STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Appellant, v. Marcella SKOL, etc., et al., Defendants and Respondents.
State Farm Mutual Automobile Insurance Company (hereafter State Farm) appeals from a declaratory judgment granted in favor of defendant Marcella Skol, individually and as Executrix of the Estate of Isidore Skol, deceased, and defendants Sondra Bell, Alan Skolnikoff and Julia Lois Weidlund. At the core of this appeal lies the lower court's interpretation of an automobile insurance policy issued by State Farm to defendant Marcella Skol. The principal issue concerns whether the policy language obligated the insurer (State Farm) to defend and, if necessary, indemnify its insured (Marcella Skol) for claims asserted against said insured by noninsured parties (Bell, Skolnikoff and Weidlund).
The insurance policy in controversy provides in pertinent part:
“COVERAGE A–BODILY INJURY LIABILITY
“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
“(A) Bodily injury sustained by other persons, and
“caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned motor vehicle; and to defend, with attorneys selected by and compensated by the company, any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable hereunder even if any of the allegations of the suit are groundless, false or fraudulent.”
“THIS INSURANCE DOES NOT APPLY UNDER:
“(h) COVERAGE A, TO BODILY INJURY TO ANY INSURED OR ANY MEMBER OF THE FAMILY OF AN INSURED RESIDING IN THE SAME HOUSEHOLD AS THE INSURED:”
“Bodily Injury—means bodily injury, sickness or disease, including death, at any time resulting therefrom.
“Insured—the unqualified word ‘insured’ includes
“(1) the named insured, and
“(2) if the named insured is a person or persons, also includes the spouse(s), if a resident of the same household․”
We find the policy language to be a clear and unambiguous intendment that no coverage would be provided the insured under only one of the circumstances presented.
The undisputed facts are as follows:
State Farm issued an automobile liability policy to defendant, Marcella Skol. On September 20, 1978, while said policy was in effect, Marcella Skol was involved in an automobile accident while driving her own vehicle. As depicted in one of the moving papers below, the accident occurred on the San Diego Freeway, at which time and place Marcella Skol's vehicle struck the rear portion of a stopped vehicle operated by Julia Lois Weidlund. It is further alleged that a vehicle driven by Lela Gayle Cain (not a party to this action) had made a sudden stop in front of Ms. Weidlund's vehicle causing Ms. Weidlund to stop. As a result of the accident, defendant Marcella Skol's husband, Isidore Skol, who was a passenger in defendant's vehicle (and a resident of the same household), died approximately five months later.
The above event precipitated the filing of a complaint for wrongful death by Sondra Bell and Alan Skolnikoff, the sole surviving heirs of Isidore Skol, against Julia Weidlund and Marcella Skol (defendants in the instant action), among others.1 Said complaint seeks compensation for the wrongful death of Isidore Skol, allegedly due to the negligent driving of the aforementioned parties.
In her representative capacity as executrix of the Estate of Isidore Skol, defendant Marcella Skol took over a parallel suit originally filed prior to Isidore Skol's death. This action seeks recovery of medical expenses paid for and on behalf of her husband prior to his death.2 Said complaint lists as some of the defendants, Julia Weidlund, Lela Caine and Marcella Skol.
In the action brought by decedent's children, Ms. Bell and Mr. Skolnikoff, defendant Julia Weidlund filed a cross-complaint against Marcella Skol seeking comparative equitable indemnity from Marcella Skol should defendant Julia Weidlund be held liable on the complaint.
In view of the aforementioned claims, State Farm filed the instant action on June 3, 1980, seeking a judicial pronouncement concerning its rights or obligations under the terms of the exclusionary provision of the insurance policy issued to defendant Marcella Skol. Specifically, State Farm contended that exclusion (h) of its policy legally excused any obligation said insurer might have otherwise had to defend or indemnify Marcella Skol for any claim made against her arising from the September 20, 1978, accident and death of Isidore Skol. Defendants Sondra Bell, Alan Skolnikoff and Marcella Skol 3 countered with the contention that the exclusion did not apply to circumstances in which claimants are non-insureds, as opposed to insureds. Defendants therefore argued that the exclusion was unenforceable, obligating State Farm to defend and indemnify, if necessary, Marcella Skol against the claims of Bell and Skolnikoff and against the independent cross-complaint of defendant Weidlund.
