ARENSON v. NATIONAL AUTOMOBILE CASUALTY INSURANCE CO

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

Irving ARENSON, Plaintiff and Appellant, v. NATIONAL AUTOMOBILE & CASUALTY INSURANCE CO., a California corporation, Defendant and Respondent.

Civ. 20409.

Decided: November 22, 1954

William Katz, Los Angeles, for appellant. Parker, Stanbury, Reese & McGee, Los Angeles. By Charles Agor Harrison, South Pasadena, for respondent.

The judgment herein denied plaintiff recovery of the amount he had been required to pay as damages, costs and counsel fees. The action was based upon (1) a fire wilfully caused by plaintiff's minor son in a public school building and (2) a personal liability policy previously issued by respondent. By the policy, respondent agreed to pay on behalf of plaintiff all sums, not exceeding $10,000, which plaintiff should become obligated to pay during the period covered by the policy, by reason of the liability imposed upon him by law, including damages for injury to or destruction of property. Also, it provided that respondent should defend any suit against plaintiff, brought to recover such damages. After denial of relief below, the matter was transferred to this court.

Appellant grounds his appeal upon the claims that the trial court misconstrued the insurance policy, made findings without proof and upheld a void section of the Education Code.

Subsequent to the issuance of the policy, appellant's minor child, Allan, a pupil at one of the elementary schools of the Los Angeles City School District, intentionally started a fire on his school's premises which resulted in the damage and destruction for which the School District sought recovery. Claiming that the policy insured him against such a claim, appellant demanded that respondent defend the action. Such demand having been rejected, appellant employed counsel to defend him, but judgment was entered by the municipal court in favor of the School District for $255.16 with costs in the sum of $15. That judgment was appealed and after respondent had refused to prosecute the appeal, appellant employed counsel to do so. Appellant claims in his brief that he incurred expenses for his defense in the municipal court in the sum of $1,202.50 and for appealing the judgment in the sum of $940. However, no mention is made in the findings of the value of such legal services or of the reasonableness of such attorney's fee, or of appellant's obligation to pay them.

The Policy

The contract of insurance specified that appellant is insured against loss by reason of the act of himself, his spouse, “any other person under the age of twenty-one in the care of an insured” and his employees legally responsible for the insured's animals and watercraft. The extent of respondent's liability is quoted on the margin below.1 Notwithstanding the quoted clause on general liability, the policy contains a list of “Exclusions,” one of which reads: “This policy does not apply (c) to injury, sickness, death or destruction caused intentionally by or at the direction of the insured.” Without regard to who might be liable, the quoted language applies to any of the assureds named. If appellant's child (an assured) wilfully set fire to school property, the loss caused by his act is excluded from the scope of coverage contemplated by the policy and its signatories. But even without the express exclusion by the policy of damage caused intentionally by an assured, appellant could not recover. It is contrary to public policy to allow recovery by an assured under an insurance policy for damage he has wilfully caused. Such public policy is definitely expressed in section 533 of the Insurance Code.2 Because the insurer is not liable for loss caused by the wilful conduct of the insured, appellant attempts to make the act of the child an accident and to enforce recovery upon that theory. But it was not accidental. The municipal court found that Allan had taken some matches from a store where his associate had stopped to purchase a fountain pen, had them in his possession at school; that he with lighted match touched the top paper in the basket. The fact that he attempted to extinguish the fire does not erase his guilt of having intentionally applied the lighted match to the paper.

Appellant contends that no evidence was presented to establish that any damage had been caused to the school by an intentional act of his son. The court below found that the damage to the school was caused by the intentional act of Allan and that his act consisted in starting a fire in the school's premises and that the fire resulted in damage and destruction for which the school district recovered against appellant. Such finding, contrary to appellant's contention, was supported by the decision and judgment of the municipal court. That was a final judgment. In addition to such findings of both of such courts, it is a pertinent observation that section 16074 of the Education Code, upon which the School District had to rely for recovery in the municipal court, authorizes recovery against the parents of pupils attending the public schools for only wilful acts. The common law doctrine of a parent's exemption from liability for the acts of his child is not applicable where statutes have been enacted contrary thereto.

