Goldberg v. Amco Ins.
Filed 12/3/08 Goldberg v. Amco Ins. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MARTIN GOLDBERG et al., Plaintiffs and Respondents. v. AMCO INSURANCE COMPANY, Defendant and Appellant. | B199041 x-ref. B194649 (Super. Ct. No. BC332916) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Jane L. Johnson, Judge. Affirmed.
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Horvitz & Levy, Peter Abrahams, Wendy S. Albers; Pollak, Vida & Fisher and Michael M. Pollak for Defendant and Appellant.
Gianelli & Morris, Robert S. Gianelli; Esner, Chang & Ellis, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Respondents.
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In the underlying action, Douglas Brown and Chester Linder obtained a combined $8 million personal injury judgment against Rocco Cimarusti for injuries they sustained in a dune buggy accident caused by Cimarustis negligence. When Amco Insurance Company denied coverage under Cimarustis homeowners policy, Brown, Linder, Cimarusti and Cimarustis limited receiver, Martin Goldberg, joined in bringing this action against Amco for breach of contract. The trial court found Amcos policy covered the accident and entered judgment for the plaintiffs. We affirm.
FACTS AND PROCEEDINGS BELOW
The case was tried to the court on stipulated facts.[1]
In 2001, Rocco Cimarustis father purchased a dune buggy and obtained a certificate of title in his name. In May 2002, Cimarusti purchased the dune buggy from his father for one dollar. His father gave Cimarusti a bill of sale and told him the vehicle was now his. Cimarusti maintained possession of the dune buggy from the time he purchased it. Cimarustis father did not deliver or sign over the certificate of title to Cimarusti. Neither Cimarusti nor his father applied to the Department of Motor Vehicles (DMV) for an identification plate for the dune buggy nor did they file any forms with the DMV evidencing transfer of ownership of the dune buggy to Cimarusti.[2] At one time, Cimarustis father had a dune buggy policy on the vehicle but he cancelled it in early 2002. Cimarusti did not purchase an insurance policy specifically covering the dune buggy. Cimarusti used the dune buggy exclusively off the highways and it did not have the physical capacity of being operated on highways.
In October 2002, Cimarusti took the dune buggy on his vacation at the Imperial Sand Dune Recreation Area (ISDRA), a section of public land in Imperial County administered by the United States Department of Interior. ISDRA is composed of sand dunes and campsites that are open to the public with the purchase of a permit. Cimarusti purchased a 12-month permit for $92 and stayed in a trailer he parked on one of the campsite pads. On the fourth day of his vacation at ISDRA, Cimarusti gave Linder and Brown a ride in the dune buggy. During the ride, Cimarusti negligently drove the dune buggy off the lip of a dune and crashed. Linder and Brown were seriously injured.
Linder and Brown brought a negligence action against Cimarusti who tendered its defense to Amco under his homeowners policy. Amco drafted the policy based on standard ISO forms sold in states throughout the country.[3] In response to questions from Amcos claims representative, Cimarusti and his counsel stated that Cimarusti was the owner of the dune buggy at the time of the accident and that it was not registered. Amco refused to defend the action and denied coverage of the accident.
Linder and Brown were awarded a combined total of $8 million in their negligence action against Cimarusti. After entry of the judgment, Cimarusti assigned Linder and Brown his rights under the Amco policy, retaining his personal claims against the company.
Cimarusti, Linder, Brown, and Cimarustis limited receiver, Martin Goldberg, then brought this action against Amco for breach of contract. The parties agreed to bifurcate the trial and to try first the issue of coverage based on the provisions of the policy and the stipulated facts described above.[4] The court found in favor of the plaintiffs on the coverage issue. To facilitate an appeal on that issue the parties stipulated to a total amount of damages in the sum of $9.5 million and the trial court entered judgment in accordance with the stipulation. Amco filed a timely appeal. There being no dispute as to the facts, we independently review the trial courts interpretation of the policy. (Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 45.)
