Page v. Insurance Co. of North America

• Decision Date: 27 November 1967
• Citation: 64 Cal.Rptr. 89,256 Cal.App.2d 374
• Court: California Court of Appeals Court of Appeals
• Parties: James D. PAGE, Plaintiff and Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Respondent. Civ. 31683.

Page 89

64 Cal.Rptr. 89

256 Cal.App.2d 374

James D. PAGE, Plaintiff and Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Respondent.

Civ. 31683.

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

Nov. 27, 1967.

Hearing Denied Jan. 24, 1968.

Hathaway, Soares, Clabaugh & Perrett and E. E. Clabaugh, Jr., Ventura, for appellant.

Archbald, Zelezny & Spray and Malcolm Archbald, Santa Barbara, for respondent.

LILLIE, Associate Justice.

In this personal injury action, involving three motor vehicles, the demurrer of defendant insurance company (referred to hereinafter as 'INA') to the third count only of the first amended complaint was sustained with leave to amend. ¹ Upon plaintiff's written election to stand on said count as pleaded without further amendment, judgment was entered dismissing the third count. This appeal is from the judgment of dismissal.

One of the three automobiles involved (referred to subsequently as 'Car Three') has never been identified. Recovery from INA being sought under the uninsured motorist provisions of plaintiff's policy with that company, the basic problem is whether under the facts as pleaded a named defendant (Pickell), the operator of Car Two, and certain Doe defendants as operators and owners of Car Three, properly qualified as uninsured motorists as defined in section 11580.2, Insurance Code.

According to the complaint as last amended, the accident occurred in the following manner: Plaintiff was driving his vehicle in a southeasterly direction on a designated highway; defendant Pickell was also driving his vehicle (Car Two) in the same direction on that highway. A certain 'phantom vehicle' (Car Three) crossed the center line of the subject highway while being operated in a northwesterly (or opposite) direction. To avoid colliding with the 'phantom vehicle' Pickell 'deliberately and negligently' drove his car into plaintiff's, causing the damages complained of. While it is alleged that its operator was negligent, there is no allegation of any physical contact of the 'phantom vehicle' with either of the other two cars involved as expressly provided in the governing statute.

Following the accident, and pursuant to his policy with the company, plaintiff made demand of INA for settlement and arbitration, both of which were refused. It is also alleged that a written claim against Farmers Insurance Group, Pickell's insurer, was likewise refused.

Based upon the foregoing allegations, as well as prior reference to the subject policy 'insuring plaintiff against loss through the negligence of an uninsured motorist,' paragraph V (third count) asserts that Pickell and the various Doe defendants 'constitute as uninsured motorists within the definitions of said policy.' For reasons known best to plaintiff such definitions are neither pleaded nor are their provisions otherwise set forth in the complaint; however, with respect to uninsured motorist coverage it is now settled that 'this section of the Insurance Code becomes in effect a part of every policy of insurance to which it is applicable to the same effect as if it was written out in full in the policy itself.' (Hendricks v. Meritplan Ins. Co., 205 Cal.App.2d 133, 136, 22 Cal.Rptr. 682, 684.) ² Accordingly, the following definitions (both contained in subdivision (b) of section 11580.2) are here applicable: As to Car Three, 'The term 'uninsured motor vehicle' means * * * a motor vehicle used without the permission of the owner thereof if there is no bodily injury liability insurance or bond applicable at the time of the accident with respect to the owner or operator thereof, or the owner or operator thereof be unknown, provided that, with respect to an 'uninsured motor vehicle' whose owner or operator is unknown: (1) The bodily injury has arisen out of physical contact of such automobile with the insured or with an automobile which the insured is occupying.' As to Car Two, 'The term 'uninsured motor vehicle' means a motor vehicle with respect to the ownership, maintenance or use of which * * * there is such applicable insurance or bond but the company writing the same denies coverage thereunder, * * *'

Invoking the principle that on appeal from a judgment sustaining a demurrer to a complaint it must be assumed that plaintiff can prove all facts as alleged (Schaefer v. Berinstein, 140 Cal.App.2d 278, 288, 295 P.2d 113), plaintiff contends that the question whether or not the defendants concerned are 'uninsured motorists within the definitions of said policy' is a factual one to be determined upon a trial; he also points out that section 11580.2 is but 'one facet of the entire financial responsibility law (citation) which is designed to protect persons injured on the highways through no fault of their own. (Citation.)' (Inter-Insurance Exchange, etc. v. Lopez, 238 Cal.App.2d 441, 446, 47 Cal.Rptr. 834, 837) and to that end should be liberally construed. (Interinsurance Exchange, etc. v. Ohio Cas. Ins. Co., 58 Cal.2d 142, 153, 23 Cal.Rptr. 592, 373 P.2d 640.) But even a liberal construction of the statute cannot require us to ignore certain well-defined rules of pleading in relation to which the present complaint must be examined. Thus, it is settled that a demurrer does not admit conclusions of law or of fact as alleged in a complaint (Marin v. Jacuzzi, 224 Cal.App.2d 549, 552, 36 Cal.Rptr. 880); nor does it admit the construction placed on an instrument by the pleader (Hilltop Properties v. State of California, 233 Cal.App.2d 349, 353, 43 Cal.Rptr. 605) or allegations contrary to facts of which the court can take judicial notice. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666.) With respect to the rule last mentioned, in ruling on the demurrer the trial court had before it the Insurance Code; hence, wholly apart from the holding in Hendricks, supra, 205 Cal.App.2d 133, 22 Cal.Rptr. 682, that section 11580.2 becomes in effect a part of every policy to which it is applicable, such legislation being judicially noticed could be considered in construing the pleading even though the applicable statutory provisions were not pleaded in the complaint. (E. H. Morrill Co. v. State of California, 65 Cal.2d 787, 795, 56 Cal.Rptr. 479, 423 P.2d 551.)

We are satisfied that the allegation respecting the status of Pickell and the Doe defendants as 'uninsured motorists' within the statutory definition thereof is purely conclusional in character, and otherwise vitiated by the rules just mentioned; therefore, unless the pleading set forth facts sufficient to accord such defendants the status claimed for them as defined by the code and not as unilaterally contended for by plaintiff, the ruling in the court below was correct and the action as to INA properly dismissed.

Insofar as it involves the Doe defendants, as heretofore noted, there is the requirement of 'physical contact' by Car Three with the insured or the vehicle which he occupied. Conceding that no such contact occurred, plaintiff nevertheless...