WILDMAN v. GOVERNMENT EMPLOYEES INSURANCE COMPANY

Reset A A Font size: Print

District Court of Appeal, Fourth District, California.

Marian WILDMAN and Elvaree H. Wildman, Husband and Wife, Plaintiffs and Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation, Defendant and Respondent.*

Civ. 5414.

Decided: September 24, 1956

Swing, Scharnikow & Staniforth and Robert O. Staniforth, San Diego, for appellants. Luce, Forward, Kunzel & Scripps and James L. Focht, Jr., San Diego, for respondent.

This is an action for declaratory relief and upon a judgment against an insolvent insured. On February 3, 1955, Eusebio Bonifacio and Cecilia Bonifacio were the owners of a 1953 Cadillac coupe automobile, which, while being negligently driven by one Victoria Villanueva, caused personal injuries and property damages to plaintiffs herein. Prior to said date, the Government Employees Insurance Company, a corporation, defendant herein, issued to Eusebio Bonifacio its policy of automobile insurance company agreed policy the said insurance company agreed to indemnify the Bonifacios against any liability not exceeding the sum of $10,000, together with taxed court costs with interest, which should arise against Eusebio Bonifacio and Cecilia Bonifacio in favor of any person or persons who should sustain any damages to their property and also in favor of any person or persons who should sustain any bodily injury by reason of an accident incurred while the said Eusebio Bonifacio and Cecilia Bonifacio were using said automobile or legally responsible for the use thereof, provided said use was with the consent and permission of said Eusebio Bonifacio or Cecilia Bonifacio. An endorsement to said policy, dated December 3, 1954, provides as follows:

‘1. The first sentence of Insuring Agreement III, Definition of Insured, is eliminated and is hereby replaced by the following:

‘With respect to the insurance for Bodily Injury Liability and Property Damage Liability the unqualified word ‘insured’ includes the named insured, the individual named below, and any member of the insured's immediate family.

‘No Exceptions

‘while using the automobile or legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.

‘2. Such insurance as is afforded by this policy does not apply while any person not an insured as defined in Paragraph 1 above is using the automobile, except that such insurance as is afforded for Medical Payments applies with respect to bodily injury to or sickness, disease or death of the named insured, the individual named below, and any member of the insured's immediate family.

‘3. As evidenced by the signature below of the named insured, the named insured acknowledges and agrees that this endorsement forms a part of the above captioned policy issued by the Government Employees Insurance Company and is effective as of 12:01 A. M. Standard Time on the effective date of the endorsement.’

On February 3, 1955, while this policy was in effect, and while the Cadillac automobile was being operated and driven by Victoria Villanueva, with the permission and consent of Cecilia Bonifacio and while Cecilia Bonifacio was seated beside Victoria Villanueva in said automobile, said Victoria Villanueva negligently operated said automobile, and as a proximate result, the property of Marian Wildman and Elvaree H. Wildman, plaintiffs herein, was damaged and personal injuries were sustained by Elvaree H. Wildman, which said damages were caused by said accident. Thereafter Marian Wildman and Elvaree H. Wildman obtained a judgment in the Superior Court in San Diego county against Victoria Villanueva and Cecilia Bonifacio in the sum of $5,000, and costs, for the property damage and personal injuries so sustained. This judgment has become final and is wholly unsatisfied and unpaid.

The instant action was brought by Marian Wildman and his wife for the declaration of the legal rights and duties of the defendant Government Employees Insurance Company under said policy and for a judgment requiring it to pay the said judgment obtained by Wildman and his wife. The trial court found, inter alia, that in the policy of insurance the defendant agreed to indemnify the Bonifacios against liability which should arise against them in favor of any person or persons who should sustain damage to their property and also in favor of any persons who should sustain any bodily injury by reason of an accident incurred while the Bonifacios were using said automobile or legally responsible for the use thereof, provided such use was with the permission and consent of the said Eusebio P. Bonifacio or Cecilia Bonifacio, and provided further that said automobile was not being used at said time by any person other than the said Eusebio P. Bonifacio or Cecilia Bonifacio or members of their immediate family; that said insurance was in effect on February 3, 1955, subject to the limitations and exclusions referred to herein. The court concluded that the plaintiffs should take nothing by their complaint and entered judgment decreeing that the insurance afforded by said policy did not apply at the time of the accident on February 3, 1955.

