Spangle v. Farmers Insurance Exchange

TURNER, P. J., Dissenting.

I respectfully dissent. The insured had no objectively reasonable expectation of coverage under the garage operations provisions of the policy. The relevant coverage language is found in the portion of the policy entitled, “GARAGE COVERAGE FORM.” The pertinent coverage portion of the policy is entitled, “ ‘GARAGE OPERATIONS’—‘COVERED AUTOS’ ” and states, “We will pay all sums an ‘insured’ must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from ‘garage operations’ involving the ownership, maintenance or use of covered ‘autos.’ ” The definition of “garage operations” is as follows: “ ‘Garage operations’ means the ownership, maintenance or use of locations for *577garage business and that portion of the roads or other accesses that adjoin these locations. ‘Garage operations’ includes the ownership, maintenance or use of the ‘autos’ indicated in SECTION I of this Coverage Form as covered ‘autos’. ‘Garage operations’ also include[s] all operations necessary or incidental to a garage business.” In terms of the latter definitional language, I agree with defendant the second sentence in the definition of garage operations referring to the cars listed in “Section I,” is not an independent coverage clause. Rather, the second sentence defines, in the broadest logical sense, the vehicles covered by the garage coverage portion of the policy. Of consequence, but not dispositive, to this analysis is there is other coverage in the policy for automobiles and broader coverage was available. (Industrial Indemnity Co. v. Apple Computer, Inc. (1999) 79 Cal.App.4th 817, 836 [95 Cal.Rptr.2d 528] [although not determinative, the “availability of other insurance . . . may, however, shed light on the reasonable expectations of an insured when policy language appears ambiguous . . .”]; see Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1276-1277 [10 Cal.Rptr.2d 538, 833 P.2d 545].)

When the policy is read as a whole, and the language at issue understood in its context, common sense tells us the insured had no objectively reasonable expectation there would be coverage for an accident occurring 50 miles from its location one week after the sale of the car in a place that does not “adjoin” its location and has nothing to do with the operation of a garage business. (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 867 [21 Cal.Rptr.2d 691, 855 P.2d 1263] [“ ‘[Language in a contract must be construed in the context of that instrument as a whole . . .’ ”]; Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1276 [“as a matter of common sense, an objectively reasonable insured would not expect ‘advertising injury’ coverage to extend as far as the Bank argues it should extend”].) The coverage language relied upon by plaintiff (“resulting from ‘garage operations’ ”) is found in the part of the policy entitled “GARAGE COVERAGE FORM” and underneath the heading, “ ‘GARAGE OPERATIONS’—‘COVERED AUTOS.’ ” The definitional paragraph uses the word “garage” five times in three brief sentences. Thus, there was no objectively reasonable expectation of coverage. (See N.C. Farm Bureau Mut. Ins. Co. v. Weaver (1999) 134 N.C.App. 359 [517 S.E.2d 381, 383-384] [garage owner’s forcible repossession of a car not incidental to garage operations]; Lumbermens Mut. Cas. Co. v. Pennsylvania Nat. Mut. Cas. Ins. Co. (1984) 70 N.C.App. 742 [321 S.E.2d 10, 11-12] [service station employee of the defendant aiding a customer in starting a stalled truck along a highway was incidental to operation of a service station garage]; Rinehart v. Anderson (Mo.Ct.App. 1998) 985 S.W.2d 363, 369-370 [car being returned to customer immediately after minor repairs were completed could be found to be “ ‘necessary or incidental to a garage business’ ”]; Northland Ins. v. *578Boise’s Best Autos (Ct.App. 1997) 132 Idaho 228 [970 P.2d 21, 27], revd. in part on other grounds (1998) 131 Idaho 432 [958 P.2d 589, 591] [“the manner in which the truck was being used by [the insured] was germane to the operation of the business and was encompassed by the term ‘garage operations’ ”]; Lambert v. Northwestern Nat. Ins. Co. (Ct.App. 1989) 115 Idaho 780 [769 P.2d 1152, 1155] [“ ‘use’ is limited to garage connected activities”]; Renda v. Brown (La.Ct.App. 1990) 563 So.2d 328, 333 [“It is quite clear that the accident did not result from an occurrence arising out of garage operations, therefore, the accident is not covered under the garage operations provision . . .”]; Continental Insurance Co. v. Colston (Tex.Civ.App. 1971) 463 S.W.2d 461, 464-465 [Where a garage liability policy covered the “use” of an automobile pursuant to “operations” of a service business, the use of a vehicle for purely personal purposes was not “ ‘operations of or incidental to’ ” such an enterprise].)

A petition for a rehearing was denied September 25, 2008, and respondents’ petition for review by the Supreme Court was denied November 12, 2008, S167379. Baxter, J., was of the opinion that the petition should be granted.