Universal Underwriters Insurance v. Gewirtz

SULLIVAN, J., Concurring

While I subscribe to the result reached and am in basic agreement with the majority I set forth briefly my own views as to the analysis of the problem before us.

First: Had the Garage Endorsement (Premises—Operations—Automobiles—UU3159) not been attached thereto, the policy under its basic insuring agreements would have afforded Strong coverage for his accident with maximum limits of $250,000 for each person and $500,000 for each accident. Insuring Agreement III provides that the word “insured” includes “any person while using an owned automobile . . . provided the actual use of the automobile is by the named insured or with his permission.

. . .” Since Pascal Dilday owned the automobile and permitted Strong’s use of it, Strong is an “insured” under the policy. Insuring Agreement I provides that plaintiff agrees “[t]o pay on behalf of the insured [Strong] all sums which the insured [Strong] shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.” Here, the bodily injuries for which claims were made against Strong were caused by Strong’s accident and arose out of his use of the car; hence, all such claims are covered by the basic insuring agreements of the policy.

Second: The Garage Endorsement, however, provides that, as applied to the “garage operations hazard” and the “automobile hazard,” defined therein, the insurance afforded by the policy is subject to the provisions of the endorsement. The garage operations hazard is defined as “[t]he owner*254ship, maintenance or use of the premises[1] for the purpose of a garage,[2] and all operations necessary or incidental thereto ...” (italics added) including operations associated with the automobile hazard. The latter hazard is defined to include “the ownership, maintenance or use of any automobile owned by the named insured in connection with garage operations[3] while furnished for the use of . . . any other person ... to whom the named insured furnishes automobiles for their regular use.” Obviously, Pascal Dilday’s ownership of the automobile was in connection with the firm’s operations as an automobile sales agency. Furthermore, the accident occurred after Pascal Dilday had furnished the car to Strong for his ordinary use.1 234 Therefore, the accident falls squarely within both the garage operations hazard and the automobile hazard as defined by the Garage Endorsement.

Third: Although the accident falls within the hazards defined by the Garage Endorsement, Strong does not fall within its provisions defining the persons insured, which provisions supersede Insuring Agreement III of the basic provisions of the policy. The endorsement defines “insured” with respect to the automobile hazard as including “any other person using . . . such automobile provided the actual use is -with the permission of the named insured, express or implied. . . .” The endorsement then proceeds to limit coverage with respect to any insured thus defined to the minimum limits allowed under the financial responsibility laws (in this case, $10,000 for each person and $20,000 for each accident). It cannot be questioned that Strong is an insured under the foregoing definition, since he was using the car with permission of the named insured, Pascal Dilday. However, in a later section the endorsement excepts from its definition of “insured” “any person . . . other than the named insured with respect to any automobile . . . possession of which has been transferred *255to another by the named insured pursuant to an agreement of sale.” Since possession of the car which caused the accident had been transferred to Strong pursuant to a contract of sale, it is clear that the language of the endorsement specifically excludes Strong from the class of persons insured under such endorsement.

Fourth: In summary, the insurance contract without the Garage Endorsement clearly covers the accident and insures Strong to its limits of $250,000 and $500,000. The accident falls within the defined hazard of the endorsement; but Strong is excluded as a person insured because he took possession under a contract of sale. However, it is not clear what effect Strong’s exclusion from coverage under the endorsement was intended to have upon his coverage under the" general policy. As discussed in the majority opinion (see ante, pp. 251-252), the policy is ambiguous as to whether the exclusion from the endorsement is meant to exclude Strong only from coverage under the endorsement or to exclude him from coverage under both the general policy and the endorsement.

Under settled principles, this ambiguity must be resolved in favor of the insured. (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 269 [54 Cal.Rptr. 104, 419 P.2d 168].) Therefore, I am of the view that Strong is excluded only from coverage under the endorsement; he continues to be covered under the general provisions of the policy.5 Consequently, I agree with the majority that the appropriate policy limits are $250,000 per person and $500,000 per accident, and that the judgment must be affirmed.

Wright, C. J., and Peters, J., concurred.

“ ‘Premises’ means premises where the named insured conducts garage operations, and includes the ways immediately adjoining. . . .”

“ ‘Garage’ means an automobile sales agency, repair shop, service station, storage garage or public parking place.”

“Garage operations” are those operations necessary or incidental to ownership, maintenance or use of the premises for garage purposes.

The term “regular use,” which appears in the endorsement, is ambiguous. It could mean continuous, periodic, constant or habitual use—as opposed to only occasional use. However, the more natural manner of expressing that meaning would be: “. . . to whom the named insured regularly furnishes automobiles for their use.” Thus, it appears more likely that “regular use” means normal use. Here, again, an ambiguity arises since the word “their” may refer either to the automobiles or to the persons to whom the cars are furnished. “Their regular use,” therefore, could mean either the use of the cars as a normal reasonable man would use them or their use for the purposes for which the particular user normally employs automobiles. Since Pascal Dilday furnished the car for Strong’s use in the way he normally uses cars and in the manner cars are normally used, this latter ambiguity need not be resolved.

Since I find that Strong was covered under the basic insuring agreements of the policy, I find it unnecessary to discuss the applicability of the Comprehensive Liability Policy—General Automobile Endorsement (UU 3050). That endorsement applies only where the policy is certified as proof of financial responsibility or where a person not insured under the terms of the policy becomes an insured by operation of a financial responsibility law. Neither condition exists in the present case; hence, the UU 3050 endorsement is inapplicable.