Nelson v. U.S. Fire Ins. Co.

• Decision Date: 21 February 1968
• Citation: 259 Cal.App.2d 248,66 Cal.Rptr. 115
• Court: California Court of Appeals Court of Appeals
• Parties: Etta NELSON, Special Administratrix of the Estate of Roy Jerome Nelson; Berkeley Y.M.C.A., a corporation, Plaintiffs and Respondents, v. UNITED STATES FIRE INSURANCE CO. and Crum and Forster Group, Defendants and Appellants. Civ. 24473.

Page 115

66 Cal.Rptr. 115

259 Cal.App.2d 248

Etta NELSON, Special Administratrix of the Estate of Roy Jerome Nelson; Berkeley Y.M.C.A., a corporation, Plaintiffs and Respondents, v. UNITED STATES FIRE INSURANCE CO. and Crum and Forster Group, Defendants and Appellants.

Civ. 24473.

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

Feb. 21, 1968.

Bronson, Bronson & McKinnon, San Francisco, for appellants.

Borden B. Price, Berkeley, for respondents.

MOLINARI, Presiding Justice.

On this appeal from a summary judgment in favor of plaintiffs, the question presented is whether Roy Jerome Nelson was an 'insured' under Endorsement No. 10 of a comprehensive automobile policy issued by defendants.

Nelson, a Berkeley Y.M.C.A. Boys Camp Handyman Manager, was driving a Berkeley Y.M.C.A. truck while carrying out the duties of his employment when the truck broke down on a public highway. He got out of the truck and was walking onto the highway to retrieve a broken part of the truck when he was struck and injured by a privately owned automobile. He died 17 months later without ever having fully recovered. Nelson and the Berkeley Y.M.C.A. incurred medical expenses of over $5,000.

The insurance coverage relied upon by plaintiffs is that provided for in Division 2 of Endorsement No. 10, which provides that the insurer will pay medical expenses 'To or for each insured who sustains bodily injury, sickness or disease, caused by accident, while in or upon, or while entering into or alighting from, Or through being struck by an automobile.' (Emphasis added.) The endorsement further defines the term 'insured' to mean 'the named insured, if an individual or husband and wife who are residents of the same household, otherwise the person designated in the schedule of this endorsement, * * *'

The schedule of Endorsement No. 10 contains no names. However, Endorsement No. 1 of the policy states as follows: 'THE NAME OF THE INSURED SHALL READ: BERKELEY YOUNG MEN'S CHRISTIAN ASSOCIATION, ITS BOARD OF DIRECTORS, INDIVIDUALLY AND COLLECTIVELY AND SOUTH BERKELEY YOUNG MEN'S CHRISTIAN ASSOCIATION, AND ALBANY YOUNG MEN'S CHRISTIAN ASSOCIATION, AND WEST BERKELEY YOUNG MEN'S CHRISTIAN ASSOCIATION.'

Both plaintiffs and defendants filed a motion for summary judgment. Plaintiffs' motion was granted and that of defendants was denied. In his declaration in support of plaintiffs' motion for summary judgment, the Associate General Secretary of the Berkeley Y.M.C.A. stated that the Berkeley Y.M.C.A. negotiated with an insurance agent representing defendants with respect to the policy in question and that 'where the 'Berkeley YMCA' was the 'Insured', the Berkeley YMCA intended and understood with said Defendants through their agent that the staff and personnel of the Berkeley YMCA were included as a part of the term 'Berkeley YMCA'. At no time was the Berkeley YMCA ever told that coverage of the 'Insured' would be limited to the 'Board of Directors' of the Berkeley YMCA.' The remainder of the declaration consists of an argument on the proper interpretation of the policy with respect to the coverage in question. The declaration in support of defendants' motion merely set out the fact that the policy, a copy of which was attached to the motion, was issued to the Berkeley Y.M.C.A., that plaintiffs made a demand for coverage under Endorsement No. 10, and that defendants rejected this demand.

Turning to defendants' motion, it is apparent that it seeks a determination that as a matter of law the subject policy does not afford the coverage claimed by plaintiffs, since the supporting affidavit tenders no factual issue but merely serves as a vehicle to bring the policy in question before the court. Moreover, the supporting affidavit is deficient in that it does not state any facts showing that if the affiant were called as a witness he could competently testify thereto. It is well established, however, that if no triable issues are presented, and the sole question is one of law, that question may appropriately be determined on a motion for summary judgment. (Wilson v. Wilson, 54 Cal.2d 264, 269, 5 Cal.Rptr. 317, 352 P.2d 725; Goldstein v. Hoffman, 213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334; Magna Development Co. v. Reed, 228 Cal.App.2d 230, 234, 39 Cal.Rptr. 284; Maxon v. Security Ins. Co., 214 Cal.App.2d 603, 609--610, 29 Cal.Rptr. 586.)

