National Indemnity Co. v. Farmers Home Mutual Ins. Co.

• Decision Date: 20 July 1979
• Citation: 95 Cal.App.3d 102,157 Cal.Rptr. 98
• Parties: NATIONAL INDEMNITY COMPANY, a corporation, Plaintiff, Respondent and Cross-Appellant, v. FARMERS HOME MUTUAL INSURANCE COMPANY, Defendant, Appellant and Cross-Respondent. Civ. 54433.
• Court: California Court of Appeals Court of Appeals

Page 98

157 Cal.Rptr. 98

95 Cal.App.3d 102

NATIONAL INDEMNITY COMPANY, a corporation, Plaintiff, Respondent and Cross-Appellant, v. FARMERS HOME MUTUAL INSURANCE COMPANY, Defendant, Appellant and Cross-Respondent.

Civ. 54433.

Court of Appeal, Second District, Division 2, California.

July 20, 1979.

Rehearing Denied Aug. 8, 1979.

Hearing Denied Sept. 26, 1979.

Dunne, Shallcross & Kane by Russell E. Shallcross, Los Angeles, for defendant, appellant and cross-respondent.

Ives, Kirwan & Dibble, and John Brevidoro and Peter M. Fonda, Los Angeles, for plaintiff, respondent and cross-appellant.

COMPTON, Associate Justice.

In this action for declaratory relief between two insurance carriers the question is whether one or both of two insurance policies, i. e., a homeowner's policy with personal liability coverage and an automobile insurance policy cover a particular injury.

The trial court held that both carriers should share the coverage and duty to defend. Both have appealed, each contending that the other should bear the entire obligation.

The trial court's Findings of Fact, with the exception of two which we will discuss Infra, are simply a restatement of the stipulated facts upon which the case was tried. We set them out here:

"1. On May 4, 1974, National issued its policy bearing policy No. PAC 50-15-32 to Iluminado G. Quibael. Said policy afforded liability coverage to Quibael relating to, amongst other things, a 1972 Toyota Carina.

"2. On December 3, 1974, Farmers issued its policy bearing policy No. 4-286918 in favor of Iluminado and Lucia A. Quibael, husband and wife, providing liability insurance coverage through said homeowners insurance policy.

"3. On February 6, 1975, Lucia Quibael was using the aforedescribed two-door Toyota Carina. Her daughter, Iriss, approximately twelve years old at the time, was a passenger in the right front seat of said vehicle. Conrad Cortes, a nephew, between the age of five and six, was a passenger in the rear seat of the vehicle.

"4. On February 6, 1975, Lucia was caring for Conrad Cortes, her nephew, on a non-compensatory basis.

"5. On February 6, 1975, Lucia and Iriss drove Conrad Cortes from the Quibael residence to the Cortes residence located at 1176 North Kenmore Avenue, Los Angeles, California.

"6. At about 4:00 p. m. on February 6, 1975, Lucia arrived at the Cortes residence and parked her Toyota on the west side of Kenmore Avenue, in a southbound direction, across the street from the Cortes residence. Lucia Quibael stopped the vehicle, turned off the ignition and prepared to exit the vehicle from the driver's side. Her daughter, Iriss, thereupon opened the passenger side door, the side to the curb, in order to exit from the vehicle. Without the knowledge of either Lucia Quibael or Iriss Quibael, Conrad Cortes, the minor, exited from the vehicle on the passenger's side, the side closest to the curb and proceeded to walk, or run, in front of the Quibael vehicle into the street, apparently going home. When he was approximately one-half way across the street, and while both Lucia and Iriss were still in the Toyota, an accident occurred wherein Conrad was struck by another southbound vehicle operated by one Mario Gomez Giron.

"7. On February 5, 1976, Conrad Cortes, by and through his guardian ad litem, Jacobo Cortes, brought an action in the Superior Court bearing Case No. C-150401 naming as defendants, Iluminado G. Quibael, Lucia A. Quibael, Mario Giron, Does 1 through 10, inclusive.

"8. Both the National and Farmers policy were in effect and afforded coverage to their respective insureds on February 5, 1976.

"9. The National policy provides a liability coverage on behalf of the Quibaels for all sums which the Quibaels shall become legally obligated to pay as damages because of bodily injury, sickness or disease sustained by any person caused by accident and arising out of the ownership, maintenance or use of the Toyota Carina vehicle.

"10. The Farmers policy provides for general liability coverage in favor of the Quibaels relating to bodily injury or property damage arising out of activities which are ordinarily incident to a non-business pursuit."

The two remaining findings which are critical to the resolution of this dispute are as follows:

"11. Insofar as Farmers policy is concerned, the acts of Lucia A. Quibael in the supervision of Conrad A. Cortes was incidental to a non-business pursuit, to wit, babysitting.

"12. Insofar as the National policy is concerned, the injuries and damages suffered by Conrad Cortes arose out of the use of the vehicle as Conrad Cortes had not yet completed alighting from the vehicle at the time that he was struck by the vehicle operated by Mario Gomez Giron."

Not mentioned in the findings is the fact that the Farmers Policy specifically excludes from coverage " . . . bodily injury . . . arising out of the ownership, maintenance, operation, use, loading or unloading of any motor vehicle owned or operated by . . . the insured. . . . "

We are not here dealing with the question of primary and excess coverage for an injury within the ambit of the two policies. Rather, the issue is whether, under the facts, the automobile policy provides coverage and if so, whether the exclusion in Farmers' policy is effective.

Here the trial court found that the injury arose out of the "use" of the vehicle. Essentially National argues that the evidence does not support that finding and that in reality the insured automobile had nothing to do with the injury.

An automobile can be in "use" even though at rest. (United Services Automobile Assn. v. United States Fire Ins. Co., 36 Cal.App. 3d 765, 111 Cal.Rptr. 595.) Further, National's policy specifically provides that "use" of an automobile includes loading and unloading. Case law is to the same effect. (Argonaut Ins. Co. v. Transport Indemn. Co., 6 Cal.3d 496, 99 Cal.Rptr. 617, 492 P.2d 673; also see Black's Law Dict. (4th ed.) "Unloading".)

The presence of small children in an automobile imposes a particular duty of care and alertness upon the driver in selecting the place for and supervising the manner of discharging the children from the vehicle. The conduct of an ambulatory child of tender years is often impulsive and unpredictable. (Hilyar v. Union Ice Co., 45 Cal.2d 30, 286 P.2d 21.) The process of unloading a child from a motor vehicle does not end the moment that the child's feet touch the ground or when his or her body is entirely outside the vehicle.

The case of State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123, is the primary authority on which National relies for establishing that the Farmers' policy provides coverage. Unfortunately for National that case also points forcefully toward coverage by National's automobile policy. At least...