*1 Bank. No. 29884. In Jan. 1972.] [L.A. COMPANY, Appellant,
ARGONAUT INSURANCE Plaintiff al., et COMPANY TRANSPORT INDEMNITY Defendants and Respondents.
Counsel Lane,
Garibaldi & Walter M. Sharman Abe and Mutchnik for and Plaintiff Appellant. Davies, Murphy Horvitz, & E. J. Ellis
Hagenbaugh, Murphy, Schell Sigurd & Delamer and D. Hillman for Defendants and Eugene Respondents.
Opinion McCOMB, case, J. In this of three insurers whose involving accident, concurrent provided certain coverage hearing court, was granted this alter decision the Court Second Appeal, District, Two, Division for the Appellate further purpose study giving to the problems After such we have presented.. study, concluded that of the Court opinion Mr. Justice in most Appeal, prepared by Compton, involved; and, treats respects correctly issues with disposes certain it is as and changes, for the of this adopted opinion court. Such indicated) is as (with deletions and additions fol-
opinion appropriate lows:1 delineating relief declaratory Insurance Company sought
Argonaut whose three insurance obligations companies poli- rights respective cies accident which occurred concurrent an provided during coverage of a driver. The truck which resulted in injuries unloading trial between and defendant court plaintiff prorated Argonaut Balboa Insurance Company Defendant Company. Transport Indemnity in the was held liable for excess event Argonaut’s coverage has deemed invalid and noncollectible. Transport’s Argonaut appealed. facts with
The case was an statement of submitted below upon agreed policies. attached exhibits which included copies pertinent Said statement is as follows: agreed Willig December Nance was an
“On employee Richard Freight his as a truck driver Lines acting scope employment when to herein. he sustained an rise to the referred litigation injury giving Contracting Company in a construction was engaged
“Steelform *5 and for a center in the of Firestone Boulevard vicinity project shopping Willig Avenue, Woodruff in Los Angeles County. engaged Steelform Freight forms from to of steel shaped transport quantity pan Lines Leandro^, California, Downey. ini jobsite in San Steelform’s plant and semi-trailer Sometime tractor December prior Willig’s unit and loaded with Leandro there was Steelform’s in San brought plant the tractor forms. an pan Willig brought shaped employee Subsequently, There, and day Los on Willig’s Angeles loaded semi-trailer to yard. instructions hooked Nance, in to his accident response employer’s it to his and took another of tractor units the semi-trailer employer’s the jobsite. located on the premises
“At the the tractor and semi-trailer were jobsite Steelform, Steelform, and was B. an employee Currier, Kenneth the semi- unload In of unloading directed to the semi-trailer. the process which Steel- was with a forklift trailer Currier furnished his by employer from, form had rented and owned which was by, Truck Associated ], together, from the 1 Brackets are used to indicate deletions in this manner [ (other editor’s opinion Appeal; enclosing than the Court brackets material indicated, citations) are, to denote insertions added unless used parallel otherwise Jacobs, Agrippina (Gribaldo, by Jones & Associates this additions court. G., 434, 440, Versicherunges A. 476 P.2d 3 Cal.3d fn. when a unloading Inc. Nance was assisting process por- Rentals, him. tion load fell from the semi-trailer onto Nance and injured “Willig Freight date Lines of the accident a com- highway carrier, mon and a under carrier route irregular petroleum operating per- mits issued the Public the State of California by Utilities Commission of and the United States Interstate Commerce Commission.
“As result of the an action accident his Nance has injuries brought The action damages Court Los Superior County. Angeles Nance, C bears is entitled Richard v. Steel- plaintiff 3171-C #SE Contracting Company (and various form named defend- fictitiously ants). In . . Nance refers the tractor plaintiff’s complaint, plaintiff truck,’ and semi-trailer a ‘flat bed he sustained alleges damages truck; (1) result of negligence (2) defendants in loading inspect- ing, truck; testing, the load on the (3) fastening operating forklift while the truck. unloading
“Insurance Policies “At the time of the there in effect were four injury question insurance policies: Argonaut Company
“1. A issued Insurance by to Steelform as named insured. Transport Willig Indemnity Company
“2. Two issued as named insured. Company
“3. A issued Balboa Insurance to Associated Truck Rentals as named insured.” additional following facts are disclosed the record and pertinent
exhibits.
