50 Cal. App. 3d 526 | Cal. Ct. App. | 1975
Opinion
Linda Lee LaCosta appeals from the judgment of dismissal entered after demurrer to her complaint was sustained without leave to amend. Notice of appeal was filed prior to the entry of judgment; however, we elect to treat said notice as filed immediately thereafter and thus timely. (Cal. Rules of Court, rule 2(c).)
Appellant, as beneficiary, sought to recover proceeds under a nonoccupational vehicle accident provision contained in an insurance policy issued by respondent on the life of appellant’s deceased husband. The complaint alleged that appellant’s husband was killed while driving a motorcycle. Respondent paid the face amount of the policy and the “double indemnity” benefit. It refused to pay an additional sum equal to the face value of the policy under a nonoccupational vehicle accident death benefit.
While apparently no California appellate decision has construed the nonoccupational vehicle accident death benefit clause at issue here, three out-of-state decisions have done so. All have rejected some portion of the arguments which appellant raises here: (1) that one rides “bn” not “in” a motorcycle, therefore a motorcycle was not contemplated by the insurer in drawing the contract (Clark v. Prudential Insurance Company of America (1970) 204 Kan. 487 [464 P.2d 253, 257-258]; Jirousek v. Prudential Ins. Co. of America (1971) 27 Ohio St. 2d 62 [56 Ohio Ops.2d 34, 271 N.E.2d 866, 868]; Prestenback v. Prudential Ins. Co. of America (La.App. 1972) 257 So.2d 698, 699); (2) that the terms “automobile” and “motorcycle” are synonymous (Jirousek, supra, at p. 866; see also Clark, supra, at p. 257); and (3) that there is inconsistency between the caption and the terms of the provisions (Clark, supra, at p. 258). We concur with the results reached in those decisions.
We conclude that “motorcycle” is not synonymous with “automobile.” (Lightner v. Farmers Ins. Exch. (1969) 274 Cal.App.2d Supp. 928, 930 [79 Cal.Rptr. 526]; cf. Safeco Ins. Co. v. Vieth (1973) 33 Cal.App.3d 956, 958-959 [109 Cal.Rptr. 493].) The demurrer was properly sustained.
Judgment of dismissal affirmed.
Appellant’s petition for a hearing by the Supreme Court was denied October 1, 1975.
Before Molinari, P. J„ Sims. J.. and Elkington. J.