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

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Plaintiff and Respondent, v. George D. O'BRIEN, and Monica O'Brien, Defendants and Appellants.

Civ. 43050.

Decided: September 05, 1974

James Edward Green, Van Nuys, for defendants and appellants. Spray, Gould & Bowers, by Daniel O. Howard, Los Angeles, for plaintiff and respondent.

The issue on this appeal is whether a 1964 Chevrolet driven by George O'Brien (appellant) was a ‘temporary substitute automobile’ within the terms of an automobile insurance policy issued by State Farm Mutual Insurance Company, respondent.

The appeal is on the judgment roll. Facts as found by the court and all presumptions and inferences which may be logically drawn therefrom are resolved in favor of the judgment (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 85 Cal.Rptr. 809, 467 P.2d 537), and this court is confined to the Findings of Fact recited, infra. (Haskins v. Holmes (1967) 252 Cal.App.2d 580, 60 Cal.Rptr. 659; Estate of Kretschmer (1965) 232 Cal.App.2d 789, 43 Cal.Rptr. 121.)

Respondent, as insurer, on May 25, 1971, issued a policy to appellant as the named insured on a 1964 Chevrolet registered in the name of appellant's wife, Dawn O'Brien. In pertinent part the policy provided that respondent would defend any law suit arising under the policy and that a ‘Temporary Substitute Automobile’ was included in its coverage ‘while temporarily used as a substitute for the described automobile [1964 Chevrolet] when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.’

Appellant drove the 1964 Chevrolet to work on September 3, 1971. Shortly before 12:00 noon of that day, appellant driving the 1964 Chevrolet returned home from his place of work to drive his daughter Kathleen to a doctor's office approximately five miles from appellant's home to meet an appointment fixed for 12:00 noon. Arriving at his home at approximately 11:50 a. m., appellant noticed that the 1964 Chevrolet's gas tank gauge registered empty.1

Appellant then borrowed a 1960 Chevrolet which belonged to his daughter Monica, age 20, who lived with appellant and his wife2 and, while driving it to the doctor's office, collided with an automobile driven by Max Freedman who, by reason of said accident, brought an action against appellant.

Concurrently with the substitution of the 1960 Chevrolet for the 1964 Chevrolet, appellant instructed his wife to obtain gasoline for the 1964 Chevrolet.3 It was later determined that the gas tank of the 1964 Chevrolet, although registered empty, did contain a half gallon of gasoline.

Respondent advised appellant that it had no duty to and would not defend, or pay any judgment rendered against appellant, and brought the declaratory action at bench.

This appeal is from the judgment declaring that respondent had no duty to defend or indemnify appellant under the policy.

The single issue at bench involves the interpretation of that portion of the insurance policy which embraces the use of ‘temporary substitute automobile’ which is defined in the policy as: ‘[A]n automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.’

Appellant contends that when the gas tank showed empty on the station wagon it was withdrawn from normal use for ‘servicing’ and thus his daughter's car became a ‘temporary substitute automobile’ within the meaning of the policy. Respondents argue, relying on Iowa Mutual Ins. Co. v. Addy (1955) 132 Colo. 202, 286 P.2d 622 and Ransom v. Fidelity & Casualty Co. of New York (1959) 250 N.C. 60, 108 S.E.2d 22, that the 1964 Chevrolet was not withdrawn from normal use within the meaning of the insurance clause quoted above.

When as at bench there is no extrinsic evidence in respect of the interpretation of a contract or a paragraph thereof, an appellate court is not bound by the interpretation made by the trial court. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d. 839; County of Contra Costa v. Pacific States Aviation, Inc. (1969) 273 Cal.App.2d 497, 78 Cal.Rptr. 320.) In an insurance contract any ambiguities in meaning must be resolved against the insurer. (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168; Atlantic Nat. Ins. Co. v. Armstrong (1966) 65 Cal.2d 100, 52 Cal.Rptr. 569, 416 P.2d 801.) All uncertainties must be resolved in a manner to give the most inclusive coverage for the benefit of the insured. (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 296 P.2d 801.) Further, determining the extent of the coverage the policy should be read as a layman would read it, (Otter v. General Ins. Co. (1973) 34 Cal.App.3d 940, 109 Cal.Rptr. 831), not as an insurance expert would analyze it, and in determining what the insurer had in mind at the time of the issuance of the policy this court must not only look at the contract, but also to what the insured, a layman, would expect in his coverage. (Atlantic Nat. Ins. Co. v. Armstrong, supra; State Farm Mut. Auto Ins. Co. v. Allstate Ins. Co. (1970) 9 Cal.App.3d 508, 518, 88 Cal.Rptr. 246.)