On July 21, 1982, upon the submission of stipulated facts, trial briefs and oral arguments, the court ruled against plaintiff, State Farm. The court found as a matter of law that under the subject policy, State Farm was obligated to defend and, if necessary, indemnify its insured in the action brought against Marcella Skol by Ms. Bell and Mr. Skolnikoff and in the cross action brought by Ms. Weidlund. This appeal followed.
The central thrust of State Farm's appeal is that the policy language in question effectively operates to exclude liability coverage to its insured, defendant Marcella Skol, for all claims directed against her, emanating directly or indirectly from her husband's wrongful death. Inclusive of said claims are the claims and cross-complaint brought by parties not insured under the policy for their own separate injuries and equitable indemnification. We shall examine the applicability of the exclusionary language as it relates to the pending claims against Marcella Skol in the following order: (1) the action filed in behalf of the Estate of Isidore Skol; (2) the action filed by the decedent's heirs, Bell and Skolnikoff; and (3) the cross-complaint for indemnification filed by codefendant Weidlund.
Not unlike other contracts, contracts of insurance should receive a construction that is reasonable, practical and, perhaps most importantly, just. (See Ruffino v. Queen Ins. Co. (1934) 138 Cal.App. 528, 538, 33 P.2d 883.) Correlatively, where the language employed in an insurance contract is plain and unambiguous, there is no reason for the court to construe it and it will be followed. (Civ.Code, § 1638; Estate of Wemyss (1975) 49 Cal.App.3d 53, 59, 122 Cal.Rptr. 134.) Civil Code section 1636 provides: “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of the contracting, so far as the same is ascertainable and lawful.” (Emphasis added.)
Examining the subject insurance contract in light of the above principles, we find it difficult to conceive of language which could more clearly express State Farm's claim of exclusion regarding coverage for liability arising out of bodily injury to any insured, where it is the injured insured who seeks recompense or other redress.
The policy states:
“This Insurance Does Not Apply ․ TO BODILY INJURY TO ANY INSURED OR ANY MEMBER OF THE FAMILY OF AN INSURED RESIDING IN THE SAME HOUSEHOLD AS THE INSURED:”
As we read it, the obvious import of said language is that the insuring party is not obligated to provide coverage in the form of a defense or indemnification of any insured against the claim of any other person specifically named as an insured, or who is a family member of the insured, residing in the same household as the insured.
Additional support for the above construction can be found in the case of State Farm Mut. Ins. Co. v. Hartle (1976) 59 Cal.App.3d 852, 131 Cal.Rptr. 141, where the court interpreted identical exclusionary language, finding it unhesitatingly clear, unambiguous, sanctioned by statute, and not in contravention of public policy.4 Moreover, even codefendant Julia Lois Weidlund, concedes: “․ the insurance policy at issue clearly excludes claims brought by one insured against another insured under the same policy․” Ergo, there should be no doubt that State Farm is not obligated to defend or indemnify its insured, Marcella Skol, for claims brought against her by her husband's estate.5
Unlike the situation in which an insured might seek to invoke liability coverage against the claims of another insured for the latter's bodily injury, the circumstances presented with respect to the claims and cross-complaint filed by defendants Bell, Skolnikoff and Weidlund, all of whom are “noninsureds,” warrant coverage.
In arguing to the contrary, State Farm emphasizes that the determinative factor regarding the operation of the exclusion is the status of the injured party as an insured or noninsured. (See California State Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 156 Cal.Rptr. 369; Farmers Ins. Exchange v. Stratton (1983) 145 Cal.App.3d 612, 617, 193 Cal.Rptr. 119.) Upon this supposition, State Farm suggests that if the injured party is an insured, even though the lawsuit is not brought by that insured, then the exclusion bars recovery under the policy for that person's injury or wrongful death. Therefore, even though defendants, Bell and Skolnikoff, are concededly “noninsureds,” the fact that they are suing for the wrongful death of their father, an insured, precludes any recovery by them under the policy. We are unable to abide by such reasoning.
The primary flaw in State Farm's rationale is in its rhetorical characterization of the Bell-Skolnikoff complaint as seeking compensation for the wrongful death of Isidore Skol. In effect, said description lends itself to the facial conclusion that the defendant's beneficiaries are seeking compensation for injuries suffered by their father and not their own injuries. In point of fact, this is not the case.
