Utah Home Fire Ins. Co. v. McCarty

• Decision Date: 28 October 1968
• Court: California Court of Appeals Court of Appeals
• Parties: UTAH HOME FIRE INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Thelma McCARTY and Weddie Lee McCarty, Defendants and Respondents. Civ. 31769.

Page 460

72 Cal.Rptr. 460

266 Cal.App.2d 892

UTAH HOME FIRE INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Thelma McCARTY and Weddie Lee McCarty, Defendants and Respondents.

Civ. 31769.

Court of Appeal, Second District, Division 5, California.

Oct. 28, 1968.

Stockdale, Atkison & Estes and George Bruggeman, Jr., Los Angeles, for appellant.

Arthur Sherman, Los Angeles, for respondents.

KAUS, Presiding Justice.

The only question on this appeal is whether the Utah Home Fire Insurance Company ('Utah') did or did not furnish uninsured motorists coverage to the defendant McCarty. The trial court held that it did. We agree.

When McCarty applied for automobile liability insurance he signed an endorsement form entitled 'WAIVER OF FAMILY PROTECTION OR PROTECTION AGAINST UNINSURED MOTORISTS COVERAGE.' The form was then blank. When produced at the trial it read, in relevant part, as follows: 'In consideration of a return premium of $ , the undersigned insured and the Company, in accordance with the provision of Section 11580.2(a) of the California Insurance Code which permits the insured and the Company so to agree, do agree that the provision of this policy covering damages for bodily injury which the insured may be entitled to recover from the owner or operator of an uninsured motor vehicle is hereby waived and is void and of no effect.' The form also recites: 'This endorsement, effective Sept. 19, 1964, forms a part of policy No. 68780 issued to Weddie Lee McCARTY * * *' A line providing for the signature of an 'Authorized Representative' was never used. The date, the policy number, the name of the insured and the hyphens after the dollar sign were evidently filled in by someone at Utah. This form was retained by Utah.

A little later McCarty received his policy. The face sheet contains what are commonly called the 'declarations.' Item 3 of the declarations reads as follows: 'The insurance afforded is only with respect to such of the following coverages as are indicated by specific premium charge or charges.' In a box below this language ten different coverages are set forth on separate lines. Premium charges appear only opposite the coverages for bodily injury and property damage liability.

The body of the policy begins: 'Utah * * * (a)grees with the insured, named in the declarations made a part thereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to all of the terms of this policy: * * *' This preamble is then followed by lengthy definitions of the various coverages which would be provided by the policy if a premium were charged for the particular coverage. Part IV is entitled 'PROTECTION AGAINST UNINSURED MOTORISTS.' It covers about fifty square inches of space.

The body of the policy also contains a space for the attachment of endorsements. None were attached when McCarty received the policy. A space for the listing of the 'form numbers' of endorsements attached to the policy is blank. (The form number for the waiver signed by McCarty is AL 6583.) The policy is signed by an authorized representative of Utah.

The court specifically found that when the policy was forwarded to and received by McCarty 'there were no endorsements attached nor separate documents received.'

It is evident that if McCarty, after receiving the policy, had tried to figure out whether he did or did not have uninsured motorists coverage he would have been a very puzzled man. When he had signed the waiver form it had told him: 1. that it was to be an endorsement to the policy; 2. that there...