The purpose of the coverage provision at bench is not to limit coverage but to make coverage reasonably definite so that if a vehicle normally used is temporarily out of use for any of the reasons specified in the quoted paragraph, the insured will be able to drive a substitute vehicle with the protection provided by his insurance policy. (Allstate Ins. Co. v. Roberts (1958) 156 Cal.App.2d 755, 320 P.2d 90.) This enables the insurer to charge a lower premium than would be required if the insurer had to provide protection for other cars the insured might drive for a reason other than one included in the coverage clause. In this manner the insurer is only providing coverage for one car at a time. (See e. g. State Farm Mut. Auto Ins. Co. v. Allstate Ins. Co. (1970) 9 Cal.App.3d 508, 519, 88 Cal.Rptr. 246; St. Paul Fire & Marine Insurance Co. v. Nyquist (1970) 286 Minn. 157, 175 N.W.2d 494.)

At bench the undisputed facts show that the gas tank read empty. The question to be answered is whether refueling is ‘servicing’. By the language in the policy respondent provided for temporary substitution for ‘loss' or ‘destruction’ or ‘repairing’ or ‘servicing’. Thus servicing was intended to cover some situation other than mechanical failure of the insured car. Used in its normal sense ‘servicing’ would clearly encompass such things as oil changes, lubrication, tune-ups and various and other sundry services that are offered at service stations. One of these services is obviously refueling of a car. While appellant was using his daughter's car the 1964 Chevrolet had ‘been withdrawn for servicing’ and the 1960 Chevrolet was used as a ‘temporary substitute’ for the insured automobile. In our opinion appellant was covered.

The Findings confirm appellant's claim that the gas tank read ‘empty’, Nothing in the Findings suggests that appellant or a reasonable man should not have relied upon the gas gauge reading. Respondent created the ambiguity in the ‘substitute automobile’ provision by adding the word ‘temporary’. It cannot avoid the effect of its choice of terminology. (State Farm Mut. Ins. Co. v. Johnson (1973) 9 Cal.3d 270, 276, 107 Cal.Rptr. 149, 507 P.2d 1357.)

The judgment is reversed.

The majority opinion states quite correctly that the purpose of the policy provision at issue is to enable ‘the insurer to charge a lower premium than would be required if the insurer had to provide protection for other cars the insured might drive for a reason other than one included in the coverage clause. In this manner the insurer is only providing coverage for one car at a time.’ Here the trial court found that the appellant's wife intended to use the car later that day for her own personal use and if she did the insurer would not have been required to cover two cars. However, the fact that there is no finding that the wife did in fact use the car does not persuade me that the car was thereby withdrawn from service as contemplated by the policy.

Under the circumstances of this case the appellant has accomplished exactly what the majority concludes that the coverage is designed to prevent, i. e., having a number of cars available for use by paying insurance on only one.

Under the holding of the majority in this case an individual could have three or four automobiles at his disposal, insure only one and yet obtain insurance coverage while he drove any of the others so long as he simply neglected to put gas in the tank of the insured automobile.

The term ‘servicing’ as applied to automobiles has a commonly accepted and reasonably understood meaning. That meaning includes as the majority indicates such things as oil change, lubrication, tune-ups and other services that are required for the maintenance of a vehicle. I submit that even in the reasonable layman's mind there is a clear distinction between the ‘servicing’ of an automobile and the fueling of an automobile.