DISCUSSION
I. THE RELEVANT POLICY PROVISIONS
Cimarustis homeowners policy generally provides coverage for his personal liability to others. The policy contains a limited exclusion, however, for motor vehicle liability which it defines in relevant part as liability for bodily injury arising out of ownership of such vehicle . . . by an insured or operation . . . of such vehicle . . . by any person[.] The parties stipulated that the dune buggy was a motor vehicle for purposes of this exclusion.
The motor vehicle liability exclusion applies if, at the time and place of an occurrence . . . [a] law, or regulation issued by a government agency, requires the involved motor vehicle to have been registered for it to be used on public roads or property[.]
If the motor vehicle is not excluded under the registration provision quoted above, it is still excluded unless it comes within one of the exceptions to this exclusion. The policy excepts from exclusion a motor vehicle which is [d]esigned for recreational use off public roads and is either not owned by an insured or owned by an insured provided [that] the occurrence takes place on an insured location as defined in the policy. (Italics added.) The parties stipulated that the dune buggy was designed for recreational use off public roads within the meaning of this provision.
As relevant here, the policy defines an insured location as [t]he residence premises or [a]ny part of a premises . . . not owned by an insured; and [w]here an insured is temporarily residing; or [v]acant land, other than farm land, owned by or rented to an insured; or [a]ny part of a premises occasionally rented to an insured for other than business use.
In summary, Cimarustis liability for the injuries suffered by Linder and Brown is covered if: (1) under California law the dune buggy did not have to be registered for it to be used on public roads or property and (2) the dune buggy was not owned by Cimarusti or if it was owned by Cimarusti, the accident took place on an insured location, i.e., the residence premises, vacant land owned or rented by the insured, premises occasionally rented by the insured, or part of a premises not owned by the insured and where the insured is temporarily residing.
II. THE REGISTRATION EXCLUSION
We first address the registration exclusion because if that exclusion applies the accident is not covered regardless of whether the accident otherwise meets the coverage conditions of the policy applicable to off-road vehicles.
The registration exclusion states that there is no coverage for liability arising from the operation of any motor vehicle if [a] law, or regulation issued by a government agency, requires the involved motor vehicle to have been registered for it to be used on public roads or property[.] (The parties stipulated the dune buggy was a motor vehicle for purposes of this exclusion.)
The registration exclusion does not apply here because under California law dune buggies do not have to be registered in order to be used on public roads or property. Vehicle Code section 4000, subdivision (a)(1)[5]states: No person shall drive, move, or leave standing upon a highway, or in an off-street public parking facility, any motor vehicle . . . unless it is registered and the appropriate fees have been paid . . . except that an off-highway motor vehicle which displays an identification plate or device issued by the [DMV] pursuant to section 38010 may be driven, moved, or left standing in an off-street public parking facility without being registered or paying registration fees. (Italics added.)[6] Section 38010 states in relevant part: [E]very motor vehicle specified in section 38012 that is not registered under this code because it is to be operated or used exclusively off the highways, except as provided in this division, shall be issued and display an identification plate or device issued by the [DMV].[7] Dune buggies are among the motor vehicles specified in section 38012. ( 38012, subd. (b)(3).) Thus, under the plain statutory language dune buggies do not have to be registered to be used on public roads or property, they only have to display an identification plate or device.
Amco argues that Californias Vehicle Code makes no meaningful distinction between registration and identification of vehicles and therefore identification and registration should be construed to have the same meaning for purposes of the policy. Amco points to section 38013 which states that [u]nless otherwise provided, the terms identification and identification certificate shall have the same meaning as the terms registration and registration card, respectively as used in Division 3 (commencing with section 4000). In addition, the chapter of the Vehicle Code establishing a recording system for off-highway vehicles is titled Registration Of Off-highway Vehicles. (Div. 16.5, ch. 2, Stats. 1971, ch. 1816, 9, p. 3925.) Finally, Amco notes that in analyzing the bill establishing the recording system for off-highway vehicles the legislative committees and the Office of the Legislative Counsel used the terms identification and registration interchangeably in describing the proposed legislation. We do not find Amcos argument persuasive.
