*958 Opinion
INTRODUCTION
Plaintiff and appellant Lauren N. Hervey (Hervey) purchased an automobile insurance policy from defendant and respondent Mercury Casualty Company (Mercury). Hervey alleges Mercury breached the policy by offsetting uninsured motorist payments due her for injuries suffered in an automobile accident with the amount Mercury paid Hervey under the medical expense coverage in the same policy for the same accident. According to Hervey, Mercury took the offset notwithstanding the title of the medical expense coverage endorsement: “MEDICAL EXPENSE—NO EXCESS, NO REIMBURSEMENT.” The operative terms of that endorsement deleted only the medical expense payments offset or reimbursement provisions from liability recoveries from those responsible for the accident. The medical expense endorsement did not delete the offset or reimbursement provision contained in the uninsured motorist section of the policy, the provision upon which Mercury relied for its right of offset for medical expense payments made by Mercury. We hold that the trial court properly sustained without leave to amend Mercury’s demurrer to Hervey’s class action complaint because the policy was not reasonably susceptible to Hervey’s interpretation of it.
BACKGROUND
As this appeal arises from an order sustaining a demurrer without leave to amend, the facts are taken from those alleged in the complaint and those judicially noticed.
Hervey purchased from Mercury automobile insurance that included medical expense coverage. The medical expense endorsement contains, inter alia, the following language: “This endorsement forms part of the policy shown below, all other terms and conditions of this policy remain unchanged .... MEDICAL EXPENSE—NO EXCESS, NO REIMBURSEMENT. Condition 3 of Part II and Exclusion (J), Part II are hereby deleted from the policy.” The policy declaration page specifies $5,000 medical expense coverage, and the box entitled “No Excess No Reimbursement” is checked.
The provision deleted by the medical expense endorsement in part II (“EXPENSES FOR MEDICAL SERVICES-CONDITIONS”), condition 3 of the policy, provides in part, “Reimbursement Agreement—Offset Provisions: If payment is made under this coverage [(expenses for medical services)], to or *959 on behalf of any person, such person agrees to reimburse the company to the extent of such payment from the proceeds of (a): any settlement or judgment that may result from the exercise of any rights of recovery of such person against any party that such person claims is responsible for bodily injury to the person for which payment under medical expense coverage has been made, (b) any payment received or to be received by or on behalf of an injured person under the provisions of any (1) automobile or premises insurance affording benefits for medical expenses, (2) individual blanket or group accident, disability or hospitalization insurance, (3) medical, surgical, hospital or funeral service, benefits or reimbursement plan, (4) workers’ compensation or disability benefits law or any similar law.”
The medical expense endorsement also deleted exclusion (J) of part II, which excludes from coverage “expenses payable under this part, if the expenses are paid, payable or eligible for payment under the terms and conditions of any (1) automobile or premises insurance affording benefits for medical expenses, (2) individual, blanket, or group accident, disability or hospitalization insurance, (3) medical or surgical reimbursement plan, (4) non-profit association or corporation plan providing hospital, surgical, medical or similar benefits to participants, enrollees or members. No payment shall be made, under this part until claim for the expenses incurred shall have been first submitted to the benefit providers listed in (1) thru (4) above, and such providers have paid their limit of payment or furnished their applicable limit of service and the insured furnishes a written statement from the provider(s) as proof. No payment shall be made, under this part for medical expenses incurred which the insured is not required to pay.”
Focusing on the exclusions in the medical expense endorsement, the parties dispute the continuing applicability of part IV (“UNINSURED MOTORISTS COVERAGE—UNDERINSURED MOTORISTS COVERAGE”), condition 4(c), which states, “If the insured has valid and collectible automobile medical payment insurance available to him or her, the damages which the insured shall be entitled to recover from the owner or operator of the uninsured motor vehicle shall be reduced for purposes of uninsured motorist coverage by the amounts paid or due to be paid under the automobile medical payment insurance.”
Hervey was involved in an automobile accident caused by an uninsured driver. Hervey claimed under the medical expense coverage, and Mercury paid, medical expenses she incurred as a result of the injuries she received in the accident. Thereafter, Hervey claimed amounts under the uninsured motorist section of her policy for the injuries she suffered as a result of the same accident caused by the uninsured driver. Mercury agreed to settle the uninsured motorist claim, but took the position that it would offset against *960 any amount payable for uninsured motorist coverage the amount it paid Hervey under the medical expense coverage.
