WIXSON v. AMICA MUTUAL INSURANCE CO

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

Charles WIXSON et al., Plaintiffs and Appellants, v. AMICA MUTUAL INSURANCE CO., Defendant and Respondent.

No. A068078.

Decided: June 18, 1996

Philip L. Pillsbury, Lori A. Lee, Pillsbury, Levinson & Mills, San Francisco, Karin R. Williams, Sausalito, for Appellants. Mark G. Bonino, Robert P. Andris, Ropers, Majeski, Kohn & Bentley, Redwood City, for Defendant.

Plaintiffs Charles Wixson and Phyllis Berenson bought a homeowner's insurance policy from defendant Amica Mutual Insurance Co.   The policy included an earthquake rider providing coverage subject to a deductible of five percent “of the amount of insurance that applies to the destroyed or damaged property.”   After the insured home was damaged in the October 1989 earthquake, Amica contended that it was required to pay only so much of the losses as exceeded $10,800, which was five percent of the limits of liability.   The insureds brought this action, contending the policy only required them to absorb $694.80, or five percent of their covered losses.   Acting on the basis of authority which has since been annulled as precedent, the trial court granted the insurer's motion for summary judgment.   We will reverse, because the clause creating the five percent deductible is reasonably susceptible to the meaning the insureds allege they attributed to it.

Background

The insureds originally filed this action in municipal court.   As eventually amended, the complaint stated three causes of action.   In the first (for breach of contract), the insureds alleged that on October 17, 1989, their home sustained earthquake damage in the amount of $13,896.06;  that the resulting claim under their policy was subject to a “5% deductible of $694.80”;  that the insurer paid only $3,096.06;  and that $10,105.20 remained due and unpaid.   In the second (breach of covenant of good faith and fair dealing) and third (fraud), the insureds alleged among other things that the insurer had engaged in a “fraudulent marketing plan” when it told them that “they could obtain earthquake protection subject to a 5% deductible;” that the insurer “intentionally omitted” and “suppressed or concealed” its intention to calculate the deductible as a portion of the pre-damage value of the entire insured structure;  that based on the insurer's “oral representation,” the insureds purchased the policy;  and that the insurer wrongfully refused to honor the insureds' claim despite their explanation that they had relied on the coverage as represented by the insurer.

The insurer moved in municipal court for summary judgment.   The court denied the motion, finding that “as a matter of law, [the] earthquake deductible term is ambiguous.”   Some ten months later, the court granted the insureds' motion to transfer the case to superior court.   The insurer then moved that court for summary judgment or summary adjudication, asserting that reconsideration of the municipal court's order was warranted by “a change in the law which compels judgment in favor of defendants.”   The insurer relied on a recently issued (but later depublished) opinion in which the Sixth District held that a deductible clause similar to the one here unambiguously required a deductible of five percent of the policy limits.1  At the hearing on the motion, counsel for the insureds alluded to contrary unpublished authority but effectively conceded that there was no other published authority on point.

Stating, “[T]here's only one case that tells me what to do here, and I have to follow that,” the court granted defendant's motion as to all three causes of action.   The insurer served a notice of entry of judgment.   This appeal promptly followed.

Analysis

I.

 A motion for summary judgment requires the trial court to determine whether triable issues of fact exist, or whether the moving party is entitled to judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  This is “a question of law, not fact.”  (International Jet Ski Boating Assn., Inc. v. Superior Court (1991) 232 Cal.App.3d 112, 115, 283 Cal.Rptr. 33;  see Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 597, 186 Cal.Rptr. 395 [“The function of the trial court is issue finding, not issue determination.”].)   Therefore, if the trial court errs in granting summary judgment, the error is one of law.  (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050, 40 Cal.Rptr.2d 680.)   On appeal, the reviewing court independently reviews the evidence presented to the trial judge and exercises its independent judgment to determine whether the ruling was sound.   (Ibid.)

The basic premise on which the insurer here relied in its motion for summary judgment, and which the trial court accepted under compulsion of then-valid authority, is that “[o]n its face, the deductible provision of the [earthquake rider] is clear and unambiguous,” and requires a deductible of $10,800.   The insureds allege that they reasonably understood the rider to create a deductible of five percent of covered losses, i.e., $694.80.   We must determine whether this controversy was properly resolved in the insurer's favor as a matter of law.