Both Transport’s No. 4100551 and contained Argonaut’s policy clauses, “excess coverage” “other insurance” if full given applica- tion would result in no whatsoever. No. coverage Transport’s policy clause, 4100551-X also contained such an excess coverage operative effect of which was to limit its excess owed after coverage liability on all payment other applicable policies. valid,
Balboa’s contained an as the clause” which if trial “escape found, court served to insulate Balboa from so as Trans- long any liability port’s Argonaut’s valid and were collectible. policies The conclusion of the trial court was that has for “Transport coverage $100,000.00; Currier Steelform to Willig, the extent of has Argonaut 502 $500,000.00; Steelform, to the sum Currier and
coverage Willig bears, their said in the shall companies proportion, coverage prorate wit, $600,000.00. total to the sum Transport, Argonaut, 1/6 5/6 $600,000.00 by Transport of said in Liability supplied insureds excess of under its excess No. specific 4100551-X.” First, plaintiff
Plaintiff seeks reversal of the on three grounds: judgment to be should be declared asserts that the of defendant Transport for the that its “P.U.C.” endorsements. reason contained clause Balboa’s policy that the “other insurance” Secondly, plaintiff urges did not a valid Thirdly, complains clause.” represent “escape plaintiff obligations the trial court’s failure to judgment specific specify defend. the three insurers duty respect is introduced It well where extrinsic evidence settled that no contract, trial aid a such construction presents at in the construction of 275, DuPont, Corp. 284 (U.S. v. 69 Cal.2d Leasing law. question Cal.Rptr. & 65]; Acc. 393, Continental Cas. Co. 444 P.2d [70 Hartford Co., 606].) re Indem. 213 Accordingly, Cal.App.2d [28 of the determination view of the we free to make are judgment independent of the policies’ provisions policies. as deduced from meanings pertinent Co., 423, (Continental Cas. Co. v. Cal.2d Phoenix Constr. 801, P.2d 57 A.L.R.2d carrier, route
As carrier and irregular common highway petroleum insurance as law minimum liability state to obtain Willig precondition to business California. doing Utilities the Public Section of the Public Utilities Code instructs to this require Commission “in granting pursuant chapter, [to] permits in effect life carrier to and continue highway during procure, lawby . . . against liability permit, adequate protection imposed upon in- bodily carrier for the highway personal payment damages P.U.C. retains death therefrom . .” The juries, including resulting to any convenience and necessity its certificate of authority deny concerning fails rules regulations carrier who to abide its highway 879; 1935, 223, (See ch. p. insurance. Stats. procurement Carlstrom, 1061, 175; 2116; C. W. C.R.C. §§ Stats. ch. p. Code.) the Pub. Util. 1063 of otherwise, order In the P.U.C. jurisdiction general exercising “by *7 carriers, common highway rules and all any may prescribe applicable of (§ 1062 route carriers.” irregular cement carriers petroleum Code.) Pub. Util. contained in insurance are liability regulations concerning P.U.C. 1, 1961, 100B, General No.
P.U.C. Order effective July supplemental modifications of that order. Ill,
P.U.C. Endorsement which No. was attached to Transport’s policy, said brought into with General Order No. 100B. En- compliance dorsement No. Ill extended of Transport’s coverage Willig required $100,000 minimum for to one bodily injury person.
