DANA v. SUTTON MOTOR SALES (1961)

This is an appeal from a judgment denying plaintiffs' petition for declaratory relief and dismissing the action.

Plaintiffs purchased a used automobile from Sutton Motor Sales, a corporation, under a conditional sales contract, whereby the title was reserved to the seller as security for the unpaid balance of the purchase price. The seller was a dealer and required as a condition of sale that the buyer insure the vehicle. Section 187 of the Vehicle Code, now Section 5604 of that code, provides as follows:

‘Every dealer who, upon transferring by sale, lease or otherwise, any new or used vehicle of a type subject to registration, requires the transferee to insure the vehicle, and every lending agency which, as the holder of any security interest in any such vehicle, requires its obligor to insure the vehicle, shall, if the required insurance policy is obtained by the dealer or lending agency and the policy does not insure the transferee or obligor against damages resulting from the ownership or operation of the vehicle arising by reason of personal injury to or the death of any person, or from injury to property, notify the transferee or obligor of such fact in writing on a document other than the insurance policy, but the notice need not be given if the insurance is obtained by the dealer or lending agency because of the failure or refusal of the transferee or obligor to furnish insurance or to renew insurance in accordance with the terms of the contract of sale, encumbrance, or other loan agreement.’

The statutory conditions under which the defendant seller was required to give the statutory notice were admitted and it is likewise admitted that the statutory notice was not given. About two months after the buyers took possession of the vehicle, and while a brother of Michael G. Dana was driving it with Michael's consent the vehicle was involved in a collision with another automobile, which in turn collided with a third automobile. All three vehicles were damaged. One person was injured. Claims were presented by the owners of the other two cars for the property damage suffered and the injured person filed suit. Plaintiffs in this action allege that as a direct result of the failure of the seller to notify them that they were not insured by the insurance policy procured by the seller against liability for personal and property damage, they were confronted with said claims and with the action, and in addition had suffered damages from loss of use of their car because, being unable to furnish satisfactory security, their right to operate the vehicle had been suspended. From the pleadings and from the evidence, it appears that this action was not wholly an action for declaratory relief. Plaintiffs counted first upon an oral contract obligating defendant seller to procure a policy giving full coverage; and, second, upon the statute should plaintiffs fail to recover on contract. Nevertheless, the trial court ruled on the preliminary issue of declaratory relief, denied relief, and dismissed the action. Although adopting findings of fact, the trial court, as a part of the findings, declared: ‘That because of the uncertainty of ultimate damage to said plaintiff and the serious question as to whether a violation of Section 187 of the Vehicle Code could afford a basis for civil liability, a declaration of the rights and duties of the respective parties hereto is not necessary or proper at this time.’ From the findings the court concluded that the action should be dismissed and judgment was entered accordingly.

We think the trial court should have construed the statute and, since the issue is one of law, we will, responsive to the request of appellants, construe the statute here.

The issue on appeal is thus reduced to the question whether or not the pertinent Vehicle Code section gives rise to a cause of action for damages where the seller or lender, as the case may be, violates the section. Clearly, the statute does not expressly so provide, and if a civil remedy exists it must be raised by implication. The only sanction expressly imposed is that found in Section 40000 of the Vehicle Code which declares that any violation of any provision of the code shall constitute a misdemeanor. The imposition of this mild sanction is one indication that the Legislature did not intend to go further.

No contractual obligation arises from the mandate of the statute. The statute does not require a request by the buyer or borrower that public liability coverage be obtained for him, nor that the seller or lender agree to obtain it. Apparently, the concern of the Legislature was this: The bare requirement that he vehicle be insured, the assent to this requirement by the buyer or borrower, and the procuring of insurance by the seller or lender might lead the lender or borrower into the belief, with reliance thereon, that the insurance so obtained included public liability coverage. The legislative policy seems to be to require warning that such coverage had not been obtained. We think there is nothing in this that warrants an implication that the legislative intent included the creation of a civil remedy in favor of the buyer or borrower when the statute had been violated. This conclusion is reinforced by a consideration of the nature and scope of the remedy if the creation of liability by implication be assumed. The only effect of the warning, if given, would be to afford the buyer or borrower desiring insurance an opportunity to obtain liability coverage by freeing him of any impression that such coverage had been obtained. But what coverage would the disillusioned buyer or borrower then purchase? Putting it another way, what policy limits and conditions would be charged agaisnt the seller or lender? Using the familiar language of those in the business, would the coverage have been five, ten and twenty? Obviously, no one can know with certainty and no legal proof could be made. And what of the other provisions normally contained in vehicular insurance policies, such as provisions granting to the insurer control over the handling of claims, the defense of litigation, the employment of counsel and the like. We think if the Legislature had any intent to create a civil liability specific provisions concerning these matters would have been included in the legislation. It would not have been a difficult task to do this in view of the general uniformity of policies of insurance of this class. We do not believe that, if the Legislature had intended to create civil liability by this statute, it would have left these uncertainties unresolved.

In addition to the foregoing, where, as here, the statute is not prohibitory in the sense that it bans conduct as dangerous, but requires only affirmative action outside the concept of contractual obligation, a proper regard for the Legislature on the part of courts includes, along with the duty to give to the legislation full effect according to its expressed purpose, the duty to go no further, unless effect cannot be given to the expressed purpose of the law without going beyond its language. Of course, the Legislature could, if it had chosen to do so, have provided expressly that one injured by a breach of the statute should have a remedy by civil action but if the Legislature in this instance had so declared it would have limited and clarified the extent of the remedy. We think that the omission to raise liability expressly ought to be treated as the deliberate choice of the Legislature which the courts have no right to disregard.

For the reasons given, we conclude, as before stated, that the violation of the statute by respondents affords no ground for a civil action for damages.

The judgment appealed from is reversed, but since the action is not wholly disposed of by our construction of the statute the cause is remanded for further proceedings.

VAN DYKE, Presiding Justice.

PEEK and SCHOTTKY, JJ., concur.