It is manifest that pursuant to Code of Civil Procedure section 377, an action for wrongful death is original rather than derivative in nature. As such, said cause of action is merely triggered by the decedent's death, but in no way is said claim derived from the decedent, via the survival of a claim the decedent may have had. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 831, 174 Cal.Rptr. 348; Prob.Code, § 573.) More importantly, the redress sought by a decedent's beneficiaries involves the consequential injuries occasioned by the beneficiaries themselves, as a result of the decedent's death,6 and not, as previously mentioned, the decedent's pain and suffering. (Buckley v. Chadwick (1955) 45 Cal.2d 183, 192, 288 P.2d 12.)
Notwithstanding the fact that the claims of Bell and Skolnikoff are separate and distinct from those of their father's estate, and the fact that they are not necessarily claiming “bodily injury,” it remains that the former's injuries can be directly traced to the latter's death. The pivotal issue thus becomes whether the exclusionary language solely encompasses claims filed by an injured insured or whether said exclusion extends to injuries sustained by noninsureds which are plainly derived from injury to the body of an insured. Alternatively stated, does the exclusionary language contemplate injury to a noninsured party foreseeably arising out of an insured's bodily injury or death?
Farmers Ins. Exch. v. Brown (1967) 252 Cal.App.2d 120, 60 Cal.Rptr. 1, inter alia, addressed a similar coverage question involving the wrongful death of an insured. Construing policy language excluding liability coverage “․ of any insured for bodily injury to ․ the named insured” (id., at p. 121, 60 Cal.Rptr. 1), a divided Brown court concluded that said language eliminated any coverage to the heirs of the insured in a wrongful death action. (Id., at pp. 122–123, 60 Cal.Rptr. 1.) In so doing, the majority emphasized that to hold otherwise “would permit an insurer to exclude coverage for an injury to an assured, however permanent and crippling, but would bar such exclusion if the injury resulted in death. That construction unjustifiably assumes a legislative illiberality to the maimed, in contrast to an oddly inconsistent concern for adult heirs of the dead.” (Id., at p. 123, 60 Cal.Rptr. 1.) (See also Farmers Ins. Exchange v. Stratton, supra, 145 Cal.App.3d at pp. 616–617, 193 Cal.Rptr. 119.)
Suffice it to say the Brown majority was of the opinion that the inferential inclusion of the word “death” in the definition of “injury” as employed by the Legislature in the Financial Responsibility Law (Veh.Code, §§ 16000–16503), necessitated an implicit finding that death to an insured negated any duty to afford coverage for any and all claims arising from an insured's death, inclusive of care or loss of services.
A somewhat analogous conclusion was reached in Lowman v. County of Los Angeles (1982) 127 Cal.App.3d 613, 615–617, 179 Cal.Rptr. 709. There, the court determined that Government Code section 844.6, subdivision (a)(2), providing government immunity for an injury or “death” to any prisoner, necessarily precluded actions brought by the heirs of a deceased prisoner as a result of that prisoner's wrongful death for wrongful death. Lowman reached its holding after analyzing the legislative history of the statute. Said analysis was founded on the presumption that the Legislature was fully cognizant of case authority reaching a contrary interpretation.7 Perhaps more importantly, the Legislature was also presumed to have had the benefit of the opinion of the California Law Revision Commission, that the code section in question “․ was originally intended to preclude all wrongful death actions, ․” (Id., at p. 616, 179 Cal.Rptr. 709.) Thereafter, the Legislature amended the subject statute to read in pertinent part: “(c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property․” (Italics added.) (Stats.1970, ch. 1099, § 5, p. 1957.)
The Lowman court concluded: “[T]he Legislature knew that a sufficient preclusion [of wrongful death claims] already existed in the statutory language. Moreover, to accept the opposing view would mean that inserting the phrase ‘injury to a prisoner’ in subdivision (c) was an idle act not intended to abrogate the interpretation of that subdivision by the Garcia court. Such a result would be contrary to the principle that an amendment indicates a legislative intent to change the prior law. [Citation.]” (Id., at p. 617, 179 Cal.Rptr. 709.)
