State Farm Mutual Automobile Insurance v. O'Brien

534 P.2d 388, 14 Cal. 3d 96, 120 Cal. Rptr. 692, 1975 Cal. LEXIS 279

• Court: California Supreme Court
• Decided: April 24, 1975
• Docket: L.A. 30376
• Status: Published

Opinions

Opinion

McCOMB, J.

Defendants appeal from a judgment declaring that plaintiff had no duty to defend or indemnify defendant George D. O’Brien under a certain automobile liability insurance policy.

Facts: On May 25, 1971, plaintiff issued a policy of automobile liability insurance to defendant George D. O’Brien as the named insured. O’Brien’s wife, Dawn O’Brien; was the registered owner of the described automobile, which was a 1964 Chevrolet. Under the policy, plaintiff was obligated to defend certain lawsuits arising thereunder. The policy further provided that a “Temporary Substitute Automobile” was included in its coverage “while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

On September 3, 1971, O’Brien drove the insured car to work, but returned home about 10 minutes before 12 o’clock noon in order to drive his daughter Kathleen to a doctor’s office approximately five miles away for a noon appointment. After he reached home, O’Brien discovered that the insured car’s gas tank gauge registered empty.¹ Because of this condition of the car, O’Brien borrowed an uninsured 1960 Chevrolet belonging to his daughter Monica, who lived at home with her parents. At the same time, he instructed his wife, who intended to use the 1964 Chevrolet for her own purposes, to have gasoline put into the gas tank.²

While driving the 1960 Chevrolet to the doctor’s office, O’Brien had a collision with an automobile driven by Max Freedman, who subsequently brought an action against O’Brien. Plaintiff thereafter filed the present action. The trial court ruled in favor of plaintiff, declaring that it had no duty to defend or indemnify O’Brien under the policy.

Question: Was the insured automobile “withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction,” as a result of which the uninsured automobile which O’Brien used in its place was a “Temporary Substitute Automobile” within the meaning of the policy?

No. O’Brien elected to use the uninsured automobile rather than the insured automobile only because he did not want to be inconvenienced by having to stop at a gasoline station for refueling or by possibly running out of gasoline before he could drive the car to a gasoline station or to the doctor’s office. The insured automobile was not inoperable because it had broken down or was being repaired, it had not been lost or destroyed, and it was not being serviced. Refueling an automobile cannot logically be regarded as “servicing,” necessitating that the driver obtain a substitute vehicle to use while the servicing is taking place. In any event, the car had not been turned over to a serviceman for refueling at the time O’Brien decided to use the other car; O’Brien had merely left it at his home, with instructions to his wife, who intended to use it later for a personal errand she planned to perform, to have the gasoline tank filled while she was out with the car.³

Transit Cas. Co. v. Giffin, 41 Cal.App.3d 489 [116 Cal.Rptr. 110], involves a somewhat similar situation. In that case, a truck owner had been using his dump truck on a construction job and driving home with it each day. There was debris from the construction site on the undercarriage of the truck; and, as the owner drove through the city streets, some of the debris was scattered thereon. He was warned by the city authorities that if he continued to drive the truck through the city scattering debris on the streets, legal sanctions would be imposed. He therefore arranged to leave his truck parked on the grounds of a gasoline station near the construction site and to drive home in the car of a friend. He was involved in an automobile accident while driving home in the friend’s car. The trial court found that the insured truck had been withdrawn from normal use because of an incapacity; but the Court of Appeal reversed, holding that the evidence was insufficient to support the trial court’s findings.

Noting in Giffin that the insured had elected to use the borrowed car as a convenience rather than take the affirmative action required to remedy the condition of the truck, the Court of Appeal said; “This preference by Giffin was not sufficient to ‘withdraw the vehicle from normal use’ due to a stated incapacity, nor to extend policy coverage to include Giffin’s use of the Plymouth. To hold otherwise would conflict with the plain meaning of the language in the Temporary Substitute Automobile Clause.” (Pp. 494-495 of 41 Cal.App.3d.)

Plaintiff cites two out-of-state decisions, which clearly support its position, Iowa Mutual Insurance Company v. Addy, 132 Colo. 202 [286 P.2d 622]; and Ransom v. Fidelity and Casualty Co. of New York, 250 N.C. 60 [108 S.E.2d 22]. In each of these cases, the insured car was “low on gasoline,” and the insured therefore borrowed another vehicle.⁴ In both cases, it was held that the borrowed vehicle did not constitute a “temporary substitute automobile,” because the policy provided that a “temporary substitute automobile” would be covered only when the insured automobile was withdrawn from its customary use because of its breakdown, repair, servicing, loss, or destruction, and the insured car could not be regarded as being serviced simply because it was “low on gasoline.”

The judgment is affirmed.

Wright, C. J., Sullivan, J., Clark, J., and Richardson, J., concurred.

1 It was subsequently determined that the gas tank contained half a gallon of gasoline.

2 There is no evidence that O’Brien’s wife actually used the insured car while he was using the 1960 Chevrolet. However, the trial court found, as follows: “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.”

3 He obviously expected that although the gas tank gauge registered empty, there was still enough gasoline left in the tank for his wife to drive to a gasoline station.

4 In Addy,'the insured vehicle additionally had heavy snow chains, which the insured did not want to bother to remove.