Hervey’s complaint is on her own behalf and on behalf of a class composed of all similarly situated insureds who had medical coverage under a Mercury automobile policy. Hervey alleged claims for breach of contract, declaratory relief, and a violation of Business and Professions Code section 17200 et seq.—the unfair competition law. Mercury demurred and moved to strike the complaint. Mercury also requested judicial notice of the specimen policy and endorsement issued to Hervey, to which request Hervey objected. Hervey, in opposition to Mercury’s demurrer and motion, requested judicial notice of her demand for inspection and Mercury’s response, which response included Mercury’s specimen insurance policy and endorsement. The trial court denied Mercury’s request for judicial notice, but granted Hervey’s request. The trial court then sustained Mercury’s demurrer without leave to amend, deemed the motion to strike moot, and ruled that each side was to bear her or its own costs and attorney fees. Thereafter, the trial court entered judgment in favor of Mercury, and Hervey timely filed a notice of appeal.
DISCUSSION
A. Standard of Review
The standard of review on appeal following the sustaining of a demurrer is de novo.
(Linear Technology Corp.
v.
Applied Materials, Inc.
(2007)
When a demurrer is sustained without leave to amend, the reviewing court must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect. A determination by the reviewing court that there is such a reasonable probability results in the conclusion that the trial court abused its discretion by denying leave to amend.
(Williams v. Housing Authority of Los Angeles
(2004)
B. Interpretation of Insurance Policy
Ordinary rules of contract interpretation apply to insurance policies. (See
AIU Ins. Co. v. Superior Court
(1990)
Parol evidence is admissible to interpret an insurance policy if “ ‘relevant to prove a meaning to which the language of the instrument is reasonably susceptible.’ ”
(Garcia v. Truck Ins. Exchange
(1984)
“The admission of extrinsic evidence to interpret a written document is explained in
Winet v. Price, 4
Cal.App.4th 1159, 1165-1166,
When the facts are undisputed, as they are deemed to be on a ruling on a demurrer, the interpretation of a contract, including whether an insurance policy is ambiguous or whether an exclusion or limitation is sufficiently
*963
conspicuous, plain, and clear, is a question of law.
(Waller v. Truck Ins. Exchange, Inc.
(1995)
C. Judicial Notice
The trial court denied Mercury’s request for judicial notice of the policy in issue. (See
Pastoria v. Nationwide Ins.
(2003)
D. Parol Evidence
Although Hervey did not attach the insurance policy to her complaint, she alleged the existence of the automobile liability policy and that Mercury breached the policy by offsetting from the amount of uninsured motorist payments due the amount of medical expenses paid. Hervey, however, did not plead parol evidence to support her interpretation of the policy. Instead, she relied on the medical expense coverage endorsement and, particularly, the language in that endorsement, “NO EXCESS, NO REIMBURSEMENT.”
On appeal, Hervey contends that she should be given the opportunity to amend her complaint to plead ambiguity of the policy and to obtain and introduce extrinsic evidence to support her interpretation of the policy—such as advertising copy, marketing brochures, and deposition testimony of insurance company executives and employees. But had Hervey actually relied upon such material in purchasing her automobile coverage from Mercury, she *964 would either have alleged that fact or asserted she could amend to plead such reliance. She has done neither, and she does not suggest how she would or could amend her complaint.
The policy, although not attached to, or otherwise incorporated in, the complaint, was judicially noticed by the trial court. As noted, Hervey alleged in conclusory fashion that Mercury breached the policy by offsetting the medical expenses paid against the uninsured motorist obligation. We shall assume that allegation satisfies the requirement that she must allege in the complaint the meaning she ascribes to that policy
(Hayter Trucking, Inc. v. Shell Western E&P, Inc., supra,
E. Interpretation of the Policy
Hervey contends that the “NO REIMBURSEMENT” in large print on the medical expense endorsement, along with the checked box for “No Reimbursement” next to the medical expense coverage on the declaration page, conveyed that Mercury would not seek reimbursement or offsets of medical expense payments as a result of payments from any source. She adds that the retention of the right of reimbursement for uninsured motorist obligations was buried in the policy so that it was not “conspicuous,” “plain and clear” as required by
Haynes
v.
Farmers Ins. Exchange
(2004)
1. Policy Not Ambiguous
The medical expense endorsement upon which Hervey relies provides that “all other terms ... of this policy remain unchanged” and contains one operative term: the deletion of two provisions in part II of the policy that provide, in part, that if the insured recovers “against any party that [the insured] claims is responsible for bodily injury to the person for which payment under medical expense coverage has been made,” Mercury is entitled to reimbursement of the amount of such recovery. Thus, as a result of this deletion, with respect to medical payments made by Mercury, there is to be no reimbursement from the insured to Mercury as a result of amounts paid to the insured by a third party responsible for the accident. The medical expense endorsement, however, does not purport to delete any provision of *965 part IV dealing with uninsured motorists and therefore leaves untouched the reduction of uninsured motorist coverage to be paid by Mercury by the amount paid or to be paid under the automobile medical payment insurance. 2 The reference in the deleted provision in part II for reimbursement and offset of medical expenses to “any” settlement or judgment resulting from the exercise of recovery by the insured “against any party that [the insured]” claims is responsible for bodily injury means, in context, a recovery against the third party tortfeasor—not against the insurer. The insurer’s separate obligations for damages caused by uninsured motorists are specifically covered under part IV dealing with such motorists. Thus, the operative terms of the policy are not ambiguous.
