Rowe v. Farmers Ins. Exchange, B052986

• Decision Date: 25 June 1992
• Docket Number: No. B052986,B052986
• Citation: 9 Cal.Rptr.2d 314,7 Cal.App.4th 964
• Court: California Court of Appeals Court of Appeals
• Parties: Lois N. ROWE, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant and Respondent.

Page 314

9 Cal.Rptr.2d 314

7 Cal.App.4th 964

Lois N. ROWE, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant and Respondent.

No. B052986.

Court of Appeal, Second District, Division 7, California.

June 25, 1992.

[7 Cal.App.4th 965] Alexander L. Mazzia, Jr., Torrance, for plaintiff and appellant.

[7 Cal.App.4th 966] Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, and Margaret R. Miglietta,

Irvine, for defendant and respondent.

LILLIE, Presiding Justice.

Plaintiff appeals from judgment on the pleadings entered in favor of defendant on her complaint for declaratory relief and breach of insurance contract. The only issue on appeal is whether the trial court properly concluded that the uninsured motorist provisions of plaintiff's policy did not afford coverage because plaintiff's damages were not "caused by accident and [did not] arise out of the ... use of the uninsured motor vehicle."

FACTUAL AND PROCEDURAL BACKGROUND

The complaint alleges the following: On June 28, 1986, Roger C. Rowe, plaintiff's husband, was a customer at the Rendezvous Lounge (Lounge) in Torrance; at 1:00 p.m., he became ill and unable to drive; an employee of the Lounge asked two customers to take Rowe home; one customer, Gloria Hite, drove Rowe's 1979 Cadillac, insured by defendant, with Rowe in the back seat; another customer, Theresa Deguevara, followed Hite in her own vehicle, which was uninsured; Hite and Deguevara brought Rowe to an intersection in Torrance "and negligently left him in the back of his car in a semi-conscious state, with windows closed.... At said time and place, as a result of the aforementioned conduct, Roger C. Rowe died of hyper-thermia."

Plaintiff submitted a claim to defendant under the uninsured motorist coverage of her policy and demanded the $15,000 policy limit; defendant advised plaintiff that it did not consider the incident to be covered by the uninsured motorist coverage; plaintiff then demanded arbitration; defendant refused to submit the matter to arbitration. Thereafter, plaintiff filed the instant complaint containing a cause of action for declaratory relief and a cause of action for breach of insurance contract; the insurance policy was attached as an exhibit to the complaint and the uninsured motorist provisions of the policy were recited therein. The policy provides in pertinent part that "We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle."

Defendant moved for judgment on the pleadings on the ground that the face of the complaint reveals that plaintiff's claim is outside the scope of uninsured motorist coverage in that as a matter of law the death of Mr. Rowe did not arise out of the ownership, maintenance or use of an uninsured motor vehicle. After hearing, the court granted the motion. Judgment was entered in favor of defendant; plaintiff appealed from the judgment.

I STANDARD OF REVIEW

"The standard of review for a judgment on the pleadings is the same as for a judgment following sustaining of a demurrer; we look only to the face of the pleading under attack." (Hughes v. Western MacArthur Co. (1987) 192 Cal.App.3d 951, 954-955, 237 Cal.Rptr. 738.) All facts alleged in the complaint are admitted for purposes of the motion and the court determines whether these facts constitute a cause of action. (Id. at p. 955, 237 Cal.Rptr. 738.)

" 'The rights of the parties are to be determined by the terms of their policy, provided such policy grants benefits equal to or greater than is required by the Uninsured Motorist Act. [Citations.]' " (Utah Property & Casualty Ins. etc. Assn. v. United Services Auto. Assn. (1991) 230 Cal.App.3d 1010, 1015, 281 Cal.Rptr. 917.)

Insurance Code section 11580.2 "must be interpreted in the light of its legislative purpose. That purpose is 'to minimize losses to the people of California who are involved in accidents with uninsured or financially irresponsible motorists, ...' [citation] and to afford 'insurance against damage to the insured by a noninsured vehicle.' [Citations.] The pertinent section of the Insurance Code serves the purpose for which it was enacted only if its scope is limited to that of requiring reimbursement to the insured by his own carrier of the type of loss which would have been covered by an automobile liability policy had the uninsured motorist been in fact insured." (Farmers Ins. Exchange v. Hansel (1970) 12 Cal.App.3d 570, 573, 90 Cal.Rptr. 654.)

