Jones v. IDS Property Casualty Ins. Co. ( 2018 )

Filed 9/25/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
----
MARK ALAN JONES et al., C084065
Plaintiffs and Appellants, (Super. Ct. No. 14-CV-
C08864)
v.
IDS PROPERTY CASUALTY INSURANCE
COMPANY et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Amador County, Robert F.
Moody, Judge. Affirmed.
Law Offices of Charles Hastings and Charles L. Hastings; Keen & Keen and
Charles E. Keen for Plaintiffs and Appellants Mark Alan Jones and Melanie Jones.
Woolls Peer Dollinger & Scher and H. Douglas Galt for Defendant and
Respondent IDS Property Casualty Insurance Company.
Mayall Hurley and Wililam J. Gorham III for Defendants and Respondents Janet
Buhler and Richard Buhler.
1
When a wife sues for loss of consortium after her husband is seriously injured in
an automobile accident that is the defendant’s fault, is her claim subject to the same per
person limit of the defendant’s insurance policy as her husband’s claim for bodily injury?
That is the issue presented in this case. All California cases except one have answered
the question in the affirmative, finding the language of the policy was sufficient to
aggregate the two claims. Here, the policy language reads: “The bodily injury liability
limits for each person is the maximum we will pay as damages for bodily injury,
including damages for care and loss of service, to one person per occurrence.” Although
the policy language at issue here differs slightly from the language in the published cases,
we find it is sufficient to aggregate the two claims.
As we explain, the language makes clear that the damages for bodily injury
include loss of consortium. Further, the policy language provides that so long as only
one person suffered bodily injury, the per person limit applies. Although the plaintiffs
here argue that the language “to one person” modifies “the maximum we will pay” rather
than “bodily injury,” we disagree. Because we agree with the trial court that the per
person policy limit applies to all damages derived from bodily injury “to one person”
rather than defining the maximum available payment to any single individual (that is, “to
one person”), we affirm the judgment in favor of defendant IDS Property Casualty
Insurance Company (IDS).
FACTUAL AND PROCEDURAL BACKGROUND
In August 2013, the trial court entered a judgment against respondents Janet and
Richard Buhler following a traffic accident in which appellant Mark Alan Jones was
seriously injured. By stipulation, the judgment awarded Mark $1,350,000 and his wife
Melanie Jones $150,000 for loss of consortium.
The Buhlers had an automobile insurance policy with IDS that provided coverage
of $250,000 for bodily injury for each person and $500,000 for each occurrence. The
policy set forth the limits of liability for bodily injury:
2
1. The bodily injury liability limits for each person is the maximum we will pay
as damages for bodily injury, including damages for care and loss of services, to
one person per occurrence.
2. Subject to the bodily injury liability for each person, the bodily injury liability
limit for each occurrence is the maximum we will pay as damages for bodily
injury, including damages for care and loss of services, to two or more persons in
one occurrence.
[¶] . . . [¶]
We will pay no more than these maximums regardless of the number of vehicles
described in the declaration, Insured persons, claims, claimants, policies, or
vehicles involved in the occurrence.
After IDS paid the Joneses $250,000, the per person limit, the Joneses brought suit
against IDS and the Buhlers for declaratory relief. They sought a judicial declaration that
under the terms of the policy, IDS had a duty to pay the full per person limits of
$250,000, to both Mark Jones and Melanie Jones, for a total of $500,000, the per
occurrence limit.
IDS moved for summary judgment. It argued that a single per person limit applied
to both Mark’s injuries and Melanie’s loss of consortium resulting therefrom. It relied on
United Services Automobile Assn. v. Warner (1976) 64 Cal. App. 3d 957 (Warner) and
Mercury Ins. Co. v. Ayala (2004) 116 Cal. App. 4th 1198 (Ayala). Both cases held that a
spouse’s claim for loss of consortium was subject to the same per person policy limit as
the injured spouse’s damages. IDS distinguished Abellon v. Hartford Ins. Co. (1985) 167
Cal. App. 3d 21 (Abellon), in which a divided panel of the Fourth Appellate District,
Division 1 reached a different result.