 Although an insurance policy possesses “special features,” it is still a contract “to which the ordinary rules of contractual interpretation apply.”  (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264, 10 Cal.Rptr.2d 538, 833 P.2d 545, citing AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 822, 274 Cal.Rptr. 820, 799 P.2d 1253.)   “If contractual language is clear and explicit, it governs.  (Civ.Code, § 1638.)   On the other hand, ‘[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.’  (Id., § 1649;  see AIU, supra, 51 Cal.3d at p. 822, 274 Cal.Rptr. 820, 799 P.2d 1253.)”  (Id. at pp. 1264–1265, 10 Cal.Rptr.2d 538, 833 P.2d 545.)   If this principle fails to resolve an ambiguity in an insurance policy, the provision in question will be construed against the insurer.  (Id. at p. 1265, 10 Cal.Rptr.2d 538, 833 P.2d 545.)

A copy of the policy was appended to the complaint.   Section I, with which we are here concerned, provided coverage for four categories of property, each with a separate limit of liability:  “dwelling” ($216,000), “other structures” ($21,600), “personal property” ($108,000), and “loss of use” ($43,200).   The first of two declaration pages stated a general deductible of “$250,” with the further notation, “Special deductible provisions apply under HO–315,” the earthquake rider.   The second declaration page recited, as the fourth of eight items in a list of attached forms and endorsements, “HO–315 (Ed. 07–85) Earthquake [¶] 5 percent deductible applies.”

The earthquake rider itself appears as the twenty-second page of the policy and provides in pertinent part, “For an additional premium, we insure for direct physical loss to property covered under Section I caused by earthquake including land shock waves or tremors before, during or after a volcanic eruption.  [¶] We will pay only that part of the loss which exceeds [five 2 ]% of the amount of insurance that applies to the destroyed or damaged property.   This deductible(s) will apply separately to loss under the various Section 1 Property Coverages.   If the limit of liability on certain property is increased by endorsement, and that property is destroyed or damaged, the total limit of liability will be used in calculating and applying the deductible.  [¶] However, the total deductible amount will not be less than $250.”

In opposition to the motion for summary judgment, plaintiff Berenson declared that before purchasing the policy, she spoke with an Amica employee who told her that the insureds “could purchase earthquake coverage with a 5% deductible at an additional premium of $413.00 per year, and that there was a minimum $250 deductible.  [¶] I cannot recall the exact language of the conversation but Ms. Sargent explained the deductible in such a manner as to convey to me that the 5% deductible was calculated as 5% of the damage claim, with a minimum $250 deductible.   I therefore concluded to Ms. Sargent and it was confirmed by her, that we would be required to pay only for a minor amount of the breakage that might result from an earthquake.   At no time was I informed the deductible was 5% of the total coverage.”   Ms. Berenson further declared that after the insureds submitted their claim and the insurer assessed a much higher deductible than the insureds anticipated, she explained their position to an Amica representative who cited the relevant clause in the policy.  “In discussion,” Ms. Berenson declared, “he stated that it was ambiguous and other insureds had raised the same issue.”

II.

 Under the authorities discussed above, the first step is to determine whether the policy language is “clear and explicit” with respect to the calculation of the earthquake deductible.

This question can only be answered negatively.   The declarations at the beginning of the policy state only, “5 percent deductible applies.”   The only elaboration appears in the earthquake rider, which states that the deductible equals five percent of “the amount of insurance that applies to the destroyed or damaged property.”   These words convey no single, clear, “ordinary and popular” meaning.  (Civ.Code, § 1644;  AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at p. 822, 274 Cal.Rptr. 820, 799 P.2d 1253.)   The word “apply” means, in this context, “to have relevance or a valid connection.”   (Webster's Ninth New Collegiate Dict. (1984), p. 97.)   At least two different figures can be described as “amount[s] of insurance” which “have relevance or a valid connection” to “destroyed or damaged property.”   One is the total coverage available to pay claims of the type presented—the “policy limit,” “limit of liability,” or “limitation of coverage.”   In this view, the phrase “that applies to the destroyed or damaged property” modifies “insurance” rather than “amount,” and exists solely to focus the clause on the category of coverage involved, i.e., dwelling, other structures, personal property, or loss of use.   In the insureds' interpretation, this phrase modifies “amount” and refers to losses actually sustained in a particular incident and compensable under the policy.

