*1 Dist., Div. Sept. D005978. Fourth One. 1988.] [No. INSURANCE
STATE FARM MUTUAL AUTOMOBILE COMPANY, Plaintiff and Respondent, HAIGHT,
DOROTHY G. Defendant and Appellant.
Counsel Metz, Metz, D. John H. E. Kline Monaghan Monaghan, & Brian Elizabeth and Linda G. Workman for Defendant and Appellant. Walters,
Shifflet, Shifflet, & William C. Sharp Gregory C. Kane and Morgan Christie for Respondent. Plaintiff and
Opinion STANIFORTH, J.* State Farm Plaintiff Mutual Automobile Insurance Company (State declaratory filed a Farm) relief John complaint against Inc., Jr., Wenz, Johnson, son-Kinsey, Allen Mary Edward L. James John son, Kinsey, Paul Blake Dorothy Bowen and G. Haight (Haight), claiming *5 the driver exclusion agreement endorsement in the State Farm automobile Wenz, policy excluded Edward Allen Jr. from under the protection policy. State Farm disputed Wenz’s entitlement to a and indemnity, defense John son-Kinsey’s entitlement indemnity, and and claim Haight’s Bowen’s entitlement for personal injuries.
Johnson-Kinsey bad cross-complained for faith State Farm. against Upon sever, State motion Farm’s the court declaratory ordered the trials for relief and the bad faith claim to be heard After a trial in separately. nonjury declaratory the relief the action court issued its statement of decision no finding coverage under the State Farm The court policy. reasoned Wenz that was hired to drive as that term is used in Insurance Code 670.* Haight appeals judgment. the
Facts 10, 1983, Wenz was a Dodge Tradesman van on October when it with collided an automobile driven at 70th Street and Haight *Retired sitting assignment by Associate Justice the Court Appeal the Chair- under person of the Judicial Council. statutory All specified. references are to Insurance Code unless otherwise a result of the injuries
Alma in La Mesa. suffered serious Way Haight accident. of Wenz since 1981.
Johnson-Kinsey August has been employer and Johnson-Kinsey dry a subcontractor firm wall building specializing van Wenz was owned ceilings. Dodge acoustical The driven suspended Wenz there was insurance because by Johnson-Kinsey. coverage contends company he and the collision occurred while he was on employee was time, is, in the p.m. evening. before Johnson-Kinsey. an acoustical tile for His work supervisor
Wenz was daily County him to travel San and on occasion throughout Diego required county. Johnson-Kinsey outside the As a him to general practice required Wenz materials job travel to and from the sites his own vehicle. delivered carry to the work sites. In order to large equipment type equip- ment, vehicle, a truck. he Normally Wenz needed used his personal Chevrolet truck to these duties. perform
On the date of the with Wenz home from Haight, returning collision was job Valley. site in Mission He had at the office and then at the stopped way store for while on his home. His truck was in the groceries personal For that reason he was van to trans- garage repairs. using company materials and travel to and from home and to the work Wenz port sites. day. intended to use the van to travel to his work site the next At company the time there van collision were materials which company to the pertained job. 19, 1982, February
On State Farm had issued an automobile insurance (No. 386-0298-619-55) Johnson-Kinsey covering its com- van. pany Dodge contained a endorsement special excluding *6 Wenz from under the because he had received four coverage policy prior tickets while vehicle on own time. The speeding driving personal his his Johnson-Kinsey for had driver endorsement principals signed this exclusion 19, February on It Farm 1982. to State from purported exempt responsibili- ty any by for loss caused Wenz while the van. company witnesses, Weldon, testimony to the Mr.
According agent of a State Farm years, for 15 Wenz allegedly Johnson-Kinsey told and that this exclusion trial, however, years would remain in effect until Wenz 25 old. was At Weldon denied the representing exclusion would when Wenz expire 25, 1983, reached the 25. Wenz had 25 March age of turned on months before the collision with Haight. any court made no finding regarding such representation.
Contentions State Farm section 670 from refus- Haight precludes contends California for an hired drive because the driver coverage to to ing company employee been traffic his operating convicted of certain infractions while personal has insurer 1973) “(a) Section 670 in No admitted (enacted provides: vehicle. defined in Section 16450 liability licensed to issue motor vehicle as policies, cancel, renew, Code, liability of the Vehicle shall or to motor vehicle refuse insurance hired to drive a commercial business policy covering by drivers agreement establishment nor execute the in subdi- specified paragraph of (d) vision Section 11580.1 with respect those drivers reason that of drivers have those been convicted violations Vehicle Code or the of of any laws the state committed subdivision which were while operat- traffic of of ing their private passenger by vehicles owned or leased employer.” (Italics added.)