Endorsement No. “. . hereby Ill reads . pertinent part: [Transport] [$100,000 agrees to within of the limits hereinafter pay, provided, final rendered insured for in- per person] any judgment bodily against death or of or loss of or of others jury any person, damage property to or death of the while injury insured’s (excluding employees engaged .) course of . main- their from the employment, resulting operation, tenance, use or of vehicles of conven- motor for which certificate public ience and necessity or or has been issued to the insured permit California, the Public by Utilities Commission of the State of regardless whether such motor vehicles are or not. described in specifically
“Within the limits of hereinafter further under- provided condition, stood and that no or limitation agreed provision, stipulation, contained in the or other or endorsement thereon violation policy, any thereof, endorsement, insured, or of this shall relieve [Transport] from liability or from hereunder such final payment any judgment, of the financial irrespective or lack thereof or responsibility insolvency However, conditions, terms, the insured. all and limitations bankruptcy policy which this endorsement is attached are to remain in full force and effect as binding between the insured and and [Transport], agrees insured to reimburse [Transport] for made any payment by [Trans- accident, claim, account of port] suit a breach any involving terms of payment that would have policy, [Transport] obligated been to make under the provisions policy except agreement (Italics added.) contained in this endorsement.” as so endorsed does not lend itself to an interpretation the carrier intended to establish its vis-a-vis other available coverage. 100B,
An of the analysis General Order No. language pro genitor of Endorsement P.U.C. light reported investiga tions, us, orders decisions available to the conclusion that compels neither the enactment of Legislature section 3631 of the Public Utilities nor Code the P.U.C. General Order No. 100B intended promulgation to dictate two otherwise applicable equally should be designated as primary. *8 No. 3631 and General Order legislative of section purposes such vehicles are “to reckless
100B protect public operation against owners, a means of recovery and to financially by irresponsible provide (7 Apple- by operation.” for those their injured property person 510; Co. man, Practice, Paul Masson Insurance Law p. § Co., 463]; Com Boulter v. Colonial Ins. Cal.App.3d Co., 763, 767.) Ins. mercial Standard 175 F.2d of General Order A which led to the amendment investigation P.U.C. “. that $100,000 and the minimum concluded 100B imposition requirements minimum public safety require health and that the for or death due protection public injury loss against damage for-hire carriers petroleum inflicted persons damage by property ., to or death [$100,000.00 . injuries be for bodily should products (58 712.) one (Italics added.) Cal. P.U.C. person].” de- 100B Order No. The P.U.C.’s which established General opinion be not is vehicles should “The clear that clares: Legislature of the public on the without right insurance. highway paramount (58 Cal. must, times, at the Commission.” all considered protection 706, 707.) P.U.C. of a third claimant are such
However protective pronouncements, party coverage indicate that such there is General Order No. 100B to nothing To insurance. is to be over otherwise equally applicable primary as indicate that long Order No. 100B seems to General contrary his the insured and secure in minimum coverage public prescribed free to adjust insurers are insurer and the insurer other by implication Thus, No. Ill their contract. Endorsement pro limit various roles by terms, conditions, “all and limitations vides that bind effect as are in full force and this endorsement is attached to remain . . .” Company. the insured and ing between [insurance] that considered in it is to note factors significant periodic Finally, level determine the minimum conducted the P.U.C. to investigations lia- necessity primary did include the of imposing (See: the P.U.C. endorsed occurrences on bility policies. applicable 711; 731, 732-733.) Nor 706; 55 Cal. P.U.C. Cal. P.U.C. 58 Cal. P.U.C. Given we would be do think that such consideration an factor. appropriate mínimums, is no there available, the P.U.C. adequate equal coverage the attainment of sense reason to common suppose apparent cover- would be enhanced objective P.U.C.’s imposing general over another. on one insurance policy age here,
“When, dual provided we have assumed *9 505 of risk, in the determination a minor role same public plays the policy which little difference it makes which is coverage public primary, (Pacific loss.” for a particular two is held ultimately of insurers responsible Co., 796 Cal. Liberty Mut. Ins. 269 Cal.App.2d [75 Indem. Co. v. Rptr. state for of the exercise the powers