Section 38013 begins with the qualification that unless otherwise provided the term identification shall have the same meaning as the term registration as used in Division 3 (commencing with section 4000). (Italics added.) Sections 4000 and 38010 do otherwise provide. In section 4000, subdivision (a), the Legislature specifically stated that an off-highway vehicle may be driven on certain public highways without being registered so long as it bears an identification plate. Section 38010 states: [E]very motor vehicle specified in section 38012 [which includes dune buggies] that is not registered under this code . . . shall be issued and display an identification plate or device issued by the [DMV]. (Italics added.)[8] (See discussion, ante, at pp. 5-6, and fn. 5.) Furthermore, we need not consult external sources in construing section 4000 because the words of the statute unambiguously state that an off-highway vehicle does not have to be registered to be driven on the public roads. That statutory language is not subject to contradiction based on the title of the chapter in which the legislation appears or on an ambiguity in its legislative history. (Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 664.)
Alternatively, Amco contends that rather than being dependent on the precise word any particular state happens to use the word register as used in the motor vehicle exclusion should be given its ordinary and popular meaning. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 [generally speaking, the provisions of insurance policies should be interpreted in their ordinary and popular sense].) Amco submits that the word register in its ordinary and popular sense means to record formally and exactly: make an accurate entry of in a formal record and to make or secure an official entry of in a register <~ed the birth of his child> <~a car> . . . . (Quoting from Websters 3d New Internat. Dict. (1993) p. 1912, col. 2.) Thus, Amco maintains, the word register as used in the motor vehicle exclusion refers generically to the entry in a government record and the payment of a fee in return for a permit to operate a vehicle
This argument fails because Amcos motor vehicle exclusion does not use the word register in its generic sense. It specifically ties the exclusion to a law, or regulation that requires the vehicle to be registered in order for it to be used on public roads or property. Thus, under the plain language of the policy, the applicability of the motor vehicle exclusion depends on the registration law of the state where the accident occurs. As we have explained, in California that law exempts dune buggies from registration.
III. THE LOCATION CONDITION
Having determined that coverage for the accident is not barred under the motor vehicle registration exclusion, we must now determine whether the accident meets at least one of the exceptions to exclusion of coverage for an accident involving a motor vehicle . . . designed for recreational use off public roads.
As previously mentioned, the policy provides coverage for an accident involving an off-road vehicle if the vehicle is [n]ot owned by an insured or [o]wned by an insured provided the occurrence takes place on the residence premises or [a]ny part of a premises . . . [n]ot owned by an insured; and [w]here an insured is temporarily residing; or on [v]acant land, other than farm land, owned by or rented to an insured; or on [a]ny part of a premises occasionally rented to an insured for other than business use.
We assume for the sake of argument that, as Amco contends, Cimarusti was the owner of the dune buggy.[9] Therefore, the accident is covered if it occurred in one of the four locations specified in the policy. We conclude that the accident occurred on a part of a premises not owned by an insured . . . and where an insured is temporarily residing.
In determining the meaning of a coverage condition we follow Californias well-settled rules of policy interpretation. If the contractual language is clear and explicit, it governs. If, on the other hand, the terms of a promise of coverage are ambiguous or uncertain, they must be interpreted consistent with the insureds objectively reasonable expectations. If the latter rule does not resolve the ambiguity, it is resolved against the insurer. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265.) In construing the policy provisions, policy exclusions are strictly construed . . . while exceptions to exclusions are broadly construed in favor of the insured. (E.M.M.I. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 471; citations omitted.)
