The husband and daughter of a pedestrian killed by an underinsured motorist sued Farmers Insurance Exchange and others (Farmers). The complaint alleged that coverage provided by Farmers to the decedent's father also provided underinsured motorist coverage for the decedent. Finding that neither the insurance statutes nor the policies provided underinsured motorist coverage for the decedent as a pedestrian, the trial court granted Farmers's summary judgment motion. Plaintiffs appeal the ensuing judgment.
On appeal, plaintiffs contend that (1) Insurance Code section 11580.2
Finding no merit in these contentions, we affirm.
Kristina Berendes was struck and killed by a car driven by David Scott Duril while she was a pedestrian. She was 39 years old at the time of her death. She was married to Todd Berendes, and they had a daughter named Taylor. For at least one year prior to the accident, Kristina had been living with Todd and Taylor, and not with her father, William Felix. Todd and Taylor are the plaintiffs in this case.
Duril's insurer, California State Automobile Association, paid plaintiffs his insurance policy limit of $50,000 for causing Kristina's death. In addition, Todd had underinsured motorist coverage through Liberty Mutual Insurance, which paid an additional $200,000 to plaintiffs because Kristina was covered as Todd's spouse.
The insurance policies at issue in this case were three policies issued by Farmers to Felix as the named insured. The policies included (1) an automobile policy for a 2001 Chrysler PT Cruiser; (2) an automobile policy for a 2005 Mercedes-Benz ML350; and (3) an umbrella policy with a limit of $1 million. Kristina paid an additional monthly premium to be listed and covered as a rated driver under the PT Cruiser policy. There was no descriptive language identifying any rated drivers on the Mercedes policy. It is undisputed that, if either the PT Cruiser policy or the Mercedes policy gave Kristina underinsured motorist coverage as a pedestrian, then plaintiffs can recover under Felix's $1 million umbrella policy.
At the time of her death, Kristina worked as a Farmers underwriting agent. Felix purchased a 2005 Mercedes-Benz ML350 as a gift to Kristina for graduating college. Before giving the Mercedes to Kristina, Felix contacted Kristina's office, where her coworkers set up the Mercedes policy under Felix's name.
Plaintiffs filed a third amended complaint against Farmers, alleging bad faith and breach of contract. Farmers filed a motion for summary judgment claiming that there was no liability because Felix's policies did not include
Oral arguments were heard the next day, and one month later, the trial court adopted the tentative ruling and signed the order granting Farmers's motion for summary judgment. The court entered judgment, and this appeal followed.
Plaintiffs' first contention is purely statutory. They contend that under section 11580.2, in their words, "no insurance policy covering a person for liability insurance shall be issued in this state unless the policy also covers the person for [the liability of an underinsured motorist]. The only way to avoid this requirement is to obtain a signed written waiver." Plaintiffs claim that, since Kristina was covered for liability under the PT Cruiser and Mercedes policies, the statute required Farmers to give her underinsured motorist coverage because she did not sign an express waiver of that coverage. The contention is without merit because the underinsured motorist statute does not extend to coverage of a person in Kristina's circumstances.
Section 11580.2, subdivision (a)(1) contains the Legislature's requirement that automobile insurance policies include underinsured motorist coverage. It states, in relevant part: "No policy of bodily injury liability insurance covering liability ... shall be issued ... unless the policy contains ... a
Section 11580.2, subdivision (b) defines the "insured," for the purpose of applying the statute, as "[(1)] the named insured [(here, Felix)] and [(2)] the spouse of the named insured and [(3)], while residents of the same household, relatives of either while occupants of a motor vehicle or otherwise, [(4)] heirs and any other person while in or upon or entering into or alighting from an insured motor vehicle and [(5)] any person with respect to damages he or she is entitled to recover for care or loss of services because of bodily injury to which the policy provisions or endorsement apply ...."
Under section 11580.2, subdivision (b), the following people were the "insured" under Felix's policies: (1) Felix, who was the named insured, (2) Felix's spouse, (3) relatives living in Felix's household, (4) others engaged in activities with the covered automobile, and (5) loss of consortium claimants for injuries to people in the other categories.
Since Kristina did not fit into the statutory definition of the "insured," for the purpose of applying section 11580.2, Farmers was under no statutory obligation to provide her coverage under these circumstances for the liability
We note that section 11580.06, subdivision (b) contains a different definition of "insured." However, that definition applies "[e]xcept as may be otherwise provided in this article" (§ 11580.06), and the definition of "insured" in section 11580.2, subdivision (b) specifically applies to the term "[a]s used in subdivision (a)," which provides for underinsured motorist coverage. Therefore, the definition in section 11580.2, subdivision (b) is the definition applicable to this case.
We therefore conclude that plaintiffs' statutory argument is without merit.
Plaintiffs contend that Farmers's use of the term "insured person" in "PART I — LIABILITY" and "PART II — UNINSURED MOTORIST" of the PT Cruiser and Mercedes policies with two separate definitions created an ambiguity that must be construed against Farmers. We do not find the language to be ambiguous. Similar to the statutory scheme, the policies defined the "insured person" differently for different purposes but those different definitions and purposes were clear and unambiguous.
