CALIFORNIA STATE AUTOMOBILE ASSOCIATION INTER INSURANCE BUREAU v. WARWICK (1976)

In this declaratory relief action the trial court entered its judgment declaring that plaintiff insurance carrier's contract of insurance did not provide coverage for defendant Harry C. Warwick (hereinafter ‘Warwick’) in regard to the personal injury liability claims of his wife, defendant Bernice C. Warwick (hereinafter ‘wife’) and that he was not entitled to be defended or indemnified. Defendants appeal from the judgment.

Warwick covering a 1969 Volvo Station-wagon for the period February 7, 1972 through February 7, 1973. On September 22, 1972, Warwick, while driving said vehicle, was involved in an accident as a result of which his wife, who was riding in the vehicle, sustained personal injuries.

The facts are not in dispute. Plaintiff issued an automobile insurance policy to that time Warwick and his wife were residing as husband and wife in the same household. The wife filed an action against Warwick for her injuries alleging that at the time of the accident Warwick negligently drove and operated the Volvo automobile.

The insurance policy under consideration provides coverage for bodily injury pursuant to which plaintiff agrees to ‘pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages other than punitive damages, because: (a) bodily injury, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by any person.'

The policy defines the term ‘named insured’ as follows: “named insured' means the individual named in Item I of the declaration and also includes his spouse, if a resident of the same household.' Warwick is the individual named in Item I of the declaration.

The term ‘insured’ is defined in the policy as follows: “insured' means a person or organization described under ‘Persons Insured’.' The following are listed as persons insured with respect to the ‘owned automobile’: ‘(1) the named insured, and if the named insured is an individual or husband and wife, a relative, (2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and (3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above.’

The policy contains an exclusion clause which, in relevant part, states: ‘This policy does not apply under Part I: . . . (k) to liability to bodily injury to any insured; . . .’

Defendants argue that the term ‘any insured’ in the exclusion clause is ambiguous and misleading and therefore plaintiff cannot escape its duty to insure by means of an exclusionary clause that is unclear. They contend, accordingly, that the policy provides coverage for Warwick for any liability resulting from the injuries sustained by his wife. The principle relied upon by defendants is that which articulates that so long as coverage is available under any reasonable interpretation of an ambiguous clause of an insurance policy, the insurer cannot escape liability. (State Farm Mut. Auto. Ins. Co. v. Jacober, 10 Cal.3d 193, 197, 110 Cal.Rptr. 1, 514 P.2d 953.)

At the time the subject insurance policy was issued subdivision (c) of section 11580.1 of the Insurance Code,¹ provided, as it presently does, as follows:

‘(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 all of the following:

‘(1) Liability assumed by the insured under contract.

‘(2) Liability for bodily injury or property damage caused intentionally by or at the direction of the insured.

‘(3) Liability imposed upon or assumed by the insured under any workmen's compensation law.

‘(4) Liability for bodily injury to any employee of the insured arising out of and in the course of his employment.

‘(5) Liability for bodily injury to an insured.

‘(6) Liability for damage to property owned, rented to, transported by, or in charge of, an insured.

‘(7) Liability for any bodily injury or property damage with respect to which insurance is or can be afforded under a nuclear energy liability policy.

‘(8) Any motor vehicle or class of motor vehicles, as described or designated in the policy, with respect to which coverage is explicitly excluded, in whole or in part.

‘The term ‘the insured’ as used in paragraphs (1), (2), (3), and (4) of this subdivision shall mean only that insured under the policy against whom the particular claim is made or suit brought. The term ‘an insured’ as used in paragraphs (5) and (6) of this subdivision shall mean any insured under the policy.'²

In Jacober an exclusion clause providing that the insurance does not apply under “coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured” (at p. 199, 110 Cal.Rptr. at 4, 514 P.2d at 956) was held not to be conspicuous, plain and clear and to be reasonably susceptible of an interpretation which would permit recovery for injuries to the owner of the insured automobile while he was riding in it as a passenger and while it was being operated by a permissive user. In that case the policy protected a permissive user of the insured automobile against liability to ‘other persons.’ The court held that from the permissive user's point of view the automobile owner was clearly among the ‘other persons' against whom he might reasonably expect and claim protection, and that the term ‘bodily injury to the insured’ employed in the exclusion clause would be interpreted, in view of the unclear exclusionary clause, as referring only to injuries sustained by the party, including the permissive user, who seeks a legal defense and indemnification from the insurer. (At pp. 203–208, 110 Cal.Rptr. 1, 514 P.2d 953.)