Without a doubt, Farmers Ins. Exchange v. Brown, supra, 252 Cal.App.2d 120, 60 Cal.Rptr. 1, and Lowman v. County of Los Angeles, supra, 127 Cal.App.3d 613, 179 Cal.Rptr. 709 provide authority for the proposition that policy language excluding coverage for bodily injury or “death” to an insured, includes any and all claims caused by an insured's death, whether proximately caused or not. However, we find the above authority unpersuasive in light of the legislative scheme embodied in Code of Civil Procedure section 377. Moreover, a strong dissent by Justice Salsman in Brown and the opinion in Garcia are squarely in accord.
It bears noting that the majority in Brown reached its opinion despite its acknowledgment of Code of Civil Procedure section 377. With this in mind, it might be said that the Brown majority espoused the sentiment that a decedent's heirs should be placed in the same position as the decedent, had the latter not died. In essence, it would appear that said reasoning presupposes that any benefits acquired by the estate will most likely, if not positively, inure to the benefit of the decedent's heirs. To the extent that this supposition is relied upon, we would respectfully disagree, and again point to Code of Civil Procedure section 377, sanctioning the right of a decedent's heirs to recover for their personal injuries, and not the decedent's personal injuries.8
Rebutting State Farm's suggested assertion that the “plain meaning” of the exclusion covers all claims related to or otherwise involving “bodily injury to any insured,” defendant Weidlund directs our attention to the underlying rationale for the Legislature's authorization of the exclusion. In Farmers Ins. Exchange v. Cocking (1981) 29 Cal.3d 383, 173 Cal.Rptr. 846, 628 P.2d 1, our Supreme Court credited the statutory allowance of the so-called “household or family exclusion” as a measure to protect insurers from collusive or “overly friendly” assertions of liability, which are presumably inherent, where bodily injury claims are brought by one insured against a person who is insured under the same policy or a close family relation. “The primary basis underlying the use of this exclusion has been well described in a recent Indiana case: 9 ‘[T]he concept of a household exclusion is a common one which has long enjoyed judicial support. Its purpose is to prevent suspect interfamily legal actions which may not be truly adversary and over which the insurer has little or no control. Such an exclusion is a natural target for the insurer's protection from collusive assertions of liability.’ ” 10 (Id. at p. 389, 173 Cal.Rptr. 846, 628 P.2d 1.)
With the above premise, defendant Weidlund insists that in the case at bar, the risks or trappings of bogus claims and potential sharing of benefits of a fraudulent claim as acknowledged by the Supreme Court in Cocking, supra, 29 Cal.3d 383, 173 Cal.Rptr. 846, 628 P.2d 1, does not exist, considering that none of the claimants herein qualify as “insureds.” Perhaps even more persuasive, defendant asserts that her own predicament does not even come close to falling within the parameters of the evil the Supreme Court in Cocking suggests the Legislature sought to prevent. First, defendant Weidlund points to the fact that she is neither an “insured” nor in any way connected as “family” to any of the other parties involved. Secondly, defendant reminds us that her cross-complaint seeks only equitable relief rather than monetary damages, and thus there are no potential proceeds to share.
Defendant attempts to strengthen her position by making reference to Insurance Code section 11580.1, subdivision (c)(5) as written at the time of the accident and as subsequently amended in 1982. In so doing, defendant argues that said legislation evidences an intention by the Legislature to tightly circumscribe the situations in which an automobile liability insurer may exclude coverage and that, in fact, the legislation made no provision for the exclusion of the class of claimants existent herein.
At the time of the subject accident, the statute read:
“(c) In addition to any exclusion as provided in paragraph (3) of subdivision (b), the insurance afforded by any such policy of automobile liability insurance to which subdivision (a) applies may, by appropriate policy provision, be made inapplicable to any or all of the following:
“(5) Liability for bodily injury to an insured․”
In 1982, subsection (5) was amended to read, effective January 1, 1983, as follows:
“(5) Liability for bodily injury to an insured or liability for bodily injury to an insured whenever the ultimate benefits of that indemnification accrue, directly, or indirectly, to an insured․”
Appended to the 1982 amendment is an uncodified expression of the Legislature's intent: “It is the intent of the amendments made by this act which are contained in the first paragraph of subdivision (c) of section 11580.1 of the Insurance Code to ensure that there is no duty to provide a defense where there is no reasonable possibility of an obligation to provide a defense where there is no reasonable obligation to provide insurance coverage under subdivision (c). Further, it is the intent of the amendments made by this act which are contained in paragraph (5) of subdivision (c) of section 11580.1 of the Insurance Code to ensure that there is no duty to indemnify an insured named in a cross-complaint where there would be no duty to indemnify if the insured were sued directly.”