A.Any Part Of A Premises . . . Not Owned By An Insured
It is undisputed that Cimarusti did not own ISDRA, the location of the accident, or any part of it. Amcos policy does not define the term premises. Amco argues, however, that under the plain and ordinary meaning of the term only the campsite pad where Cimarusti parked his trailer, not the dunes where the accident happened, constitutes a premises. We disagree. The word premises means a tract of land with the buildings thereon [or] a building or part of a building [usually] with its appurtenances (as grounds). (Merriam Websters Collegiate Dict. (10th ed. 1995) p. 920, col. 1.) Under the first clause of this definition, the premises where Cimarusti was staying would consist of a tract of land (the dunes) and a building thereon (the campsite pad). Under the second clause of the definition, the premises would consist of a building (the campsite pad) and its appurtenant grounds (the dunes). Thus, under either definition the accident occurred on a part of a premises . . . not owned by an insured.
B. Temporarily Residing
Likewise, the policy does not define the term temporarily residing.
The word reside has a plain and ordinary meaningto dwell permanently or continuously. (Merriam Websters Collegiate Dict. (10th ed. 1995) p. 996, col. 1.) But by adding the modifier temporarily Amco created an ambiguity in its coverage. As our Supreme Court has recognized: [T]emporary is a word of much elasticity and considerable indefiniteness. [Citation.] It has no fixed meaning in the sense that it designates any fixed period of time. [Citation.] As commonly accepted, temporary is an antonym of permanent. (State Farm Mut. Auto Ins. Co. v. Johnston (1973) 9 Cal.3d 270, 273.)
Even if the policy language is ambiguous in the abstract, however, the question remains whether under the facts of this case an objectively reasonable insured would understand that he had coverage for liability arising out of a dune buggy accident at a location like ISDRA.
Amcos policy specifically covers vehicles designed for recreational use off public roads and it is undisputed that dune buggies are such vehicles. The accident occurred while Cimarusti was engaged in the recreational off-road use of his dune buggythe very use contemplated by the policy. Cimarusti had purchased a 12-month permit for use of ISDRA just a few weeks before the accident. At the time of the accident he had parked his trailer at a campsite at the park intending to spend 10 days there. He ate there, slept there and used the services there. We conclude that the only reasonable interpretation of the policy under these circumstances is that Cimarusti was temporarily residing at ISDRA for purposes of Amcos off-road vehicle coverage.
The interpretation of the term temporarily residing in Hoff v. Minnesota Mut. Fire and Cas. (N.D. 1986) 398 N.W.2d 123 supports our conclusion. In Hoff, the plaintiff owned a condominium in North Dakota, insured under a homeowners policy issued by defendant. Plaintiff was also renting a lake cottage in Minnesota for the summer. He split his time between the cottage and the condominium. Sometime during the period plaintiff was staying at the condominium a thief entered the cottage and stole some of plaintiffs property. Plaintiff filed a claim with defendant under his homeowners policy. The policy covered theft from his condominium, the residence premises, but excluded theft while at any other residence owned, rented to, or occupied by any insured except while any insured is temporarily residing there . . . . (Id. at p. 125; italics added.) The defendant denied coverage on the ground that the plaintiff was not temporarily residing at the cottage when the theft occurred. The state supreme court agreed with the defendants interpretation. The court held that the term temporarily residing in the context of the policy exclusion was plain and unambiguous. It meant that on days when plaintiff was staying at his vacation cottage he was indemnified by his homeowners insurance policy since during those periods [plaintiff] was temporarily residing there. (Ibid.) At the time of the theft, however, plaintiff was residing in his condominium therefore he could not have been temporarily residing at the cottage and was not protected by the provisions of his insurance policy. (Id. at p. 126.) Under Hoff, an insured who, like Cimarusti, acquires the right to the use of a vacation location over a several month period is temporarily residing at that location whenever the insured is staying there.