The trial court (Howard, J.) denied the motion, finding that Abellon controlled.
The order was signed by Judge Hermanson.
The Buhlers filed for bankruptcy in November 2013. The Buhlers and the
bankruptcy trustee filed a cross-complaint against IDS, for failure to defend, breach of
3
the implied covenant, and breach of contract. They alleged IDS pursued its financial
interests to the detriment of the Buhlers by claiming the applicable policy limit was only
$250,000.
The Joneses filed an amended complaint. They added causes of action for fraud
and negligent misrepresentation based on the allegedly false representation of IDS that
the applicable policy limit was only $250,000.
IDS demurred to the fraud and negligent misrepresentation causes of action. The
trial court (Day, J.) overruled the demurrer.
On the first day of the jury trial, the parties agreed that the court (Moody, J.) could
first rule on the declaratory relief cause of action and certify that ruling for appeal
pursuant to Code of Civil Procedure section 166.1.1 The court ruled in favor of IDS,
finding Warner, Ayala, and the dissent in Abellon persuasive. It certified the order for
appeal.
The Buhlers and the bankruptcy trustee petitioned this court for a writ of mandate,
seeking to overturn the trial court’s declaratory ruling. This court denied the petition.
(Buhler v. Superior Court (Sept. 30, 2016) C082814.)
IDS moved for a nonsuit or judgment on the pleadings on the false representation
claims, arguing the declaratory ruling established that the claims were not false. The trial
court agreed and granted the motion for judgment on the pleadings. The court entered
judgment for IDS.
1 “Upon the written request of any party or his or her counsel, or at the judge’s
discretion, a judge may indicate in any interlocutory order a belief that there is a
controlling question of law as to which there are substantial grounds for difference of
opinion, appellate resolution of which may materially advance the conclusion of the
litigation.” (Code Civ. Proc., § 166.1.)
4
DISCUSSION
I
Ruling on Request for Declaratory Relief
The Joneses contend the trial court erred in ruling the per person limit of the
policy applied instead of the per occurrence limit. They argue that since loss of
consortium is an independent tort and not a derivative claim (Rodriguez v. Bethlehem
Steel Corp. (1974) 12 Cal. 3d 382), it is subject to a separate per person limit of the policy
unless the policy clearly specifies that loss of consortium damages are aggregated with
those of the injured spouse. They contend the IDS policy issued to the Buhlers did not
contain the necessary language of aggregation.
IDS responds that the policy language was sufficient to aggregate the two claims.
The trial court agreed. Because the interpretation of an insurance contract is a question of
law, we review the court’s decision de novo. (In re First Capital Life Ins. Co. (1995) 34
Cal. App. 4th 1283, 1287.)
A. Case Law
A number of cases, decided after loss of consortium was recognized as an
independent tort, have considered whether a claim for loss of consortium is subject to the
same per person limit of the policy as the damages to the injured spouse. Each case turns
on the language of the policy at issue; we consider these cases successively.
In Warner, supra, 64 Cal.App.3d at p. 961, the limitation of liability portion of the
policy read: “ ‘The limit of bodily injury liability stated in the declarations as applicable
to “each person” is the limit of the company’s liability for all damages, including
damages for care and loss of services, arising out of bodily injury sustained by one person
as the result of any one occurrence; the limit of such liability stated in the declarations as
applicable to “each occurrence” is, subject to the above provision respecting each person,
the total limit of the company’s liability for all such damages arising out of bodily injury
5
sustained by two or more persons as the result of any one occurrence.” The appellate
court found this language “clear and free from ambiguity. The ‘per person’ limit applies
to ‘all damages, including damages for care and loss of services, arising out of bodily
injury sustained by one person . . . .’ ” (Id. at p. 962.) The court found the term “loss of
services” covered loss of consortium. “Loss of consortium is not only similar in kind to
damage for loss of services in that it arises out of the bodily injury sustained by the
injured spouse, but actually includes loss of services as one of its elements.” (Ibid.)