The insurer invokes the rule that before policy language can be held ambiguous, it must be “ ‘capable of two or more constructions both of which are reasonable.’ ”  (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 868, 21 Cal.Rptr.2d 691, 855 P.2d 1263 (Bay Cities ), quoting Suarez v. Life Ins. Co. of North America (1988) 206 Cal.App.3d 1396, 1402, 254 Cal.Rptr. 377;  see AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at pp. 821–822, 274 Cal.Rptr. 820, 799 P.2d 1253.) 3  (Italics added.)   According to the insurer, the terms of the policy itself would not permit the insureds to reasonably expect that the deductible would be based on the amount of covered loss.

Despite its own insistence that academic analyses of policy language are not dispositive, the insurer contends that the insureds' interpretation is unreasonable “in the abstract” because (1) it produces a “circular result,” and (2) the phrase “amount of insurance” suggests a “fixed quantity,” whereas the insureds' interpretation posits “a variety of ‘amounts ’ which fluctuate with the level of damage.”   The first argument rests on the premise that under the insureds' interpretation, the “amount of insurance that applies to the damaged or destroyed property” means the amount which will be paid by the insurer on a given claim.   The insurer correctly observes that this sum cannot be ascertained by ordinary arithmetic without first calculating the deductible.   This reasoning, however, depends on a misconstruction of the insureds' interpretation of the contract.   Under that interpretation, the “amount of insurance that applies to the destroyed or damaged property” means the loss which is compensable (covered) under the terms of the policy, i.e., before subtracting the deductible.

The insurer's second “abstract” argument is merely a restatement of the ultimate conclusion it would have us draw.   It states, “If an informed woman is asked what ‘amount of insurance’ applies to her personal property, she would respond by citing the personal property coverage limits, not that the amount of insurance depends on the amount of damage to her personal property.”   We agree that if a policyholder is asked, while standing in front of an undamaged house, “How much insurance applies to this house?”, she is likely to cite the limits of coverage.   But if her attention is drawn to damage she has actually sustained in an earthquake, and she is asked “How much insurance applies to this damaged [or destroyed ] property? ”, she is at least as likely to respond with the amount of covered loss or its verbal equivalent (e.g., “I only have to pay five percent of it”).   The insurer's illustration, in short, depends on a tendentious paraphrase which omits the qualifying phrase, “destroyed or damaged property.”

Nor does the insureds' view impute to the deductible an inherently implausible “fluctuating” value.   The value of the deductible is fixed by the degree of damage sustained by the property.   The wording of the clause is entirely consistent with an understanding that the deductible is not determined until after the damage or destruction has occurred, and the question is not how much insurance is available for claims of that type, but how much actually “applies to the destroyed or damaged property.”

Indeed, if the deductible were determined by the limits of coverage—sums known when the policy is issued—a reasonable insured might expect the policy to express the deductible as a fixed monetary amount rather than a percentage.   The insurer's use of a percentage, when the actual amounts could easily be calculated and explicitly laid out, tends to lend strength to an expectation that the dollar amount of the deductible has not been fixed on the date of entry into the contract but depends on subsequent events, i.e., the occurrence of covered damage.4  If the deductible were to be calculated on the basis of total coverage of the insureds' dwelling ($216,000) it could have been fixed at $10,800, and would not have needed to be expressed only as a percentage.

We discern nothing which would make the insureds' claimed understanding of the deductible clause unreasonable “in the abstract.” 5

III.

The insurer next adverts to several other clauses in the policy which, it asserts, render the insureds' claimed interpretation unreasonable.   It invokes the rule that we must interpret disputed language “in context, with regard to its intended function in the policy.  (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 916–917 & fn. 7 [226 Cal.Rptr. 558, 718 P.2d 920].)   This is because ‘language in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.’  (Id., at p. 916, fn. 7 [226 Cal.Rptr. 558, 718 P.2d 920], italics added;  cf. Civ.Code, § 1641.)”  (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1265, 10 Cal.Rptr.2d 538, 833 P.2d 545.)   In other words, an interpretation which appears reasonable when viewing a clause in isolation may become unreasonable in light of other portions of the contract.

The insurer contends that the insureds' interpretation of the phrase defining the deductible renders meaningless the sentence which follows it.   That sentence provides that the deductible “will apply separately to loss under the various Section 1 Property Coverages.”   The gist of the insurer's argument is that if the five percent is subtracted from all covered losses, it will make no difference whether they fall in different coverage categories, and the requirement that the deductible “apply separately” to those categories will have no effect.6

On its face this argument assumes that the ordinary insured possesses, or is expected in law to possess, sufficient linguistic and mathematical sophistication to (1) recognize that the deductible clause is ambiguous;  (2) identify the different interpretations which might be applied;  (3) note the mathematical effects of those interpretations on other policy language;  and (4) infer that since one interpretation would deprive other language of practical effect, that interpretation is unreasonable.