In arguing that Cimarusti was not temporarily residing at ISDRA, Amco relies on another North Dakota opinion in which the court stated that the term [t]emporarily reside clearly contemplates a longer stay than [a] brief one-time camping trip. (Farmers Union Mut. Ins. Co. v. Decker (N.D. 2005) 704 N.W.2d 857, 862 (Decker).) As noted above, however, the evidence supports the inference that Cimarustis stay at ISDRA was not a brief one-time camping trip since he had purchased a 12-month use permit. In any event, Amco takes this quote from Decker out of context.
In Decker, a child was injured while riding a motorcycle owned by Decker on Deckers farm. Deckers general farm liability policy excluded accidents arising from the use of a motor vehicle, including a motorcycle, unless the vehicle is used exclusively on the insured location. (Decker, supra,704 N.W.2d at p. 860; italics added.) It was undisputed that Deckers farm was the insured location and that the accident occurred on the farm. Decker admitted, however, that on one occasion he used the motorcycle off the farm at a resort while on a summer camping trip. Based on that admission, Farmers Union denied coverage on the ground that the motorcycle had not been used exclusively on the insured location. Decker argued that his use of the motorcycle at the resort did not interrupt its exclusive use on the insured location because the policy defined insured location as including locations in which you temporarily reside but do not own. (Id. at p. 862.) Decker maintained he was temporarily residing at the resort when he used the motorcycle there.
The Supreme Court of North Dakota affirmed the trial courts ruling denying coverage. As the court viewed the policy, there could be only one insured location at any given time and that location was the insureds residence. Thus, the question was whether Decker had substituted the resort as his residence (the insured location) in place of the farm. It was in that context that the court observed that the plain and ordinary meaning of reside is to dwell permanently or for a considerable time [citations omitted], and that [t]emporarily reside clearly contemplates a longer stay than this brief one-time camping trip. (Decker, supra,704 N.W.2d at p. 862.) Accordingly, the farm remained Deckers insured location while he was on the camping trip and the motorcycle was not used exclusively on an insured location. (Ibid.) As the court pointed out, if any location where Decker stayed overnight while on vacation became an insured location under the policy then the policys exclusive use requirement would be meaningless. (Ibid.)
Amcos policy, however, uses the term temporarily residing in an entirely different context than the policy in Decker. Under Amcos policy the off-road vehicle need not be used exclusively on the residence premises in order to be covered and there is not just one insured location but several that could all exist at the same time. That is, Cimarusti could maintain his residence premises in San Diego County as an insured location and be simultaneously covered at the other insured locations such as vacant land, premises he occasionally rented for non-business purposes or, as here, premises that he did not own but where he was temporarily residing.
Having found the term temporarily residing to be ambiguous and, in the context of this policy, that the definition of that term as including the location of the accident is consistent with the insureds objectively reasonable expectations, we affirm the judgment for the insured.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
I concur:
HASTINGS, J.*
MALLANO, P. J., Dissenting.
I would reverse because I disagree with the majority that the insured location exception applies to the exclusion of coverage for an accident involving a motor vehicle [d]esigned for recreational use off public roads. As relevant, an insured location is [a]ny part of a premises: [] 1) Not owned by an insured; and [] 2) Where an insured is temporarily residing.
Cimarusti was on a planned 10-day vacation at the Imperial Sand Dunes Recreation Area (ISDRA), a section of public land in Imperial County administered by the United States Department of Interior. As was stipulated: ISDRA extends 40 miles long and averages five miles in width. . . . [] [It] is composed of sand dunes that are open to the public with the purchase of a permit. The ISDRA dunes are regularly used by drivers of dune buggies and other off-road vehicles. . . . Within ISDRA are approximately 18 campground pads. The campground pads are paved loops with approximately 8 to 10 cement block latrines spread over the loop area. . . . There are no trash cans, electrical outlets, picnic tables or other facilities in the campgrounds or anywhere else in ISDRA.
