TOBRINER, J. I dissent.
In recognition of the disparity in bargaining power between the insurer and the insured, and considering the enormous hardship which results in the event of the denial of insurance coverage, this court has consistently held that any ambiguity in an insurance contract is to be resolved against the insurer. (See, e.g., Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 269 [54 Cal.Rptr. 104, 419 P.2d 168]; Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 437 [296 P.2d 801, 57 A.L.R.2d 914].) In response to this grave inequality in bargaining status and the public service. obligations of the insurer (see Barrera v. State Farm Mut. Automobile Ins. Co. (1969) 71 Cal.2d 659, 669 [79 Cal.Rptr. 106, 456 P.2d 674]), we have held that as a general proposition the insurance contract should be construed in conformity with the reasonable expectations of the injured.
I had supposed these principles well-settled; yet in this case the majority has in substance abandoned them in circumstances in which . their application is unmistakably appropriate. Having rejected the plain meaning of the provision at issue, according to which coverage is clearly mandated, the majority go one step farther and deny the existence of even an ambiguity as to coverage. The majority thus ignore the explicit terms of the clause in question and effectively level the constructional safeguards which this court has laboriously built.
The precise issue in this case concerns the meaning of the temporary substitute provision of an insurance policy. The policy provided that a [101]“Temporary Substitute Automobile” was included in its coverage “while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”
In State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co. (1970) 9 Cal.App.3d 508 [88 Cal.Rptr. 246], the Court of Appeal accurately characterized the purpose of such a provision as follows: “A clause extending coverage to a substitute automobile is for the insured’s benefit; if any construction is necessary, it is to be construed liberally in favor of the insured. Its purpose is not to limit narrowly or defeat coverage, but to make the coverage reasonably definite as to the vehicle normally used, while permitting the insured to continue driving should that vehicle be temporarily out of commission.” (P. 518.) In accord: Allstate Ins. Co. v. Roberts (1958) 156 Cal.App.2d 755, 758 [320 P.2d 90]. The majority inexplicably ignore this interpretation, which we expressly approved in State Farm Mut. Auto. Ins. Co. v. Johnston (1973) 9 Cal.3d 270; 276 [107 Cal.Rptr. 149, 507 P.2d 1357], and adopt instead a policy of strict construction against the policy holder. In so doing they incorrectly answer both questions present in the case: whether the named vehicle was withdrawn from normal use and whether that withdrawal was for one of the specified purposes.
In construing the temporary substitute clause the threshold issue is whether the named automobile was withdrawn from “normal use.”1 The normal use of the automobile in the circumstances of the instant case would have been to take O’Brien’s daughter to her doctor’s appointment. Instead, however, and as a result of the reading of the gasoline gauge of the named vehicle showing the tank to be empty, O’Brien used his daughter’s car for the trip. O’Brien thus wisely exercised his option to use a temporary substitute rather than risk the certain inconvenience and potential danger of running out of gas on the highway. At the time of the collision, his own car remained unused in the O’Brien driveway. Thus, the named vehicle was undoubtedly “withdrawn from normal use.”
[102]In addition to the requirement that the named vehicle be withdrawn from normal use, the insurance policy provides that the withdrawal must be “because of its breakdown, repair, servicing, loss or destruction.” (Italics added.) In the present case, O’Brien decided not to drive the named vehicle because refueling was required. Since the general intent of the temporary substitute clause is to provide coverage when the named vehicle is concurrently out of commission (State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., supra), an automobile without gasoline falls clearly within its coverage. As anyone who has had the misfortune can testify, an internal combustion engine without fuel is not subject to, or capable of “normal use.”
We need not, however, rely upon the general intent of the temporary substitute clause, since the provision specifically includes withdrawal for “servicing,” a term which unquestionably comprehends refueling. In the automotive context, servicing is a generic term encompassing the myriad operations routinely performed at a service station. Typically included among these operations are mechanical tests and adjustments, lubrication, change of oil and refueling.2 As the Court of Appeal declared in this case, “One of these services is obviously refueling of a car.”
