Truck Insurance Exchange v. Webb

256 Cal. App. 2d 140, 63 Cal. Rptr. 791, 1967 Cal. App. LEXIS 1837
CourtCalifornia Court of Appeal
DecidedNovember 20, 1967
DocketCiv. 8305
StatusPublished
Cited by46 cases

This text of 256 Cal. App. 2d 140 (Truck Insurance Exchange v. Webb) 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
Truck Insurance Exchange v. Webb, 256 Cal. App. 2d 140, 63 Cal. Rptr. 791, 1967 Cal. App. LEXIS 1837 (Cal. Ct. App. 1967).

Opinion

TAMURA, J.

This is a declaratory relief action to determine whether a comprehensive liability policy issued by plaintiff (Truck Insurance Exchange) covered the destruction by fire of two buildings occupied under a lease by the named insured, Reliable Foods, Inc., (Reliable).

The agreed facts on which the matter was submitted were as follows:

*142 Reliable leased two commercial buildings from defendants Earl and Valah Webb for the conduct of its business. Robert Smith, Reliable’s employee, while acting in the course 'and scope of his employment took a load of cardboard boxes from the buildings in a pick-up truck owned by Reliable, drove to an area “west of the buildings” and deposited the boxes on the ground. He thereafter ignited the boxes, got into the truck and drove back to the building. The fire spread to the buildings and damaged or destroyed them. A comprehensive liability policy issued by plaintiff to Reliable was then in effect.

Following the fire two actions were filed in the Superior Court in San Bernardino County, both of which are still pending. In one, the Webbs sued Reliable to recover damages for the destruction of the buildings, the damages sought including the subrogated claims of several insurance companies for amounts paid to the Webbs under fire insurance policies. In the second action Northwestern Mutual Insurance Co. sued Reliable and Robert Smith on a subrogated claim for payments made to the Webbs under its fire insurance policy.

Thereafter plaintiff instituted the present action against the Webbs and their fire insurance carriers to determine the extent, if any, of plaintiff’s obligation under its comprehensive liability policy to indemnify the defendants in the two pending actions should judgment be recovered against them.

Plaintiff’s policy insured against all damages which the insured becomes legally obligated to pay because of “(B) damage to property, arising out of the ownership, maintenance or use of any automobile, and (B-l) damage to property, except automobile.” Under coverage “(B)” the unqualified word “insured” included any permissive user of an owned automobile. With exceptions not here material, the policy excluded from coverages “(B)” and “(B-l)” property owned, occupied or leased by the insured. The policy did not contain a “loading and unloading” provision in connection with the coverage for the use of an automobile.

On the basis of the foregoing facts the court decreed that plaintiff’s policy did not provide coverage for the destruction of the buildings and that, by virtue of the policy provision excluding damage to property owned, occupied or rented by the insured, plaintiff was not obligated to indemnify Reliable on any judgment which might be rendered against it *143 in the pending actions. Defendants appeal from the judgment.

Defendants do not challenge the correctness of the court’s determination that the exclusionary clause relieved plaintiff of any obligation to indemnify Reliable. They base their claim of coverage on the fact that Robert Smith, a defendant in one of the pending actions, is an additional insured under plaintiff’s policy and against whom plaintiff may not invoke the exclusionary clause because he was neither an owner, lessee, or occupier of the buildings. On that assumption, defendants contend that the stipulated facts establish 'as a matter of law that Smith’s liability is within the scope of coverage provided by the policy provision obligating plaintiff to indemnify against liability for damage to property “arising out of the use of any automobile. ’ ’

Thus the issues presented on this appeal are (1) whether plaintiff may invoke the exclusionary clause as to Smith, and (2) if not, whether the destruction of the buildings was a loss 11 arising out of the use of any automobile. ’ ’

On the first issue, the court in Globe Indem. Co. v. Universal Underwriters Ins. Co., 201 Cal.App.2d 9 [20 Cal.Rptr. 73], held that a similar exclusionary clause in a public liability policy did not exclude from coverage the liability of a permissive user of an automobile for damage to property of the named insured. In that case, Hacker, a used car dealer, was insured under an “automobile-garage liability policy” issued by Universal which policy contained an exclusion for damages to “property owned by or rented to the insured. . . .” Moore, a prospective customer borrowed a car from Hacker and while driving it with the permission and consent of Hacker collided with a car driven by a third person damaging both vehicles. In holding that the exclusion of damage to property owned by the named insured could not “necessarily” be invoked when the automobile was operated by a permissive user, the court stated at page 19: “But here, Moore, the permissive user, did not own the car. He became an additional assured under the policy by operation of law. Moore damaged Hacker's car; Moore is liable; the policy protects him because the damaged ear was not ‘property owned’ by him but by Hacker. We construe the policy against the insurer because it ‘ “prepared the policy” ’ (Narver v. California State Life Ins. Co. (1930) 211 Cal. 176, 180 [294 P. 393, 71 A.L.R. 1374]); the ‘presumption favors’ the insured (I agomarsino v. San Jose etc. Title Ins. *144 Co. (1960) 178 Cal.App.2d 455, 464 [3 Cal.Rptr. 80]). Universal cannot invoke the language of the exclusion, which it limited to the insured’s ‘owned’ property, to embrace property not owned, but borrowed by, an additional insured. ’ ’

The reasoning in Globe is applicable to the present ease. Smith, the additional insured, was not an owner, occupant or lessee of the buildings. The policy must be strictly construed against the insurer and any ambiguity must be resolved in favor of coverage. (Prickett v. Royal Ins. Co. Ltd., 56 Cal.2d 234, 237 [14 Cal.Rptr. 675, 363 P.2d 907, 86 A.L.R.2d 711]; Exchange Cas. & Surety Co. v. Scott, 56 Cal.2d 613, 619 [15 Cal.Rptr. 897, 364 P.2d 833]; Hendricks v. Meritplan Ins. Co., 205 Cal.App.2d 133, 138 [22 Cal.Rptr. 682].) Plaintiff may not avail itself of the benefit of the exclusionary clause with respect to the liability, if any, of Smith.

It is, therefore, necessary to consider defendants’ contention that the damage to the buildings was one ‘ ‘ arising out of the use ” of an automobile.

“ The term ‘using’, when used in a policy without restrictive terms, must be understood in its most comprehensive sense. It does not require that the injury be the direct and proximate result in any strict legal sense of the active movement of the motor vehicle covered by the policy.” (Columbia Southern Chemical Corp. v. Manufacturers & Wholesalers Indem. Exchange, 190 Cal.App.2d 194, 202 [11 Cal.Rptr. 762] [overruled on other grounds in Continental Cas. Co. v. Zurich Ins. Co., 57 Cal.2d 27, 38 [17 Cal.Rptr.

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Bluebook (online)
256 Cal. App. 2d 140, 63 Cal. Rptr. 791, 1967 Cal. App. LEXIS 1837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truck-insurance-exchange-v-webb-calctapp-1967.