Vehicle Code (referred section 16450 to in as “A 670) provides follows: § 2, division, vehicle liability ‘motor as used in 3 and 4 policy,’ of this Chapter both, an means owner’s policy operator’s or of policy, liability or insur- ance, in certified as provided Section as proof of [Vehicle Code] ability to issued respond by an insurance carrier damages, authorized to transact such State business to or for the of the benefit named person therein as assured. . . .”
Vehicle Code (referred section 16431 16450) to in as provides follows: § ability to in damages may by respond be the written cer- given “Proof of any tificate or certificates of duly carrier authorized to do busi- state, within the ness it has issued to or benefit for the of the person liability named therein a motor defined in Section [Vehicle Code] which, at the date or is in certificate of full certificates force (Italics added.) effect.” 11580.1, Section (d) (referred 670) subdivision provides as follows: § of “Notwithstanding of subdivision provisions paragraph (4) (b), or the of provisions Article with (commencing 16450) section Chapter Division or Article 2 (commencing with 17150) Chapter Code, Division of the Vehicle may, insurer and named insured the terms of any automobile insurance to which subdivi- thereto, (a) sion applies, writing a separate relating agree as to either limitations, or both of the such following agreement binding upon *7 every insured to policy every whom such and third applies to claim- party ant:
“(1) That an coverage insurer’s defend under obligation such shall policy to the apply any nor accrue benefit of insured any or third claimant party any being while motor vehicle is used or operated natural name.” person designated by persons
Section 670 further authorizes a named driver be is (“may exclusion sued”) if the driver has been convicted of certain serious Vehicle Code violations of than a greater significance common violation as were speeding Wenz’s.
Haight contends the plain, explicit words section 670 expressly prohib- it the here; of exclusion which State Farm if type argues she there imposed to resort to extrinsic requirement circumstances to ascertain the drafters, intent of the history of section 670 as well as interpretation on it placed by scholars in the field lead to one conclusion: both the employ- er and Wenz were covered. Farm, alternatively,
State contends effect of the language section 670 and its reference to Vehicle particularly (“as Code section 16450 defined in Vehicle Code 16450”) section incorporates and limits the section only that type which is referred to in Vehicle Code section is, 16450. It is section 670 argued liability limited to a language, which is issued there has been an accident and where a person after involved in the accident seeks to submit ability proof respond State damages. Farm contends section 670 is limited in its applicability to motor vehicle which have policies been as proof ability to certified damages as respond provided in Vehicle Code section 16431 after accident has occurred. State Farm argues these various code sections when read in materia pari require who has been person involvedin an accident as in Vehicle described Code section 16000 to establish proof of financial with the responsibility Vehicles; of Motor Department such “certified is a policy” postaccident State Farm policy. argues because the policy here was issued to Johnson- accident, Kinsey before the Vehicle Code permits exclusion of 11580.1, named drivers like Wenz by its reference to section subdivision (d)(1)-
Discussion I There are First, several with problems made argument by State Farm. the language of section 670 well as the incorporated section are clear and unambiguous. Section 670 to “a applies motor vehicle liability insurance *8 (italics added) and of the section policy” specifically prohibits application 11580.1, subdivision driver exclusion in certain circum- (d)(1), specified stances.
A court is effect to the of a statute required give meaning plain language (Donahue where its is clear and unambiguous. LeVesque Section subdivision Cal.Rptr. 388].) (a), states, clearly liability “No admitted insurer licensed to issue motor vehicle Code, cancel, as defined in policies, Section of the Vehicle shall renew, refuse to liability motor vehicle drivers policy covering hired to drive a commercial business establishment nor execute the agreement in specified (1) of subdivision 11580.1 paragraph (d) section . . . .” (The driver exclusion State Farm agreement.) argues the phrase “as defined in section 16450 of the Vehicle Code” refers to the liability “motor vehicle policies,” last four words before comma. State Farm contends this limits the phrase type policy to which section accident, (a) subdivision has to a applicability issued not policy after liability to motor vehicle policies generally.
Clearly, the language section 670 contains no such limitation to post accident specifications of insurance. Rather it describes the class of insurers which Vehicle Code section 16450 defines and to it which It applies. applies to insurers are who “admitted” and “licensed to issue motor vehicle liability policies, as defined in Section 16450 of the Vehicle . . . .” Code Unequivo- cally, section 670 specifically prohibits this class of insurers from executing a driving 11580.1, exclusion agreement as in specified subdivision (d). plain language of this section points to this construction. The word “a” is an indefinite article used as a function word before nouns singular Thus, when the object is question unspecified. section 670 does not specify type of motor vehicle to which its prohibition applies beyond simply stating that the policy must cover drivers hired to drive commercial business establishments. The indefinite article “a” is used to describe “motor vehicle without policy” as to the specification time when such policy was issued.
