Myers v. National Auto. & Cas. Ins. Co.

• Decision Date: 14 July 1967
• Citation: 60 Cal.Rptr. 743,252 Cal.App.2d 599
• Court: California Court of Appeals Court of Appeals
• Parties: Rose M. MYERS, Plaintiff and Respondent, v. NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Defendant and Appellant, Civil Service Employees Insurance Company, Defendant and Respondent. Civ. 8549.

Page 743

60 Cal.Rptr. 743

252 Cal.App.2d 599

Rose M. MYERS, Plaintiff and Respondent, v. NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Defendant and Appellant Civil Service Employees Insurance Company, Defendant and Respondent.

Civ. 8549.

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

July 14, 1967.

Donald H. Foster, Los Angeles, Ross Willson, Fullerton, for defendant and appellant.

[252 Cal.App.2d 600] Rudick, Levin & Platt, and Frank Levin, San Diego, for plaintiff and respondent.

Luce, Forward, Hamilton & Scripps, and Gerald S. Davee, San Diego, for defendant and respondent Civil Service Employees Ins. Co.

OPINION

WHELAN, Associate Justice.

Defendant National Automobile & Casualty Company (National) appeals from an adverse judgment in an action for declaratory relief.

The plaintiff sought a declaratory judgment as to which of the two defendant insurance companies was obligated to furnish insurance benefits to her because of damage suffered by her from an uninsured motorist. The decree placed the obligation upon National rather than its co-defendant Civil Service Employees Insurance Company (Civil Service).

Plaintiff suffered injury on May 22, 1965 while a passenger in a vehicle owned and operated by Louis McCall.

The injury resulted from collision with a vehicle which was and whose owner and operator was uninsured.

National had issued a policy to plaintiff providing uninsured motorist coverage for plaintiff if there were no other such coverage available to her when she was riding as a passenger in a non-owned vehicle.

McCall had an automobile insurance policy covering his vehicle issued by Civil Service during April 1965.

He had changed his insurer from another company in the hope of paying a lesser premium. In his discussion with Civil Service's agent before contracting for the insurance, McCall told the agent he 'wanted to be sure' he had proper coverage with public liability insurance, and collision and medical payments; with regard to uninsured motorist coverage, McCall 'decided it wasn't worth the premium to pay that extra'- ; he told the agent, 'No, we will skip that part of it.'

The agent compared with McCall 'the coverage that he had on his previous policy and arrived at the items which he wanted, and (the agent) also gave him the amounts of cost for each item of coverage.' Concerning uninsured motorist coverage, the agent explained that:

'* * * there were two factors in this particular area that makes this ideal coverage. One is the proximity to Mexico and the other is the great number of military personnel in this area, both factors being somewhat thought of as not too concerned with insurance and financial responsibility.'

After the discussion with the agent, McCall signed a written form of application for insurance which had been typed up and mailed to him. On the form were the letters 'UM' which McCall at the time understood to mean 'uninsured motorist.' Following those printed letters, the word 'nil' was then inserted. McCall at the time understood from the use of the word 'nil' that:

'I wasn't being charged for uninsured motorist and therefore I wasn't covered by that.'

McCall paid a premium that did not include the cost of uninsured motorist coverage. The premium schedule was broken down so as to show the charge for eacy type of coverage. He received a declaration that he was insured with certain coverages set out and the amount thereof; no amount was included for uninsured motorist coverage. McCall examined the document when he received it, saw that no amount of coverage for uninsured motorist insurance was included, and understood that he was not receiving such coverage and was not being charged for it. McCall received also a booklet which contained the general conditions of the policy, definitions and statements as to the types of coverage available, among which was the uninsured motorist coverage.

Subsequently McCall requested that two additional types of coverage, including uninsured motorist, be added to his policy.

Civil Service's agent obtained McCall's signature to a document dated February 15, 1966, reading:

'The insurer and the insured, for himself and on behalf of any other person who might have otherwise be (sic) benefited, waived application of the provision coverage damage caused by an uninsured motor vehicle under this policy, including any amendment thereto and renewal or extension thereof.

'The signing of this waiver is merely an acknowledgment that Uninsured Motorist coverage was waived from 4/20/65 until 6/9/65, at which time it was added to the policy (No. 04--14835--67--8), at the request of the insured.'

FINDINGS

The judgment is based upon findings which in part are as follows:

'5. The Court finds that defendant CIVIL SERVICE EMPLOYEES INSURANCE COMPANY issued a policy of automobile insurance (#04--1--4835--67--8) to Louis McCall for the period including May 22, 1965 under which policy Uninsured Motorist protection was deleted by agreement in writing between the insurer and the insured and no premium was collected for that coverage.

'6. The Court finds that Louis McCall understood the type of protection afforded by Uninsured Motorist insurance before signing his application and ordering and receiving his policy of automobile insurance from CIVIL SERVICE EMPLOYEES INSURANCE COMPANY.

'7. The Court findings that Louis McCall voluntarily and knowingly intended to and did inform CIVIL SERVICE EMPLOYEES INSURANCE COMPANY through its agent, Voyd Beights, that he did not want Uninsured...