The of the P.U.C. to police power to minimum carriers highway carry the the requiring protection public by to include ability predetermine insurance indeed may public occurrence, The is, be primary. in a to given policy’s coverage however, P.U.C., not chosen do so. yet has Indem. Travelers
Plaintiff relied in and relies here on the trial court Co., 724], It is Co. Colonial Ins. Cal.App.2d case advanced by true that that to reach the conclusion plaintiff appears so, does as it effect of endorsement. concerning P.U.C. [ ] [Insofar however, it is hereby disapproved. was a en-
Attached to involved in Travelers P.U.C. one of 111 attached dorsement which was to Endorsement identical apparently Travelers, here, was made that In the contention Transport policy. of the or excess clause endorsement overcame the “other insurance” attached; in Travel- to which it stated was the Court of Appeal policy ers, Travelers urged at “At oral page Cal.App.2d: argument, that the the endorsement because the primary provisions unconditional, were effect the other insurance clause thereby in out’ ‘wiping above. We think this has merit. The endorsement explicitly quoted argument condition, states that ‘no or limitation contained provision, stipulation, . . .’” hereunder. shall relieve the from liability Company however, null- In this court’s the P.U.C. endorsement does opinion, indicated, excess insurance As clause. hereinabove ify purpose and not to determine endorsement is requirement protect public which of two be liable. The endorsement ultimately insurers should held whole, considered as an intent language, injured per- suggests protect sons based the insured’s failure to cooperate defenses precluding condition, breach instances to obtain while the insurer in such permitting shows endorsement reimbursement from insured. language other no intent to make a it attached over to which clause, un- insurance in excess and would of valid spite effect, in view give reasonable to it such a particularly meaning to reimburse the fact that under the insured is endorsement the been obligated insurer would not have latter any payment con- for the make agreement under provisions except tained in the endorsement. that insurance contracts must be construed against principle insurer here. That serves the inapplicable goal principle protecting *10 insured,
the reasonable the of but in the situation the expectations present issue of the effect the of P.U.C. endorsement the clause excess insurance the concerns liabilities of respective two insurers.] Carrying contention and the reached in Travelers to Argonaut’s result a extreme would have the logical effect of the trucker with saddling in all cases because the is more simply trucking industry highly the than business the of user or for its use of the regulated Except shipper. there is about a truck that should in highways nothing so unique logic this extra require where the the incident which is focal responsibility point is unrelated to the use of the highways. We direct attention the trial the court. proration by now adopted [ ] out pointed this court in International Business Machines by
[As Corp. v. Truck Ins. Exch. 2 (2) Cal.3d 1029 Cal.Rptr. [89 431], 474 P.2d the “use” of a vehicle includes unloading. its loading (See Co., Skippers Dev. Co. v. General Ins. 274 666 Cal.App.2d [3] [79 Cal.Rptr. 388].) Willig’s vehicle was therefore clearly being “used” those in the engaged Steelform (through unloading process. Currier, Nance, with the employee, assistance of was Willig’s employee) the actually doing Since unloading, forklift employing process. act Steelform’s in so the truck was with Trans using Willig’s permission, insured, port’s not as the named but policies give coverage only Willig, also to Steelform and Auto. (See additional insureds. American Currier Co., Ins. Co. v. Transport Indem. Cal.App.2d Cal.Rptr. [19 Machines, here, In International Business unlike situation the the shipper was the in either or' trucker’s actively engaged unloading loading truck. We there held that the mere maintenance used for load- premises or not in ing itself sufficient basis which to find unloading upon above, a user a truck loaded or unloaded. As out shipper being pointed however, in the is conceded that was unloading case it Steelform present result, truck. As a International Business it was the truck. Machines “using” is therefore factually distinguishable. Co., Camay Drilling
In Co. Travelers Indem. Cal.App.3d 710], the to- for a Court refused hold insurer Appeal owner, had der- truck which been to' move an oil employed nonnegligent rick, liable for sustained as the result of injuries negligence by Camay, derrick, owner of it for a declara- moving. sought preparing Camay tion that it under the was covered truck owner’s comprehensive liability trucks, used as movable solely were “user” being while it took Camay’s negligence place winches to derrick. drag even brought trucks were before the preparing moving, derrick work held preparatory No case has onto property. loaded, of the truck to the arrival