The contention that the benefits of the policy run separately to each individual insured is without support. The language of the Insurance Code, section 533 is identical with that of Exclusion Clause (c). The phrase, “the insured,” is a class term and by its very nature is all-inclusive. It refers to a class who as such are entitled to protection under the policy. If one of them is entitled to coverage, all of them have the same right; if his conduct warrants the denial of his claim, all of the same class are so denied. Where an applicant for an insurance policy untruthfully answers the inquiry whether any member of his family had ever been refused a license by the Department, such answer would defeat his recovery as one of “the insured” and his policy would be void. Allstate Insurance Co. v. Miller, 96 Cal.App.2d 778, 782, 216 P.2d 565. In the case at bar, only the specific loss in issue was not recoverable.

Another feature of the policy renders appellant's contention hopeless. “Condition” 14 requires that all statutes of the state become and are provisions of the policy. That includes Section 533 of the Insurance Code which inhibits an “insurer” from insuring the consequences of a wilful act, whether the wilful act be that of “the insured” or of “an insured.” The force of the last above cited section is not impeded by any particular article standing before the noun “insured.” If the scope of policy coverage could be extended by the interpretation of “the,” the legislative intent of section 533 would be mocked and its purpose frustrated. If the word “insured” should permit a large number to qualify as covered by the policy, any of them could commit an unlawful act, and the damages flowing therefrom would be insured despite section 533.

The decisions cited by appellant do not and cannot have the effect of overcoming that section. In the first place it has no counterpart in New York where the case of Morgan v. Greater New York Taxpayers Mutual Insurance was decided. 305 N.Y. 243, 112 N.E.2d 273, 274. That case involved a policy which attempted to insure against liability for assault and battery “ ‘unless committed by or at the direction of the Assured.’ ” Respondent's policy contains no such provision but “excludes” such an act. The case of Western Casualty & Surety Co. v. Aponaug Mfg. Co., 5 Cir., 197 F.2d 673, involved a policy to be performed in Mississippi where the law makes a person, assaulted and injured by the assured without provocation, a sufferer by an “accidental injury.” In other words, the public policy of Mississippi is exactly contrary to that of California. The decision cited is therefore without value.

Validity of Section 16074

Appellant attacks section 16074 of the Educational Code3 , declaring it to be unconstitutional, that it violates the Fifth and Fourteenth Amendments to the Federal Constitution, sections 11 and 21 of Article I, and subdivisions 19 and 33 of section 25 of Article IV of the California Constitution. He argues that section 16074 is the only basis for the School District's judgment against appellant; that it purports to impose liability upon the parents of a minor who is a pupil in a public school; that because it is a radical departure from the law universally prevailing in the United States, to wit, that parents are not liable for the torts of their children, Perry v. Simeone, 197 Cal. 132, 136, 239 P. 1056; Weber v. Pinyan, 9 Cal.2d 226, 235, 70 P.2d 183, 112 A.L.R. 407; that its operation is not uniform and is discriminatory, arbitrary and capricious and therefore void.

Just how appellant hopes to recover from respondent the amount of the judgment rendered against him is not made clear. If the judgment of the municipal court is error and if it unjustly took from appellant that to which the school district was not entitled, by virtue of what logic could he be justified in purloining ten times the same amount from respondent? If the statute is void, as he contends, appellant should have interposed such defense in the municipal court. If appellant did in fact in the municipal court assert the nullity of section 16074, supra, and if that court held the statute to be valid, still he had a final judgment against him. If the cited section was valid then, it is valid now; if he was not entitled to prevail in the action by the school board against him he cannot now recover against the insurance company which, in his opinion only, had indemnified him against loss through the wilful act of his son in setting fire to the school property.

Judgment affirmed.

FOOTNOTES

1.  “Insuring Agreements: 1. Coverage A—Liability“To pay on behalf of the insured all sums which the insured shall become ob ligated to pay by reason of the liability imposed upon him by law, or the l iability of others assumed by him under written contract relating to the pr emises, for damages, including damages for care and loss of services, becau se of bodily injury, sickness or disease, including death at any time resul ting therefrom, sustained by any person or persons, and for damages because of injury to or destruction of property, including the loss of use thereof.”

2.  Section 533 of the Insurance Code of California: “An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured's agents or others.”

3.  “Any pupil who wilfully cuts, defaces, or otherwise injures in any way any property, real or personal, belonging to a school district is liable to suspension or expulsion, and the parent or guardian shall be liable for all damages so caused by the pupil. The parent or guardian of a pupil shall be liable to a school district for all property belonging to the school district loaned to the pupil and not returned upon demand of an employee of the district authorized to make the demand.”

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.