Lopez v. State Farm Fire & Cas. Co.

• Decision Date: 19 April 1967
• Citation: 58 Cal.Rptr. 243,250 Cal.App.2d 210
• Court: California Court of Appeals Court of Appeals
• Parties: Coltida LOPEZ, Edward Lopez, Raymond Lopez, Arthur Lopez, Rosalie Lopez, Carmel Lopez, Obeso and Elvira Lopez Malgosa, Plaintiffs and Respondents, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Appellant. Civ. 23614.

Page 243

58 Cal.Rptr. 243

250 Cal.App.2d 210

Coltida LOPEZ, Edward Lopez, Raymond Lopez, Arthur Lopez, Rosalie Lopez, Carmel Lopez, Obeso and Elvira Lopez Malgosa, Plaintiffs and Respondents, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Appellant.

Civ. 23614.

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

April 19, 1967.

Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, Robert A. Seligson, San Francisco. of counsel, for appellant.

Moreno & Parmelee, Salinas, for respondents.

DRAPER, Presiding Justice.

Rosalie Lopez, a minor, lived in the same household with her parents. She owned an automobile which she insured with defendant. The policy, as required by law (Ins.Code, § 11580.2), provided uninsured motorist coverage. Pedro Lopez, Rosalie's father, owned an automobile on which he had no insurance. On August 4, 1963, Pedro, while on foot, was struck by another uninsured automobile. He sustained injuries which caused his death. His widow and children joined as plaintiffs in this action seeking declaration that they are entitled to recovery from the insurer of Rosalie's car for the wrongful death of Pedro. The trial court held that (1) Pedro was an insured under Rosalie's policy, and thus his heirs may recover upon it in a wrongful death action; (2) each of the heirs suffered an injury by the death of Pedro, and the coverage limit thus is $20,000 rather than $10,000; (3) the medical pay provision of Rosalie's policy requires payment of medical and funeral expenses. Defendant appeals.

The policy extends uninsured motorist coverage to relatives of the named insured, and defines that term to mean 'a relative of the named insured or of his spouse, who is a resident of the same household, provided neither such relative nor his spouse owns a private passenger automobile.' Since Pedro owned an automobile, this clause would exclude him from protection against an uninsured motorist.

But the insurer's obligation is fixed by statute (Ins.Code, § 11580.2). As in effect at the date of this policy and of the accident, it required that every automobile liability policy cover the insured or his legal representative for sums they are entitled to recover from the owner or operator of an uninsured motor vehicle as damages for bodily injury or death. '(T)he term 'insured' means the named insured and the spouse of the named insured and relatives of either while residents of the same household while occupants of a motor vehicle or otherwise * * *.' (subd. (b).)

The statute expresses the public policy of this state requiring uninsured motorist coverage. Such coverage may be omitted from a policy only upon written agreement of insured and insurer (and mere acceptance of a liability policy with terms more restrictive than the statute is not to be deemed a waiver of the statutory coverage (Mission Ins. Co. v. Brown, 63 Cal.2d 508, 47 Cal.Rptr. 363, 407 P.2d 275; Hendricks v. Meritplan Ins. Co., 205 Cal.App.2d 133, 22 Cal.Rptr. 682). It follows that the policy provision excluding from such coverage a family member who owns an automobile cannot prevail.

The case relied upon by defendant (Smitke v. Travelers Indem. Co., 264 Minn. 212, 118 N.W.2d 217) is not in point. No Minnesota statute required uninsured motorist coverage. The question was merely whether such coverage, voluntarily extended, could be restricted to relatives who were not themselves automobile owners, and Smike holds that this restriction is not, of itself, arbitrary, capricious or unreasonable. But the California Legislature has required specified protection against uninsured motorists. Defendant's argument that it should exclude one who...