The Warner court noted that while the right to recover for loss of consortium had
only recently been recognized, “the California courts have uniformly held that the ‘per
person’ limit applies to claims for loss of services and other consequential damages to a
person related to the person suffering bodily injury in an accident.” (Warner, supra, 64
Cal.App.3d at p. 962.) “While the policy language in the cited cases was not always
identical with the language used in appellant’s policy, . . . the principle consistently
followed has been that where one person was injured or killed in the accident or
occurrence, the single injury limit applied, regardless of the number of persons damaged
as a result of that injury.” (Id. at p. 963.) “The cause of action for loss of consortium
does not arise out of a bodily injury to the spouse suffering the loss; it arises out of the
bodily injury to the spouse who can no longer perform the spousal functions. It is the
loss of conjugal fellowship, affection, society and companionship which gives rise to the
cause of action.” (Id. at p. 964.)
In State Farm Mutual Auto. Ins. v. Ball (1981) 127 Cal. App. 3d 568 (Ball), the
appellate court followed Warner. There, the policy provided, “ ‘The limit of liability
stated in the declarations as applicable to “each person” is the limit of the company’s
liability for all damages arising out of bodily injury sustained by one person in any one
accident, and subject to this provision, the limit of liability stated in the declarations as
applicable to “each accident” is the total limit of the company’s liability for all such
damages for bodily injury sustained by two or more persons in any one accident. For the
6
purposes of this provision the “bodily injury sustained by one person” as used herein,
shall be deemed to include all injury and damages sustained by others as a consequence
of such bodily injury.’ ” (Id. at p. 570.) The policy defined damages to include “care and
loss of services.” (Id. at p. 571.) The Ball court found it “even clearer” than in Warner
that “the ‘each person’ liability limit is appropriate, since there is, in addition to the
language found in the Warner policy, the further proviso that ‘For the purposes of this
provision the “bodily injury sustained by one person” as used herein, shall be deemed to
include all injury and damages sustained by others as a consequence of such bodily
injury.’ ” (Id. at p. 572.)
Two justices reached a different result in Abellon, supra, 167 Cal. App. 3d 21,
where the majority held that the wife’s loss of consortium claim was a separate bodily
injury and subject to the per occurrence limits of the policy. The policy language
provided: “ ‘1. The most we will pay for all damages resulting from bodily injury to any
one person caused by any one accident is the limit of Bodily Injury Liability shown in
this endorsement for “each person.” 2. Subject to the limit for “each person,” the most
we will pay for all damages resulting from bodily injury caused by any one accident is
the limit of Bodily Injury Liability shown in this endorsement for “each accident.” ’ ”
(Id. at pp. 24-25.) The policy limits for bodily injury were $250,000 for each person and
$500,000 for each occurrence. (Id. at p. 25.) The majority found the loss of consortium
claim was a separate injury from that of the injured spouse. (Ibid.) “If [the insurer]
wants to limit liability in accidents where loss of consortium damages are sought, it
should expressly provide that such damages are subject to the ‘per person’ limitation.”
(Id. at p. 33.)
The Abellon majority distinguished Warner due to the difference in the language
of the policy. Abellon explained that in Warner, “[t]he ‘per person’ limitation defined
‘all damages’ as including damages for care and loss of services. Consequently, the court
found the language of the policy clear and unambiguous.” (Abellon, supra, 167
7
Cal.App.3d at p. 30.) The policy at issue in Abellon did not include “loss of services” in
the damages subject to the “per person” limit. (Id. at p. 31.)
The dissent concluded that the policy in Abellon was “written in the plainest
English possible. [¶] [I]t says the most Hartford will pay in damages resulting from
bodily injury to any one person is $250,000.” (Abellon, supra, 167 Cal.App.3d at p. 34
(dis. opn. of Lewis, J.).) “The simple, pure ‘all’ is the most comprehensive word in the
English language” and required no elaboration or lists; it included loss of consortium.