"In determining whether an ambiguity exists, the words of the policy must be interpreted according to the plain meaning that a layperson would ordinarily attach to them. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807 [180 Cal.Rptr. 628, 640 P.2d 764].) Policy language is ambiguous when it reasonably may be interpreted in two or more ways. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 [44 Cal.Rptr.2d 370, 900 P.2d 619].) `Courts will not adopt a strained or absurd interpretation in order to
Part I of each automobile policy was titled, "LIABILITY," while part II was titled, "UNINSURED MOTORIST." Each part had its own definition of "insured person." Both definitions included the named insured and relatives living in the same household. But the part I definition also included "[a]ny person using your insured car," a provision not found in the part II definition. On the other hand, the part II definition included "[a]ny other person while occupying your insured car," which was not included in the part I definition. Neither definition of "insured person" in the main text of the policies — that is, not considering the endorsements — included Kristina, except when she was driving or occupying the insured car.
An amendment to the PT Cruiser policy changed the definition of "insured person" in PART I — LIABILITY to include Kristina. The evidence showed that she was a listed or rated driver on that policy. Endorsement 1042A to that policy stated that it amended PART I — LIABILITY and it expressly added to the definition of "insured person" any "listed driver." It continued: "Listed Driver means a driver expressly rated on this policy to operate your insured car and for whom a premium has been paid to operate your insured car." In at least three places, Endorsement 1042A stated that it applied to PART I — LIABILITY, at one point stating that the definition was to be "Used In This Part Only." There was no mention of PART II — UNINSURED MOTORISTS in Endorsement 1042A, and there was no similar endorsement to the policy modifying the definition of "insured person" as it related to PART II — UNINSURED MOTORISTS.
Plaintiffs argue that, "[b]y using two definitions of insured person, Defendant Farmers has created an ambiguity. It is reasonable to assume that the insured person definition in the endorsement has modified both the liability portion and uninsured portion of the policy." To the contrary, the express terms of the policies provided distinct definitions of "insured person" for each of the two relevant parts of the policy. It cannot be argued that the definition
With this express policy language in mind, we must conclude that Kristina was covered as a "listed driver," and therefore an "insured person," under PART I — LIABILITY of the PT Cruiser policy, but that the definition of "insured person" under PART II — UNINSURED MOTORISTS remained unchanged and did not include Kristina unless she was occupying the insured car. When she was hit and killed by Duril's car, Kristina was a pedestrian, not an occupant of the insured car. Under the express terms of the policies, Kristina was not entitled to underinsured motorist coverage for the accident.
Plaintiffs make one last attempt to qualify for the underinsured motorist coverage of Felix's PT Cruiser and Mercedes policies, as well as his umbrella policy coverage. They contend that extrinsic evidence established that the reasonable expectations of Felix and Kristina were that Kristina was covered for the liability of an underinsured motorist while she was a pedestrian because (1) Kristina paid an additional premium to be insured under Felix's PT Cruiser and Mercedes policies, (2) Felix intended that Kristina be covered under the PT Cruiser and Mercedes policies, (3) a printout from a Farmers computer screen and a summary of Felix's policies showed Kristina as a rated driver on the PT Cruiser policy, and (4) after the accident a Farmers employee expressed the opinion that Felix's policies would cover the accident. But plaintiffs' contention fails because it does not justify diverging from the language of the policies.
Todd Berendes stated in a declaration that Kristina paid an additional premium to be a listed or rated driver on Felix's PT Cruiser and Mercedes policies and Felix (who passed away after Kristina but before these proceedings) intended that Kristina be insured under his PT Cruiser and Mercedes policies. After the accident, Todd contacted Beverly Dillard, a Farmers employee, regarding coverage under Felix's policies. Dillard gave Todd a copy of a computer screen printout and an "e-Auto" policy summary, both showing that Kristina was a rated driver under Felix's PT Cruiser policy. Dillard expressed her opinion to Todd that, in Todd's words, "she believed Kristina was a covered insured under [Felix's PT Cruiser and Mercedes] policies and the umbrella policy."
Plaintiffs argue that these facts created a reasonable expectation that Kristina was covered for this accident by Felix's policies, or at least provided evidence that such an expectation was reasonable. The argument is unpersuasive for three reasons. First, the policy language was clear and unambiguous. Therefore, that language governs the coverage dispute. (Minkler v. Safeco Ins. Co. of America, supra, 49 Cal.4th at p. 321.) Second, the facts presented by plaintiffs, except for Dillard's opinion, are consistent with the result that Kristina was covered for her own liability as a driver of an insured car and even for the liability of an underinsured motorist if Kristina was injured while an occupant of an insured car but not for the liability of an underinsured motorist if Kristina was injured while she was a pedestrian. Third and finally, Dillard's mistaken belief, after the accident, that Kristina was insured for the accident (1) could not cause Felix or Kristina, before the accident, to reasonably expect that Kristina was covered and (2) could not cause an amendment to the policies to provide that coverage. Furthermore, there is no evidence that Dillard looked at the actual policies, as opposed to a summary, before expressing her opinion.
Accordingly, the trial court properly granted summary judgment to Farmers because the policies in question did not provide underinsured motorist coverage to Kristina as a pedestrian.
The judgment is affirmed. Farmers shall recover its cost on appeal. (Cal. Rules of Court, rule 8.278(a).)
Raye, P. J., and Hull, J., concurred.