As is self-evident, the amended language applies only to situations involving claims brought by noninsured parties against insured parties where another insured party would indirectly benefit by being indemnified. Thus, this new section would apply had Isidore Skol sued a third party who in turn sought indemnification from Marcella Skol.11 Yet, this legislation would not appear to have any direct impact on the issue before us.
It would seem safe to conclude that the Legislature did not intend to sanction the exclusion of coverage to bodily injury suffered by noninsureds. In that vein, our research has failed to disclose any specific legislative intendment that bodily injury suffered by a noninsured, directly stemming from an injury to an insured, should be excluded. As an incident to this line of reasoning, we find considerable significance in the fact that Code of Civil Procedure section 377, authorizing wrongful death actions, has been good law for many years and does not embody any new legal concept, portending the surprise of unforeseeable claims or claimants. As a result, the insurer might have avoided any confusion on this subject by adding appropriate language, making clear an intention to exclude coverage for claims by noninsured beneficiaries, brought as a result of the wrongful death of an insured. This, State Farm failed to do.
Recognizing that ambiguity is not invariably present when analysis is required to interpret insurance policy language, the fact that in this instance the same set of words in the subject exclusion is susceptible to more than one reasonable interpretation establishes the existence of an ambiguity. (See Estate of Black (1962) 211 Cal.App.2d 75, 85, 27 Cal.Rptr. 418.) 12 Said ambiguity warrants an interpretation of the insurance contract against its maker, State Farm, and in favor of the insured, Marcella Skol. (See Civ.Code, § 1654; see also Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 437, 296 P.2d 801; California State Auto. Assn. Inter-Ins. Bureau v. Antonelli, supra, 94 Cal.App.3d at p. 118, 156 Cal.Rptr. 369; Hellman v. Great American Ins. Co. (1977) 66 Cal.App.3d 298, 303, 136 Cal.Rptr. 24.) In doing so, we are forced to find that the carrier must provide coverage for that which it failed to clearly exclude.
The circumstances dictate that State Farm is required to afford Marcella Skol liability coverage under the terms of its policy, for lawful claims made by defendants Bell and Skolnikoff. Rather than belabor the point, similar logic dictates that the same holding would apply to defendant Weidlund on her cross-complaint for indemnification.
Without question, the subject exclusionary language lawfully excludes defense and indemnification coverage for all bodily injury claims of insured(s) or family members residing with insured(s). Hence, State Farm owes no duty to defend or indemnify its insured, Marcella Skol, against claims made by the Estate of Isidore Skol, which for our purposes is deemed to also be an insured. The intent of said exclusion remains unclear, however, as to whether the bodily injury of an insured is in turn reasonably designed to preclude coverage against the claims of non-insureds (inclusive of non-bodily injury) which can be attributed directly to the insured's injuries, as is the case with wrongful death claims. Having failed to clearly and unambiguously demarcate the limits of the exclusion as it applies to the above class of claimants, of which Bell, Skolnikoff and Weidlund are all members, we are compelled to construe said exclusion against the drafter of the exclusion, State Farm. Accordingly, we find the subject exclusion unenforceable as it applies to the action filed by claimants Bell and Skolnikoff as well as the cross-complaint for indemnification filed by Julia Lois Weidlund.
The judgment is affirmed.
1. Sondra Bell, et al. v. Doe Taxicab Company, et al., Case No. WEC 62403.
2. Marcella Skol, as Executrix of the Estate of Isidore Skol v. Marcella Skol, et al., Case No. WEC 56402.
3. Marcella Skol was independently represented but joined with codefendants Bell and Skolnikoff for defense of this action.
4. The Hartle court was confronted with a coverage issue involving an insured who sought recovery for injuries sustained as a passenger in his own vehicle against the permitted operator of same. In determining the exclusionary clause at issue to be valid and effective, the court held that the policy excluded from coverage any liability of the operator for the named insured's injuries. Although Hartle dealt with an application of the same exclusionary language to facts distinct from those presented in the instant matter, it nevertheless appears fair to conclude that the Hartle court left little doubt that it interpreted the policy to exclude liability coverage for bodily injury claims brought by one insured against another. Similar interpretations can be found in 20th Century Insurance Co. v. Stuart (1982) 129 Cal.App.3d 370, 181 Cal.Rptr. 61, and State Farm Mutual Auto. Ins. Co. v. Ammar (1981) 126 Cal.App.3d 837, 179 Cal.Rptr. 146.
