Opinion
No. CIV S-06-1843 KJM.
March 25, 2008
ORDER
Defendant's motion for summary judgment came on regularly for hearing March 12, 2008. Blane Smith appeared for plaintiff. Kerrie Webb appeared for defendant. Upon review of the documents in support and opposition, upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
In this declaratory relief action, defendant argues that the insurance policy at issue is ambiguous as to whether underinsurance coverage is provided when the only vehicle involved in an accident is the insured vehicle. This contention cannot withstand the plain language of the policy in this case, which includes in the definition of "uninsured" motor vehicle an "underinsured motor vehicle." Webb Decl., Ex. 2 at 1-2. In the same paragraph setting forth the definition of "uninsured" vehicle, exclusions also are set forth that exclude from uninsured coverage the vehicle involved in the subject accident. Because the plain language of the policy includes "underinsured" in the definition of "uninsured," the court finds no ambiguity in the contract, which is consonant with the provisions of the California Insurance Code. Nor is there any conflict evident between the general provisions of California Insurance Code § 11580.2 and subdivision (p) of that code section in the circumstances presented here. Defendant fails to articulate any public policy reason why a different result should obtain in this case.
Moreover, defendant's argument is contrary to well settled California law. There must be another vehicle involved in the accident, other than the vehicle covered by the insurance policy at issue, in order to trigger uninsured/underinsured motorists coverage. See Royal Ins. Co. v. Cole, 13 Cal. App. 4th 880, 889 (1993) (interpreting underinsured provisions of Cal. Ins. Code § 11580.2(p)(2)). Here, the accident involved only one vehicle, which was expressly covered by the insurance policy at issue. As such, under Cole and its progeny, there can be no underinsurance coverage. That the driver of the vehicle also had a liability policy applicable to the accident cannot transmogrify the status of the vehicle. See Mercury Ins. Co. v. Enterprise Rent-a-Car, 80 Cal. App. 4th 41, 47-48 (2000) (uninsured motorist's coverage depends on the status of the vehicle, not the driver).
At oral argument, the court inquired of counsel whether summary judgment should be granted to plaintiff if the coverage issue were decided adverse to defendant as a matter of law. Defendant conceded there is no further briefing that could be offered on the determinative issue. In light of the court's determination that there is no underinsurance coverage available under the policy at issue, summary judgment will be granted for plaintiff.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion for summary judgment is denied.
2. Summary judgment is granted for plaintiff.