In its November 18, 2013, decision in Berendes v. Farmers Insurance Exchange, the California Court of Appeal (Third Appellate District) held that a pedestrian who was killed by an underinsured driver was not covered by the underinsured motorist (UIM) provision in the pedestrian’s father’s automobile insurance policies because the pedestrian was not an “insured.”
While she was a pedestrian, Kristina Berendes was struck and killed by a car driven by David Duril who was underinsured. Kristina’s survivors claimed UIM coverage under automobile insurance policies that Farmers issued to Kristina’s father. Kristina was listed as a driver in the liability section of one of the Farmers policies.
Farmers contended that the father’s policies did not provide UIM coverage for Kristina’s death. The trial court granted Farmers’ motion for summary judgment. The Court of Appeal affirmed the trial court’s ruling.
Kristina’s survivors argued that Insurance Code Section 11580.2 requires an automobile insurance policy to include UIM coverage unless a signed written waiver is obtained. They claimed that the statute required Farmers to extend UIM coverage to Kristina because she did not sign an express waiver of that coverage.
The Court of Appeal rejected the argument. The court pointed out that the statutory requirement to provide UIM coverage is limited to an “insured.” Section 11580.2(b) defines “insured” to include: (1) the named insured, (2) the spouse of the named insured, (3) residents of the same household, and (4) persons in or upon or entering into or alighting from the insured vehicle.
The court concluded that Kristina did not fit into any of these statutory categories at the time of her death. The court observed, “She was neither the named insured nor the spouse of the named insured. Although she was the daughter of the named insured, she did not live in the same household. And she was a pedestrian at the time of the accident, so she was not engaged in an activity related to one of the covered vehicles.”
The court held that since Kristina did not fit into Section 11580.2’s definition of “insured,” Farmers had no statutory obligation to provide her with UIM coverage. And since there was no coverage, there was no reason for Farmers to obtain a written waiver of UIM coverage.
Kristina’s survivors also argued that she was entitled to UIM coverage because the Farmers policies were ambiguous. Kristina was a listed driver in the liability section of the Farmers policy which covered one of her father’s cars. The liability section used a definition of “insured person” which differed from the definition of “insured person” in the policy’s UIM section. The survivors contended that this created an ambiguity which must be construed against Farmers.
The Court of Appeal found no ambiguity in the policies. The fact that Kristina was a listed driver in the policy’s liability section did not affect the clear definition in the policy’s UIM section which did not include Kristina unless she was occupying the insured vehicle. The court concluded, “When she was hit and killed by Duril’s car, Kristina was a pedestrian, not an occupant of the insured car. Under the express terms of the policies, Kristina was not entitled to underinsured motorist coverage for the accident.”