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

Maria BRINKMANN, Plaintiff and Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, a corporation, Defendant and Appellant.

Civ. 28047.

Decided: December 04, 1964

Virgil R. Wells, Los Angeles, for defendant and appellant. Irmas & Rutter and S. M. Irmas, Jr., Beverly Hills, for plaintiff and respondent.

Defendant Liberty Mutual Fire Insurance Company appeals from the judgment rendered in favor of respondent, the widow of its deceased insured, following a non-jury trial. The operative facts are simple and uncontradicted.

On May 4, 1961, between 5 and 6:30 p. m., the deceased husband of respondent was fatally injured in a traffic accident while he was driving a laundry truck owned by his employer. The trial court found that the deceased ‘had finished his duties for the day, and was on his way home from the last stop on his route when the traffic accident occurred in which he lost his life.’

The sales manager of the employer testified that for the mutual accoummodation of the company and their drivers, about half the drivers were authorized to park their trucks overnight at their residences, without returning to their employer's establishment the dirty laundry accumulated during the ourse of the day's route until the following morning. Their employer paid for the gasoline and for the maintenance of the trucks. The drivers were not authorized to operate the trucks for their own personal use.

Appellant insurance company had entered into a written contract of insurance with the deceased which was entitled ‘Automobile Owners' Policy.’ In addition to other provisions for coverage relating to the operation of motor vehicles by an insured, appellant offered further coverage designated ‘Coverage X. Automobile Death and Specific and Total Disability Benefits.’ The terms of this coverage were set forth as follows:

‘The company agrees with the named insured, in consideration of the payment of the premium and subject to the limits of liability, exclusions, conditions and other terms of this endorsement and of the policy * * * to pay the principal sum stated in the schedule in the event of the death of the insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon or while entering into or alighting from, or through being struck by, an automobile, * * *.’

It was then provided under the heading, ‘Exlcusions', that: ‘This insurance does not apply: (a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, * * * of * * * a commercial automobile.’

It is well established, of course, that all ambiguities in a contract of insurance must be construed against the insurer to the end that such contract will be given a construction which most fairly achieves the objective of securing indemnity to the insured against the losses which the insurance was intended to indemnify—that is to say, the coverage which the insured reasonably believed was provided by his policy.

However, ‘the rule is equally well established that where the terms of the policy are plain and explicit, the court will indulge in no forced construction so as to cast a liability upon the insurance company which it has not assumed.’ (Jensen v. Traders & General Ins. Co., 52 Cal.2d 786, 791, 345 P.2d 1, 3; New York Life Ins. Co. v. Hollender, 38 Cal.2d 73, 81, 237 P.2d 510.)

The second of the two established rules just stated is no less salutary than the first, for it allows insurers so to restrict the areas of coverage provided by their various types of insurance that a large majority of the general public may avail themselves thereof at a premium rate commensurate with the particular risk assumed and without being compelled to pay the higher and additional premium that necessarily would be required if such coverage were expanded to other activities usually engaged in only by a limited number of persons and as to whom the risk insured against patently would be much greater. It is particularly beneficial in those instances, such as that here presented, where the excluded area is one for which other and greater coverage nearly always and necessarily is provided by other effective insurance. In such cases the second policy is designed to operate in conjunction with the other insurance and thus to provide complete protection.

The nature and the extent of the risk covered by this additional insurance is clearly and unambiguously defined and no contention has ever been made herein that the deceased was misled by it or in any manner or degree failed to understand it. The question presented by this case was simply and solely this: whether or not the death of the named insured occurred in a manner which was within the coverage provided by the clear and unambiguous terms of the contract.

Further, and perhaps more importantly, the reason for so clearly delineating and restricting the area of coverage is equally manifest. Since the usual public liability, collision and comprehensive coverages do not cover bodily injury sustained by the insured automobile owner himself, this additional coverage was made available for the many members of the public who would feel a need for such protection.

However, in order to supply such coverage to the ordinary private automobile owner at the lowest permissible rates, it necessarily and properly was determined to exclude those few members of the public whose occupations required them to operate commercial vehicles in the course of their respective employments in the event that they were involved in an accident while operating such a vehicle in connection therewith.

Manifestly, the danger inherent in the operation of certain commercial vehicles is very likely to be substantially greater by reason of their very nature, and, even in those occupations which merely entail the operation of ordinary passenger cars, the number of miles usually traveled and the greater number of hours during which such persons ordinarily would be exposed to the insured risk would be calculably greater. In addition, a person thus engaged ordinarily would be protected under such circumstances in any event by the provisions of California's Workmen's Compensation Law and would have little or no need for such limited duplicate coverage.

‘* * * The intent and meaning of the parties is far more important than the strict and literal sense of the words used in the contract. For that reason it is equally important to consider the subject matter of insurance and the purpose or object which the parties had in view at that time; and in addition to these matters, it is often considered proper to consider the business of the parties, the circumstances surrounding the making of the contract, the situation of the property, and all other conditions which have a legitimate bearing upon the intention of the parties.’ (13 Appleman, Insurance Law and Practice, § 7385, pp. 32–33.)