Section specifically declares the so defined class of insureds drive, execute a driver exclusion agreement with to a driver hired regard where the exclusion is based upon driver’s private vehicle rec- ord. There nothing the language of section 670 which even remotely hints that such an agreement is prohibited only when a is executed an accident to supply proof financial responsibility. Such a conten- after tion results an absurd out of meaning, and context with the step manifest purpose of the financial laws responsibility of California.
232
II Vehicle Code 16450 section defines ‘motor vehicle liability as policy’ “[a] 2, used in 3 4 Chapters of this division an owner’s or an [as] both, insurance, operator’s or of policy, certified as in provided Section 16431 as proof ability of in respond damages [Vehicle Code] The resolution of the argument by tendered State Farm only requires 2, 4,” the examination of 3 and but “Chapters also the various applicable Code, provisions of entire automobile financial law responsibility (Veh. 16000-16503). By these in reading statutes materia determine the pari we §§ legislative intent.
The automobile financial responsibility law must be construed to foster objective its main monetary providing protection to those who suffer great injury through negligent use of highways (Ohio others. Cas. Ins. v.Co. Armendariz 224 (1964) 274]; Cal.Rptr. [36 Continental Cas. 423, Co. Phoenix Constr. Co. 46 Cal.2d (1956) [296 801, P.2d 131, A.L.R.2d Jess v. 914]; Herrmann Cal.3d 138- 87, 604 P.2d Cal.Rptr. 208].)
To accomplish objective, 1 of chapter division sections 16000 to 16070 of the Vehicle Code established the compulsory financial responsibili- ty of the driver of the motor vehicle who is in manner involved in an accident originating from the operation of the motor vehicle on the street or highway with in certain damage minimum quantities.
Vehicle Code section 16000.7 defines an uninsured motor vehicle as “a motor vehicle for which financial as responsibility provided Section 16021 was not in at the time the accident.” (Italics added.) Vehicle effect Code “shall, section 16020 requires every times, driver or owner at all maintain in force one of the forms of financial responsibility specified 16021.” Vehicle Code section [Vehicle subdivision (b) Code] declares financial responsibility is established if insurer or obligee “[a]n under a form of insurance or bond . . . with complies requirements this division and . . . covers the driver the vehicle involved in the acci- for dent.” (Italics added.) of financial responsibility required by the foregoing may sections Proof means, be by variety established e.g., bond or certificate of self-insur- ance. Proof established the filing with the department of satisfac- tory evidence under Vehicle Code section subdivision (a), “That the owner had an automobile liability policy... bond at the time effect in the involved vehicle or the motor with driver respect the accident out the accident, 16056 sets Code section (Italics added.) . . .” Vehicle to be in required or bond of insurance minimum requirements *10 the proce- 1 deals with further Chapter at time of the accident. effect the upon 16070 declares Code of license. Vehicle section dures on suspensions as the responsibility required “financial failure the driver to prove [in the of accident, . . . shall department at time of the earlier the the sections] .” . . . the ... to the of driver drive suspend privilege Ill 16450) in deals with the 2 to Vehicle Code section Chapter (referred where a declares following judgment. Chapter an unsatisfied suspension in wrong been a for the committed judgment against person has obtained may a under Vehicle Code the of motor vehicle such operation person file an of that at the time the “stating section 16375 affidavit insurance of insured, was that accident which the has been rendered he the judgment upon reason, known, if why and the judgment, insurer is liable to such the pay the judgment. original the He shall also file company paid has thereof, available, .” (Italics of if . . insurance or a certified policy copy reinstate, if added.) The to it is satisfied the department is then authorized the the pay judgment responsi- insurer able to such to extent of financial bility law’s minimum requirements. 2,
Under Vehicle a has occurred suspension Code after of license chapter Code, (Veh. 16370) due to an unsatisfied no license shall be judgment § to judgment “gives issued debtor unless the debtor judgment proof of ability (commencing to in as in damages provided with respond Chapter . . . section until is satisfied 16430), judgment and [Vehicle Code] [as] Code, . . . .” added.) in this italics provided (Veh. chapter § Thus, 16431 may a certificate under Vehicle Code section be issued to meet one of the of 16371. This of certificate requirements species section Montoya would be of a Ins. postaccident (See Colonial Co. proof policy. (1986) 184 Cal.Rptr. 833].)
Thus, in under a include a effect chapter policy “certified” could (§ at the time of the as 16375) postaccident policy accident well as 16371) (§ suspended as one of two conditions to reinstate required license.
