*1080 Opinion
Dеfendant appeals from, an adverse judgment in an action for declaratory relief.
27ze Facts
On February 14, 1969, plaintiff and three other people were seriously injured in an automobile accident in Charlotte, North Carolina. Plaintiff and the other injured persons were occupants of a vehicle owned and operated by plaintiff’s brother, a resident of North Carolina. This vehicle was struck by another vehicle driven, allegedly negligently, by W. A. Kranick. Kranick carried liability insurance coverage with limits of $10,000 fоr injury to one person and $20,000 for injury to more than one person. These liability limits complied with the financial responsibility requirements of the State of North Carolina. The respective claims of the four injured persons each exceeds $10,000, and, for рractical purposes, there is only $5,000 available for payment of plaintiff’s claim from Kranick’s liability insurance carrier.
Prior to February 14, 1969, in Orange County, California, defendant issued and delivered to plaintiff an automobile liability insurance policy, whiсh included uninsured motorist coverage as required by section 11580.2 of the California Insurance Code with limits of $15,000 for injury to one person and $30,000 for injury to more than one person, subject to the limit for one person. This policy was in full force and effect on the date of the accident.
Plaintiff filed this action for a declaration of his rights under the policy. The parties having stipulatеd to the foregoing facts, judgment was entered decreeing that, under California Insurance Code section 11580.2 and the poliсy provisions, Kranick was an uninsured motorist; that defendant was therefore required to arbitrate plaintiff’s claim for personаl injuries sustained by him in the North Carolina accident; and that the amount to which plaintiff is entitled under his uninsured motorist coverage is “not limited or offset in any manner by the liability insurance ... of ... W. A. Kranick.”
Contentions and Issues
Insurance Code section 11580.2, subdivision (b), defines “uninsured motor vehicle” to meаn “a motor vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability insurance, or bоnd applicable at the time of the accident. . . .” Two recent
*1081
Court of Appeal decisions, however, have held that uninsured motorist coverage is applicable also where the offending vehicle is underinsured, that is, covered by liability insurаnce in amounts less than the minimum $15,000 and $30,000 limits required by the California Financial Responsibility Law.
(Taylor
v.
Preferred Risk Mut. Ins. Co.,
Discussion
Defendant’s contention cannot be sustained. Its arguments fail to take account of the automatic subrogation provided for by the statute. “The insurer paying a claim under an uninsured motorist endorsement or coverage shall be entitled to be subrogated to the rights of the insured to whom such claim was paid against any person causing such injury оr death to the extent that payment was made.” (Ins. Code, § 11580.2, subd. (g).) Defendant urges that, it should pay to plaintiff the sum of $5,000 (assuming that his proof justifiеs at least that amount) and permit plaintiff to pursue whatever remedies he may have against Kranick. The statute, however, provides otherwise. Upon payment to plaintiff of $5,000, defendant is automatically subrogated to plaintiff’s rights against Kranick in thаt amount. Although defendant has offered to waive its , subrogation rights, its conten *1082 tion as to how matters such as this ought to be handled is, nevertheless, in conflict with the automatic subrogation provision of the statute.
For the same reason, its argument that, otherwise, plaintiff will have the benefit of $25,000 in coverage is also unsound. Assuming that plaintiff proves damages in the arbitration proceeding of at least $15,000 and is awarded that amount under his uninsured motorist coverage, defendant will be automatically subrogated to plаintiff’s rights against Kranick and, ultimately, Kranick’s insurance coverage. Thus, plaintiff will have had the benefit of only $15,000 insurance coverage.
Although the courts in
Taylor
and
Calhoun
were not confronted with the precise issue here raised, the result we reach is strongly suggested by
Taylor
in which the court noted: “Nо ‘double coverage’ problem is involved, since the act (subd. (e)) gives defendant subrogation rights against the Texan, and thus affords it recourse to such coverage as he has.”
(Taylor
v.
Preferred Risk Mut. Ins. Co., supra,
Judgment affirmed.
Gardner, P. J., and Gabbert, J., concurred.
Notes
Indeed, the policy defines “Uninsured Automobile” to mean “a land motor vehicle with respect to the ownership, maintenance or use of which there is in at least the amounts specified by the financial respоnsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy appliсable at the time of the accident. . . .” (Italics supplied.)
It is also compelled by the language of the policy. (See fn. 1, ante.)