National Auto. & Casualty Ins. Co. v. Stewart

223 Cal. App. 3d 452, 272 Cal. Rptr. 625
CourtCalifornia Court of Appeal
DecidedJuly 26, 1990
DocketA042979
StatusPublished
Cited by24 cases

This text of 223 Cal. App. 3d 452 (National Auto. & Casualty Ins. Co. v. Stewart) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Auto. & Casualty Ins. Co. v. Stewart, 223 Cal. App. 3d 452, 272 Cal. Rptr. 625 (Cal. Ct. App. 1990).

Opinion

223 Cal.App.3d 452 (1990)
272 Cal. Rptr. 625

NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Plaintiff and Appellant,
v.
THEA STEWART et al., Defendants and Respondents.

Docket No. A042979.

Court of Appeals of California, First District, Division One.

July 26, 1990.

*455 COUNSEL

Sedgwick, Detert, Moran & Arnold, Bruce D. Celebrezze, Frederick D. Baker and Scott Conley for Plaintiff and Appellant.

Janssen, Malloy, Marchi & Needham, Clayton R. Janssen, W. Timothy Needham, Davis, McClendon, Poovey, Anderson & Morrison, William R. McClendon III and John F. Donovan for Defendants and Respondents.

*456 OPINION

RACANELLI, P.J.

This is an appeal by National Automobile and Casualty Insurance Company (National) from a judgment declaring that an automobile insurance policy issued to respondent Judith Isenhart provided coverage for, and a duty to defend against, a claim brought by respondent Thea Stewart for injuries sustained in an accident involving an automobile operated by Isenhart's 16-year-old son, Matt. The pivotal issue presented is whether the phrase and definition of "nonowned automobile" is clear and conspicuous so as to preclude coverage under the terms of the insuring agreement. We will hold that it is as a matter of law and, accordingly, reverse the judgment.

FACTS

The relevant facts are not in serious dispute.

In February 1983, in connection with her purchase of a 1983 Dodge station wagon, respondent Isenhart acquired the subject policy covering the Dodge with liability exposure limited to $100,000 per occurrence and naming only her as the insured operator. Isenhart testified that she had asked her insurance agent, Ed Carpenter, to procure a policy providing "full coverage."

Carpenter testified as to his customary explanation of what full coverage normally included in terms of bodily injury and property damage, uninsured motorist, medical, comprehensive and collision coverage. Carpenter would tell his insurance clients to read the issued policy and then to contact him if they had any questions.

At the time the policy was issued to Isenhart, Matt was 14 years old. Upon attaining age 16 in July 1984, Isenhart agreed to finance Matt's purchase of an auto provided that his father, Dr. George Isenhart (who did not live in the same household), obtained auto insurance for Matt. On July 25, 1984, Matt purchased a 1969 VW (Volkswagen) which did not have seat belts installed. George Isenhart obtained insurance coverage for the VW through Allstate Insurance Company with a policy limit of $15,000. Judith Isenhart never told her insurance agent that her son had a driver's license and a VW auto registered in his name. She also stated that she had no expectations whether her National policy covered her for claims arising from the auto owned by her son.

On September 3, 1984, respondent Thea Stewart, a passenger in the VW being driven by Matt, sustained serious injuries when the car rolled over. *457 Thereafter, an action sounding in negligence was filed against the Isenharts and the State of California. Allstate tendered a defense for Matt and his mother and offered its policy limits. National declined to defend Isenhart and denied coverage on the basis that the insuring provisions and definitions expressly excluded an unnamed vehicle owned by a resident of the same household.

During the pendency of the underlying declaratory relief action filed by National, the Stewarts and Isenhart entered into a stipulated entry of judgment against Isenhart for $1.5 million in exchange for an assignment of her rights against National and the Stewarts' covenant not to execute on her assets.[1]

Following denial of both parties' motions for summary judgment, the matter proceeded to trial before the court without a jury. In its statement of decision, the court concluded that the definition of "non-owned automobile" was neither plain, clear nor conspicuous and defeated the insured's reasonable expectations of coverage for liability arising out of her use and maintenance of the auto owned by her son. The court also concluded that National owed Isenhart a duty to defend which it wrongfully breached. This appeal ensued.

DISCUSSION

I.

(1) The rules for construction and review of an insurance policy are well established: "`The policy should be read as a layman would read it....' (Crane v. State Farm Fire & Cas. Co. [(1971)] 5 Cal.3d 112, 115 [95 Cal. Rptr. 513, 485 P.2d 1129, 48 A.L.R.3d 1089].) `The insurer bears a heavy burden to draft exclusionary clauses in clear language comprehensible to lay persons.' (Stewart v. Estate of Bohnert [(1980)] 101 Cal. App.3d 978, 988 [162 Cal. Rptr. 126].) The words must be such that `an ordinary layman can understand.' (Thompson v. Occidental Life Ins. Co. (1973) 9 Cal.3d 904, 912 [109 Cal. Rptr. 473, 513 P.2d 353].) And an `insurer ... is bound to use language clear to the ordinary mind.' (Migliore v. Sheet Metal Workers Welfare Plan (1971) 18 Cal. App.3d 201, 204 [95 Cal. Rptr. 669].) (See also, e.g., Gefrich v. State Farm Mut. Auto. Ins. Co. (1980) 109 Cal. App.3d 500, 503 [166 Cal. Rptr. 516] [reduction in coverage must be `in plain and understandable language']; S & H Ins. Co. v. California State *458 Auto. Assn. Inter-Ins. Bureau (1983) 139 Cal. App.3d 509, 515 [188 Cal. Rptr. 722] [policy limitation approved expressly because it was `phrased in clear and understandable language.'].)" (Ponder v. Blue Cross of Southern California (1983) 145 Cal. App.3d 709, 723-724 [193 Cal. Rptr. 632].) Moreover, "[a]n exclusion in an adhesion contract of insurance must be expressed in words which are `plain and clear' [and] ... part of the working vocabulary of average lay persons." (Id., at p. 723; see also State Farm Mut. Auto. Ins. Co. v. Jacober (1973) 10 Cal.3d 193, 202 [110 Cal. Rptr. 1, 514 P.2d 953].)

Thus, our task is to determine whether a material uncertainty exists in the terms of the policy relating to coverage requiring resolution of such ambiguity in favor of the insured. (National Auto. & Cas. Ins. Co. v. Contreras (1987) 193 Cal. App.3d 831, 836-837 [238 Cal. Rptr. 627].)

II.

The National policy provides for indemnity coverage for damages legally incurred "arising out of the ownership, maintenance or use of an owned automobile or a nonowned automobile...." Under the heading of "Definitions" on page three, a nonowned automobile is highlighted in bold type and defined to mean "an automobile not owned by or furnished or available for the regular use of either the named insured or any resident of the same household, and includes, while used therewith, a home trailer not owned by the named insured or a utility trailer, but `non-owned automobile' does not include a temporary substitute automobile."

(2a) Thus, while the coverage clause may not alert the lay reader to the fact that the term "non-owned automobile" has a special definition found later in the policy, the insured is nonetheless responsible for reading the policy and knowing its contents (see Cal-Farm Ins. Co. v. TAC Exterminators, Inc. (1985) 172 Cal. App.3d 564, 579 [218 Cal. Rptr.

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223 Cal. App. 3d 452, 272 Cal. Rptr. 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-auto-casualty-ins-co-v-stewart-calctapp-1990.