Oakland Stadium v. Underwriters at Lloyd's, London

• Decision Date: 08 July 1957
• Docket Number: No. 17198,17198
• Citation: 152 Cal.App.2d 292,313 P.2d 602
• Court: California Court of Appeals Court of Appeals
• Parties: OAKLAND STADIUM, a corporation, Plaintiff, Cross-Defendant, Appellant and Respondent, v. UNDERWRITERS AT LLOYD'S, LONDON, et al., Defendants, Underwriters at Lloyd's, London, Defendant, Cross-Defendant, Appellant and Respondent, Fireman's Fund Indemnity Company, a corporation, and Golden State Threatre & Realty Corporation, a corporation, Cross-Defendants, Appellants and Respondents, London Guarantee and Accident Company, Limited, a corporation, Defendant and Cross-Complainant.

Page 602

313 P.2d 602

152 Cal.App.2d 292

OAKLAND STADIUM, a corporation, Plaintiff, Cross-Defendant, Appellant and Respondent, v. UNDERWRITERS AT LLOYD'S, LONDON, et al., Defendants Underwriters at Lloyd's, London, Defendant, Cross-Defendant, Appellant and Respondent Fireman's Fund Indemnity Company, a corporation, and Golden State Threatre & Realty Corporation, a corporation, Cross-Defendants, Appellants and Respondents London Guarantee and Accident Company, Limited, a corporation, Defendant and Cross-Complainant.

No. 17198.

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

July 8, 1957.

Rehearing Denied Aug. 7, 1957.

Hearing Denied Sept. 4, 1957.

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

Derby, Cook, Quinby & Tweedt, San Francisco, for respondents.

BRAY, Justice.

Plaintiff recovered judgment against defendant Underwriters at Lloyd's. Thereafter the trial court, Hon. Frank T. Deasy presiding, entered a minute order granting a new trial. Thereafter Judge Deasy died. Defendant then moved the trial court, Hon. Milton D. Sapiro presiding, to amend said minute order to specify that the motion for new trial had been granted by Judge Deasy on the ground of insufficiency of evidence and on other grounds. Defendant appeals from the judgment against it and from the order denying the motion to amend the minute order. ¹ Plaintiff appeals from the order granting new trial.

Question Presented.

Did the insurance policy cover the liability of plaintiff to one Leslie Pine under a judgment obtained by Pine against plaintiff for personal injuries received during an automobile race on premises owned by plaintiff?

Record.

Judge Deasy found that plaintiff was covered by a policy issued by defendant, as concurrent insurance with policies issued by London and Fireman's Fund and that defendant's proportion was 2/7ths. The Pine judgment against plaintiff was for $108,524.24, so plaintiff's judgment against defendant was for $31,006.92. Defendant's motion for new trial was on all statutory grounds. No affidavits were filed. Judge Deasy's minute order granting the new trial did not specify any grounds. Judge Sapiro refused to amend the minute order, stating that his order of denial was made solely on the ground of lack of authority to act.

Plaintiff was the owner of the Oakland Stadium which contained a race track. Golden State was and is a corporation owning theatres and other corporations. By early 1947 Golden State had acquired all of the stock of plaintiff. Thereafter Golden State operated the Oakland Stadium in the same manner and through the same personnel that it operated its theatres and its other corporations.

Northern California Roadster Racing Association contracted with plaintiff to hold an automobile race in the stadium on October 31, 1948. In the race Leslie Pine, who was an employee of the racing association, was injured. He sued plaintiff and Golden State for $150,000, alleging negligent maintenance of the track. Plaintiff claimed to be insured against this liability by three companies, London with a policy limit of $200,000 defendant with a limit of $100,000, and Fireman's with a limit of $50,000. Both London and defendant declined any responsibility. Fireman's accepted responsibility and defended the action. Pine recovered judgment against plaintiff for $108,524.24 (including interest to date of payment).