owner to be moved prior of property and, process; onto constitutes loading premises, part moving Machines, would be im International Business under the rationale of work extend the include preparatory “user” proper concept Furthermore, loaded. to be moved or owner property and had (truck owner) was contractor complete mover an independent in, or su did not Camay participate control trucks. supervision *11 and, indeed, the had no to do so. right pervise, moving hand, case, the under coverage In the the other ones seeking on present truck were using the trucker’s as “users” the unquestionably policy made, were if and being under standards for use accepted determining so with trucker. doing permission and liability by is a general policy Argonaut comprehensive policy insured) (the and Currier
its terms Steelform named gives coverage to (Steelform’s in and and the the use of tractor semi-trailer employee) have under forklift as nonowned automobiles.2 therefore coverage They As hereinabove indi both Argonaut policies. policy Transport’s cated, contain “excess 4100551 and Transport’s Argonaut’s policy policy When or more appli or “other insurance” clauses. two coverage” clauses, cable contain such both the costs of defense policies liability should af ordinarily coverage be the amount according prorated (General Exch., 419, 424- forded. Ins. Co. v. Truck Ins. 242 Cal.App.2d 462]; American Ins. Co. Underwriters 425 Motorists Cal.Rptr. [6a] [51 London, Lloyd’s 81, 297]; 224 Home at 87 see Cal.App.2d Cal.Rptr. [36 Co., Indemnity Co. v. Mission Ins. 963-964 [60 Cal.App.2d circumstances, made a Under the trial court properly of one-sixth to five-sixths to to the total Argonaut Transport proration $600,000, sum and determined that of the insureds in excess of liability $600,000 be under its excess supplied Transport specific policy by 4100551-X.3] court, coverage 2 Although, Willig as trial also has under found Willig
Argonaut policy, material, as a is Nance has not named this fact not since defendant in his action. that 11580.9 was added to the Insurance 3 It is of interest to note in section Code, “(c) applicable to providing policies Where or are part: two more vehicle, unloading one arising loading or a motor or out of the same loss owner, tenant, premises or lessee of the policies issued to the more occurs, presumed loading conclusively that unloading it shall be which the or primary, vehicle not be policy covering the motor shall insurance afforded Plaintiff next contends that trial a court found erroneously provision in defendant a Balboa’s clause which escape terms proper reduced coverage Balboa’s to a status. secondary provision question, Endorsement in relevant provides part: insured, “The insurance afforded an insured other than the named or his or agent employee acting or scope agency employment, if there is valid and applicable available the insured other col- insurance, lectible automobile excess either or applicable to the same loss or as an covering insured as named insured agent .; or of a named employee insured and in such event two or more shall not be construed as cumulative or concurrent cover- providing which covers the age, of such person insured, named insured, an aof named or as an employee agent insured, is applicable.”
Such (Peerless clauses are disfavored in the law. escape generally Co., Co. Cas. v. Continental Cas. P.2d Cal.App.2d 602].) However, is entitled to write “[t]he company which limits its to certain unless the law persons expressly pro *12 vides otherwise . . . and the limitations in the provisions policy Exch., be must (Pacific Indem. Co. v. Truck Ins. respected.” 269 Cal. 420, 428-429 App.2d [74 Cal.Rptr.
In the instant case defendant Balboa wrote its clause” so “escape as to it 11580.1, bring directly under the of section subdivision language (f) of the Insurance Code it was in at as effect the time this was policy 4 (See 1963, 1259, issued. 2780-2781.) Stats. ch. This pp. § simply for the permitted carrier bailor of the forklift to shift primary liability to the carrier for the bailee. notwithstanding anything contrary any to the in endorsement law to be placed policy, on such but shall be excess over all other valid collectible and insur- applicable ance to the same loss limits at equal responsi- with least to the financial requirements bility event, Code; and, specified in Section 16059 of the Vehicle in such policies the two or providing more not be as shall construed concurrent cov- erage, covering policy the insurance policies premises afforded or loading unloading on which the or occurs shall be and such or respect loading unloading shall cover as an tions all opera- additional insured with owner, to the or tenant, employees acting of such or while the course lessee in 11580.9, however, scope employment.” of their in effect at Section
