Aetna Insurance v. Hurst

Opinion

FILES, P. J.

The facts are not in dispute. On September 7, 1965, defendant Walter Hurst, while operating an uninsured two-wheeled motorcycle owned by him, was involved in an accident with an uninsured motorist. Defendant Yolanda Hurst, who is Walter’s wife, owned a Pontiac automobile, which had been insured by plaintiff. The policy included a coverage called “protection against uninsured motorists.” Walter claimed that he sustained injuries caused by the negligence of the uninsured motorist. On that ground he sought indemnification under Yolanda’s policy.

Plaintiff then brought this action seeking a declaration by the court that the provisions of its policy excluded coverage of Walter’s claim.

The policy written for Yolanda contains, among other things, these

[1069]

provisions with respect to uninsured motorists: “[Aetna Insurance Company agrees] To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, . . .”

“ ‘Insured’ means: (a) the named insured and any relative;. . .”

“Exclusions. This policy does not apply under Part IV: (a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile; . . .”

Both sides agree Walter was an “insured” under Yolanda’s policy.

It was and is the contention of plaintiff that the motorcycle which Walter was operating was an “automobile” within the meaning of the exclusionary clause above quoted; and that since Walter was an insured, operating an uninsured “automobile” which he owned, he was not within the protection against uninsured motorists.

After a trial before the court sitting without a jury, the superior court concluded (a) Walter’s motorcycle was not an automobile within the meaning of the insurance policy, and (b) in any event the exclusionary clause was ineffective because it conflicted with Insurance Code section 11580.2. Plaintiff is appealing from that judgment.