(Ibid.) “Since there is neither doubt nor ambiguity about what the contract of insurance
provides, the court is not called upon to interpret it.” (Id. at p. 35.)
This court construed a policy similar to the Ball policy in Hauser v. State Farm
Mut. Auto. Ins. Co. (1988) 205 Cal. App. 3d 843. There, the $250,000 limit of liability for
bodily injury for “each person” was “ ‘the amount of coverage for all damages due to
bodily injury to one person. “Bodily injury to one person” includes all injury and
damages to others resulting from this bodily injury.’ ” (Id. at p. 845.) We rejected the
argument that the wife could recover for loss of consortium under the higher ($500,000)
per accident policy limits. “We cannot ignore the policy’s unambiguous definition of
‘bodily injury to one person.’ Wife’s loss of consortium resulted from her husband’s
injuries without which wife would have no claim at all. Under the policy provisions,
wife’s claim is compensable only under the ‘each person’ limit applicable also to her
husband’s claim.” (Id. at pp. 846-847.) We distinguished Abellon based on the different
policy language and noted that court was divided. (Id. at pp. 848-849.)
In Mid-Century Ins. Co. v. Bash (1989) 211 Cal. App. 3d 431, 435 (Bash), the
policy provided, “ ‘ “The bodily injury liability limit for ‘each person’ is the maximum
for bodily injury sustained by one person in any occurrence. Any claims for loss of
consortium or injury to the relationship shall be included in this limit.” ’ ” The court
found the policy language similar to that in Warner. “The policy language under scrutiny
here is plain and straightforward. It sets the ‘per person’ limit for injury sustained ‘by
8
one person in any occurrence’ as including claims for loss of consortium or injury to the
relationship.” (Id. at pp. 436-437.) “Wife would have no claim under the policy for
damages for loss of consortium but for the injuries sustained by James Bash in the
accident with Maldonado. Therefore, the loss of consortium is a loss sustained because
of injuries to one person, and the ‘per person’ limits of liability apply.” (Id. at p. 438.)
In Ayala, supra, 116 Cal.App.4th at page 1201, the policy provided, “ ‘The limit
of liability stated in the declarations as applicable to “each person” is the limit of the
company’s liability for all damages arising out of bodily injury sustained by one person
in any one accident . . . . For the purposes of this provision, the “bodily injury sustained
by any one person” as used herein, shall be deemed to include all injury and damages for
care, loss of consortium and injury to any interpersonal relationship sustained by others
as a consequence of such bodily injury.’ ” The reviewing court found this language
“unambiguous.” (Ibid.) The court distinguished Abellon because the policy there lacked
“language defining ‘bodily injury to any one person’ to include the loss of consortium
sustained by another.” (Id. at p. 1202.) As here, one party relied on Abellon, while the
other relied on Warner. The court found Warner not only “represents the majority view,
but is the better-reasoned case.” (Id. at p. 1203.)
The per person limit language at issue here--“the maximum we will pay as
damages for bodily injury, including damages for care and loss of services, to one person
per occurrence”--is not identical to the policy language in any of these cases. Even the
Abellon majority recognized that an insurer may limit its liability in accidents where loss
of consortium damages are sought by “expressly provid[ing] that such damages are
subject to the ‘per person’ limitation.” (Abellon, supra, 167 Cal.App.3d at p. 33.) The
question here is whether the IDS policy expressly so provides.
B. Sufficiency of the Language of Aggregation
The core of this dispute is whether the policy language here is sufficient to
aggregate one spouse’s damages for loss of consortium with the damages for bodily
9
injury to the injured spouse. In arguing that its policy expressly provides that damages
for loss of consortium are subject to the same $250,000 per person limitation as the
bodily injury itself, IDS focuses on the language of the policy that includes loss of
consortium as damages for bodily injury, “damages for bodily injury, including damages
for care and loss of services.” The Joneses focus instead on the language that limits
damages for bodily injury sustained by one person, “the maximum we will pay as
damages . . . to one person.”