Plaintiffs' motion, in turn, appears to be two-pronged. It seeks both an interpretation that the policy affords plaintiffs the claimed coverage as a matter of law, and an interpretation rested in part on the parol evidence contained in the declaration. The thrust of the motion is that the insurance contract is uncertain and ambiguous and that therefore we must be guided by the fundamental rule that any ambiguity or uncertainty therein will be construed in favor of the insured and against the insurer. (Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d 423, 437, 296 P.2d 801, 57 A.L.R.2d 914; Arenson v. Nat. Automobile & Cas. Ins. Co., 45 Cal.2d 81, 83, 286 P.2d 816; Maxon v. Security Ins. Co., supra, 214 Cal.App.2d at p. 611, 29 Cal.Rptr. 586.) In this regard we note that it is likewise a fundamental rule of construction that where the meaning of the terms or of a clause of an insurance policy is clear and the intent of the parties is obvious, the rule favoring the insured cannot operate to change the nature of the contract and to cast upon the insurance company a liability obviously not assumed. (Baine v. Continental Assur. Co., 21 Cal.2d 1, 5--6, 129 P.2d 396, 142 A.L.R. 1253.) As stated in Baine, 'The policy, like any othr contract, must be interpreted according to the intention of the parties as expressed in the instrument.' (P. 5, 129 P.2d p. 398; see Blackburn v. Home Life Ins. Co., 19 Cal.2d 226, 229, 120 P.2d 31.) Accordingly, a contract of insurance should not be given a strained or unnatural interpretation (Baine v. Continental Assur. Co., supra, 21 Cal.2d at p. 5, 129 P.2d 396; Perkins v. Fireman's Fund Indem. Co., 44 Cal.App.2d 427, 431, 112 P.2d 679; Valdez v. Interinsurance Exchange, 246 Cal.App.2d 1, 7--8, 54 Cal.Rptr. 906); nor should such an interpretation be put on the terms of the contract in order to create an uncertainty and ambiguity. (McMillan v. State Farm Ins. Co., 211 Cal.App.2d 58, 62--63, 27 Cal.Rptr. 125; Callison v. Continental Cas. Co., 221 Cal.App.2d 363, 366, 34 Cal.Rptr. 444.)

In the present case, the evidence contained in plaintiffs' declaration, although though not objected to, may not be considered in support of the judgment because of the particular rules applicable to summary judgments. ¹ Under these rules the affidavits of the moving party are strictly construed and those of his opponent liberally construed. (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264; Snider v. Snider, 200 Cal.App.2d 741, 748, 19 Cal.Rptr. 709.) A summary judgment will not stand if the supporting affidavits do not state facts sufficient to sustain a judgment. (Snider v. Snider, supra; Saporta v. Barbagelata, 220 Cal.App.2d 463, 468--469, 33 Cal.Rptr. 661.) In making this determination the moving party's affidavit is tested by certain rules including the rule that requires the supporting affidavit to state with particularity facts establishing every element necessary to sustain the judgment in the movant's favor; in other words, all requisite evidentiary facts must be stated, and not the ultimate facts or conclusions of law. (Saporta v. Barbagelata, supra; Colvig v. KSFO, 224 Cal.App.2d 357, 363, 36 Cal.Rptr. 701.) Here the plaintiffs' affidavit states no evidentiary facts but only ultimate facts, conclusions of law, and argumentative matter. Accordingly, it does not state facts sufficient to sustain a summary judgment.

In view of the foregoing we are relegated solely to a consideration of the sufficiency of the complaint to state a cause of action. This determination depends upon the interpretation of those provisions under consideration which we have determined to be clear, definite and certain. We first note that it is judicially admitted that plaintiff 'Berkeley Y.M.C.A.' is a California nonprofit corporation, and that this corporation is the same entity as 'Berkeley Young Men's Christian Association' which is named as an insured in the subject policy. Adverting to Endorsement No. 10, we observe that it specifically provides coverage for medical expenses for each insured who sustains bodily injury. This provision obviously has reference to a natural person and not to an artificial person, such as a corporation, since the latter is incapable of sustaining bodily injury. The subject coverage can, however, extend to the officers and employees of a corporation if the policy so provides. The instant policy, however, does not so provide. The endorsement under consideration specifically defines the term 'insured' to mean the following: 'the named insured, if an individual or husband and wife who are residents of the same household, otherwise the person designated in the schedule of this endorsement.' The last phrase is broad enough to encompass any natural person whose name was inserted in the schedule and therefore could have included specifically named employees of the corporation. Since no persons were named in the schedule, we are restricted to determining whether the language 'the named insured, if an...