time of the accident herein. 11580.1, (f) 4 Section subdivision was added to the in Insurance Code pertinent read part: covering liability arising in “[A insurance out ownership, may provision of that maintenance or use of motor contain a vehicle] applicable a person such motor vehicles afforded agent than the named employee applicable other insured or shall not his be covering agent same loss as a named person employee insured or as an 20 otherwise if Balboa’s Endorsement that even Plaintiff asserts clause, here for reason a valid as inapplicable escape qualifies the Vehicle defined is not an automobile as forklift to be forklift found the court The trial agree. expressly Code. We do not with was registered The forklift “an automobile of the type.” commercial highways upon and was operated public of Motor Vehicles Department to be been held consistently within five Forklifts have miles. radius Employ (Pacific at here. similar to those issue automobiles under policies Co., Maryland Casualty Cal.2d ers Ins. Co. Co., supra.) Ins. v. Colonial 641]; Indem. Co. P.2d Travelers true, out, that trial court it is apparently
Finally, plaintiff points how should provide failed to in insurers prescribe judgment [ ] Nance action. and Currier the costs the defense of Steelform [ ] law, “Trans- however, as follows: court, made a trial conclusion [ ] [The claim said insureds a defense owe their Argonaut respective port to Argo- Transport, bear the thereof: of Nance shall costs 5/6 1/6 herein, to prorate view modified naut.” In of our holding judgment court’s conclusions stated the trial the costs of defense the proportions of law.] as modified is affirmed. judgment concurred, J., Mosk, Burke,
Tobriner, J., J., and SULLIVAN, J. I dissent. Nance, hold that injuries majority essentially driver, claim truck and for the costs of his should resisting defense *13 the of the com- Willig, as follows: one-sixth insurer
prorated to Transport, carrier, Steelform, the con- mon and to the insurer of five-sixths Argonaut, result, that struction To reach this conclude company. majority has no effect upon so-called P.U.C. endorsement to the Transport policy both of clause. Since the its “excess or “other insurance” coverage” policies and clauses have effective “other insurance” Argonaut proration Transport I with these is must views. required. disagree respectfully is, course, the of Trans- vitality The nub of the continued of problem “other clause the P.U.C. endorsement. notwithstanding insurance” port’s insured, on have endorsement to such an Willig, policy required responsi- equal of a least to the financial policy named insured under a with at limits Code; event, bility and in requirements specified 16059 of the Vehicle in Section providing or concurrent cumulative the two or more shall not be construed a named liability person as coverage policy that covers the of such which insured, insured, apply shall . .” agent employee a named or as an or in order obtain to from the Public (P.U.C.) Utilities Commission a permit to as a common operate highway carrier route petroleum irregular (Pub. Code, 3631, 1062; carrier. Util. P.U.C. General §§ Order No. 100B.) Thus P.U.C. Endorsement Ill attached to the No. Transport pol- $100,000 increased the icy bodily minimum of for coverage required maintenance, or death injury operation, from the or use motor “resulting vehicles which a convenience public necessity per- or certificate mit is or has been issued Public required to the insured Utilities California, Commission of the State of of whether such motor regardless vehicles are (Italics added.) described in the or not.” So specifically stated, discussion, far as is the endorsement also pertinent present “Within the limits of hereinafter is further understood provided condition, that agreed provision, stipulation, no or limitation contained policy, any thereof, or other endorsement or violation thereon endorsement, insured, this shall relieve [Transport] from hereunder or from the final any such payment judgment, irrespective the financial or lack thereof or responsibility insolvency bankruptcy However, terms, conditions, insured. all limitations which this endorsement attached are remain in force full and effect added.) (Italics between the insured and . binding . .” [Transport] crucial contention
Argonaut’s is that under P.U.C. en- appeal $100,000. dorsement became the insurer Transport primary up have majority this contention find rejected because can they nothing General Order No. 100B or indicate elsewhere to re- coverage quired by P.U.C. is over or that insurance equally applicable the P.U.C. ever intended so dictate. On declare the contrary, major- ity, real behind the order is the purpose P.U.C.’s protection from public common carriers which would financially irresponsible enhanced by on one imposing primary over coverage another.