IV 16450) and in of the (referred sections 16430 Chapter Code, in ability respond Vehicle deals with the manner of “proof to minimum finan- damages.” Section is most as amounts of explicit ability ability cial It declares means responsibility. proof proof from the of a motor respond damages resulting ownership operation vehicle in certain limited amounts. This in a specified proof supplied variety ways, 1) by (§ 16434), 2) money (§ 16435), 3) bond deposit (§ 16436), 4) “by “self-insured” the written certificate or certificates of state, duly insurance carrier authorized to it do business within has issued to or for the benefit of named therein a motor vehicle person 16450, which, as defined Section at the [Vehicle Code] Code, date of the certificate (Veh. or certificates is full force and effect.” 16431.) § *11 by
The “certificate or any certificates of insurance carrier” are authorized 655 “Every issuing of the Insurance Code which insurer provides: policies motor vehicle insurance within the Section meaning of of Code, also, thereto, 16450 the Vehicle shall as an incident and complete of 16431, the or under Sections 16432 provided file certificate certificates of the Vehicle (Italics added.) Code.”
“Vehicle Code 16430-16480 in require persons involved an automobile §§ accident to the of provide Department ability Motor Vehicles with of proof to in respond damages. Such be in the proof form of certificate by the prepared (§ 16431), by by individual’s insurer bond or (§ 16434), $35,000 356, of with the deposit department (§ 16435). Prior to an Chapter insured was not a certificate for of required complete ability to proof in respond damages. 356 adds Chapter Section to the Insurance Code to every insurer require issuing of motor vehicle policies liability insurance to complete and file the certificate or certificates for under Vehicle provided Code 16432. This Chapter also the Insurance Com- provides §§ missioner with authority to enforce under these filing (4 sections.” Pacific 526, L.J. 535.)
One class certificate in of referred to section 16431 is required as proof that the who been in person has involved an automobile accident has the Code, 16000.7, ability 16020, 16021, (Veh. in respond damages. subd. §§ (e), (a) (b), subds. & This 16070.) species does not of certificate to a pertain postaccident type policy. There are other of types evidencing certificates insurance obtained preaccident. For as not- example, ined Glen Falls Ins. Co. v. Freightways (1966) Consolidated 242 Cal.App.2d self-insurance, 789], there can be a Cal.Rptr. certificate of indicating the self-insured financially is owner/operator responsible for previous accident.
V ability to respond again vehicles and 4 deals with commercial Chapter “No owner shall use 16502 provides, Vehicle Code section damages. in of, in the any used transportation vehicle his consent the use permit with business, abili- maintaining without of a in the conduct or property persons of insur- by chapter.” type ty damages required to respond in effect at the time which be referred is that would type ance em- for an accident of if (financial responsibility) accident coverage the purpose. ployee leaves no law responsibility
A fair of the entire financial reading Code 16450 of the Vehicle the reference in section to section doubt that any hint of only to a No postaccident. should not limited issued 4. no merit any can be or There is meaning such found chapters to the chapters offered the insurance effect arguments company coverage 4 in limit issued way type policies 3 or postaccident. *12 Co. v.
A Falls Ins. Consolidated expressed similar conclusion is Glen court 242 at 779-780. The Freightways, supra, appeal Cal.App.2d pages a financial responsi- concluded after review of of the automobile provisions discussion, from law: “So far to our bility exemption as is pertinent present established, by among ways, other security the requirement a that the involved in the accident is showing owner of the motor vehicle by the 16055) omitted]; or with ([Veh. Code,] filing self-insurer [footnote § satisfactory vehicle that the owner had a motor department motor evidence liability statutory vehicle the policy or bond with complying requirements the time motor in effect at of the accident with to the driver or the respect owner, driver, vehicle involved or if he the had a bond was not such vehicle a liability operation or motor with to his of nonowned respect 16057, We ([Veh. Code,] 16059.)” motor vehicle. look in vain for §§ 3 4 are to be limited to motor provisions chapter hint that liability vehicle policies procured postaccident.
VI to 16450 of the the reference section 670 “section Assuming, arguendo, to referred ambiguity policies Vehicle Code” creates an to whether accident, history legislative after an sheds are those issued before or vehicle to motor applies this conclusion: section 670 light compels and specifically before an accident precludes issued 11580.1, agreement. driver exclusion (d)(1), a section subdivision Bill legislative history (Assem. (1973-1974 reveals the bill No. Reg. Sess.)) widely by was uncontroversial and was accepted Legisla- ture. The industry’s bill was It limited the insurance simple. practice penalizing job off-the-job drivers on the for their records.
The successive drafts of Bill Assembly Legisla No. before the ture are if helpful interpreting statute it is conceded that the meaning (Estate unclear. Wanamaker Cal.Rptr. 333].) Assembly Bill by Assemblyman No. was introduced Deddeh on March 1973. The first draft sought amend section 11580.1 to add subdivision (f) which stated that the driver exclusion agreements permitted 11580.1, section subdivision were (d)(1) prohibited section 670 where the driver was hired to drive and where the basis of the exclusion was the driver’s private driving record. Assembly drafts of Bill No.