Between the time of the accident and the time the judgment was paid, plaintiff as a corporation had dissolved and all its assets were distributed to its sole stockholder, Golden State, which assumed its obligations. Golden State agreed with Fireman's that Fireman's would and did advance to Golden State an amount equal to Fireman's total limit under its policy, as if there had been no other insurance covering the loss. That amount was $52,230.97. Golden State then paid that amount plus $56,293.87 of its own money, in full payment of the judgment. It was agreed that plaintiff would sue London and defendant to enforce their obligations on the theory that the total loss should be borne by the three insurers pro rata according to their policy limits, that from the recovery above $52,230.97 plaintiff would pay back Fireman's all sums advanced by it over its pro rata loss, about $15,000.

Terms of Policy.

It is conceded that because the minute order granting new trial set forth no grounds, the sole issue in the case is whether as a matter of law the evidence compels a judgment in favor of defendant. This, in turn, depends upon whether the policy issued by defendant did not cover plaintiff.

In the contract between plaintiff and the racing association, plaintiff agreed to be responsible for the good condition and maintenance of the race track. The contract itself required that plaintiff carry public liability insurance, naming both plaintiff and the association as assureds. Plaintiff obtained such policy from Fireman's. Additionally it was agreed as a condition of plaintiff's allowing the race to be held that plaintiff was to become an additional assured under a policy theretofore issued to the racing association by defendant. Pursuant to this agreement the association arranged for the issuance of an endorsement on the policy, which it received and delivered to plaintiff. This endorsement read: 'It is hereby understood and agreed that the following is added as an Additional Assured hereunder: Oakland Stadium, a Corporation. Effective: October 27, 1948. All other terms and conditions remaining unchanged.' The policy issued to the association provided that defendant agreed 'to pay on behalf of the Assured all sums which the Assured may become obliged to pay by reason of the liability imposed upon the Assured by law for damages because of (a) Bodily injury, sickness or disease, sustained by any person or persons * * *' However, the policy contained this provision: '4. This insurance does not apply to: (a) liability of any owner or operator of any Racetrack, Stadium or other exhibition premises, whether assumed by the Assured or not, nor to the liability of any other person except a member of the Assured and only as respects the activities of the Assured, or (b) the operation or use of any automobile on any public street or highway, or (c) the operation or maintenance of any racetrack, stadium or exhibition premises by the Assured as owner, or lessee of such premises, or (d) liability assumed by the Assured under any contract not defined herein, or (e) bodily injury to or sickness, disease or death of any member or employee of the Assured or any obligation for which the Assured or any insurer may be liable under any Workmen's Compensation Act, or (f) liability for damage to property of members of the Assured or property owned by or in the care and custody of the Assured.'

'An insurance company has the right to limit the coverage of a policy issued by it and when it has done so, the plain language of the limitation must be respected.' Continental Cas. Co. v. Phoenix Const. Co., 46 Cal.2d 423, 432, 296 P.2d 801, 806.

It is plaintiff's contention that these exclusions did not apply to it. Such contention is without merit. The endorsement making plaintiff an additional assured expressly states 'All other terms and conditions [of the policy] remaining unchanged.' The policy is not a general liability one insuring against all liability imposed upon the assured for bodily injury of another, under all circumstances. It expressly excludes the liability of the assured as an owner, operator, or maintainer of a race track.

This is not a case in which it is claimed that defendant in anywise represented to plaintiff that the policy included anything excluded therein. The endorsement was obtained and delivered to plaintiff by the association. Plaintiff did not ask to see the policy nor did it know its terms. There was no discussion, no contract, and no agreement between plaintiff and defendant other than the issuance of the endorsement. Plaintiff paid no premium for the endorsement. Nor did the association. 'In the purchase and sale of insurance, as in the barter and sale of goods and wares in the commercial marts, the purchaser can expect to get no more than he pays for.' Foster v. North American Acc. Ins. Co., Tex.Civ.App., 86 S.W.2d 476, 477.

Plaintiff contends that because of its name 'Oakland Stadium,' the fact of ownership of a race track, and the fact that as between it and the association it would not have permitted the race to be held had it known it was not insured against liability from the ownership of the track, the policy restrictions do...