Farmers Ins. Exch. v. Brown

SALSMAN, J.

I dissent.

The construction here given to section 164541 operates to deny to an insured the protection of his policy, and thus diminishes in part at least the remedial effect of the financial responsibility laws. (Veh. Code, div. 7.) Moreover, to the extent there is any ambiguity or uncertainty in the language of the policy and the provisions of the statute which permit the exception, the ambiguity should be resolved in favor of the insured and against the insurer.

Section 16454 provides in part that: “Any motor vehicle liability policy need not cover any liability for injury to the assured. . . .’’I agree that here Effie was an insured under the policy and that the policy afforded Ernest no protection against any claim she or her estate might have asserted. (See Prob. Code, § 573.) This results from the language of the policy, authorized by section 16454, that the policy does not apply “. . . to the liability of any insured for bodily injury to . . . the named insured.’’

Heirs, however, seeking damages for the wrongful death of an ancestor, do not assert the ancestor’s claims. Their cause of action is wholly separate and distinct. (Compare Code Civ. Proc., § 377 with Prob. Code, § 573; see also Fuentes v. Tucker, 31 Cal.2d 1, 9 [187 P.2d 752] ; Dickinson v. Southern Pac. Co., 172 Cal. 727 [158 P. 183]; Garcia v. State of California, 247 Cal.App.2d 814, 816 [56 Cal.Rptr. 80]; 2 Witkin, Summary Cal. Law (1960) Torts, §374, p. 1577.) Here, appellants assert their own claims, not those of Effie.

Section 16454 does not say that an owner’s policy of insurance need not cover the liability of an insured for the wrongful death of another insured. I would construe the language of section 16454 strictly, and narrow the exception there allowed to that limited area where an insured under the policy, or his estate, seeks recovery for his own personal injuries. I would not extend the language of the section to *125cover claims for wrongful death asserted by the heirs of a decedent who was also an insured under the policy.

Strict construction of section 16454, which I would apply here, results in liberal construction of the financial responsibility laws as a whole, and carries into effect the beneficial purposes which these statutes were designed to accomplish. I would limit the exception strictly to the language of the statute and would honor its terms by applying it to those cases where the claim asserted is for an “injury to the assured.’’ I would not read into the statute the disclaimer of liability written into respondent’s policy, and thus cut off the wholly separate and independent claims of the decedent’s heirs.

I would reverse the judgment and direct the trial court to enter a declaratory judgment to the effect that respondent’s policy affords Ernest protection against appellants’ claims for the alleged wrongful death of Effie.

A petition for a rehearing was deemed denied July 31, 1967, pursuant to Rule 27(e), California Rules of Court. Appellants’ petition for a hearing by the Supreme Court was denied September 21, 1967. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.

All section references are to the Vehicle Code.