Interinsurance Exchange v. Alcivar

• Decision Date: 24 July 1979
• Citation: 156 Cal.Rptr. 914,95 Cal.App.3d 252
• Court: California Court of Appeals Court of Appeals
• Parties: INTERINSURANCE EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, an Interinsurance Exchange, Plaintiff and Appellant, v. Gabriel ALCIVAR, Myrna Alcivar, and Olga Grebien-Samkow, Defendants and Respondents. Civ. 54602.

Page 914

156 Cal.Rptr. 914

95 Cal.App.3d 252

INTERINSURANCE EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, an Interinsurance Exchange, Plaintiff and Appellant, v. Gabriel ALCIVAR, Myrna Alcivar, and Olga Grebien-Samkow, Defendants and Respondents.

Civ. 54602.

Court of Appeal, Second District, Division 3, California.

July 24, 1979.

Chris S. Rellas, Horvitz, Greines & Poster, Marc J. Poster, and Barry R. Levy, Los Angeles, for plaintiff and appellant.

No appearance by defendants and respondents Gabriel Alcivar and Myrna Alcivar.

Volodar S. Kuzyk and Joseph B. Alexander, Los Angeles, for defendant and respondent Olga Grebien-Samkow.

POTTER, Acting Presiding Justice.

Plaintiff, Interinsurance Exchange of the Automobile Club of Southern California, appeals from an adverse judgment rendered in its declaratory relief action against defendants Gabriel Alcivar, Myrna Alcivar, and Olga Samkow. The judgment declares that Myrna Alcivar and Olga Samkow "are entitled to uninsured motorist coverage benefits under their insurance policies issued by plaintiff."

The facts are not in dispute. Myrna Alcivar and Olga Samkow sustained personal injuries in a collision between an automobile driven by Emilia Samkow and another vehicle driven by John Udell. Both drivers were negligent. Udell and his vehicle were uninsured. Emilia Samkow and her automobile were insured by Farmers Insurance Company under a policy (hereinafter Farmers policy) which provided personal injury and uninsured motorist coverage each with policy limits of $15,000 on account of injury to any one person, and $30,000 on account of personal injury arising out of any one accident. Emilia Samkow and two other passengers also sustained injuries.

Farmers filed its complaint in intervention setting forth the above facts concerning the coverage and deposited a total of $60,000 in satisfaction of its obligation under the policy. The deposited funds were distributed pursuant to a stipulation between the parties to the interpleader action. After a deduction of $250 for Farmers' court costs and fees, the funds were distributed 50 percent ($29,875) to Olga Samkow, 20.8334 percent ($12,447.96) to Emilia Samkow, 25 percent ($14,937.50) to Myrna Alcivar, and the remainder to the two other passengers in the insured vehicle. The stipulated judgment in the interpleader action expressly provided that "the money awarded to Olga Samkow is entirely from the liability portion of the Farmers' policy and the money awarded to the other claimants is entirely from the uninsured motorist portion of said policy."

The damages sustained by defendant Olga Samkow exceeded the sum of $29,875 received by her and the damages suffered by defendant Myrna Alcivar exceeded the sum of $14,937.50 received by her.

Defendants Olga Samkow and Myrna Alcivar each were insured under separate policies by plaintiff. Both of these policies contained uninsured motorist coverage with policy limits of $15,000 per person and $30,000 per accident as required by Insurance Code section 11580.2. ¹

Both of the policies issued by plaintiff also contained a provision as follows:

"IV: (a) With respect to bodily injury to any insured while occupying an automobile other than an automobile described in the declarations, the insurance afforded by this Part shall not apply if the owner of such automobile has insurance similar to that provided by this Part; . . ."

This provision was expressly authorized by section 11580.2, subdivision (c) (2).

Defendants Alcivar and Samkow each claimed that they were entitled to uninsured motorist coverage under the policies issued by plaintiff. The complaint sought a declaration that said policies did not afford coverage to the defendants for their injuries sustained while passengers in the vehicle which was covered by the Farmers policy.

After finding the facts as above stated, the trial court made further "findings" as follows:

"14. The issue involved narrowly is whether the fact that when the Farmers' policy has paid the full policy limits and there is remaining damages, is there 'other insurance' within the meaning of the exclusion clause and the Insurance Code.

"15. This Court finds that there is no 'other insurance' within the meaning of the clauses of the policies issued by plaintiff nor Insurance Code Section 11580.2(c)(2)."

From these "findings," the court concluded:

"1. The reasoning and decision in Security National Insurance Co. v. Hand, 31 Cal.App.3d 227, 107 Cal.Rptr. 439 are controlling.

"2. Defendants are entitled to a judgment declaring they are entitled to UMC benefits under their insurance policies issued by plaintiff."