We question whether such astute exegetical insights may fairly be attributed to the typical consumer of insurance.   Assuming they can, and indulging for the moment the premise that the insureds' understanding renders the “apply separately” clause superfluous, such anomalies may also arise under the insurer's own interpretation.   In particular, the $250 minimum deductible for earthquake claims is at least arguably superfluous under defendant's interpretation, and misleading, because the insurer's formula would invariably yield a deductible for each category of covered property far in excess of that amount.7  In attempting to dispel this objection the insurer only highlights the confusion its own interpretation would create.   Thus the insurer asserts that the $250 minimum deductible would take effect under “Special Limits of Liability” which affect certain sub categories of personal property.   It is far from clear, however, how the “apply separately” clause affects claims subject to these limits, or whether it applies at all.   Is the deductible for damage within these subcategories determined separately, or is all personal property viewed in the aggregate (as a single “coverage”) for purposes of the deductible?   If viewed separately, does damage above the “special limit” for one subcategory discharge the deductible for other subcategories?   Does it discharge the aggregate $5,500 deductible?

We do not suggest that, given the uncertainties of language, this contract, or any contract, could have been drafted so as to eliminate all conceivable ambiguity.   The meaning of the provisions at issue here is, however, needlessly obscure, and no interpretation is so manifestly correct as to exclude the possibility of an alternative meaning.   Under the insureds' understanding of the policy, the $250 deductible had an obvious purpose and effect:  at a minimum, it applied to every claim where damage under $5,000 was sustained within a single category of coverage.8  Under the insurer's interpretation it applied, if at all, only to the subcategories of personal property covered by special liability limits.

In any event, it is simply untrue that under the insureds' interpretation the “apply separately” clause has no effect.   It will not affect the result if all losses are below the limits of liability.   Without the “apply separately” clause, however, the insured could reasonably assume that the deductible must be determined and discharged in the aggregate, such that if losses in one or more categories exceed the coverage limits the deductible could be exhausted by paying those excess losses.   The effect would be to require the insurer to fully compensate losses in other categories.   The “apply separately” clause ensures that payments by the insured in one category of coverage cannot apply toward the deductible in another category.9

The insurer contends that the “increased by endorsement” clause reinforces its interpretation of the policy by stating that the deductible is based on the “total limit of liability” rather than on the amount of the loss.   But if the insurer's reading is correct, the “increased by endorsement” clause serves no direct purpose, since the deductible will always be based upon the “total limit of liability.”   Of course the title of the clause indicates its purpose:  to make it explicit that the deductible will not be based on the original limits of liability but on the limits as increased by endorsement.   The word “total” must therefore have been intended, by the drafter of the policy, only to distinguish the increased limits from the original, lower limits.   It has that same effect under either of the interpretations before us.10

In fact, under this level of scrutiny the “increased by endorsement” clause could well reinforce an insured's belief that the deductible was based on something other than coverage limits.   The clause uses the relatively unambiguous phrase “total limit of liability” to describe the sum from which the insurer contends the deductible was supposed to be calculated.   Yet the insurer did not use that phrase to define the deductible.   Instead it used “the amount of insurance that applies to the destroyed or damaged property.”   An insured might reasonably infer that the insurer knew how to say “limit of liability” when that was what it meant, and that it chose different terms to describe the deductible because it meant something different.

The insurer notes that the phrase “amount of insurance” also appears in the main body of the policy, in a clause providing that if coverage for a loss overlaps coverage from other insurance policies, the insurer “will pay only the proportion of the loss that the limit of liability that applies under this policy bears to the total amount of insurance covering the loss.”   We find this clause no more supportive of the insurer's interpretation than insureds'.   The insurer is probably correct in asserting that “total amount of insurance covering the loss” in the quoted clause is intended to mean the aggregate liability limits of all policies affording coverage.   This is so, however, not because the language is clear, but because an alternative interpretation would appear to deprive the clause of any effect.11  Moreover, the same clause contains the phrase “limit of liability” to convey a concept more nearly identical to the insurer's interpretation of the deductible clause.   Any insured who sifted through the policy as assiduously as the insurer has done would be further encouraged to believe that if the earthquake deductible were based on the policy limits for a covered loss, the phrase “limit of liability” would have been used.12

Nor is the phrase to which the insurer points (“total amount of insurance covering the loss”) identical to the phrase used to define the deductible (“amount of insurance that applies to the destroyed or damaged property”).   It may well be that the insurer intended these phrases to convey precisely the same meaning, but its use of different language supports a contrary understanding.

