California Court of Appeals, Third District, Sacramento
APPEAL from a judgment of the Superior Court of Sacramento County, No. 34-2008-00024588-CU-IC-GDS, Thomas Edward Warriner, Judge. (Retired judge of the Yolo Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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Wilcoxen Callaham, Daniel E. Wilcoxen, Walter H. Loving, III, Drew M. Widders; Rivera & Associates and Jesse M. Rivera, for Plaintiffs and Appellants.
Hansen, Kohls, Jones, Sommer & Jacob, Daniel V. Kohls and Bret N. Batchman, for Defendants and Respondents.
The husband and daughter of a pedestrian killed by an underinsured motorist sued Farmers Insurance Exchange and others (Farmers). The complaint alleged that coverage provided by Farmers to the decedent’s father also provided underinsured motorist coverage for the decedent. Finding that neither the insurance statutes nor the policies provided underinsured motorist coverage for the decedent as a pedestrian, the trial court granted Farmers’s summary judgment motion. Plaintiffs appeal the ensuing judgment.
On appeal, plaintiffs contend that (1) Insurance Code Section 11580.2 requires that underinsured motorist coverage be extended to everyone with liability coverage unless the underinsured motorist coverage is expressly waived; (2) the policies are ambiguous concerning whether they provided
underinsured motorist coverage to the decedent as a pedestrian, and (3) the circumstances caused the decedent and her father to reasonably expect that the policies included underinsured motorist coverage of the decedent as a pedestrian.
Finding no merit in these contentions, we affirm.
Kristina Berendes was struck and killed by a car driven by David Scott Duril while she was a pedestrian. She was 39 years old at the time of her death. She was married to Todd Berendes, and they had a daughter named Taylor. For at least one year prior to the accident, Kristina had been living with Todd and Taylor, and not with her father, William Felix. Todd and Taylor are the plaintiffs in this case.
Duril’s insurer, California State Automobile Association, paid plaintiffs his insurance policy limit of $50, 000 for causing Kristina’s death. In addition, Todd had underinsured motorist coverage through Liberty Mutual Insurance, which paid an additional $200, 000 to plaintiffs because Kristina was covered as Todd’s spouse.
The insurance policies at issue in this case were three policies issued by Farmers to Felix as the named insured. The policies included: (1) an automobile policy for a 2001 Chrysler PT Cruiser; (2) an automobile policy for a 2005 Mercedes-Benz ML350; and (3) an umbrella policy with a limit of $1 million. Kristina paid an additional monthly premium to be listed and covered as a rated driver under the PT Cruiser policy. There was no descriptive language identifying any rated drivers on the Mercedes policy. It is undisputed that, if either the PT Cruiser policy or the Mercedes policy gave Kristina underinsured motorist coverage as a pedestrian, then plaintiffs can recover under Felix’s $1-million umbrella policy.
At the time of her death, Kristina worked as a Farmers underwriting agent. Felix purchased a 2005 Mercedes-Benz ML350 as a gift to Kristina for graduating college. Before giving the Mercedes to Kristina, Felix contacted Kristina’s office where her coworkers set up the Mercedes policy under Felix’s name.
Plaintiffs filed a third amended complaint against Farmers, alleging bad faith and breach of contract. Farmers filed a motion for summary judgment claiming that there was no ...