IDS contends its policy language expressly includes loss of consortium in the
$250,000 limit because it makes clear that damages “for care and loss of services” are
included in any damages for bodily injury. The Warner court found this language
covered loss of consortium. (Warner, supra, 64 Cal.App.3d at p. 962.) Thus, IDS
argues, the per person policy limit includes damages for loss of consortium, resulting in a
single per person limit for both Mark’s damages for his significant injuries and Melanie’s
damages for loss of consortium.
The Joneses contend without language specifying that all damages, including loss
of consortium, must be for bodily injury sustained by only one person, the policy does
not expressly include loss of consortium within the $250,000 limit. Because, like
Abellon, the IDS policy did not include this specific language, the Joneses contend the
higher per occurrence limit applies.
In distinguishing Warner, the Abellon majority found the pertinent difference in
policy language was the definition of damages in the per person limit. (Abellon, supra,
167 Cal.App.3d at pp. 30-31.) Abellon opined that in Warner, the “ ‘per person’
limitation defined ‘all damages’ as including damages for care and loss of services.
Consequently, the court found the language of the policy clear and unambiguous.” (Id. at
p. 30.) “The Warner ‘per person’ limitation specifically defines ‘all damages’ as
including loss of ‘services’; Hartford’s ‘per person’ limitation contains no such
qualifying phrase.” (Id. at p. 31.)
10
The Ayala court also focused on whether the per person limit included loss of
consortium. “[I]n Warner, the policy language was like the language before us, and in
Abellon there was no similar language defining ‘bodily injury to any one person’ to
include the loss of consortium sustained by another. Instead, the insured in Abellon case
had ‘no notice when it purchased the policy that loss of consortium damages fell within
the purview of the ‘per person’ limitation.’ ” (Ayala, supra, 116 Cal.App.4th at p. 1202.)
The court noted that where a liability policy defines per person to include loss of
consortium, “many cases have approved use of the per person limit in such cases, where
the policy language so provides.” (Id. at p. 1203.)
In Allstate Ins. Co. v. Fibus (9th Cir. 1988) 855 F.2d 660, the Ninth Circuit found
Abellon was consistent with Warner and Ball. At issue in Fibus was which policy
provision applied, an amendment that clearly aggregated a consortium claim with
damages for bodily injury or the original version that was less clear. The original policy
provision read: “[t]he limit stated for each person for bodily injury applies to all damages
arising from bodily injury, sickness, disease, or death sustained by one person in any one
occurrence.” (Id. at p. 662, italics added.) Citing Abellon, the Ninth Circuit found,
“Under California law, this language is ambiguous and would be interpreted to provide
separate coverage for Celeste Foran’s consortium claim.” (Id. at p. 662.) The court
found Abellon did not change California law; it was consistent with Warner and Ball
because those cases aggregated consortium claims with the claims of the party primarily
injured by expressly precluding separate coverage for consortium claims. (Id. at p. 662.)
Although Fibus did not specify the exact language that constituted the language of
aggregation, we assume it was the language defining damages for bodily injury to include
loss of consortium. This is because the original policy in Fibus contained the “sustained
by one person” language that the Joneses claim is necessary to express aggregation. The
language did not, however, define damages to include loss of consortium or loss of
services.
11
In a brief and confusing argument, the Joneses interpret IDS’s point to be that
defining damages to include loss of consortium is the only language sufficient to express
aggregation and argue that this position has been rejected. They cite to Campbell v.
Farmers Ins. Exch. (1968) 260 Cal. App. 2d 105 (Campbell), disapproved on another point
in Moncharsh v. Heily & Blase (1992) 3 Cal. 4th 1, 27-28, and Westfield Ins. Co. v.
