Ohio Casualty Insurance v. Aetna Insurance

Opinion

DEVINE, J.

*

This appeal presents, according to knowledgeable counsel, a question of first impression about the meaning of Insurance Code section 11580.9, subdivision (d),

1

where an audit, policy is involved. The trial court in the suit for declaratory judgment between insurance companies decided that the policy issued by appellant Aetna Insurance Company described and rated the vehicle involved in the accident and that the policy issued by respondent Ohio Casualty Insurance Company

[523]

did not describe the vehicle, wherefore the Aetna policy is primary and the Ohio Casualty policy is excess. Appellant contends that the Ohio policy does describe or rate the vehicle.

The facts which created liability are these: Oscar Gamma acquired a truck from James Bertram with the intent to buy it.

2

The price had been agreed upon. The pink slip remained in Bertram’s bank, to which Bertram had directed Gamma, expecting him to obtain financing there. But Gamma obtained loan documents from his own bank, and, before he executed them, the accident happened. Four days after the transfer of possession, Gamma drove the truck over the center line of a highway and struck a vehicle in which there were four persons. These parties were compensated by a settlement under a reservation of rights agreement between the insurance companies.

That Bertram remained an owner is undisputed because the transfer provisions of Vehicle Code sections 5602, 5900 and 5901 had not been complied with.

(Uber

v.

Ohio Casualty Ins. Co.,

247 Cal.App.2d 611 [55 Cal.Rptr. 720];

Universal Underwriters Ins. Co.

v.