Bailey v. Interinsurance Exchange

Opinion

BEACH, J.

Plaintiff in a declaratory relief action appeals from a judgment for defendant entered following a nonjuiy trial based upon a stipulated set of facts.

At issue is the interpretation of an exclusion clause in the policy of automobile insurance written by the defendant for coverage of the plaintiff. The policy includes a provision for payment of medical expenses. The exclusion under consideration reads as follows; “This policy does not apply to bodily injury sustained by any person if benefits

[402]

therefor are in whole or in part either payable or required to be provided under any Workmen’s Compensation Law.”

It was stipulated that plaintiff, while in the course of his employment, was involved in an automobile accident and sustained bodily injury and medical expenses in connection therewith. It was further stipulated that plaintiff’s employer had in force and effect workmen’s compensation coverage but that at no time did plaintiff request payment of any of his medical expenses incurred as a result of the accident from either his employer or the workmen’s compensation carrier. There is no language in the policy beyond that contained in the exclusion quoted above which requires or obligates plaintiff to seek workmen’s compensation benefits. The trial court concluded that the purpose of the exclusion was “to exclude from policy coverage expense for medical services for bodily injury which was in whole or in part either payable or required to be paid under California Workmen’s Compensation Law, . . . and is not predicated on and does not require that Plaintiff actually receive compensation under the Workmen’s Compensation Law in order to be operative.” We agree and affirm the judgment.

While it is true that “. . . the burden rests upon the insurer to phrase exceptions and exclusions in clear and unmistakable language,”

(Harris

v.

Glens Falls Ins. Co.,

6 Cal.3d 699, at p. 701 [100 Cal.Rptr. 133, 493 P.2d 861]) and exclusionary clauses “must be conspicuous, plain and clear,”