Lapp v. Transport Indemnity Co.

Opinion

BROWN, (G. A.), P. J.

Part I

Gary Lapp and Ben Scott Faulkner, plaintiffs, appeal from a summary judgment entered in favor of defendant Transport Indemnity Company (Transport). While Jar Corporation and/or Jartran, Inc. (Jartran) is a named defendant in the court below, it is not a party to the summary judgment proceeding before us.

It appears Jartran is engaged in the truck rental business. Appellants rented a truck from Jartran and were involved in an accident with an uninsured motorist. Appellants were injured and sought and were denied by Transport uninsured motorist coverage under a policy of insurance issued by Transport to Jartran as the named insured. The complaint alleges that “[o]n or about March 1, 1980 defendant Transport Indemnity Company, issued a contract of insurance, policy number 09041 to defendant JAR Cor

[163]

poration and/or Jartran Inc. A copy of that part of the policy entitled ‘Occupational Comprehensive Liability and Comprehensive Physical Damage Policy Declarations’ as well as a copy of a ‘Waiver and Deletion of Uninsured Motorist Coverage’ are . . . attached hereto, and incorporated by reference hereby.”

The exhibits attached to the complaint establish that the policy issued by Transport to Jartran covers bodily injury liability, property damage liability, bailment liability and physical damage liability. Under statutory and case law, these coverages would extend to permissive users such as appellants herein. (Ins. Code, § 11580.1, subd. (b)(4);

Metz

v.

Universal Underwriters Ins. Co.

(1973) 10 Cal.3d 45 [109 Cal.Rptr. 698, 513 P.2d 922].) However, the exhibits also show that at the time of the issuance of the policy Jartran and Transport entered into a “waiver and deletion of uninsured motorist coverage.”

1

Such a waiver is authorized by Insurance Code section 11580.2