Subsequent the draft enacted including law, into did not seek 11580.1. to amend section Instead the bill set forth 11580.1, versions of section 670 which stated expressly subdivision (d)(1), driver exclusion were agreements not to be executed under permitted section 670 where the driver was hired to drive.
If the had intended Legislature section 670’s prohibition apply liability policies issued before an accident then the Assembly first draft of Bill No. 811 would have amended (f) subdivision of section 11580.1 to state that all subdivisions of section 11580.1 did not to section 670 as apply opposed stating (as enacted) that just (d)(1) subdivision of section 11580.1 did not apply.
Next, the analysis may committee be examined to determine legisla tive intent. v. Lieberman (Tappe (1983) Cal.App.3d Supp. The
Cal.Rptr. 514].) analysis by the Senate Committee on Insurance and 7, 1973, Finance Assembly Bill No. 811 as amended June states: “Analysis: AB as amended June 1973 adds a new provision to the Insurance Code prohibit to an insurer from 1) cancelling, 2) refusing issue, 3) or a refusing renew motor vehicle liability insurance policy
issued to a commercial business establishment the covering motor vehicle by drivers the employed establishment for the reason the drivers have been convicted of violations of the Vehicle Code which were committed while a vehicle operating they other than that which were hired to drive.” analysis The committee by Assembly the Committee on Finance and Insurance states: “This bill would an insurer from prohibit canceling, refus- issue, ing to or to renew a refusing liability motor vehicle insurance policy issued to a commercial business establishment the covering motor vehicle the for the reason that by the business establishment drivers employed for, for, of the of violations cited or convicted have been arrested drivers than a vehicle other while operating Code which were committed Vehicle to drive. they were hired that which Union which maintains the Teamsters sponsored
“The bill vehicle motor employers’ to cancel threatening are companies insurance bad records driving the have certain of drivers liability insurance because the to fire forces employer their cars. This driving private passenger while insurance. not wish to lose his the since he does employee canceled that an should be “The maintain insurance proponents the commercial vehicle but driving because of the driver’s record when motor while his owned driving privately because of the driver’s record a when may quite habits of different driving person vehicle since employer.” for his driving Assembly 811 as confined to analyzed poli- committee Bill No.
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*14
539, 633
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238 liability such as automobile and loss policies policies property policies. Section 661 which an grounds upon sets forth limits specifically cancelled, may automobile or collision be and section policy and limits the for cancellation of loss In specifies grounds policies. property addition, 1973, 772, 1, section 679.71 Stats. ch. de- p. [added § 1385] may clares that real or loss insurance not be personal property policies status, sex, race, color, canceled because of the insured’s marital religion, origin, ancestry. limiting national or These sections reflect legislative policy the ‘absolute’ right of insurance cancellation.”
Furthermore, section 670 is not included in the of the sections Insurance accident; Code which issued after an nor is it included pertain policies among the sections of the Insurance Code which issued pertain policies an It before accident. stands alone and is surrounded which provisions exist for the sole an purpose limiting right of can- company’s Clearly cellation. evident is the legislative intent that section 670 act as a broad limit the insurer’s of cancellation. upon rights
One further rule of construction is A applicable here. stat special exclusion, ute a dealing subject with expressly particular constitutes so as to take over a precedence conflicting general subject. statute on the same v. (Kennedy City Ukiah (1977) 69 Cal.App.3d Cal.Rptr. [138 v. 207]; Busic United States 446 U.S. (1980) L.Ed.2d 100 S.Ct. [64 1747].) This rule applies regardless of whether the statute enact special was ed before or after the general one. (People Randano 326]; Warne v. Harkness Cal.Rptr. (1963) 60 Cal.2d [108 377].) P.2d Section 670 is a most statute enacted after section specific long 11580.2, subdivision (d)(1).