This rationale is all beside the To that the P.U.C.’s point. say objective was to protect does not public coverage providing adequate shed at all on the light whether question “pri- mary” or “excess.” To that nothing indicates that the P.U.C. in- argue tended dictate” “to several should be desig- applicable policies *14 nated is without The P.U.C.’s is utterly significance. province carriers, of common regulation not of It is of no con- companies. cern to the P.U.C. if its regulatory mission affects conflicting coverages insurers. In most among controversies over “other insurance” the clauses embattled are not to the parties subject the P.U.C. at all. jurisdiction There is no simply reason that the P.U.C. would have had expect occa- sion to consider for this the fact that the regulations majority problem;
511 do so is mean- on P.U.C.’s part intention the have failed to discern any ingless. its with then, task, together the Transport policy
Our to interpret 1641; Rest., Code, Con- (Civ. whole. § as a P.U.C. endorsement contractual the re- effect of tracts, the Our must be directed 235(c).) legal inquiry § with which of the policy endorsement on quired provisions original contracts, is a of construction had no concern. This P.U.C. problem law, should instrument was such even the endorsement required though Insurance Queen v. contract, a (Ruffino be as statute. interpreted 26, 883].) 528, with (1934) agree P.2d I Co. 138 537-538 [33 Cal.App. that on the record construction majority present (U.S. (1968) Leasing DuPont Corp. v. is a of law. endorsement question But, 393, deter- 65].) in Cal.2d 284 444 P.2d [70 in en- law, words used such we must focus mining questions Rest., (See reach a effect. dorsement and conclusion to its legal thus Contracts, 230.) § relevant an endorsement affects
Generally, policy provisions Co. Indemnity Bankers v. (Westphalen reason for endorsement. (9th 745, 747.) if is conflict 1943) Cir. there F.2d “[Nevertheless en- in between an endorsement the body policy, meaning (Continental (1956) Constr. Co. dorsement controls.” Cas. Co. Phoenix out As Cal.2d P.2d A.L.R.2d pointed above, “no that the P.U.C. attached here endorsement specifically provides condition, contained in the or limitation provision, policy, stipulation, . from liabil- other endorsement thereon . . shall relieve [Transport] . agreement . . .” standard hereunder The “excess” clause ity in the absence of might, “condition” or clearly “provision” endorsement, above relieve liability. language from Transport broad, It unconditional endorsement is plain forthright. speaks . “no- ... absolute terms: condition provision [or] added.) . .” en- (Italics shall relieve . from [Transport] the “excess” dorsement has effect and nullifying thus of superseding doing, clause which from so liability. By otherwise relieve might Transport of course transformed the Transport into “primary” coverage. affixed to any an was be aware such endorsement fully the issuance of P.U.C. automobile as a condition to Willig therefore must to have assented permit presumed sweeping effect of its language. an about interpretation voice a twofold complaint
The majority of saddling that it “would have the effect the endorsement. First state they all because the trucking cases the trucker with primary liability simply *15 512 is more the
industry than the highly regulated business of user shipper.” ante, 506.) (Majority answers itself. I that opn., p. plaint suggest is the It is with the precisely point. fully consistent of regulating purposes common carriers to insist bear a financial than greater they responsibility the user or the because inherent in a of their business is risk shipper greater Second, negligence. that its of the majority argue high “[ejxcept use ways there is so a about truck that should nothing logic unique require this extra where the incident responsibility which is the focal of lia point is unrelated to' the use of (Id.) shut bility highways.” majority their fi>realities. There eyes Willig’s about truck. something very unique It is the truck a common carrier. And it no is unrealistic to that it say has the characteristics of common longer carrier vehicle when is stopped for the purpose This is of the es picking delivering freight. up very Indeed, sence of the activities of common carrier. such a carrier has greater to cause than opportunity injuries does vehicle. private words,
In other to be seems of the view that we should re- majority frain from finding Transport’s because Willig’s policy truck was involved in in- the accident Nance’s tangentially causing To juries. take this view is to ignore of this court and precedent ample of the Courts is in There eyes nothing the law Appeal. tangential about involvement truck or Willig’s of the policy pur- chased from by Willig It is that the Transport. beyond dispute policy just as under the operative facts before us as if it would have been Steel- user, form’s as a employee, had caused permissive the injuries by negli- gently truck backing into dock. The covers loading loading of the unloading trucks well as their the highways. upon operation (See International Business Machines Corp. (1970) v. Truck Ins. Exch. 1026, Cal.3d 615, 431]; Co. [89 Continental Cas. Cal.Rptr. P.2d v. Zurich (1961) Ins. Co. Cal.2d 366 P.2d [17 455].) truck, Steelform’s was a user permissive even while employee in its merely participating and such use unloading, brings policy fully into (See Code, 16451; Veh. operation. Wildman v. Government Em- § ployees’ (1957) Ins. Co. 48 Cal.2d 39-40 P.2d Once the incident, applies endorsement makes it operation primary coverage.
It is not our province the terms of insurance vary contracts accord with our view P.U.C. but goals, rather to terms interpret contracts written compliance with P.U.C. orders.
I would reverse the judgment remand cause to the trial court *16 with the views with to enter in accordance expressed directions judgment in this opinion. Peters, J., J., C. concurred.
Wright,