Neither the heading of the endorsement nor the declaration gives rise to any ambiguity. The heading “MEDICAL EXPENSE—NO EXCESS, NO REIMBURSEMENT” accurately describes what the medical expense endorsement concerns, which is the deletion of the provision for reimbursement of medical payments from a recovery the insured obtains from a third party. That heading is not an operative term or provision itself.
(Coit v. Jefferson Standard Life Ins. Co.
(1946)
*966 2. Policy Provisions Conspicuous, Plain, and Clear
Hervey asserts that the use of the phrase in large letters, “NO EXCESS, NO REIMBURSEMENT” in connection with medical expense coverage, when coupled with the placement and smaller print of the uninsured motorist offset or reimbursement requirement, renders the right to offset or reimbursement under that uninsured motorist provision insufficiently clear and conspicuous, so as to be unenforceable. Hervey cites
Haynes v. Farmers Ins. Exchange, supra,
In
Haynes
v.
Farmers Ins. Exchange, supra,
Notwithstanding the medical expense endorsement, the uninsured motorist provisions remained unchanged. The reimbursement provision relating to uninsured motorist coverage was in the same place in the policy before and *967 after the added medical expense endorsement. The medical expense endorsement’s only operative provision deletes portions of part II—“EXPENSES FOR MEDICAL SERVICES.” Mercury’s reduction of uninsured motorist benefits under the policy are in the section exclusively dealing with uninsured motorist coverage—part IV. The uninsured motorist coverage conditions are in the same size and intensity typeface as the other operative terms of the policy and are contained within a section of uninsured motorist coverage that has a large, boldface heading—“PART IV—CONDITIONS.” This is the same boldface type as the other headings in the policy.
As said in
Zubia
v.
Farmers Ins. Exchange
(1993)
This is not a situation in which the provision would not reasonably be expected. (See Croskey et al., Cal. Practice Guide: Insurance Litigation, supra, ¶ 4:546, p. 4-76 (rev. # 1, 2009).) An insured would not normally expect that he or she would receive from the insurer two payments covering the same injury. Under the medical expense provisions of the policy, the insured here could receive from a third party a payment for his or her injury without having to credit or pay back the insurer for medical payments for the same injury. But it would seem anomalous to expect the insurer itself to pay twice for the same injury, once under the medical expense coverage of the policy and again under the uninsured motorist coverage of the policy. We conclude that the condition is conspicuous, plain, and clear and thus enforceable.
F. Conclusion
The policy is not ambiguous on its face. Moreover, as a matter of law, the language of the policy is not reasonably susceptible to Hervey’s interpretation. The offset and reimbursement provision in the uninsured *968 motorist section of the policy is sufficiently conspicuous, plain, and clear to be enforceable. Thus, Hervey has failed to state facts sufficient to constitute a cause of action.
Hervey seeks to amend the complaint. But, as noted, she has not suggested how she would amend the complaint. More importantly, because the policy is not reasonably susceptible to the meaning Hervey attributes to it, the parol evidence Hervey seeks to obtain and allege would be inadmissible to alter or vary the terms of the policy. Thus, the trial court did not abuse its discretion in denying Hervey’s request for leave to amend the complaint.
DISPOSITION
The judgment is affirmed. Mercury shall recover its costs on appeal.
Turner, P. J., and Armstrong, J., concurred.
A petition for a rehearing was denied July 27, 2010, and appellant’s petition for review by the Supreme Court was denied September 1, 2010, SI84823.
Notes
Hervey complains on appeal that in her request for judicial notice, the endorsement was in the front of the policy, while in Mercury’s request for judicial notice, the endorsement followed the policy. This distinction does not appear to be significant.
The language of the uninsured motorist provision specifically is permitted by Insurance Code section 11580.2, subdivision (e), which states, “The policy or endorsement added thereto may provide that if the insured has valid and collectible automobile medical payment insurance available to him or her, the damages that the insured shall be entitled to recover from the owner or operator of an uninsured motor vehicle shall be reduced for purposes of uninsured motorist coverage by the amounts paid or due to be paid under the automobile medical payment insurance.”