Jones v. IDS Prop. Cas. Ins. Co.
Jones v. IDS Prop. Cas. Ins. Co.
Opinion of the Court
*358*628When 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:
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 *629for 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)
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 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 *630Code of Civil Procedure section 166.1.
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.
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)
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 *360de novo. ( In re First Capital Life Ins. Co. (1995)
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 *631injured 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 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,
In State Farm Mutual Auto. Ins. v. Ball (1981)
Two justices reached a different result in Abellon, supra,
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 Cal.App.3d at p. 30,
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,
*633This court construed a policy similar to the Ball policy in Hauser v. State Farm Mut. Auto. Ins. Co . (1988)
In Mid-Century Ins. Co. v. Bash (1989)
In Ayala, supra, 116 Cal.App.4th at page 1201,
*634The 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,
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 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 *363$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,
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,
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,
In Allstate Ins. Co. v. Fibus (9th Cir. 1988)
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)
*636First, 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,
Finally, as we next discuss, the IDS policy does provide the per person limit applies where there is bodily injury to only one person.
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)
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 *365judges have reached different interpretations of the policy at issue here and similar policies, as we have explained. *637We 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)
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)
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,
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)
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)
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.
*639The assertion that loss of consortium qualifies as bodily injury under the financial responsibility law has been repeatedly rejected. ( Vanguard Ins. Co. v. Schabatka (1975)
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 *367raise 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 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 *640misrepresentation 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.) 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." ( *368Pfeifer v. John Crane, Inc . (2013)
The judgment is affirmed. IDS shall recover costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur:
Hull, Acting P.J.
Murray, J.
"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.)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.