VII Section 670 should also to be examined as materia being with pari shall, section 488. Section 488 states: in issuing “No insurer renewing private passenger automobile insurance policy, increase on premium the reason that the insured or for insurance has applicant been convicted for traffic violations committed while operating motor vehicle for during the hours of his . . . .” compensation employment
Both sections 488 they and 670 share the same wit: purpose, to seek to limit the insurer’s practice an insured for vehicle penalizing violations occurring during day. unrelated of the driver The reason portions driving obvious: the habits of a person quite different when job By on the to off the opposed job. construing sections 488 and materia, 670 in it is clear that pari section 670’s reference to Vehicle Code *15 insurers, to limit of a class only to describe 16450 is made section applies. 670’s prohibition section to which vehicle policies motor of type the prohibi- to which of insurer the type of description no gives Section of degree spe- in the only Thus, and 670 differ sections applies. tion insurer. defining applicable cificity used
VIII as view its application 670 do not section scholarly upon The comments Education of Continuing The an accident. after limited to issued policies all insurance policies: to 670 as applying authors section interpret Bar cancellation of renew or refusal to 670 prohibits “Insurance Code [section] if the exclusion policy’s establishments commercial business issued to policies driver was when the that occurred Vehicle Code violations is based on The employer. leased vehicle not owned or a passenger operating has been convicted if the driver exclusion be issued named-driver section in Insurance Code violations specified Vehicle Code certain serious (Cont.Ed.Bar, Supp. Insurance Law Guide Automobile 670(b).” (Cal. 1985) 39.) p. to limit section 670’s of section 670 wanted
Finally, had the framers accident, have they an could issued after policies to automobile prohibition did not do. they This variety limiting adjectives. easily using done so a descrip- direct to include language have used more Also the framers could in dam- respond as proof of “a which is certified tion language Code.” No such 16431 of the Vehicle section ages provided 670. is to be found meaning or hint of such IX only are to be statutory applied construction rules of foregoing of the statute in the provisions there is an or conflict ambiguity where (Constane lead to absurd consequences. literal would interpretation where A 875].) Cal.Rptr. da Holcomb 670, far words of section of the reading plain, explicit and interpretation result, clearly a logical leads to leading consequence, from absurd contrast, reasoning In to follow to the intent. conforming legislative various incorporated- examination of the State Farm its tortuous through face flies in the in a conclusion which by-reference code sections results Vehicle A careful examination of intent. explicit legislative most clear and State Farm’s conten 16450 and 16431 no gives support Code sections tions.
240
X drive,” State Farm next Wenz was “not hired to but rather argues was “hired to acoustical work. It is further asserted he was not supervise” acting within the of his at the time of the accident. scope employment
State Farm to the definition of a driver as found in Vehicle Code points 305 and asserts this section should be used to determine if Wenz was “a driver hired to drive.” Vehicle Code section 305 states: “a driver is a person Clearly who drives or is actual control of a vehicle.” physical conclusively facts of this case to the fact that Wenz was a driver under point Vehicle Code section 305. He was in actual control of the vehicle at physical the time of the accident. Vehicle Code section 305 does not give insight Wenz’s “hired to drive”. concerning being
State Farm further that in argues order to be under section qualified must be the principal reason for which the is No person employed. basis in law is found for such a In being definition of “hired to drive”. State Farm’s reliance regard Vehicle Code sections 70 and 71 is upon misplaced. These sections forth the definition setting “principal purpose” Moreover, are promulgated licensing they are no purposes. longer law.
XI here licensing, issue is not Wenz’s but rather whether the “hired to drive” falls within the ambit of the doctrine of concept respondeat superior.
The doctrine of seeks respondeat superior the losses caused place by torts of employees, which as matter are almost certain to practical occur in the context of the employer’s enterprise, upon itself enterprise aas cost of business. As required doing Huntsinger was said Glass Containers Corp. 666], citing Cal.Rptr. [99 “ v. Long (1947) Johnson 30 Cal.2d P.2d ‘The principal [181 645]: justification for the application of the doctrine of ... respondeat superior the fact that the the risk and employer spread through carry ” the cost thereof as of his costs of business.’ part doing “ ‘ and James state the
Harper focus of the doctrine thus: “We are not looking here for the master’s fault but rather may fairly for risks that broadly of or regarded typical incidental to the he has under- enterprise Further, . . taken. . we are looking for that which can and should avoided, reasonably be but with the more or less inevitable toll of lawful ’ James, 1376-1377, (2 The Law of Torts enterprise.” Harper (1956) pp. in Hinman v. ... quoted Westinghouse Elec. Co. Cal.3d [956,] *17 188, (1983) Equipment Corp. v. Thermal 988].)” (Lazar 471 P.2d Cal.Rptr. 458, 890].) Cal.Rptr. 464 Cal.App.3d 148 [195 within driving include drivers “hired to drive” to