The determinative issue of law, therefore, is whether, under the clear language and intent of this private insurance contract, the exclusionary clause operated to suspend the insured's coverage only until such time as he had made his last delivery or whether its exclusionary effect continued to apply to his operation of this commercial vehicle until such time as he had returned it to the place where it was kept at night when not in use.

We may assume that the deceased insured had ‘finished his duties for the day,’ insofar as this relates to his having serviced his last customer's establishment, but clearly it does not follow from this assumed fact that the insured driver's duties in regard to the care and custody of his employer's truck were completed. It is manifestly inconceivable that the deceased could have abandoned his truck loaded with dirty laundry at whatever point on the city streets marked his last pickup. His plain duty to care for the truck by driving it to his place of residence unquestionably was a duty incident to the operation of this commercial automobile.

Since the trial court clearly stated in its finding of fact quoted supra that the deceased ‘was on his way home from the last stop on his route when the traffic accident occurred,’ the possibility that the trier of the facts somehow might have inferred that the employer-employee relationship had been temporarily interrupted or suspended by reason of the employee's having digressed upon some errand of his own, is absolutely eliminated.

Both parties agree that cases relating to claims for workmen's compensation benefits are not directly controlling here since we are dealing with a private contract designed to provide coverage for a separate, though correlated, risk. Nonetheless, these decisions provide us substantial aid, because, if the accident is one which obviously is covered by the terms of the Workmen's Compensation Act, the correct application of an exclusion designed to avoid such unnecessary and duplicate protection is made more apparent.

In the instant factual situation, it could not reasonably be contended, and respondent does not contend, that by reason of this accident the benefits provided by the Workmen's Compensation Act were not available. In fact, the evidence established that the State Compensation Insurance Fund is paying respondent death benefits totaling $17,500 and $600 in burial expense, and this even though she had not filed a claim therefor.

Indeed, respondent's attorney, who was called as a witness by appellant, explained that he had spoken to an employee of the Industrial Accident Commission in regard to this matter and advised him that he didn't want a finding to be made on the subject by the commission so that he ‘could make a claim against the private policy that excluded compensation.’

Therefore, as indicated, the determinative issue in this case may be restated as follows: whether the otherwise effective exclusionary clause of this policy was rendered inapplicable by reason of the fact that the deceased was permitted to park the commercial vehicle overnight at his residence rather than being required to return it to the company's premises.

Certainly, if the insured had been returning the truck to a parking lot owned by the company because he, the employee, ‘had finished his duties for the day,’ no sensible claim could possibly have been asserted that such operation of this vehicle was not within the operation of the exclusionary clause, regardless of whether or not the employee had completed the performance of his duties with regard to his pickups and deliveries in accordance with the instructions of his employer. Is this inescapable result changed by reason of the fact that, in accordance with his employer's policy, his required operation of the truck for the day was advantageously to be terminated at his home rather than at the parking lot of the employer?

The evidence bearing upon this question is entirely undisputed. The trial court found that the deceased ‘was permitted by his employer to take the laundry truck home at night, such permission having been granted by the employer for the personal benefit and accoummodation of [deceased].’ This finding of fact is certainly correct and it is supported by the uncontradicted evidence, but it is patently incomplete.

The only witness who testified on this subject was the sales manager of the deceased's employer. He testified that approximately one-half of the drivers kept their trucks at their residences overnight. The employer paid for the gasoline used in their trucks. This witness testified that the deceased's expressed reason for desiring to avoid using his own private vehicle to transport him to and from his work was to enable him to allow his son to use it.1

In addition, however, he gave the following uncontradicted testimony: ‘Q. Well, how many drivers kept their trucks home at night? A. About half. Q. And was this an accommodation for the company also that the drivers kept the trucks home? A. Well, it was a combination.’ An objection was then interposed and overruled and the witness repeated his answer: ‘A. Well, it was an accommodation to the driver and also the company. Q. What was the accommodation to the company? A. The accommodation to the company would be so that there would not be so many trucks in the yard and it would be easier to get in and out.’

In our view, only one possible conclusion can reasonably be drawn from the foregoing facts. Until such time as the deceased had returned his employer's truck to its appointed parking place, he was still ‘in the course of his occupation’ and was ‘engaged in duties incident to the operation of a commercial automobile.’ Being thus unquestionably engaged in the very activity expressly excluded from the policy coverage by reason of the greater risk involved, we are unable to conceive any possible or justifiable reason to indulge in any forced construction of the policy in order to cast liability upon the appellant insurer for a loss resulting from a risk, which, by the clear terms of the contract, it had not assumed. This conclusion is strengthened by reason of the fact that respondent already is receiving the benefits inevitably accruing to her by reason of the other insurance which covers injuries and deaths sustained by persons engaged in such activities as are excluded from the coverage of the policy here involved.

The judgment is reversed.


1.  If any doubt could exist that the result of the instant judgment is to expose the insurer to dual liability, it should be removed by this candid concession regarding the additional use to be made of the deceased's private automobile by reason of his authorized operation of his omployer's truck.

HERNDON, Justice.

KINCAID, J. pro tem., concurs. ROTH, P. J., concurs in the judgment.

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