Lumbermens Mutual Casualty Co. v. Agency Rent-A-Car, Inc.

• Decision Date: 11 February 1982
• Docket Number: RENT-A-CA,INC
• Citation: 180 Cal.Rptr. 546,128 Cal.App.3d 764
• Court: California Court of Appeals Court of Appeals
• Parties: LUMBERMENS MUTUAL CASUALTY COMPANY, Plaintiff and Appellant, v. AGENCY, et al., Defendants and Respondents. Civ. 24889.

Page 546

180 Cal.Rptr. 546

128 Cal.App.3d 764

LUMBERMENS MUTUAL CASUALTY COMPANY, Plaintiff and Appellant, v. AGENCY RENT-A-CAR, INC., et al., Defendants and Respondents.

Civ. 24889.

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

Feb. 11, 1982.

Nickoloff & Distel and John F. Distel, San Diego, for plaintiff and appellant.

Bolton, Hemer & Dunn and Donald H. Moore, Los Angeles, for defendants and respondents.

WORK, Associate Justice.

Lumbermens Mutual Casualty Company (Lumbermens) appeals a judgment in favor of Agency Rent-A-Car, Inc. (Agency) and National Bonding & Accident Insurance Company (National) after requesting the court declare which party had primary coverage for an automobile involved in a collision. The pivotal issue is whether Insurance Code section 11580.9 ¹ applies to a surety bond filed in compliance with the motor vehicle financial responsibility laws. For the reasons which follow we conclude it does not, and affirm.

Factual and Procedural Background

The automobile accident involved a car owned by Agency, rented and driven by John Cilmi, and one owned and operated by Marion Lockett. Cilmi and his wife sued Lockett because of personal injuries and property damage. Lockett and her passenger Tes Marie Thompson, cross-complained for personal injuries and property damage. The Cilmis also filed uninsured motorist claims with their own automobile insurance carrier, Lumbermens, because Lockett was uninsured.

Cilmi had current insurance coverage with Lumbermens, while Agency had an automobile surety bond in the amount of $15,000 with National and was self-insured up to $100,000, after which it had "excess" automobile insurance with Northeastern Fire Insurance Company of Pennsylvania. Consequently, Cilmi tendered defense of the cross-complaint to Lumbermens which, in a classic "Tinker to Evers to Chance" move, tendered both the defense of the cross-complaint and the uninsured motorist claim to Agency. When Agency refused to play ball, Lumbermens filed the case at bench.

Lumbermens' policy contains the following hybrid prorata and excess clause:

"If the insured has other insurance against a loss covered by Part One of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess over any other valid and collectible insurance." (Italics added.)

Discussion

Lumbermens contends National's coverage under its financial responsibility bond is primary under section 11580.9, subdivision (d). ²

Sections 11580.8 ³ and 11580.9 ⁴ reflect a legislative effort to reduce the volume of disputes within this area of primary, excess or sole coverage litigation between the injured parties, insureds and insurers. (Transport Indemnity Co. v. Alo, 118 Cal.App.3d 143, 147, 172 Cal.Rptr. 394; Ohio Cas. Ins. Co. v. Aetna Ins. Co., 85 Cal.App.3d 521, 524, 149 Cal.Rptr. 562.) It applies to "first-tier" liability, as opposed to "second-tier" responsibility. Within the former, it applies to basic liability coverage where indemnification for direct liability is contractually secured by the insured with the consequence the insurer has no right of reimbursement against the insured-tortfeasor or his estate. Likewise, it applies to one who has satisfied the financial responsibility laws by obtaining a certificate of self-insurance pursuant to Vehicle Code section 16053 (§ 11580.9, subd. (g), superseding Metro U. S. Services, Inc. v. City of Los Angeles, 96 Cal.App.3d 678, 158 Cal.Rptr. 207 which held otherwise), thus declaring one's financial ability to directly respond to potential vehicular liability. ⁵ However, it does not apply to "second-tier" liability, where a party, i.e., a surety, becomes liable only following the establishment of liability on the part of its principal and the latter's failure to satisfy that liability. This follows since, by analogy, the bonded principal is nothing more than a "self-insured."

A comparative review of the nature of a surety bond, filed in compliance with the motor vehicle financial responsibility laws, and basic liability insurance lends substantive support to this analysis. A surety bond is not an insurance policy. (Farmers Ins. Exch. v. Midwest Emery Frgt. Sys., Inc. (Minn.1974) 215 N.W.2d 623, 626; Consolidated Systems, Inc. v. Allstate Insurance Company (5th Cir. 1969) 411 F.2d 157, 160; 8A Appleman (1981) Insurance Law and Practice, § 4913 at p. 511.) It represents nothing more than "an undertaking to indemnify a person, or the public, against losses resulting from acts of the principal. A surety guarantees payment up to the principal sum. But if losses occur, the surety may recover from its principal." (Ibid.) It merely constitutes a guarantee the surety will assume the principal's liability only if the latter is unable to make full payment. It cannot be construed as providing any more, such as the requiring of the surety to undertake the defense or to immediately pay the settlement without the principal's default. (Farmers Ins. Exch. v. Midwest Emery Frgt. Sys., Inc., supra, 215 N.W.2d 623, 626; Consolidated Systems, Inc. v. Allstate Insurance Company, supra, 411 F.2d 157, 160; Nationwide Mutual Ins. Co. v. Peerless Ins. Co. (Ohio App.1963) 194 N.E.2d 154, 157.) In other words,

"[a] liability insurance policy is written for the [financial] protection of the insured. However, a financial responsibility bond does not protect the principal by insuring him against liability. A financial responsibility bond is written for the protection of the motoring public, who may be injured by the principal. If the surety is compelled to make payment for damages caused by the principal, it has the right to seek reimbursement from the principal. The ... financial responsibility bond, in the present case, expressly provides for reimbursement by the principal. This fundamental difference between insurance and a financial responsibility bond compels this court to find that a financial responsibility bond is not insurance, as that term is used in ... [Lumbermens' excess clause and section 11580.9]." (Republic-Franklin Ins. Co. v. Progressive Cas. Ins. Co. (Ohio 1976) 341 N.E.2d 600, 602.)

Disposition ⁶

The judgment is affirmed.

COLOGNE, Acting P. J., and STANIFORTH, J., concur.

1 All statutory references are to the Insurance Code unless otherwise specified.

2 Granted, "[i]t is the general rule that courts will give heed to 'primary' and 'excess' insurance provisions of insurance policies. This rule is particularly applicable where the dispute is between two or more insurance carriers and, as here, the rights of policyholders or their accident victims will be unaffected by its applications. [Citations.]" (National American Ins. Co. v. Insurance Co. of North America, 74 Cal.App.3d 565, 574, 140 Cal.Rptr. 828.) However, here, Lumbermens' policy includes an excess clause providing that insurance for a temporary substitute or non-owned automobile "shall be excess over any other valid and collectible insurance," while National's surety bond is silent in this regard. Accordingly, we look to sections 11580.8 and 11580.9 for guidance.

3 Section 11580.8 provides: "The Legislature declares it to be the public policy of this state to avoid so far as possible conflicts and litigation, with resulting court congestion, between and among injured parties, insureds, and insurers concerning which, among various policies of liability insurance and the various coverages therein, are responsible as primary, excess, or sole coverage, and to what...