The cases of Farmers Ins. Exchange v. Brown, 252 Cal.App.2d 120, 60 Cal.Rptr. 1, and Farmers Ins. Exch. v. Geyer, 247 Cal.App.2d 625, 55 Cal.Rptr. 861, were distinguished in Jacober where it was pointed out that the exclusion clauses in these cases referred to the ‘named insured.’ Jacober contrasted the term ‘named insured’ with the term ‘the insured’ and concluded that the former is unambiguous while the latter is ambiguous. (10 Cal.3d at p. 206, 110 Cal.Rptr. 1, 514 P.2d 953.)

We here observe that Jacober was not concerned with the provisions of subdivision (c) of section 11580.1. The policies under consideration in Jacober were all issued in 1968. Section 11580.1 was added in 1970. (Stats.1970, ch. 300, p. 573, § 4.) The substance of the permitted exclusions contained in subdivision (c) of section 11580.1 appears for the first time in that statute as enacted in 1970. Former section 11580.1, relating to the subject of required policy provisions in motor vehicle liability insurance, which was added in 1963 (Stats.1963, ch. 1259, p. 2780, § 1), amended in 1965,³ 1968,⁴ and 1969,⁵ and repealed by the 1970 enactment, did not contain the permitted exclusions provided for in subdivision (c) of section 11580.1, as enacted in 1970 and as subsequently amended.⁶

It is significant to note that in 1971 the Legislature added the second sentence of section 11580.1 (Stats.1971, ch. 1564, § 3) which defines the meaning of the term ‘the insured’ as used in paragraphs (1), (2), (3), and (4) of subdivision (c), and the term ‘an insured’ as used in paragraphs (5) and (6) of said subdivision. It is particularly significant to observe that the definition of ‘the insured’ coincides with the interpretation given that term in Jacober. Section 11580.1 provides that the term ‘the insured’ shall mean only that insured under the policy against whom the particular claim is made or suit brought.' In the present case we are not concerned with the term ‘the insured’ as used in paragraphs (1), (2), (3), and (4) of subdivision (c), but with the meaning of the term ‘an insured’ as used in paragraph (5) of subdivision (c) providing for an exclusion for ‘Liability for bodily injury to an insured.’ (Emphasis added.)

The exclusion in the instant policy states that the policy does not apply ‘to liability to bodily injury to any insured’ rather than to ‘liability for bodily injury to an insured’ as provided in paragraph (5) of subdivision (c). However, the meaning of the two terms is the same, particularly in view of the specific language of subdivision (c) which states that ‘[t]he term ‘an insured’ as used in paragraphs (5) and (6) of this subdivision shall mean any insured under the policy.' (Emphasis added.)

Webster defines the word ‘any’ to mean ‘one indifferently out of more than two’; ‘one or another’; and ‘one, no matter what one.’ (Webster's Third New Internat. Dict.)

In view of the popular and accepted meaning of the word ‘any’ and the statutory definition of the term ‘any insured’ in section 11580.1, as distinguished from the statute's definition of the term ‘the insured,’ there is no ambiguity or uncertainty in the subject policy as to the meaning of the term ‘any insured.’ The meaning of the term is clear and it unmistakably means any person insured under the policy whether such person is a named or a non-named insured.

The following statement in Farmers Ins. Exch. v. Harmon, 42 Cal.App.3d 805, 809, 117 Cal.Rptr. 117, 119, is applicable in the present case. ‘An insurance policy is but a contract; and, like all other contracts, it must be construed from the language used; when the terms are plain and unambiguous, it is the duty of courts to hold the parties to such contract. [Citation.] The courts will not indulge in a forced construction so as to fasten a liability on the insurance company which it has not assumed. [Citation.] Absent circumstances indicating a contrary intention, words in an insurance policy are to be used in their plain, ordinary and popular sense. [Citation.]’

The judgment is affirmed.

FOOTNOTES

1.  Unless otherwise indicated all statutory references hereinafter made are to the Insurance Code.

2.  Subdivision (a) of section 11580.1 provides generally for the provisions required to be contained in automobile liability insurance policies. Paragraph (3) of subdivision (b) of the statute provides: ‘Every policy of automobile liability insurance to which subdivision (a) applies shall contain all of the following provisions: . . . (3) Designation by explicit description of the purposes for which coverage for such motor vehicles is specifically excluded.’

3.  Stats.1965, ch. 1968, p. 4496, § 1.

4.  Stats.1968, ch. 618, p. 1303, § 1; Stats.1968, ch. 1314, p. 2482, § 2.

5.  Stats.1969, ch. 471, p. 1033, § 1.

6.  Subdivision (c) of section 11580.1 was amended in 1971. (Stats.1971, ch. 1564, § 3.)

MOLINARI, Presiding Justice.

SIMS, J., and HAROLD C. BROWN,* J., Assigned, concur.