"Such coverage is not intended to--and does not--act as a substitute for general (and not merely automotive) liability coverage of persons ... who, by chance, happen also to be uninsured motorists." (State Farm Mut. Auto. Ins. Co. v. Spann (1973) 31 Cal.App.3d 97, 100, 106 Cal.Rptr. 923.)

Appellant herein makes no claim that the uninsured motorist provisions of her policy are lesser than, or greater than, are required by the Uninsured Motorist Law; accordingly, for purposes of this appeal, we assume that the policy provisions are consistent with statute. In light of the foregoing principles, we address the only issue as framed by appellant: "[W]hether the injury caused to decedent was caused by accident and arose out of the ownership, maintenance, or use of the uninsured motor vehicle driven by Theresa Deguevara." As impliedly conceded by the parties, a resolution of this issue is dispositive of both causes of action of the complaint.

II INJURY DID NOT ARISE OUT OF USE OF UNINSURED MOTOR VEHICLE

A. "Use" under Uninsured Motorist Provisions

The parties bring to our attention two cases addressing the issue of "use" of an uninsured motor vehicle under uninsured motorist provisions. Neither supports coverage in this case. In Farmers Ins. Exchange v. Hansel, supra, 12 Cal.App.3d 570, 90 Cal.Rptr. 654, summary judgment was upheld in favor of the insurer in a situation where the appellant and an uninsured motorist, Stevens, each alighted from his respective vehicle and had an altercation; Stevens broke a bottle on the bumper of his car and struck appellant with the bottle. The court in Hansel reasoned: "Granting the validity of appellant's reasoning that, in a sense, the uninsured automobile was 'used' by Stevens when he stabbed appellant with the broken bottle, we nevertheless must reject appellant's conclusion that the use was within the category covered by an automobile liability policy.... Injury arising out of the use of an automobile as an instrument to create a weapon in the form of a broken bottle and as a shield for an assault with that weapon is not the form of loss for which the automobile liability policy may reasonably be expected to provide indemnity." (12 Cal.App.3d at p. 574, 90 Cal.Rptr. 654.)

Although appellant distinguishes Hansel on the ground that the death of decedent in the instant case was caused by negligence and not an intentional assault, appellant fails to establish that the use of the uninsured automobile in the instant case is within the category reasonably contemplated to give rise to coverage under the uninsured motorist policy.

In State Farm Mut. Auto Ins. Co. v. Spann, supra, 31 Cal.App.3d 97, 106 Cal.Rptr. 923, the court held that appellant "has failed to prove a causal connection between his injury and an alleged 'use' or 'maintenance' by Mendoza of the uninsured Thunderbird." (31 Cal.App.3d at p. 101, 106 Cal.Rptr. 923.) In Spann, appellant was driving his insured automobile on the freeway when he struck Mendoza, on foot on the freeway with a .28 percent blood alcohol level; Mendoza, who died from injuries in the accident, was found 34 feet south of his uninsured Thunderbird parked on the freeway shoulder; Spann's vehicle went out of control, causing injury to Spann, who claimed coverage under the terms of his uninsured motorist policy. In affirming the judgment in favor of State Farm, the court of appeal in Spann noted that although the trial court inferred that the Thunderbird had brought Mendoza to the scene of the accident, there was no evidence in the record "which provides any clue as to the proximity of Mendoza to his Thunderbird" at the time of the accident. (Id. at p. 99, 106 Cal.Rptr. 923.)

Although the instant case is factually distinguishable from Spann, that case offers no rationale to support appellant's argument that decedent's death arose out of the "use" of Deguevara's uninsured vehicle within the terms of the uninsured motorist provision.

Because the purpose of uninsured motorist coverage is to require "reimbursement to the insured by his own carrier of the type of loss which would have been covered by an automobile liability policy had the uninsured motorist been in fact insured" (Farmers Ins. Exchange v. Hansel, supra, 12 Cal.App.3d 570, 573, 90 Cal.Rptr. 654), we look for guidance to cases discussing the concept of "use" of a vehicle within the meaning of the liability provisions of automobile insurance policies. Although the following cases often involve fact situations as unique as those here, we do not intend to imply that the facts there are analogous to those here; rather, we discuss these cases to ascertain a framework to analyze the issue of causation.

B. "Use" of Automobile Under Liability Provisions

In State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123, Partridge was driving his insured automobile with two friends in the front seat and hunting jackrabbits by shooting out of the windows with a pistol he had modified to have "hair trigger action"; the gun was lying in Partridge's lap or resting on the steering wheel pointed at one of the passengers when the vehicle hit a bump; the gun discharged and caused injury to the passenger. All parties conceded coverage under the automobile liability policy; the insurer contested coverage...