In defiance, however, of both the general intent and the specific wording of the clause, the majority conclude that none of the enumerated categories includes withdrawal from use because of servicing required by the need to refuel. The majority thus ask us to believe that the furnishing of gasoline, the primary business of the average service station, cannot be construed as even one of its services. I reject this construction as wholly inconsistent with the plain meaning rule, to say nothing of this court’s policy of resolving ambiguities in favor of the insured.
The disparity between the majority’s aberrant definition of servicing and ordinary usage is further apparent when we consider the interchangeable use of the terms “service station,” “gasoline station” and “filling station.” Lest there be any doubt, the latter two terms expressly reflect the primacy of refueling among the functions of the service station; their synonymous use with the term “service station” emphasizes the unreasonableness of the majority’s denial that refueling is a constituent, element of servicing.
[103]In this regard I can only wonder what the majority infer from the contemporary development of the “self-service gasoline station.” To be consistent with its proposition that servicing does not comprise refueling, Í presume that the majority would define a self-service station as one in which the customer performs his own lubrication, wheel alignments and spark plug checks but not refueling. While such service stations might well foster a healthy development of mechanical expertise, it need hardly be said that in common parlance the term “self-service gasoline station” refers to establishments in which the customer’s initiative is more modestly limited to refueling his own automobile.
The sole rationale proffered by the majority for its conclusion that refueling is not properly considered within the compass of servicing is that refueling does not “necessitate] that the driver obtain a substitute vehicle to use while the servicing is taking place.” (Ante, p. 99.) The language of the provision itself, however, is silent as to this implied restriction; this court has consistently refused to imply conditions and limitations upon liability which are not stated expressly in the policy.3
As we declared nearly 20 years ago in Continental Cas. Co. v. Phoenix Constr. Co., supra, “If semantically permissible, the contract will be given such construction as will fairly achieve its object of securing indemnity to the insured for the losses to which the insurance relates. [Citation.] If the insurer uses language which is uncertain any reasonable doubt will be resolved against it; if the doubt relates to extent or fact of coverage, whether as to peril insured against [citations], the amount of liability [citations] or the person or persons protected [citations], the language will be understood in its most inclusive sense, for the benefit of the insured.” (Pp. 437-438.)
Under this established standard, the policy at issue unquestionably afforded coverage in the instant case. Accordingly, I would reverse the trial court.
Mosk, J., concurred.
In order to come within the provision the insured need not demonstrate withdrawal from all use; it is sufficient if the automobile named in the policy be withdrawn from normal use. I would thus interpret the provision as affording coverage for a temporary substitute while the named vehicle is driven to a service station for servicing or repairs, since such transport does not constitute normal use. I would also interpret the policy as providing coverage for a temporary substitute when the named vehicle is driven in the course of its repair or servicing, e.g., “test-driving.” We need not reach these issues in the instant case, however, for, despite the gratuitous reference of the majority to the intentions of Mr. and Mrs. O’Brien relative to the use of the named vehicle, that vehicle was in fact withdrawn from all use.
Webster’s defines a service station as “An establishment where service may be obtained for automobiles, as the furnishing of gasoline, oil, water, air, greasing, and general repairing.” (Webster’s Internal. Dict. (2d ed. 1957) p. 2288; italics added.)
The majority’s reliance upon Transit Cas. Co. v. Giffin (1974) 41 Cal.App.3d 489 [116 Cal.Rptr. 110] is misplaced. That case concerned a truck which the policyholder parked at a service station as a mere convenience; there was no showing that the truck was withdrawn from normal use for any of the reasons stated in the policy. In the present case, in contrast, the named vehicle was withdrawn from normal use for servicing, a withdrawal for which the policy specifically authorized the use of a temporary substitute vehicle.