The servicing of an automobile is a matter that is not totally within the control of the operator or owner. Certain warranties on automobiles today require a prescribed regimen of service and maintenance in order that the warranty be kept in effect. Thus the owner of an automobile to make sure that his warranty is valid is required to surrender the car to a dealer or service station for periodic maintenance. The fact that a car may disintegrate or deteriorate to the point of being inoperable if certain service functions are not performed also forces an owner to perform certain maintenance services services on the automobile.

On the other hand, the placing of gas into the fuel tank is a matter which is solely at the option of the owner or driver. He alone observes his gas gauge and he alone can decide whether any particular trip he wishes to make requires a refueling. He alone decides when he wishes to take the time to refuel the automobile.

The obvious reason why the policy contained a provision for coverage while the insured was driving a substitute automobile is that the servicing which is contemplated by the policy is that type of activity which takes a considerable period of time during which the insured automobile is unavailable. On the other hand, the fueling of an automobile takes a matter of a few minutes.

The period during which the insured car is out of service is that period when the car is in the hands of the person doing the servicing and thus out of the control of the insured. To follow the majority's reasoning then that ‘fueling’ is servicing, a car is out of service while sitting at a gas pump even though the insured is behind the wheel.

It would be absurd to think that during the few minutes that a car is sitting at a gas pump being fueled that it is out of service and that a need for a substitute car arises.

To me, it defies all logic and reason and common understanding to suggest that because the appellant in this case simply neglected to obtain gas or decided to drive to his home without getting gas, that he can then force the insurance company into covering his driving another automobile which he apparently has failed to insure.

The insured car here was not by definition out of service. It was simply sitting at home available for use any time the insured or his wife decided to put gas in it.

In the instant case the majority resorts to the device of contending that the insurance company's choice of the word ‘service’ was ambiguous and thus it must assume a liability for which it clearly never contracted. I suggest that there is no other word which could be selected that is more well-known or descriptive of the type of activity which was intended to be embraced by the use of the word ‘servicing.’

As I see the problem the majority would have the insurance company spell out in detail in the policy every particular operation which would be considered ‘servicing’ in order to properly protect themselves against what has occurred in this case. I could envision an insurance policy with many pages devoted simply to a description of what the term ‘servicing’ is intended to cover, such as changing spark plugs, lubrication, changing tires and on and on ad nauseum.

I submit that no reasonable person could expect coverage under the clause which is at issue in this case on the basis that the word ‘servicing’ includes a situation where the operator of the vehicle simply neglects to take time to stop and get gas. There is substantial evidence to support the trial court's finding that the appellant's wife intended to use the car. There is clear evidence that the car was not withdrawn from service, whether or not she actually carried out her intention. In reality what happened was that the driver-husband had an errand to perform, the wife had an errand to perform and at the time the husband arrived home there was not sufficient gas for him to perform his errand. There was sufficient gas for the wife to perform her errand so a conscious choice was made in which the husband simply used the daughter's car, not anticipating there would be an accident. After the accident occurred and on hindsight, appellant now asserts that the insured automobile had been withdrawn from service and that the daughter's car was a substitute vehicle. In my opinion this is pure sophistry.

I would affirm the judgment.


1.  The trial court in pertinent part found: ‘It was later determined that the gas tank on the 1964 Chevrolet * * * contained a half gallon of gasoline.’

2.  In respect of the substitution, the court found in pertinent part: ‘On September 3, 1971, shortly before 12:00 noon, and for the reasons that the 1964 Chevrolet station wagon was low on gasoline and that George D. O'Brien did not want to stop and buy gasoline, George D. O'Brien drove the 1960 Chevrolet automobile owned by defendant Monica O'Brien in order to take his daughter Kathleen to her doctor's appointment.’

3.  The court found as a fact: ‘On September 3, 1971, and during the period of time within which George D. O'Brien had planned to use the 1960 Chevrolet automobile in order to take his daughter to her doctor's appointment, Dawn O'Brien intended to use the 1964 Chevrolet station wagon for her own purposes. George D. O'Brien instructed his wife to get gasoline for the 1964 Chevrolet while she was using the vehicle for her own purposes.’There is no evidence and no contention that the 1964 Chevrolet was in fact driven or used at the same time appellant was driving the substitute Chevrolet and no finding to that effect.

ROTH, Presiding Justice.

BEACH, J., concurs.