State Farm Mut. Auto. Ins. Co. v. Yang, F021542
| Decision Date | 31 May 1995 |
| Docket Number | No. F021542,F021542 |
| Citation | 35 Cal.App.4th 563,41 Cal.Rptr.2d 210 |
| Court | California Court of Appeals Court of Appeals |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Respondent, v. Vue Pao YANG, Defendant and Appellant. |
Appellant Vue Pao Yang was insured by respondent State Farm Mutual Automobile Insurance Company. State Farm brought a declaratory relief action against Yang and sought an adjudication that Yang was not covered by the "Uninsured Motor Vehicle" and "Medical Payments" coverages of his State Farm automobile insurance policy for damages he suffered as a result of being shot by a gunman who fired from a car and then sped away. Yang had been standing near his apartment at the time of the shooting. The trial court found no coverage and entered judgment in favor of State Farm.
The facts of the case are not in dispute. The parties agreed that the facts were those testified to by Yang at his deposition and as set forth in a police report of the incident.
The incident occurred on December 27, 1991. On that day Yang, who was 21 years old, had attended a Hmong New Year celebration at the Fresno County fairgrounds. He and his brother-in-law had driven to the fairgrounds at about 1 p.m. in Yang's 1983 Toyota Celica, the car insured by Yang's State Farm automobile insurance policy. Yang was the named insured on this policy. The policy had "Uninsured Motor Vehicle" liability limits of $25,000 per person per accident, up to $50,000 per accident, and "Medical Payments" liability limits of $5,000 per person.
There was a fight between some "groups" at the celebration, but Yang testified that the fight had occurred before he and his brother-in-law had arrived at the fairgrounds. He also stated that his cousin, Her Pao Moua, was "a friend of" one or more of the people who had been involved in the fight.
Yang later left the fairgrounds, but not with his brother-in-law and not in his 1983 Toyota Celica. He went home from the fairgrounds with his "cousin's friends." Yang's brother-in-law used Yang's 1983 Toyota Celica to take one of the brother-in-law's children to a doctor's appointment.
Yang arrived home about 4 p.m. He was outside of his apartment and in the apartment's parking lot with a group of individuals which included his cousin Moua and his cousin's brother. A light brown Chevrolet drove up. Yang saw two people in the Chevrolet, but was later told by others that they had seen three people in the Chevrolet. Moua went up to the Chevrolet "to ask what they--what do they want--what they wanted." The front seat passenger then "took the gun out and shot at us." The passenger "was inside of the car with the car window open, and he shot from the inside."
The Chevrolet's engine never stopped. One of the first four shots struck Yang in the left lower leg. The Chevrolet then started to leave and "when they were going, then, they shot around with many shots." Moua was struck by two of the bullets. Neither the Yang's claim with State Farm for "Uninsured Motor Vehicle" and "Medical Payments" coverages resulted in this declaratory relief action being filed by State Farm.
occupants nor the owner of the Chevrolet were ever identified.
Yang contended in the trial court and again contends on this appeal that he is covered under his "Uninsured Motor Vehicle" coverage because he has satisfied the policy's requirements that his injury must be caused by an accident "arising out of the ... use of" the uninsured motor vehicle and that the uninsured motor vehicle must be a land motor vehicle which "strikes ... the insured."
He further contends that he is covered under his "Medical Payments" coverage because he has satisfied the policy's requirement that the insured sustain bodily injury "through being struck as a pedestrian by a motor vehicle or trailer."
We first address Yang's contention that he has satisfied the policy's "Uninsured Motor Vehicle" coverage requirement that there be "a 'hit-and-run' land motor vehicle ... which strikes ... the insured." He contends that being struck by a bullet fired from the Chevrolet satisfies this requirement. We disagree.