Cimarusti purchased a 12-month permit for $92 and stayed in a trailer he parked on a pad at the Gecko Campground. On the fourth day of his vacation he left the campground and drove his dune buggy to the sand dunes. There, he drove off a dune lip and crashed about a quarter mile from the campground, injuring his two passengers.
For plaintiffs to prevail here, the sand dunes at ISDRA would have to be considered premises where Cimarusti was temporarily residing. Neither of those terms applies as a matter of law.
1. Premises
No insured could reasonably believe that the approximately 200 square miles (128,000 acres) of sand dunes at ISDRA were premises on which Cimarusti resided, temporarily or otherwise. (See Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, 1214 [provisions of insurance policy are construed in accordance with objectively reasonable expectations of insured]; Golden Eagle Ins. Corp. v. Cen-Fed, Ltd. (2007) 148 Cal.App.4th 976, 996 [same].) Although the policy here does not define premises, the reasonable expectations of an insured would not include 128,000 acres of sand dunes as part of the premises on which Cimarusti stayed. If he resided anywhere at ISDRA, it was at the Gecko Campground, not the vast stretch of physically distinct dunes.
2. Temporarily residing
Plaintiffs argue that the term temporarily residing refers to an insured residing somewhere other than at his or her permanent residence. In other words, wherever the insured is staying on a temporary basis, such as at a cottage or campground while on vacation. They rely on Hoff v. Minnesota Mut. Fire and Cas. (N.D. 1986) 398 N.W.2d 123 (Hoff) and Foster v. Blue Ridge Ins. Co. (La.Ct.App. 1979) 377 So.2d 500, 502 (Foster) for this proposition. While those cases addressed a situation relating to a temporary residence, neither is helpful because they did not address the same issue we are facing. Each dealt with a first party claim for theft where the policy required that the insured be in residence at the time of the theft. In Hoff, summary judgment was affirmed in favor of the insurer because it was undisputed that the insured was residing in his primary residence at the time of the theft. In Foster, the trial courts determination that the insured was in residence at the time of the theft was upheld based on a review for sufficiency of the evidence.
Amco argues [t]he plain ordinary meaning of the term temporarily residing means the place where an insured is temporarily living, not where an insured is staying on vacation. It relies on Farmers Union Mut. Ins. Co. v. Decker (N.D. 2005) 704 N.W.2d 857 (Decker). There, the insured allowed a minor to ride an unlicensed motorcycle while they were on the insured premises identified within the declarations page of the policy. The minor was injured and the issue addressed was whether the insured used the motorcycle exclusively on an insured location, which was defined in the policy as locations in which you temporarily reside but do not own . . . . (Id. at p. 862.) Evidence was presented that at least two years before the accident the insured had taken a vacation camping trip and used the motorcycle at that location. A majority of the North Dakota Supreme Court concluded that coverage did not exist because the insured did not use the motorcycle exclusively on an insured location. The majority wrote: The policy does not define temporarily reside. The issue is whether Decker [the insured] was residing at the resort during his camping trip. The plain and ordinary meaning of reside is to dwell permanently or for a considerable time. . . . Deckers brief summer camping trip is not a considerable time. Temporarily reside clearly contemplates a longer stay than this brief one-time camping trip. If temporarily reside were defined as Decker argues, any location an insured stayed overnight would become an insured location. This interpretation defies common sense. We will not strain the definition of an undefined term to provide coverage. . . . Because the motorcycle was not used exclusively on an insured location, it does not satisfy the requirements of the exception to the motor vehicle exclusion and we affirm the trial courts order denying coverage. (Ibid., citations omitted)
The dissenting justice in Decker concluded that because the insureds use of the motorcycle at the campground occurred in a different policy period than the accident, coverage should exist. (See Decker, supra, 704 N.W.2d at pp. 865866 (dis. opn. of Maring, J.).) The dissent did not dispute the majoritys conclusion that the insured was not temporarily residing at the resort. (See id. at pp. 864868.)