DeSimone (1988) 201 Cal. App. 3d 598 (DeSimone). But IDS does not make this point,
and the cited cases do not support the Joneses’ position.
First, we interpret IDS’s argument to be that language specifically defining
damages to include loss of consortium is sufficient to express aggregation, not that it is
the only way. Second, neither Campbell nor DeSimone supports the Joneses’ position
that the per occurrence limit applies. The uninsured motorist policy in Campbell
provided a limit of $10,000 “on account of bodily injury sustained by one insured.”
(Campbell, supra, 260 Cal.App.2d at p. 108.) The court found this language
“unambiguous” and limited liability to $10,000 where only one person suffered bodily
injury. (Id. at p. 110.) The Campbell court concluded that where only one person is
injured or killed in the accident, a single per person limit applies. (Id. at p. 109.) In
DeSimone, heirs of a decedent killed in a multi-vehicle accident sought additional
damages under the per occurrence limit of the tortfeasor’s policy. The appellate court
found that language in the policy, namely, “This [the maximum limit for all damages for
bodily injury sustained by any one person] is the most we will pay regardless of the
number of . . . [claims] made” made clear the per person limit applied. (DeSimone,
supra, 201 Cal.App.3d at p. 602.) Further, the DeSimone court distinguished Abellon and
embraced Warner. (Id. at pp. 603-604.) We note the IDS policy, like that in DeSimone,
contains language providing that the maximum per person limit applies regardless of the
number of claims.
Finally, as we next discuss, the IDS policy does provide the per person limit
applies where there is bodily injury to only one person.
12
C. Ambiguity in Insurance Contracts
“It is a basic principle of insurance contract interpretation that doubts,
uncertainties and ambiguities arising out of policy language ordinarily should be resolved
in favor of the insured in order to protect his reasonable expectation of coverage.
[Citations.] It is also well established, however, that this rule of construction is
applicable only when the policy language is found to be unclear. [Citations.] ‘ “A policy
provision is ambiguous when it is capable of two or more constructions, both of which
are reasonable.” [Citation.]’ [Citation.] Whether language in a contract is ambiguous is
a question of law. [Citation.] We are also guided by the principle that words in an
insurance policy must be read in their ordinary sense, and any ambiguity cannot be based
on a strained interpretation of the policy language. [Citation.]” (Producers Dairy
Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal. 3d 903, 912.)
The Joneses contend the IDS policy is ambiguous and therefore should be
interpreted to apply the higher per occurrence limit to their claims. They contend the
ambiguity is established by the fact that different courts and various individual judges
have reached different interpretations of the policy at issue here and similar policies, as
we have explained.
We reject this test of ambiguity. A provision of an insurance contract “ ‘does not
become ambiguous merely because the parties disagree about its meaning [citation], or
because they can point to conflicting interpretations of the clause by different courts.’ ”
(MacKinnon v. Truck Ins. Exchange (2003) 31 Cal. 4th 635, 647.) “Otherwise, a liability
insurance company would lose every time the policyholder could find a court—
anywhere, in any jurisdiction (even if that court was having a bad day)—that took the
policyholder’s side of a given question of law over the interpretation of contract
language, and even if that court employed a rationale that would be generally at odds
with California rules regarding interpretation of policy language. It would mean that an
insurance company could never argue in favor of its side in a pure question of law if there
13
were some court somewhere that had taken the opposite view.” (Griffin Dewatering
Corp. v. Northern Ins. Co. of New York (2009) 176 Cal. App. 4th 172, 208, fn. omitted.)
The Joneses do not otherwise explain how the policy provision is ambiguous.
