Costa v. St. Paul Fire & Marine Insurance

DRAPER, P. J.

This appeal involves the difficult task of construing the uninsured motorist act (Ins. Code, § 11580.2), as it stood (Stats. 1959, ch. 817, p. 2835) before the extensive amendments of 1961 and 1963.

Each of the plaintiffs, Costa and Leckie, lived in the home of his parents. Each father owned an automobile. Each ear was registered in the father’s name, and each father carried liability insurance with one of defendant companies. Each policy included an uninsured motorist clause which expressly covered relatives resident in the father’s household, but limited coverage of injuries caused by unknown (or “hit-run”) drivers to situations in which there is “physical contact” of the car with a car occupied by the named insured or such relative. The two sons jointly owned a third ear, registered in their names alone, on which neither carried any liability insurance. Both occupied that car when, driven by Costa, it turned over. Both sons assert injuries and allege that the accident was “caused by” another car which left the scene without stopping, and whose owner and operator are unknown. In this action they seek a declaration binding in the arbitration contemplated by the act, that they are covered under the uninsured motorist provisions of their fathers’ policies “whether or not there was contact” between their car and that of the alleged unknown driver. Judgment declared that physical contact of the boys’ car and the unknown vehicle is required. Plaintiffs appeal.

Respondents do not argue that the 1959 statute limits uninsured motorist coverage to cases in which there is phy

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sieal contact with the automobile whose driver or owner is unknown.

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Rather, they contend that plaintiff sons were not required by the 1959 act to be insured under their fathers’ policies at all. Thus the provision of each policy extending coverage to resident relatives, being wholly beyond the statutory requirement, could properly be limited by policy terms.

This contention turns upon confusing language of the 1959 act. Subdivision (a) provided that uninsured motorist coverage must be extended to “the named insured” and any other person using his car with his consent. It also provided that application of the provision could be waived by agreement of “the insured”. Subdivision (b) provided that “As used in (a) above . . . ‘insured’ means the named insured [his spouse] and relatives of either while residents of the same household ...,” as well as others.