Contentions

Plaintiff contends that (1) under the express terms of its policies, defendants were expressly excluded from uninsured motorist coverage while in an automobile not described in the policy which had uninsured motorist coverage similar to that provided by defendants' policies, and (2) the fact that the proceeds of the uninsured motorist coverage of such nondescribed automobile were inadequate to fully compensate defendants for their injuries does not negate such exclusion.

Defendant Olga Samkow ² contends that (1) the trial court correctly concluded that there was no "other insurance" because she had "no available uninsured motorist coverage other than her own" and " 'received' no uninsured motorist proceeds whatsoever," and (2) the "public policy of the remedial statutory arrangement for mandatory UMC protection requires that she be 'made whole.' "

Discussion

Summary

Plaintiff's policies validly withheld uninsured motorist coverage for defendants. They were insureds within the uninsured motorist coverage of the Farmers policy. The uninsured motorist coverage under the Farmers policy was similar to that provided by plaintiff's policies. Uninsured motorist benefits comparable to those which would be payable under plaintiff's policies were paid and received pursuant to the Farmers policy. The fact that these benefits did not fully compensate defendants for their injuries is insufficient to negate the effect of the exclusion. Consequently, the judgment must be reversed.

Plaintiff's Policy Provisions Are Valid and Effective to Withhold Coverage

Plaintiff's policy provision is substantially in the language of the statutory authorization. Section 11580.2, subdivision (c)(2), authorizes provisions that the uninsured motorist coverage shall not apply "(t)o bodily injury of the insured while in . . . an automobile other than the described automobile if the owner thereof has insurance similar to that provided in this section." Plaintiff's policy provision provides with respect to the uninsured motorist coverage that it shall not apply "to bodily injury to any insured while occupying an automobile other than an automobile described in the declarations . . . if the owner of such automobile has insurance similar to that provided by this Part; . . ."

In Darrah v. California State Automobile Assn. (1968) 259 Cal.App.2d 243, 66 Cal.Rptr. 374, policy language substantially identical to that employed by plaintiff was held effective to withhold coverage where the policy covering the occupied vehicle provided uninsured motorist coverage with the same policy limits as those of the policies at issue. In so holding, the court said (Id., at pp. 246-247, 66 Cal.Rptr. at pp. 375-76):

"Furthermore, there can be no doubt of the right of the insurance companies to limit, in accordance with section 11580.2, the coverage of their policies, and when they have done so the plain language of the limitations must be respected. (Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d 423, 432, 296 P.2d 801, 57 A.L.R.2d 914; Hendricks v. Meritplan Ins. Co., 205 Cal.App.2d 133, 137, 22 Cal.Rptr. 682.) And when the terms of an insurance policy are plain and explicit, the court will indulge in no forced construction so as to cast unassumed liability on an insurance company. (Jensen v. Traders & General Ins. Co., 52 Cal.2d 786, 791, 345 P.2d 1; Lewis v. Fidelity & Cas. Co., 207 Cal.App.2d 160, 162, 24 Cal.Rptr. 388.)

"Here the Wheatley and Darrah policies constituted insurance similar to that held by Rehm, the owner of the car occupied by them at the time of the accident. By the plain language of those policies their 'uninsured motorist' provisions did not apply. A similar conclusion was reached in the cases of Phoenix Assur. Co. v. Larsen, 240 Cal.App.2d 94, 50 Cal.Rptr. 111; Kirby v. Ohio Cas. Ins. Co., 232 Cal.App.2d 9, 42 Cal.Rptr. 509; and Grunfeld v. Pacific Auto. Ins. Co., supra, 232 Cal.App.2d 4, 42 Cal.Rptr. 516.

"Wheatley and Darrah recognize that the holdings of Phoenix, supra, Kirby, supra, and Grunfeld, supra, are contrary to their contentions here. They insist, however, that these 'authorities should be overruled because of the court's failure to recognize the ambiguity in the meaning of the term "similar insurance" ' of section 11580.2. We see no ambiguity. The word 'similar' is defined as ' "Nearly corresponding; resembling in many respects; somewhat like; having a general likeness," ' and as ' "having characteristics in common; very much alike; comparable; * * * alike in substance or structure; identical. * * * " ' Plum v. City of Healdsburg, 237 Cal.App.2d 308, 317, 46 Cal.Rptr. 827, 833.)

". . .

"Finally, Wheatley and Darrah insist that we apply the well-known rule that any ambiguity or uncertainty of an insurance policy will be construed against the insurer which caused the ambiguity to exist. Even if we were to find an ambiguity that rule would not be fairly applicable here. The policy's language under discussion is not the choice of the insurance companies. It is substantially the language of the Legislature as expressed in section 11580.2."

There is, therefore, no room for defendants to argue that plaintiff's policy provision does not clearly withhold coverage if similar uninsured motorist coverage was provided under the...