In the term interpreting were employees from who injury the risk of of employment, the scope Thus, through insurance. the is employment spread within of driving scope To fulfilled. superior respondeat the doctrine applying the purpose the held under an could be liable employer otherwise would mean hold of the but would employees for torts respondeat superior driving doctrine of against damages arising for coverage have protection the interpretation torts. unreasonable from such This would language. “hired-to-drive”
XII driving to Wenz’s Assuming superior generally applies respondeat business, next Wenz was the scope State Farm claims outside company on the the State Farm relies upon of his at the time of accident. employment and coming” rule. “going 956], P.2d
The cases of Martinell v. Stabnau 11 38 (1935) Cal.App.2d [52 v. Elec. Co. 21 568 P.2d (1937) Cal.App.2d and Carnes Gas & [69 Pacific home for lunch at the time of an accident. employees going involve 998] a a car taking taking The act of car for lunch has been differentiated from morning. the it in the returning place home for to the work evening the where A rule arises exception going-and-coming well-known Thus, key the car the the gives employer. the use some incidental benefit is whether there is an incidental benefit derived the inquiry employer. v. 22 Huntsinger 811.) Containers at (See supra, Cal.App.3d p. Glass Corp., v. (see Largey The is not owns the vehicle Intrastate Radio question who Inc. whether (1982) Cal.Rptr. 520]), 136 660 telephone, Cal.App.3d [186 (see vehicle employer receives reimbursement employee 236 (1941) 650]), Richards v. Ins. Co. 19 Cal.2d P.2d Metropolitan [120 Life errand while home. personal or whether employee performs 458, v. 464- Lazar Thermal (See Equipment Corp., supra, Cal.App.3d 441, 448 466; Avila v. (1985) Standard Oil of California Sons, Inc. 41 Cal.3d 314]; Groningen Perez v. Van & Cal.Rptr. [213 106, P.2d Consulate 676]; Joseph Cal.Rptr. Office of 1026.) Cir. F.2d (9th General 1987) vehi of the company uncontradicted Wenz’s use evidence is Wenz was Johnson-Kinsey an incidental benefit. job clearly cle in his gave in the return- van and company vehicle with driving company equipment had duties both activity. Wenz engaging company to his home from ing to use his vehicle to travel in the office and in the field. He was required He in his vehicle to the work site. was work sites. He delivered materials county. county and sometimes outside the throughout to travel required vehicle in that Wenz use the It was an condition of his express employment to his duties. attending way Wenz his home
The fact that the accident occurred when was on Huntsinger In from work is not determinative of the scope employment. *18 803, 810, v. said: Glass Containers the court Corp., supra, Cal.App.3d “ “going-and- ‘The . . . indicate that will be made to the exceptions cases rule where the involves an incidental benefit to the coming” trip employ ” vehicle and from the Huntsinger er.’ held the his to employee “driving was, therefore, manner incidentally beneficial to in a employer] office [the by ordinary to the commute members of its work force. trips common words, In a an to drive requires employee other when business enterprise busi and from its office order to have his vehicle available for company way the the to and from the office are statisti during day, ness accidents on and, re cally eventually, having certain to occur the business enterprise work, are the to and from the risk of such accidents risks quired driving incident at enterprise.” (Id. p. 810.) to the business Lazar v. Thermal
Finally, Equipment Corp., supra, the recent case of held the of respondeat superior the court doctrine Cal.App.3d where an occurs while the was his em applies employee accident In Lazar way truck on a errand on his home from work. ployer’s personal the uncontroverted evidence demonstrated the derived a employer special that driv benefit from the commute so the project supervisor’s employee’s at The Lazar ing (Id. 464.) fell within the of his court scope employment. p. held the errand was a and minor project personal supervisor’s “foreseeable” his aOnly deviation the substantial deviation or scope employment. from of (Id. takes the outside the of his at departure employee scope employment. pp. 464-466.)
The Lazar an within or employee’s court reasoned: action “[Whether] [is] outside the . . a of foreseeabili scope employment. begins with question enterprise.” i.e., ty, whether the accident is of the inevitable toll of a lawful part v. at (La supra, Cal.App.3d. Thermal Equipment Corp., zar analysis foreseeability The classic of the in this context p. 464.) question Rodgers is made in v. Constr. Co. Kemper 143], injured where an was between
Cal.Rptr. employee fight employees convenience, on the mutúal the allowed employer For employer’s premises. ended; stay workday the on its after the the employees premises employ ees drank three four beers A refused to fight or ensued when one apiece. the others a ride on a Rather than give heavy searching piece equipment. within or outside the actions employees’ placing distinctions for word-laden foreseeability. in terms of court Rodgers spoke the scope employment, in, by, an or created a risk is inherent determine whether way “One generally was a the actual occurrence However, ask whether is to enterprise foreseeable ’ must foreseeability in this context activity. consequence of ’ In the latter sense negligence. as test for distinguished foreseeability from lead a prudent which would a level of ‘foreseeability’ probability means a test for ‘foreseeability’ whereas to take effective precautions person enter- in the of the merely particular means that context respondeat superior seem it would startling that if not so unusual conduct employee’s prise the employ- costs among from it other resulting to include loss unfair Co., at 50 Cal.App.3d Constr. (Rodgers Kemper supra, er’s business.” 618-619.) (Italics added.) pp. “The ques as follows:
