Kirby v. Ohio Cas. Ins. Co.

• Decision Date: 02 February 1965
• Citation: 232 Cal.App.2d 9,42 Cal.Rptr. 509
• Court: California Court of Appeals Court of Appeals
• Parties: Clarence L. KIRBY, Dixie Lee Kirby, J. E. Kirby, Jr., and Sue Kirby, Plaintiffs and Appellants, v. OHIO CASUALTY INSURANCE COMPANY, Defendant and Respondent. Civ. 28129.

Page 509

42 Cal.Rptr. 509

232 Cal.App.2d 9

Clarence L. KIRBY, Dixie Lee Kirby, J. E. Kirby, Jr., and Sue Kirby, Plaintiffs and Appellants, v. OHIO CASUALTY INSURANCE COMPANY, Defendant and Respondent.

Civ. 28129.

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

Feb. 2, 1965.

Newell & Chester, Robert M. Newell, Los Angeles, for appellants.

Stockdale, White & Atkisson, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from a judgment declaring in effect that plaintiffs take nothing under certain policies of insurance.

Plaintiffs brought an action in declaratory relief to have determined their rights under certain insurance policies issued by defendant. An agreed statement of facts was submitted by the parties and the court made findings of fact ¹ substantially in accordance with such agreed statement of facts.

The court concluded as a matter of law that plaintiffs had no coverage under the defendant's policies issued to the Kirbys and plaintiffs were not entitled to recover anything from defendant under the uninsured motorist provisions of the policies issued by defendant to the Kirbys. Judgment was entered accordingly on November 12, 1963. This appeal followed.

Appellants assert that they are entitled to recover additional sums under their policies of insurance--the amounts to be computed in one of two ways: i. e., (1) for each plaintiff, the difference between the amount he or she is entitled to under the Gunn policy and $10,000 or (2) for each plaintiff, up to $10,000 in addition to his or her rateable share of the Gunn policy, depending on the severity of the injuries of the respective plaintiff.

There is no merit to appellants' contentions.

The Uninsured Motorist Act is set forth in part in section 11580.2, Insurance Code, and provides in effect that each automobile bodily injury liability policy issued or delivered in California shall provide coverage to the insured for bodily injury wrongfully inflicted by an uninsured motorist with limits at least equal to those specified in Vehicle Code, section 16059 ($10,000 for one person and $20,000 for one accident) unless such coverage is waived by written agreement. If such provisions are not a part of the policy they will be read into it under the case law of California. (Wildman v. Government Employees Ins. Co., 48 Cal.2d 31, 307 P.2d 359; Interinsurance Exchange v. Ohio Cas. Ins. Co., 58 Cal.2d 142, 23 Cal.Rptr. 592, 373 P.2d 640; Hendricks v. Meritplan Ins. Co., 205 Cal.App.2d 133, 22 Cal.Rptr. 682. See also 48 Cal.Law Review, 516-540 for an extensive article with reference to the subject of 'uninsured motorist insurance.')

The Act provides within itself certain exemptions. ²

The plaintiffs in this case were injured while riding in an automobile other than the automobile described in the respective policies issued by the defendant company to them. The owner of the automobile in which they were riding had an insurance policy containing uninsured motorist coverage under which the plaintiffs were insured. It would seem clear under the circumstances and the plain language of the policies that plaintiffs were not statutorily covered by their own respective policies with defendant company.

We see no reason why the provisions of the 'other insurance' clause of the insurance contract are not wholly valid and proper. The same problem under substantially the same clause in a policy of insurance issued by Travelers Indemnity Co. of Hartford, Connecticut, was involved in Travelers Indemnity Co. of Hartford, Conn. v. Wells, 316 F.2d 770 (4th Circuit Court 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.' 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, App.Div., 253 N.Y.S.2d 170.)

The trial judge at the conclusion of the argument in the present case succinctly stated what we deem to be good and sufficient reason for the judgment; he stated, among other things:

'The matter is so crystal clear that any further argument would be useless.

'The Court views this policy and this case precisely as the U.S. Court of Appeals did in Travelers [Ind. Co.] versus Wells, [4 cir.], 316 Fed.2d 770. There the Court analyzed the provisions of the contract--which were practically identical to ours--and came to what this Court believes to be a correct and the only possible conclusion under the facts and the law.

'The intention of our legislature was to provide minimum statutory limits of 10 and 20 thousand. When the legislature used the words, 'similar insurance to that provided in this Section,' it did not 'propose those words to provide an injured guest the uninsured protection beyond the statutory amounts through a combination of the host's insurance, and that owned by the guest himself.' Your argument, Mr. Newell, that those words mean equal in amount would, if accepted, require the Court to conclude that the legislature was incapable of expressing a simple factual situation. If the legislature had intended what you assert that language means it could have used appropriate language which would have reflected that view. But the legislature said, 'insurance similar to that provided in this Section.' The only insurance provided in this Section is simply uninsured motorist coverage.

'The position of the defendant in this case is also fully sustained by the view of the Supreme Court of Iowa in the case of Burcham versus Farmers Insurance Exchange 101 N.W.2d 500.

'Of course, nothing in the statute would prevent the insurance company from increasing coverage by assuming an additional contractual liability, but it did not do so in this case. The only portion of the policy which would possibly be interpreted to extend contractually the statutory liability is the paragraph 'other insurance' under ...