5. State Farm's complaint prayed for a declaration that the insurance policy does not obligate State Farm to defend or indemnify defendant Marcella Skol in the action Marcella Skol filed as executrix of her husband's estate. In its statement of decision, the court failed to indicate a specific disposition regarding this request. Nevertheless, given the court's order granting judgment in favor of defendants Bell, Skolnikoff, Skol and Weidlund and against plaintiff State Farm, we must presume that the court ruled in the negative on this issue. In view of the analysis above, we would reverse this implied judgment.Unfortunately, none of the parties provided this court with copies of the respective pleadings and we are told by all parties that Marcella Skol's action filed in behalf of her husband's estate “․ seeks compensation for the wrongful death of Isidore Skol as a result of the alleged negligent driving of defendants.” In contrast to this statement, the consolidated trial brief of defendants Bell, Skolnikoff and Skol describes the complaint filed by Marcella Skol as executrix of her husband's estate as a “Survival Action.” In that regard, the trial court indicated in its Statement of Intended Decision, that the action filed by Marcella Skol (Case No. WEC 56402) sought recovery of “medical expenses paid for and on behalf of Isidore Skol prior to his death.” Under our present statutory scheme, we are unaware of any right entitling an estate to recover the damage or suffering of a decedent resulting from same's fatal injury. Thus, we are forced to conclude that the complaint seeks only compensation for pecuniary loss which the law recognizes as “surviving the decedent.” (See Prob.Code, § 573.) Under such circumstances, the policy would appear to necessarily be preclusive of liability coverage for Marcella Skol on any complaint filed on behalf of her husband's estate.
6. Generally, the measure of damages in this type of action includes any reasonably anticipated pecuniary loss suffered by the beneficiaries, e.g., the value of the services and support that the beneficiaries might have expected to receive if the victim had not died. (See Estate of D'India (1976) 63 Cal.App.3d 942, 947, 134 Cal.Rptr. 165.)
7. Garcia v. State of California (1967) 247 Cal.App.2d 814, 817, 56 Cal.Rptr. 80.
8. Tangentially, we can easily conceive of a “Dillon v. Legg” (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 scenario in which a “noninsured” relative sustains injury as a direct and proximate cause of an insured's injury. Not unlike the situation posed at bench, the potential claimants would necessarily be seeking recovery for their own injuries, notwithstanding the survival or wrongful death of the insured whose “injured” status provides the impetus for the claimant's injuries.
9. United Farm Bureau Mut. Ins. Co. v. Hanley (1977) 172 Ind.App. 329 [360 N.E.2d 247, 252].
10. Equally plausible, the court suggests elsewhere in its opinion that the statutory authorization for said exclusion might also involve a practical consideration of lower premiums for lessened exposure.
11. See State Farm Mut. Auto. Ins. Co. v. Suarez (1982) 104 Ill.App.3d 556, 60 Ill.Dec. 305, 432 N.E.2d 1204; Parker v. State Farm Mut. Auto. Ins. Co. (1971) 263 Md. 206, 282 A.2d 503; Minners v. State Farm Mutual Automobile Insurance Co. (1969) 284 Minn. 343, 170 N.W.2d 223 (upholding similar exclusionary language as valid in contribution or indemnification applications).
12. In passing, it bears noting that the California Law Revision Commission in 1968, voiced concern that in light of Garcia v. State of California, supra, 247 Cal.App.2d 814, 56 Cal.Rptr. 80, section 844.6 of the Government Code was uncertain as to whether or not that section's imposition of governmental immunity for claims due to an injury or death of a prisoner included wrongful death claims. (9 Cal.Law Revision Com.Rep. (1969) pp. 825–826, 56 Cal.Rptr. 80.) To clarify any resulting confusion, the Commission recommended, inter alia, the insertion of the words “wrongful death” along with the word “injury,” i.e., “․ a public entity is not liable for: ․ (2) An injury to, or the wrongful death of any prisoner.” (Emphasis in original.) (Id., at p. 841, 56 Cal.Rptr. 80.)
STEPHENS, Associate Justice.
FEINERMAN, P.J., and HASTINGS, J., concur.