Witkin describes the traditional distinction fact, only a substan and the rule now established is tion is often one of outside the of his scope tial deviation or takes the departure employee activity employer’s If main of his is still purpose employment. *19 business, of the scope employment it does not cease to be within the acts, the delays, or deflections from slight reason of incidental personal ordinarily used to describe these direct route. The term ‘deviation’ is most deflections, the abandonment which takes minor and to describe ‘departure’ Witkin, Cal. (1 Summary of the acts outside the scope employment.” 166, 765, added.) and italics (8th 1973) p. Law ed. Agency Employment, § the employee’s personal Thus the acts at issue involve a combination of Son, (Perez Groninger v. & supra, business and the business Van employer’s v. 41 As was said in Lazar 962) Cal.3d and fall within respondeat superior. 466: “While a deci Thermal 148 at Equipment Corp., supra, Cal.App.3d p. bar, vacation, at a a a not have been stop begin might sion to or party, foreseeable, than an employ we can think of no conduct more predictable Where, way a the home. ee’s at a store to few items on stopping purchase here, the the benefit the in the employer, employ home is made for trip vehicle, devia er’s accidents such minor and foreseeable occurring during a tions become of the ‘inevitable toll of lawful part enterprise.’ showing in the trial court that “No evidence or inference was presented other than to at store before stop Lanno’s deviation was for purpose foreseeable, and find a deviation to be minor returning home. Since we such ... 22 v. Co. under the forth in Clemmer Insurance standard set Hartford 285, 1098], judgment 587 P.2d Cal.3d 887-878 Cal.Rptr. [151 West (See also Golden granted. the verdict was notwithstanding properly Broadcasters, v. Court (1981) Cal.App.3d Inc. Superior [171 95]; Munyon Ole’s Inc. Cal.Rptr. 424].)”
Cal.Rptr. Wenz When hit of Lazar are similar to those here.
The facts drive,” van he was “hired to company with the van Haight The acts in were foresee scope employment. question was within his able, of Wenz’ scope employment. within
Disposition The is reversed. judgment J.,
Work, P. concurred. Acting in this case hard TODD, J. The anomalous result regretfully concur. I Jr., Wenz, Mary L. John son of (Wenz) for me to swallow. Edward Allen Inc., Johnson-Kinney, the owner son and officer of (a principal coverage additional auto insurance accident) vehicle in this will be provided through State Farm Mutual Automobile Insurance Company plaintiff the date in circumstance his own truck was on inoperable the fortuitous Johnson-Kinney permitting followed question. Although vehicles, young Wenz firm-owned man’s such as to drive employees him special boss’s son consideration. While brought status as the apparently van and being Dodge alleg truck was he drove firm’s Wenz’s repaired, Dorothy the fact State Haight. caused the accident edly injuring Despite coverage be no Johnson-Kinney agreed Farm and had there would specially Wenz, compels Insurance this result. named Code section by section it is based person upon exclusion for Wenz is forbidden 670 when *20 cita job. bad off the record of traffic driving record Wenz’s employee’s Johnson- caused State Farm obtain the exclusion with agreement tions to Kinney. anomaly results circumstance Wenz given permission from the was Through
to drive the van while his truck was in the this company shop. Wenz 670 becomes Since is company policy, violation of section applicable. job company his of travel to and the to own mode sites required provide office, Even meaning though he is “hired to drive” within the of section 670. duty only incidental to his as a broad driving primary supervisor, in section 670 this result. Legislature compels language employed in Code section 4881 materia with section 670 (construed pari Insurance its drivers “whose majority opinion) application specific now limits to shall, reads, issuing part, or Code section 488 as follows: “No insurer re 1Insurance newing private passenger policy, premium on that automobile insurance increase the has traffic applicant for the reason that the insured for insurance been convicted for viola operating compensation during the hours of committed while a motor vehicle for his tions conviction, if, respect employee or employment applicant with to a has submitted add- (Italics . . .” vehicles . motor employer’s include their duties not be would State Farm section applied If such a restriction ed.) me the logical It seems loss. particular for this coverage to provide bound only profession- to full-time intended to apply Union Teamsters Nevertheless, as presently legislation. when it proposed al drivers avoided in this case. cannot be its application phrased, denied De- Court was by the Supreme for review petition Respondent’s cember 1988. *21 perjury appli- employee penalty under made
insurer a written declaration time, was, during compensation operating a motor vehicle for cant insured at that only specific applies whose employment. to those individuals of his or her This section hours added; (Underscoring employer’s ....’’ under- their motor vehicles duties include amendment.) part portion pertinent is the of the 1985 scored *22 F009006, F009065. Fifth Dist. Oct. [Nos. 1988.]
In re the of THERESE MARIE and RICHARD ALBERT Marriage CHAPMAN. CHAPMAN,
THERESE MARIE Appellant, CHAPMAN,
RICHARD ALBERT Appellant.
[Opinion partial publication.*] certified * Court, 976.1, Pursuant to California opinion publication Rules rule is certified for exception part with the III.