Metropolitan News-Enterprise


Wednesday, July 29, 2020


Page 1


Ninth Circuit:

Woman Who Was Listed as ‘Additional Driver’ in Fiancé’s Policy Wasn’t Covered in Mishap


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has interpreted an insurance policy as affording coverage to a woman who was injured in an accident while on her own motorcycle because a policy, issued to her then-fiancé, listed her an “additional driver” of his vehicle.

Monday’s decision, which came in a memorandum opinion, rejects the District Court’s view that the outcome of the diversity case, tried under California law, is governed by the state Court of Appeal’s 2008 decision in Mercury Insurance Co. v. Pearson. There, the First District’s Div. One found that California Insurance Code §11580.2, which pertains to uninsured motorist coverage, precluded coverage.

The insured and his fiancée in that case were struck by a car while they were crossing a street; she died; her heirs sought a payment under his automobile insurance policy on the theory that she was listed in the declarations as an “additional driver.” The Court of Appeal affirmed a judgment in favor of the insurer, finding that she was not in the category of persons to whom coverage is extended under §11580.2.

Wording of Section

That section says that “ ‘insured’ means the named insured and the spouse of the named insured and, while residents of the same household, relatives of either while occupants of a motor vehicle or otherwise, heirs and any other person while in or upon or entering into or alighting from an insured motor vehicle and any person with respect to damages he or she is entitled to recover for care or loss of services because of bodily injury to which the policy provisions or endorsement apply….”

In the present federal case, District Court Judge Dale S. Fisher, in her order granting summary judgment to the insurer, Geico, cited Mercury Insurance. She found no appreciable difference in the wording of the statute and the wording of the policy.

The judges comprising the Ninth Circuit panel—Circuit Judges Bridget Shelton Bade and Richard A. Paez, joined by District Court Judge Jack Zouhary of the Northern District of Ohio, sitting by designation—did spot a difference. In light of the difference it discerned, it found that the specific language of the policy prevails over definitions in the state code section, and that the policy language is ambiguous and must be resolved against Geico.

Memorandum Opinion

The opinion says:

“The policy defines ‘insured’ as ‘the individual named in the declarations.’ In contrast, the Code defines ‘insured’ as ‘the named insured.’ and it in turn defines ‘named insured’ as ‘the individual or organization named in the declarations.’…These two definitions may appear nearly identical in isolation. In context, however, the difference is material—both sides agree Shaw is not ‘the named insured,’ but they dispute whether she is ‘the individual named in the declarations.’ The policy and Code therefore are not substantially identical.”

She is listed in the declarations as an “Additional Driver, meaning that “she is ‘named in the declarations,’ and she could reasonably be considered an insured,” the opinion observes, adding:

“The policy’s failure to explicitly define the rights of Additional Drivers compounds this ambiguity. A reasonable person in Shaw’s position could expect to qualify as an insured; we must interpret the policy to protect that expectation.”

Hit on Motorcycle

Shaw was injured while riding a bicycle in 2015. She was hit by a car.

The insurer for the driver paid her the policy limits—$50,000—and she proceeded against Geico under the uninsured/underinsured provision of the policy of her then-fiancé. Geico insisted that the “named insured” meant the fiancé and certain others, including his family members, but did not include Shaw.

The case is Shaw v. Geico General Insurance Co., 19-55724.


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