California State Automobile Ass'n Inter-Insurance Bureau v. Bourne

Opinion

BLEASE, J. In this case we affirm a declaratory judgment that an exclusion from coverage for bodily injury to an insured in a policy of au[91]tomobile insurance renders the policy inapplicable to a cross-complaint against an insured for indemnity by a concurrent tortfeasor.

The facts are few. On November 29, 1980, Chandra Bourne (Chandra), a minor, was seriously injured in an accident while riding as a passenger in an automobile operated by her mother, Shirley Bourne (Shirley). The accident occurred when the vehicle crossed a center divider and struck an automobile driven by Robert O’Connell (O’Connell). Shirley is the named insured and Chandra an insured under a California State Automobile Association Inter-Insurance Bureau (CSAA) automobile liability policy. Chandra filed a personal injury action alleging her mother and O’Connell both negligently caused her to be injured. O’Connell filed a cross-complaint against Shirley seeking partial indemnity for damages for which he, as a joint tortfeasor with Shirley, might become obligated to pay for Chandra’s injuries. CSAA then filed this action for declaratory relief. We review the resulting judgment.

Two parts of the CSAA policy are relevant to the review: the first establishes CSAA’s obligations to its insured; the second excludes injuries to any insured from giving rise to these obligations.

Part I of the policy establishes CSAA’s obligations to the person it insures. It provides that CSAA shall “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages, . . . because of: [1] (a) bodily injury [] sustained by any person . . . arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the Bureau shall defend any suit alleging such bodily injury . . . and seeking damages which are payable under the terms of this policy ....’’

Part I also contains a clause which excludes specific matters from the obligation provisions. It says: “This policy does not apply under Part I . . . (k) to liability for bodily injury to any insured . . . .” This clause is put in issue because Chandra is an insured under the policy as “a relative of the named insured . . . who is a resident of the named insured’s household.”

Discussion

An exclusion clause in a policy of automobile insurance must be conspicuous, plain and clear. Otherwise the insurer cannot rely on it to negate obligations to an insured. (State Farm Mut. Auto. Ins. Co. v. Jacober (1973) 10 Cal.3d 193, 201 [110 Cal.Rptr. 1, 514 P.2d 953].) Insurance Code section 11580.1, subdivision (c)(5) permits a policy of automobile