We therefore reject the insurer's contention that the meaning the insureds attributed to the earthquake deductible clause was objectively unreasonable as a matter of law.   Nothing in the earthquake rider, or elsewhere in the policy, describes the deductible with sufficient clarity to dispel the ambiguity and compel a contrary understanding.13  Accordingly, the court erred in granting summary adjudication on the contract cause of action.

The insurer's sole ground for seeking summary adjudication on the tort claims (breach of covenant and fraud) was that the language of the policy unambiguously supported its interpretation, and the insureds therefore could not reasonably rely on a contrary understanding.   Since this premise was not demonstrated as a matter of law, it was error to grant the motion as to those causes of action.

The judgment is reversed.

FOOTNOTES

1.   The Sixth District opinion is American States Ins. Co. v. Superior Court (1994) 33 Cal.Rptr.2d 259 [27 Adv.Cal.App.4th 1658], review den. Nov. 23, 1994, and opn. ordered nonpub. (S042647).Rule 977(a) of the California Rules of Court provides that, with exceptions not here relevant, “[a]n opinion that is not ordered published shall not be cited or relied on by a court or a party in any other action or proceeding.”   In light of the fact that the California Supreme Court has cited and discussed opinions it earlier ordered depublished (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254, fn. 9, 19 Cal.Rptr.2d 698, 851 P.2d 1307;  People v. Saunders (1993) 5 Cal.4th 580, 607, 20 Cal.Rptr.2d 638, 853 P.2d 1093 (dis. opn. of Kennard, J.);  Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 676, fn. 16, 42 Cal.Rptr.2d 324, 913 P.2d 878), another division of this court has concluded that under rule 977 an unpublished opinion may be cited if it is not relied upon as precedential authority that must be followed under conventional stare decisis principles.  (Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 444, fn. 2, 29 Cal.Rptr.2d 441, review den.)   We do not cite the opinion in American States Ins. Co. v. Superior Court, supra, in order to rely upon it but simply to provide a fuller explanation and the legal rationale for what happened below in the instant case, and also because the depublication of that opinion suggests that its analysis of the law was believed by the Supreme Court to be “ ‘wrong in some significant way.’ ”  (Mangini v. J.G. Durand International (1994) 31 Cal.App.4th 214, 218, 37 Cal.Rptr.2d 153, quoting Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal.L.Rev. 514, 515.)

2.   At this point the policy contains a blank, followed by a footnote stating, “Entries may be left blank if shown elsewhere in this policy for this coverage.”   As noted above, the policy declarations include under the heading “Earthquake” the statement, “5 percent deductible applies.”

3.   Of course, this rule is not intended to sweep so far as to generate pernicious results.   Where a provision is so vague or obscure that it has no “ordinary and popular” meaning, the insurer's ability to posit a reasonable “construction” will not be permitted to operate to the prejudice of the insured.

4.   It might be argued, and may indeed be the fact, that the deductible was stated in percentage terms because it was a convenient way of addressing the possibility that the limits might thereafter be increased by endorsement—a possibility explicitly contemplated in policy language discussed more fully below.   However, the reasonableness of an insured's understanding of policy language cannot depend on the convenience to the insurer of drafting the policy in that manner.

5.   We also note that, “in the abstract,” the insurer's interpretation produces at least one highly anomalous and counter-intuitive result:  Assuming an amount of damage below policy limits, an insured who purchased a greater amount of coverage, and who paid a correspondingly higher premium for it, would receive a smaller payment from the insurer, and would suffer a larger out-of-pocket loss, than a neighbor who suffered identical damage but had purchased less coverage (and paid less for it).   We seriously doubt that the typical consumer of homeowners' insurance would anticipate such a result unless it were quite explicitly communicated.

6.   The insurer's argument is nowhere stated this cogently.   Its clearest statement appears as the following illustration:  “Appellants' reading precludes any distinction between different types of property damage:  $20,000 in property damage always results in payment by AMICA of $19,000 (5% of $20,000 = $1,000 deductible subtracted from $20,000)—regardless of whether the property is a dwelling, an ‘other structure’ or personal property.”