Plaintiffs have appealed from the judgment and first contend that the restrictive endorsement on the policy is ambiguous. We do not agree with this contention. In the first paragraph of this endorsement it is stated that the ‘insured’ includes the named insured and any member of the insured's immediate family, with no exceptions, while using the automobile or legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured. This language is clear and unambiguous as to the persons insured. Paragraph two of the endorsement clearly states that such insurance as is afforded by this policy does not apply while any person not an insured as defined in paragraph one is using the automobile. It is conceded that Victoria Villanueva was driving the automobile and that she was not a member of the Bonifacio family. She was using the automobile as she was driving it at the time of the accident and the term ‘use’ includes the person who had the actual, though not physical, control of the car, and who was constituted by the owner its master ad hoc. Souza v. Corti, 22 Cal.2d 454, 457, 139 P.2d 645, 147 A.L.R. 861. We find no ambiguity in the wording of paragraph two of the endorsement.

In Boole v. Union Marine Ins. Co., Ltd., 52 Cal.App. 207, 209, 198 P. 416, 417, it is held:

‘Contracts of insurance are not different from other contracts. In the absence of statutory provisions to the contrary, insurance companies have the same right as an individual to limit their liability, and to impose whatever conditions they please upon their obligations, not inconsistent with public policy.’

Exclusionary clauses have been held to be binding even when the insured automobile was being operated by one who was an insured under the terms of the policy. Sears v. Illinois Indemnity Co., 121 Cal.App. 211, 9 P.2d 245 is such a case. In it the policy in question, by exclusion, specified that the insurance did not apply while the vehicle was being operated by one under the age of 16 years. The automobile was owned by one Gilbert Angrimson, and his son, an insured, was in the vehicle at the time of the accident. The actual driver of the car was Wilson Parker, who was under the age of 16 years. The trial court found that while Parker was driving the car, the owner's son was controlling, managing and operating the vehicle and it was held on appeal that the terms of the exclusion were applicable and that there was no coverage at the time of the accident.

In State Farm Mut. Automobile Ins. Co. v. Coughran, 303 U.S. 485, 58 S.Ct. 670, 671, 82 L.Ed. 970, the policy in question provided:

“(1) Risks Not Assumed by This Company. The Company shall not be liable and no liability or obligation of any kind shall attach to the Company for loss or damage: * * * (A) * * * (D) Unless the said automobile is being operated by the Assured, his paid driver, members of his immediate family, or persons acting under the direction of the Assured; (E) Caused while the said automobile is being driven or operated by any person whatsoever either under the influence of liquor or drugs or violating any law or ordinance as to age or driving license; (F) * * *.'

The trial court therein found that at the time of the accident in question the insured automobile was being operated by Helen Anthony, the assured's wife, and was at the time being jointly operated by one Nancy Leidendeker, an unlicensed minor. It appears from the findings that Nancy was actually in the driver's seat. The United States Supreme Court held that: ‘If, as found, the automobile was being jointly operated by the wife and the girl, the risk was not within the policy.’

In the instant case the defendant insurance company limited its liability by excluding coverage when the automobile was being used by someone other than an insured, as defined in the policy, and such a limitation cannot be disregarded. As is said in Continental Cas. Co. v. Phoenix Const. Co., 46 Cal.2d 432, 296 P.2d 801, 806:

‘An insurance company has the right to limit the coverage of a policy issued by it and when it has done so, the plain language of the limitation must be respected.’ (Citing many cases.)

Appellant argues that the interpretation of the policy given by the trial court is contrary to section 415 of the Vehicle Code of the State of California. This section provides, in part, as follows:

‘Requisites of Motor Vehicle Liability Policy. (a) * * * A ‘motor vehicle liability policy,’ as used in this code means a policy of liability insurance issued by an insurance carrier authorized to transact such business in this State to or for the benefit of the person named therein as assured, which policy shall meet the following requirements: * * *

‘(2) Such policy shall insure the person named therein and any other person using or responsible for the use of said motor vehicle or motor vehicles with the express or implied permission of said assured. * * *’

The endorsement involved herein, in paragraph one, complies with the quoted code provision and did furnish coverage in cases where the automobile was being used by one who was not named as an insured. Since the defendant insurance company had the right to limit the coverage of the policy under the rules stated in Continental Cas. Co. v. Phoenix Const. Co., supra, 46 Cal.2d 423, 296 P.2d 801 we cannot here hold that the limitation imposed by paragraph two of the endorsement in question was prohibited by the provisions of section 415 of the Vehicle Code.

The attempted appeal from the order denying motion for a new trial herein is dismissed. In re Estate of Dopkins, 34 Cal.2d 568, 569, 212 P.2d 886. The judgment is affirmed.

MUSSELL, Justice.

GRIFFIN, Acting P. J., and BURCH, J. pro tem., concur.