State Farm Fire & Cas. Co. v. Alstadt

• Decision Date: 25 November 1980
• Citation: 113 Cal.App.3d 33,169 Cal.Rptr. 593
• Court: California Court of Appeals Court of Appeals
• Parties: STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Respondent, v. Gary ALSTADT, Defendant and Appellant. Civ. 22282.

Page 593

169 Cal.Rptr. 593

113 Cal.App.3d 33

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Respondent, v. Gary ALSTADT, Defendant and Appellant.

Civ. 22282.

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

Nov. 25, 1980.

As Modified Dec. 3, 1980.

Hearing Denied Feb. 25, 1981.

Berger, Kahn, Shafton & Moss, Anthony E. Shafton and Craig S. Simon, Los Angeles, for defendant and appellant.

Portigal & Hammerton, Barry L. Allen and Mary L. Kading, Santa Ana, for plaintiff and respondent.

COLOGNE, Acting Presiding Justice.

Gary Alstadt, by his guardian ad litem Jeanne R. Martin (Gary), appeals an adverse judgment in the declaratory relief action brought by State Farm Fire and Casualty Company (State Farm), seeking a declaration that under the personal liability coverage provisions of a homeowner's insurance policy it issued, State Farm owes no duty to Gary or his brother Daniel to defend Gary's personal injury and wrongful death lawsuit against Daniel or to make any settlement or pay any money in connection with that lawsuit and the policy.

Gary's personal injury and wrongful death action against Daniel stems from Daniel's murder on February 22, 1975, of the boys' father and mother, William and Maxine, and his commission of intentional torts against Gary. At the time the parents had a "HOMEOWNERS POLICY" with State Farm. Both boys were "resident relatives" within the policy's terms, residing in the parents' household. ¹

The policy in force at all times pertinent to this action is an exibit before us in this proceeding. It names the parents and shows their address under the heading "INSURED'S NAME AND MAILING ADDRESS." The policy details coverage for personal liability and medical payments beginning on page six and reads as follows:

"SECTION II

"___________ COVERAGES ___________

"COVERAGE E -- PERSONAL LIABILITY:

"This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence....

"COVERAGE F -- MEDICAL PAYMENTS TO OTHERS:

"This company agrees to pay all reasonable medical expenses, incurred within one year from the date of the accident, to or for each person who sustains bodily injury to which this insurance applies caused by an accident, while such person is:

"(1) on an insured premises with the permission of any Insured; ..."

Beginning on page seven is a section entitled "EXCLUSIONS." The policy sets up three major numbered subdivisions, each containing titled paragraphs printed in bold-face capitals. These provisions read, in pertinent part:

"_____________ EXCLUSIONS _____________

"THIS POLICY DOES NOT APPLY:

"1. Under Coverage E -- Personal Liability and

Coverage F -- Medical Payments to Others:

"(a) ....

"..............."

"(g) TO BODILY INJURY OF ANY INSURED WITHIN THE MEANING OF PARTS (1) AND (2) OF DEFINITION OF INSURED."

After relating conditions of the policy, there follows a series of definitions. This portion of the policy begins:

"Applicable to Both Sections I and II

"When used in this policy the following definitions apply:

"(a) 'Insured' means

"(1) the named Insured stated in the Declarations of this policy;

"(2) if residents of the Named Insured's household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured; and ...."

Gary contends the policy's exclusionary clause is unenforceable because it is neither conspicuous, plain nor clear. He relies on the rule stated in Steven v. Fidelity & Casualty Co., 58 Cal.2d 862, 27 Cal.Rptr. 172, 377 P.2d 284, that notice of noncoverage of a policy, in a situation in which the public may reasonably expect coverage, must be conspicuous, plain and clear to be enforceable (id. at p. 876, 27 Cal.Rptr. 172, 377 P.2d 284). Gary focuses on the policy's physical attributes such as its length, size of print and location of provisions in urging the conclusion he seeks. He claims, too, the varying type-face and manner of capitalization of the word "insured" in the policy creates an ambiguity. His contentions are unsupported by applicable authority and without merit.

This case is governed by decisions such as California State Auto. Assn. Inter-Ins. Bureau v. Warwick, 17 Cal.3d 190, 130 Cal.Rptr. 520, 550 P.2d 1056, where the issue was whether similar exclusionary language in an automobile liability policy was sufficiently clear to put the policyholder on notice that it is intended to apply to liability for injuries to any and all insured persons who are injured (id. at p. 194, 130 Cal.Rptr. 520, 550 P.2d 1056). There, a wife was a passenger in the insured car and named insured in the policy. She sued her husband for his negligent operation of the car and the insurance company sought declaratory relief to determine whether it had a duty to provide coverage to the husband. The policy contained a broadly worded liability coverage provision running to the benefit of the "insured," followed by definitions of "named insured," "insured" and "persons insured." The policy's exclusions read, in part:

"EXCLUSIONS: This policy does not apply under Part I:

"...

"(k) to liability to (sic) bodily injury to any insured."

The court gave effect to the exclusion, holding "the term 'any insured' unmistakably refers to any person insured under the policy, whether such person is a named or unnamed insured ..." (id. at p. 195, 130 Cal.Rptr. 520, 550 P.2d 1056). Thus, it held the policy did not cover the husband's liability for injury to the wife. In reaching its conclusion, the court in Warwick distinguished its decision in State Farm Mut. Auto. Ins. Co. v. Jacober, 10 Cal.3d 193, 110 Cal.Rptr. 1, 514 P.2d 953, cited by Gary, and holding unclear an exclusionary clause referring to "the insured" without reference to any particular definition. The court in Jacober held there was coverage for injuries of the owner of an insured vehicle while he was a passenger in the car because the exclusion provision there could be reasonably interpreted as excluding only injuries sustained by the insured driver. Drawing its distinction, the court in Warwick said (17 Cal.3d at p. 195, 130 Cal.Rptr. 520, 550 P.2d 1056):

"Jacober is distinguishable because its exclusion clause refers to injuries to 'the insured' while the present policy refers to injuries sustained by 'any insured.' The term 'any insured' has a plural connotation, unlike 'the insured.' (Fn. omitted.) Webster defines the word 'any' to mean 'one indifferently out of more than two'; 'one or another'; and 'one, no matter what one.' (Webster's New Internat.Dict. (3d ed. 1961) p. 97.) From the earliest days of statehood we have interpreted 'any' to be broad, general and all embracing. In Davidson v. Dallas (1857), 8 Cal. 227, 239, this court declared the 'word "any" means every, and the expression "for these purposes or any of them" in effect reads: "for the foregoing purposes and every of them. " ' (Citations.)"

The identical plural connotation attaches to the "any insured" language of the policy we consider here. By its reference to the definition of "insured," the clause makes it abundantly clear Gary, as a resident of the named insured's household, and the parents, as named insureds, are "insureds" whose injury is excluded from the liability coverage of the policy (see also State Farm Mut. Auto. Ins. Co. v. Hartle, 59 Cal.App.3d 852, 131 Cal.Rptr. 141, upholding exclusion and based on similar language). The clause fulfills the clear and unmistakable test and thus is an effective exclusion.

It should be noted the policy is nine pages long and, while it contains many provisions, definitions, conditions and exclusions, the printing is generally uniform and the subject matter properly identified with bold-face, large-sized print. Gary's attack on the policy's physical characteristics loses substance when one considers the coverage, exclusions and definitions provisions are all on the same printed surface of just two sheets of paper. Though the pages bear the numbers...