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Interinsurance Exchange of Automobile Club of Southern California v. Campbell11/24/1986
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
No. D003993
1986.CA.40152 ; 187 Cal. App. 3d 242; 232 Cal. Rptr. 27
November 24, 1986
INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, PLAINTIFF AND RESPONDENT,
v.
ROGER CAMPBELL ET AL., DEFENDANTS AND APPELLANTS
Superior Court of San Diego County, No. 520003, Arthur W. Jones, Judge.
Higgs, Fletcher & Mack, John W. Netterblad and M. Cory Brown for Plaintiff and Respondent.
Michael M. Angello for Defendants and Appellants.
Opinion by Butler, J., with Wiener, Acting P. J., and Work, J., concurring.
Butler
The Automobile Club of Southern California (Automobile Club) issued a policy of automobile insurance naming John D. Campbell and his wife Alberta R. Campbell as insureds. Alberta, driving a car covered under the policy with John as a passenger, crashed into another automobile. Both were killed. Roger Campbell and Sharon Ann Partridge, John's son and daughter by an earlier marriage (the adult children), sued Alberta's estate for the wrongful death of their father. The court granted Automobile Club's motion for summary judgment brought in its action for declaratory relief on the ground the policy excluded liability to the adult children. The adult children appeal. While we believe the policy does not exclude coverage for the losses sustained by the adult children, in deference to the doctrine of stare decisis and reliance of the insurance industry on case law barring such coverage, we shall reluctantly affirm and suggest the Supreme Court review and resolve the issues here presented.
I
The policy requires the Automobile Club to pay "damages for which any person insured is legally liable because of bodily injury or property damage caused by an occurrence arising out of the ownership, maintenance or use of an automobile or utility trailer insured under this part." Persons insured
under the policy include John and Alberta and "a relative." A relative is any person related to John or Alberta by blood, marriage or adoption "who is a resident of the same household" in which John and Alberta reside. The adult children were not residents of the household. They are not insureds under the policy.
Alberta was an insured and legally liable, as is her estate. Bodily injury under the policy means "bodily harm, sickness or disease, including death therefrom, including consequential damage from any of these."
Excluded from liability under the policy is "bodily injury to you or a relative" ("What Is Not Covered -- Exclusions -- Part I, [subd.] (f).") "You" includes John and Alberta. The policy thus excludes from coverage any damages for which Alberta's estate, a derivative insured, is legally liable because of the death of John, an insured. (State Farm Mut. Auto. Ins. Co. v. Hartle (1976) 59 Cal. App. 3d 852 [131 Cal. Rptr. 141].) The court concluded the claim of the children for damages arose out of the wrongful death of John, an insured; as the policy excludes coverage for damages for the death of an insured, the claim of the adult children for damages arising out of that death is excluded from coverage under subdivision (f). The adult children argue their claim for damages does not derive from John's death as an insured under the policy but rather from the wrong, independ
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