The Buhlers contend the policy can reasonably be read to apply the per person
limit only to amounts paid to one person. As we have set forth, the per person policy
limit reads: “The bodily injury liability limits for each person is the maximum we will
pay as damages for bodily injury, including damages for care and loss of services, to one
person per occurrence.” The Buhlers read this language so that the phrase “to one person
in one occurrence” modifies “the maximum we will pay” rather than the closer term
“bodily injury.” This reading results in the $250,000 limit’s application to damage
amounts to be paid to one person, rather than applying the limit to damages derived from
bodily injury to one person. The Buhlers argue that because Mark and Melanie Jones are
two people, and thus the payment for damages will be from IDS to more than one person,
the higher per occurrence limit applies. They assert “a reasonable insured would expect
that the ‘per person’ limitation in a policy would limit a single claimant’s recovery, not
multiple claimants.”
This interpretation is contrary to the express language of the policy that the per
person limit applies to damages for bodily injury to one person, “regardless of the
number of . . . claims, claimants . . . .” Thus, the Buhlers’ interpretation is not
reasonable. (Benedek .v PLC Santa Monica (2002) 104 Cal. App. 4th 1351, 1358
[interpretation that is contrary to express language is not semantically reasonable].)
Further, any time loss of consortium is at issue, there are two persons damaged, the
person suffering bodily injury and the spouse. If a claim for loss of consortium always
triggered the per occurrence limit, there would be no need to define damages for bodily
injury to include loss of consortium. “We must give significance to every word of a
contract, when possible, and avoid an interpretation that renders a word surplusage.” (In
re Tobacco Cases I (2010) 186 Cal. App. 4th 42, 49.)
14
The reasonable interpretation is that “to one person” modifies “bodily injury.”
Thus, the per person limit applies to all damages, including loss of consortium, arising
from “bodily injury” “to one person.” This language has the same effect and meaning as
the phrase “arising out of bodily injury sustained by one person” in the policies at issue in
Warner, supra, 64 Cal.App.3d at page 961, Ball, supra, 127 Cal.App.3d at page 571,
Bash, supra, 211 CalApp.3d at page 435, and Ayala, supra, 116 Cal.App.4th at page
1198.
Our interpretation is also supported by the last antecedent rule. “The last
antecedent rule provides that ‘ “ ‘qualifying words, phrases and clauses are to be applied
to the words or phrases immediately preceding and are not to be construed as extending
to or including others more remote.’ ” ’ [Citation.] Ordinarily the last antecedent rule
applies to statutory construction, but it has also been stated to apply to contracts [citation]
and has been used specifically to interpret insurance policy language. [Citations.]” (ACS
Systems, Inc. v. St. Paul Fire and Marine Ins. Co. (2007) 147 Cal. App. 4th 137, 150.)
The Joneses object to the application of the last antecedent rule, arguing it “is
merely an aid to construction, applicable only where there exist uncertainties and
ambiguities.” (Anderson v. State Farm Mut. Auto. Ins. Co. (1969) 270 Cal. App. 2d 346,
349.) “This merely means, however, that if the clear intent of the parties is opposed to
the application of the rule, the rule must yield. No such situation is presented here.” (Id.
at pp. 349-350.) The same is true here; our interpretation is not based on the last
antecedent rule, it is merely supported by it. As we have described, our interpretation is
based on the clear language of the policy that applies the per person limit to damages--
including loss of consortium--for bodily injury to one person, regardless of the number of
claims or claimants.
15
D. Financial Responsibility Law
For the first time on appeal, the Buhlers advance an argument based on the
California Financial Responsibility Law. This law requires automobile liability coverage
of at least $15,000 for bodily injury or death to one person and $30,000 for bodily injury
or death to two or more persons. (Veh. Code, § 16056.) The Buhlers contend the IDS
policy must provide a second per person limit for the loss of consortium because loss of
consortium qualifies as bodily injury.
The assertion that loss of consortium qualifies as bodily injury under the financial
responsibility law has been repeatedly rejected. (Vanguard Ins. Co. v. Schabatka (1975)
46 Cal. App. 3d 887, 894; Warner, supra, 64 Cal.App.3d at p. 965; Ayala, supra, 116
Cal.App.4th at p. 1204.) Moreover, even if the financial responsibility law required
coverage for loss of consortium, the IDS policy meets its coverage requirements. Here
IDS paid the Joneses $250,000, an amount far in excess of the $30,000 coverage
requirement for bodily injury to two persons under Vehicle Code section 16056.
