in the personal injury action. The cause came on regularly for trial to the court on August 5, 1970, wherein the parties submitted an agreed statement of facts and argued the legal issues. On June 14, 1971, the trial court filed its memorandum of decision in favor of respondent on both the complaint and the cross-complaint. On February 24, 1972, pursuant to findings of fact and conclusions of law, the trial court filed its judgment.
The following facts were agreed upon by the parties:
On January 21, 1967, one Lana Jean Turner, a minor, was riding on a motorized cable car owned by Cable Car Advertisers, Inc. (hereafter 'Cable Car'), and operated by its employee, one Abraham Ettin. The cable car was being operated on property owned by Del Monte Properties, Inc. (hereafter 'Del Monte'), in connection with a golf tournament sponsored by the Crosby Tournament Committee (hereafter 'Crosby'), which had made arrangements with Cable Car for said operation of the cable car. The operation of the cable car was conducted with the knowledge, consent and permission of Cable Car, Del Monte and Crosby. The route over which the cable car was being operated had been selected by Del Monte and was under the control of Del Monte and Crosby. During the course of its operation by Ettin, the cable car struck a tree on the Del Monte property, as a result of which Turner fell and was injured.
Turner sued, among others, Cable Car, Ettin, Del Monte and Crosby, charging them with acting jointly and in concert and with negligence in the manner in which they owned, operated and controlled the cable car, and in the manner in which they maintained and controlled the roadway. On May 1, 1969, the jury returned its verdict in favor of Turner and against defendants Cable Car, Ettin, Del Monte and Crosby, in the amount of $500,000. The jury answered special interrogatories finding both Del Monte and Crosby liable (1) as principals for the negligence of their agents Cable Car and Ettin, and (2) because of independent negligence.
Subsequent to the entry of judgment, appellant and respondent each paid $253,804.33, which was fifty percent of the judgment plus costs and interest thereon. 1 The payments were made pursuant to an agreement that such payments were without prejudice to whatever rights either insurance company might have to seek reimbursement from the other.
According to the agreed facts and to the findings of fact, Ettin was an employee of Cable Car and was operating the cable car. Crosby had made arrangements with Cable Car for the cable car to be operated in connection with a golf tournament Crosby was sponsoring on property owned by Del Monte. The cable car was being operated with the knowledge, consent and permission of Cable Car, Del Monte and Crosby. The jury in the original action found Del Monte and Crosby liable as principals of Cable Car and Ettin.
Respondent's policy furnishes coverage to the named insured, Cable Car, for damages arising out of the ownership, maintenance or use of any automobile. The named insured includes any person using an owned automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. Cable Car and Ettin were covered by respondent's policy since Cable Car was the named insured and Ettin was its employee. With respect to Del Monte and Crosby, they may be considered covered under the extended definition of 'named insured.' Alternatively, respondent's policy was one issued to an owner, and the provisions required by Insurance Code section 11580.1 must be contained within it. Del Monte and Crosby are others 'legally responsible for the use of' the motion vehicle and had the permission of Cable Car. (Ins.Code, § 11580.1, subd. (d).) Thus respondent's policy is required to cover Del Monte and Crosby for liability arising out of the ownership, maintenance or use of the cable car. (Ins.Code, § 11580.1.)
Respondent then seems to be liable for the full amount of the judgment. However, the jury found Del Monte and Crosby to have been independently negligent, irrespective of the manner in which the cable car was operated.
The jury in the underlying action answered special interrogatories finding that Del Monte and Crosby were liable not only as principals for the negligence of their agents Cable Car and Ettin, but also because of independent negligence. The only independent negligence with which Del Monte and Crosby had been charged in the complaint was for the manner in which they maintained and controlled the roadway over which the cable car was operated. Thus it may be considered that the independent negligence found by the jury was for the maintenance and control of the roadway. The trial court adopted this same reasoning, and then made its conclusions of law. 2
The trial court's reasoning was correct. Interpretation of the liability insurance policies' contracts is a matter of law for this court. (Argonaut Ins. Co. v. Transport Indem. Co., 6 Cal.3d 496, 502, 99 Cal.Rptr. 617, 492 P.2d 673.) A reading of the policies reveals that appellant insured Del Monte for damages because of bodily injury jury arising out of Appellant also insured Crosby generally for damages due to bodily injury. Both of these policies thus include coverage for negligent maintenance and control of the roadway. No coverage for such negligence by Del Monte or Crosby is provided by respondent's policy.
Code of Civil Procedure section 875 provides: ...
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