United Services Automobile Assn. v. Warner

• Decision Date: 17 December 1976
• Citation: 135 Cal.Rptr. 34,64 Cal.App.3d 957
• Parties: UNITED SERVICES AUTOMOBILE ASSOCIATION, Plaintiff and Appellant, v. Nancy L. WARNER et al., Defendants and Respondents. Civ. 15776.
• Court: California Court of Appeals Court of Appeals

Page 34

135 Cal.Rptr. 34

64 Cal.App.3d 957

UNITED SERVICES AUTOMOBILE ASSOCIATION, Plaintiff and Appellant, v. Nancy L. WARNER et al., Defendants and Respondents.

Civ. 15776.

Court of Appeal, Fourth District, Division 2, California.

Dec. 17, 1976.

Hearing Denied Feb. 11, 1977.

Parker, Stanbury, McGee & Babcock and Robert J. Moss, Santa Ana, for plaintiff and appellant.

Rose, Klein & Marias and Jerrold A. Bloch, Los Angeles, for defendants and respondents.

OPINION

MORRIS, Associate Justice.

Plaintiff United Services Automobile Association brought an action for declaratory relief, seeking an adjudication that under a policy issued by it to defendant Stacey Robertson the total policy limit applicable to the claims of the defendants Nancy Warner, Alonzo Warner, Dawn Warner, Michael Warner and Mark Warner is the 'per person' limit of fifty thousand dollars ($50,000).

The trial court entered judgment in favor of defendants, adjudging that the applicable policy limit is the 'per occurrence' limit of one hundred thousand dollars ($100,000). Plaintiff's appeal followed.

For the reasons discussed below the judgment is reversed.

Statement of Facts

Defendant Nancy Warner was injured in an automobile accident on November 29, 1973. Defendant Stacey Robertson, plaintiff's insured, was the driver of the other vehicle involved in the accident. As a result of injuries she received in the accident, Nancy Warner has suffered a permanent paralysis of the lower portion of her body. Defendant Alonzo Warner has been married to Nancy Warner since 1958, and defendants Mark, Michael and Dawn are the minor children of this marriage. These defendants were not present and did not witness the accident in which Nancy Warner was injured.

The defendants filed an action wherein it was alleged that Nancy Warner sustained personal injuries; that her husband, defendant Alonzo Warner, sustained a loss of consortium, and that the minor children sustained the loss of services of their mother.

The plaintiff brought this action for declaratory relief, seeking a declaration of its rights and duties under the insurance policy issued to Stacey Robertson and in effect on November 29, 1973, the date of the accident.

The policy limits for bodily injury were fifty thousand dollars ($50,000) for each person and one hundred thousand dollars ($100,000) for each occurrence. The insuring agreement of the policy provides that United Services Automobile Association agrees: '(t)o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: ( ) A. bodily injury, sickness or disease, including death resulting therefrom . . . sustained by any person; . . . arising out of the ownership, maintenance or use of the owned automobile . . ..'

The limitation of liability portion of the policy provides as follows:

'The limit of bodily injury liability stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to 'each occurrence' is, subject to the above provision respecting each person, the total limit of the company's liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence.'

Although the trial court entered judgment in favor of all defendants, the defendants Michael Warner, Mark Warner, and Dawn Warner have withdrawn their claim due to the uniformity of state court decisions holding that children have no right to recover for loss of services and consortium of an injured (living) parent. (Garza v. Kantor, 54 Cal.App.3d 1025, 127 Cal.Rptr. 164; Suter v. Leonard, 45 Cal.App.3d 744, 120 Cal.Rptr. 110.)

The sole issue argued in this appeal is which policy limit applies to the husband's claim for loss of consortium. Does the claim for loss of consortium arise out of bodily injuries sustained by 'one person' (the wife) so as to make the 'per person' limit applicable; or is the claim for loss of consortium a claim for bodily injury to a second person (the husband) so as to invoke the 'per occurrence' limit for injuries to 'two or more persons as a result of any one occurrence.'

Discussion

[ ]Appellant does not dispute the trial court's findings of fact, including the finding that the husband Alonzo Warner suffered a loss of consortium as a consequence of the injury and continuing disability of the wife. Therefore, the only question to be resolved by this court is whether the loss of consortium injuries suffered by Alonzo Warner constitutes a separate bodily injury within the meaning of the insurance policy issued by plaintiff herein. No extrinsic evidence was presented in aid of construction of the language of the policy. Under these circumstances, the question presented is one of law. (Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d 423, 429--430, 296 P.2d 801.) Although ambiguities or uncertainties in an insurance policy must be resolved against the insurer, nevertheless, the policy must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning. (Perkins v. Fireman's Fund Indem. Co., 44 Cal.App.2d 427, 431, 112 P.2d 670.)

In our opinion the language setting forth the limits of liability is clear and free from ambiguity. The 'per person' limit applies to 'all damages, including Damages for care and loss of services, arising out of bodily injury sustained by one person . . ..' (Emphasis added.) Clearly the words 'all damages' includes the loss of consortium which loss necessarily arises out of the bodily injury sustained by one person, the injured spouse. It is true that the policy specifically mentions only damages for care and loss of services. However, in this context it is apparent that the phrase is inclusive rather than exclusive. (Perkins v. Fireman's Fund Indem. Co., supra, 44 Cal.App.2d 427, 431, 112 P.2d 670.) Loss of consortium is not only similar in kind to damage for loss of services in that it arises out of the bodily injury sustained by the injured spouse, but actually includes loss of services as one of its elements. (Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 404--405, 115 Cal.Rptr. 765, 525 P.2d 669.) It would seem obvious that if loss of consortium includes loss of services, then they must have the same source, i.e., the same injured person.

Because California courts have only recently recognized the right to recover for loss of consortium, the precise question presented in this appeal has not previously been considered in any published opinion in this state. However, the California courts have uniformly held that the 'per person' limit applies to claims for loss of services and other consequential damages to a person related to the person suffering bodily injury in an accident. In Perkins v. Fireman's Fund Indem. Co., supra, the wife was injured in an automobile accident and claimed bodily injury; the husband who was not present and not involved in the accident sued for loss of services. In holding that the lower 'per person' limit applied to both claims, the court stated: 'An insurance policy, like any other contract, must be construed in its entirety and given a reasonable construction. A court cannot seize on the words 'on person', and give those terms a distorted meaning, when another clause in the policy expressly states what those terms mean. There is no ambiguity or uncertainty in the language used in the policy. Obviously, the words 'one person' refer to the injured person, and the words 'one accident' to the injury of several persons, regardless of how many may suffer loss by reason thereof.' (Perkins v. Fireman's Fund Indem. Co., supra, 44 Cal.App.2d 427, 431, 112...