7.   Under the insurer's construction the deductibles would be:  $10,800 for Coverage A (“Dwelling”), $1,080 for Coverage B (“Other Structures”), $5,400 for Coverage C (“Personal Property”), and $2,160 for Coverage D (“Loss of Use”).

8.   Two hundred fifty dollars is five percent of $5,000.

9.   The following tables apply the insureds' formula for calculating the deductible and compare results, with and without the “apply separately” clause, in a hypothetical situation of the type described in the text.C1-7With “Apply Separately” Clause  C1Coveragec2Damagec3Limitc4,e11Deductiblec5Insuredsc6Applied toc7Insurer c4(Category)c5Payc6Deductiblec7Pays  Dwelling234,000216,00010,80018,00010,800216,000  Other Structures22,00021,6001,0801,0801,08020,920  Personal Prop110,000108,0005,4005,4005,400104,600  Loss of Use40,00043,2002,0002,0002,00038,000  TOTAL406,000388,80019,28026,48019,280379,520C1-7L1–7 C1-7Without “Apply Separately” Clause  c1Coveragec2Damagec3Limitc4Deductiblec5Insuredsc6Deductiblec7Insurer c4(Aggregate)c5Payc6Unpaidc7Pays  Dwelling234,000216,00019,28018,0001,280216,000  Other Structures22,00021,6001,280400 88021,600  Personal Prop110,000108,0008802,0000108,000  Loss of Use40,00043,20000040,000  TOTAL406,000388,80019,28020,4000385,600

10.   Without such a provision, an insured might assert that she reasonably understood the maximum deductible to have been fixed by the original policy terms.   Thus if she sustained a $150,000 loss after increasing the limits from $100,000 to $200,000, she might contend that her deductible was $5,000 (5 percent of $100,000).   Such a result would produce a smaller deductible than would the interpretation offered here by the insureds ($7,500—5 percent of $150,000) or the insurer ($10,000—5 percent of $200,000).It is true that under the insureds' interpretation, the “increased by endorsement” clause will not be pertinent in all cases, but only in those where the loss falls between the old and new policy limits.   Under the insurer's reading, the clause will operate in all cases because the deductible is a fixed sum.   However, there is no rule of construction rendering unreasonable an interpretation merely because it operates in fewer than all cases covered by the contract.   Moreover, the across-the-board applicability of the insurer's interpretation points to a version of the highly doubtful effect already noted (see fn. 5).   That is, every insured who increases her coverage, presumably in the hope of reducing her out-of-pocket expenses in the event of a claim, will actually be subject to greater expenses, in a substantial number of situations, than she would have incurred by retaining the lower coverage limits.

11.   If “total amount of insurance covering the loss” in this clause means only the amount of covered loss, then as long as the covered loss is at or below the policy limits, the proportion defined in the “other insurance” clause will necessarily be greater than 1:1, and the insurer will pay the entire amount.   Once the loss exceeds the insurer's policy limits, the insurer will be liable for those limits in any event and is unaffected by the existence of other insurance.   The insurer would gain nothing from the “other insurance” clause as so interpreted, and would have no reason to include it in the policy.   It may therefore be inferred that the insurer intended to make its coverage proportionate to the aggregate limits of liability of all policies providing coverage.   It cannot be said, however, that this meaning emerges unambiguously from the language of the policy.

12.   Elsewhere in the policy we find another example of the insurer clearly expressing the concept on which it contends the deductible is predicated.   The section concerning “Additional Coverages ․ Debris Removal,” provides in part, “This expense is included in the limit of liability that applies to the damaged property.   If the amount to be paid for the actual damage to the property plus the debris removal expense is more than the limit of liability for the damaged property, an additional 5% of that limit of liability is available for debris removal expense.”   (Italics added.)   Had the insurer employed this same language in defining the deductible, much of the present ambiguity would have been dispelled.

13.   The insureds also argue that the ambiguity of the language in question appears as a matter of law from unpublished judicial opinions interpreting it and from legislation enacted after this controversy arose;  that the deductible provision was insufficiently conspicuous to be binding on them;  that the trial court erred by entertaining the motion for summary adjudication after a similar motion had been denied by the municipal court;  and that the court should have denied or postponed a ruling on the motion because of pending discovery.   Having resolved the appeal on the grounds stated, we need not address any of these issues.

KLINE, Presiding Justice.

SMITH and PHELAN,* JJ., concur.

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