As in Decker, the policy in this case does not define temporarily residing, and I have found no California authority construing the term in the context of an insurance policy. And while the facts in Decker differ, the issue of what constitutes temporarily residing is identical. I agree with the conclusion of Decker that the term contemplates more than a transient stay at a campground during a brief vacation.
The word residence has a plain and ordinary meaning that connotes some permanence: 1 a: the act or fact of dwelling in a place for some time . . . [] 2 a (1): the place where one actually lives as distinguished from ones domicile or a place of temporary sojourn . . . . (Merriam-Websters Online Dict. (2008)
Adding the word temporary does not change the concept that the residence must be more than a temporary place of respite while on vacation. Nor does it make the policy ambiguous. The facts of Hoff and Foster, the cases relied upon by plaintiffs, are consistent with this interpretation. In each case, the temporary residence was used by the insured for significant periods of time as a second residence away from the primary residence. In Hoff, the insured along with five others leased a cottage on a lake for the summer of 1985. The insured spent half of his time at the lake cottage and the other half at his primary residence. (Hoff, supra, 398 N.W.2d at p. 124.) In Foster, the insured either owned or rented a camp that was a fully furnished three-bedroom structure and was regularly used by the insured, his sons, and his nephew for hunting and fishing. The insured divided his time between his primary residence and the camp, where he would spend four or five days at a time. (See Foster, supra, 377 So.2d at p. 502.) In contrast, Cimarustis planned 10-day stay at ISDRA did not constitute even a temporary residence.
I cannot conclude that a reasonable policyholder could expect the phrase premises . . . [w]here an insured is temporarily residing to encompass (1) the thousands of acres of sand dunes at ISDRA where the accident occurred (2) during a brief vacation while the insured stayed in a trailer located on a physically distinct campground.
Accordingly, I would reverse.
MALLANO, P. J.
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[1] The parties reserved the right to object to certain stipulated facts and the trial court sustained all but one of those objections. The parties do not challenge the courts evidentiary rulings on appeal and we have not considered facts as to which objections were sustained.
[2] Vehicle Code section 38205 requires the transferee of an off-highway vehicle who receives a properly endorsed certificate of ownership to endorse it and forward it to the DMV for transfer of identification.
[3] Insurance Services Office, Inc. (ISO) produces forms for various types of insurance which are widely used in the insurance industry. (Croskey, et al., Cal. Practice Guide: Ins. Lit. (2007) 3:34.)
[4] The plaintiffs action focuses only on the coverage issue. Plaintiffs do not challenge Amcos refusal to defend Cimarusti in the underlying lawsuit.
[5] All statutory references are to the Vehicle Code.
[6] The exemption from registration for off-highway vehicles does not exactly track the requirement of registration for on-highway vehicles. The requirement for registration applies to vehicles driven upon a highway while the exemption from registration applies to off-highway vehicles that are driven without the modifier upon a highway. Other sections of the Vehicle Code, however, provide that unregistered off-highway motor vehicles can be operated on public highways under certain conditions if they display identification plates. (See 4000, subd. (c), 38025, 38026.5.)
[7] The language except as provided in this division refers to the limited use of the highways by off-highway vehicles permitted by sections 38025 and 38026.5. (See fn. 6, ante.)
[8] The registration requirements and procedures for on-highway vehicles are set out in Division 3, sections 4000, et sequitur. The identification requirements and procedures for off-highway vehicles are set out in Division 16.5, sections 38000, et sequitur. When an off-road vehicle is first purchased an application for the original identification is required to be filed with the DMV. ( 38040.) When title to the vehicle is transferred the transferee makes an application for transfer of identification. ( 38205.) Upon satisfying the DMVs ownership requirements a person receives an identification certificate, not a registration. ( 38070.)
[9] See Allstate Ins. Co. v. Chinn (1969) 271 Cal.App.2d 274, 278-279; but see Mid-Century Ins. Co. v. Gardner (1992) 9 Cal.App.4th 1205, 1211.
* Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