The trial court did not err in granting declaratory relief that a single per person
limit of $250,000 applied to both Mark Jones’ claim for damages for his injuries and his
wife’s claim for loss of consortium.
II
Judgment on the Pleadings
The declaratory ruling found the per person limit of the policy of $250,000 applied
to the claims of both Joneses. IDS argued this ruling established that its representation
that the policy limit was $250,000 was not false, so the Joneses’ claims for fraud and
negligent misrepresentation fail. The trial court agreed and granted IDS’s motion for
judgment on the pleadings as to the fraud and negligent misrepresentation claims. The
Joneses raise both substantive and procedural objections to this ruling.
The Joneses argue the declaratory ruling did not address all of the allegations of
misrepresentation in the first amended complaint. They contend the trial court ignored
16
the factual allegations in nine paragraphs. The first amended complaint alleges IDS
repeatedly misrepresented its coverage obligation--the policy limit--as the $250,000 per
person limit instead of the $500,000 per occurrence limit. In the reply brief, the Joneses
assert: “This misrepresentation was not about the amount, but what coverage limit that
amount represented.”
IDS represented the applicable policy limit, its coverage obligation, was $250,000,
the per person limit. The trial court found in the declaratory ruling, a ruling we affirm on
appeal, that was the correct policy limit to apply to the situation at hand--claims for injury
and loss of consortium arising from bodily injury to a single person. Because IDS
correctly represented that the per person limit applied, rather than the per occurrence
limit, there was no misrepresentation as to coverage limit. No allegations were ignored
by the trial court; there was simply no tenable claim left to resolve.
The Joneses further contend that granting the judgment on the pleadings was
procedurally improper for several reasons. They contend Judge Moody had no
jurisdiction to reconsider Judge Day’s earlier ruling in which she overruled IDS’s
demurrer to the misrepresentation claims. Second, they contend it was error to grant a
judgment on the pleadings where a demurrer had been overruled on the same basis
because there was not “a material change in applicable case law or statute” as required by
Code of Civil Procedure, section 438, subdivision (g)(1). Third, they argue the trial court
should have declared a mistrial because at the time of the declaratory ruling the jury was
discharged without rendering a verdict.
We need not consider whether the trial court followed the proper procedure to
adjudicate the misrepresentation claims because the Joneses fail to show any prejudice.
“No judgment shall be set aside, or a new trial granted, in any cause . . . for any error as
to any matter of procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.” (Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475.)
17
Here, the trial court’s ruling established there was no misrepresentation as to the policy
limit, so entering judgment for IDS on the misrepresentation causes of action was not a
miscarriage of justice.
Finally, the Joneses contend Judge Moody improperly overruled the prior ruling of
another trial judge, acting as a “one-judge appellate court.” In denying IDS’s motion for
summary judgment, Judge Howard ruled that Abellon was controlling. Judge Moody, in
his declaratory ruling, followed Warner, Ayala, and the dissent in Abellon.
Although the two courts took opposing views of the law, the rulings addressed
different matters. One denied a defense motion for summary judgment and the second
declared the terms of the insurance policy. One did not “overrule” the other. More
importantly, the Joneses ignore that they (as well as IDS) agreed to have Judge Moody
rule on the request for declaratory relief and certify the matter for appeal, suspending the
trial. “Generally, an appellant forfeits the right to attack error by expressly or impliedly
agreeing at trial to the procedure objected to on appeal.” (Pfeifer v. John Crane, Inc.
(2013) 220 Cal. App. 4th 1270, 1309.) Having agreed to seek a declaratory ruling, the
Joneses cannot complain on appeal that they received one.
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DISPOSITION
The judgment is affirmed. IDS shall recover costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1) & (2).)
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Murray, J.
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