INSURANCE CODE SECTION 11580.21, subdivision (a) requires all California automobile insurance policies to provide uninsured motorist coverage unless the insured expressly agrees to waive or "delete" the coverage. The purpose of the uninsured motorist law (§ 11580.2) was to attempt to broaden the protection of innocent drivers against losses caused by negligent and financially irresponsible motorists. (Inter-Insurance Exchange v. Lopez (1965) 238 Cal.App.2d 441, 443, 47 Cal.Rptr. 834.)
Section 11580.2, subdivision (b)(1) of the statute permits an insurer to require, as a condition of payment of an insured's claim for bodily injury caused by an uninsured motorist, that the insured's bodily injury "has arisen out of physical contact of the automobile with the insured or with an automobile which the insured is occupying."
The "Uninsured Motor Vehicle" coverage (also referred to as Coverage U) in Yang's State Farm automobile insurance policy provided:
The policy's definition of "uninsured motor vehicle" provided in relevant part:
Although the language of the policy ("land motor vehicle ... which strikes the insured") and the language of section 11580.2, subdivision (b)(1) of the statute ("physical contact of the automobile with the insured") are not identical, there is no contention by State Farm that its policy's use of the word "strikes" requires anything more than is required by the statute's use of the term "physical contact." Nor could the policy require the insured to make a greater showing than that required by the statute. The provisions of the uninsured motorist law " 'are a part of every policy of insurance to which it is applicable.' " (Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318, 324, 14 Cal.Rptr.2d 813, 842 P.2d 112; Traveler's Indem. Co. v. Kowalski (1965) 233 Cal.App.2d 607, 609, 43 Cal.Rptr. 843.)
The original uninsured motorist law was enacted in 1959. (Stats.1959, ch. 817, § 1, p. 2835.) The original statute did not permit the insurer to require that the insured's bodily injury must have "arisen out of physical contact of the automobile with the insured or with an automobile which the insured is occupying." The present subdivision (b)(1) of section 11580.2 was part of a 1961 amendment which permitted an insurer to require an insured to meet three new requirements in order to receive uninsured motorist benefits. One was the aforementioned "physical contact" requirement of subdivision (b)(1) (§ 11580.2). The second was that the accident must have been reported to the police within 24 hours. The third was that the insured must have given the insurer a "statement under oath" about the accident within 30 days. (§ 11580.2, subd. (b)(2); Stats.1961, ch. 1189, § 2, p. 2921.) The 1961 amendments were enacted in an attempt to reduce fraudulent claims for uninsured motorist benefits.
(Inter-Insurance Exchange v. Lopez, supra, 238 Cal.App.2d at p. 443, 47 Cal.Rptr. 834.)
Yang's contention appears to be that by having physical contact with a moving object (in this case the bullet) which emanated from the Chevrolet, he has satisfied the statutory requirement of "physical contact of the automobile with the insured." He contends that case law interpretation of section 11580.2, subdivision (b)(1) "physical contact" provision requires such a conclusion. We disagree.
Appellant Yang relies primarily on Pham v. Allstate Ins. Co. (1988) 206 Cal.App.3d 1193, 254 Cal.Rptr. 152. Before we explain why Pham does not call for the interpretation urged by Yang, we first briefly review earlier case law interpretations of subdivision (b)(1).
In Inter-Insurance Exchange v. Lopez, supra, 238 Cal.App.2d 441, 47 Cal.Rptr. 834 (hereinafter Lopez ), car X hit car B and propelled car B into car C. Car X then fled the scene. The court concluded that "[i]n our view a direct application of force, as by Car X striking Car B and forcing it to hit Car C, qualifies as physical contact within the meaning of the statute." (Id. at p. 446, 47 Cal.Rptr. 834.) "We hold that where an unknown vehicle has struck a second vehicle and caused it to strike the insured vehicle, there is physical contact between the unknown vehicle and the insured vehicle within the meaning of the uninsured motorist endorsement." (Ibid.)
In Page v. Insurance Co. of North America (1969) 3 Cal.App.3d 121, 83 Cal.Rptr. 44, the plaintiff's car and "Car Two" were both traveling in the same direction on a highway. The plaintiff swerved, allegedly to avoid an...
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