Opinion
E071183
06-17-2020
CENTURY-NATIONAL INSURANCE COMPANY, Plaintiff and Appellant, v. JOSE M. OLIVO et al., Defendants and Respondents.
Wools Peer Dollinger & Scher, Jeffrey A. Dollinger and H. Douglas Galt for Plaintiff and Appellant. Lari-Joni & Bassell, Torstem M. Bassell; Law Offices of John F. Gerard and John F. Gerard for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1613299) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed. Wools Peer Dollinger & Scher, Jeffrey A. Dollinger and H. Douglas Galt for Plaintiff and Appellant. Lari-Joni & Bassell, Torstem M. Bassell; Law Offices of John F. Gerard and John F. Gerard for Defendants and Respondents.
In this action for declaratory relief to determine the rights and duties of the parties under an automobile policy issued by plaintiff and appellant Century National Insurance Company (Century) to defendant and respondent Jose Olivo, Century appeals the trial court's finding that the automobile policy it issued to cover Jose also covered his daughter, defendant and respondent Maria Olivo.
Since some of the parties share the same last name, we refer to them by their first names for ease of reference. No disrespect is intended..
Maria was involved in a traffic accident with defendant and respondent Jeffrey Townsend while driving a vehicle that belonged to Jose. The vehicle was covered under Jose's insurance policy with Century (Policy). Maria was not listed as an insured driver on the Policy. After the accident, Townsend sued Jose, Maria and Century. Century filed a complaint for declaratory relief arguing that Maria had been excluded from coverage under the Policy by Jose and could not be considered a permissive user. As such, they would not defend Maria and Jose.
After a bench trial, the trial court ruled that Maria was not excluded from the Policy because Jose never executed an exclusion of driver endorsement with the Policy; ordered Century to indemnify Jose and Maria for any judgment resulting from the third party action; and ordered that Century had a duty to pursue settlement options and to settle the third party action against defendants as legally feasible and responsible.
On appeal, Century contends (1) the trial court erred by interpreting the Policy to cover Maria because the parties mutually intended to exclude Maria as a permissive user under the policy; and (2) the trial court order requiring it to settle with Townsend and indemnify Jose and Maria in the third-party action exceeded its authority in this declaratory relief action.
FACTUAL AND PROCEDURAL BACKGROUND
A. COMPLAINT AND PRETRIAL FILINGS
On October 11, 2016, Century filed its complaint for declaratory relief and recoupment against Jose, Maria and Townsend (Complaint). Century alleged that on February 8, 2014, Jose applied for a personal automobile policy with Century through Valley West Financial Services, Inc. (Valley West). Coverage was requested for three vehicles and two drivers (Jose and his wife), and specifically identified two other household members, their daughters, Maria and Alma. In the application, Jose signed two forms entitled exclusion of named driver for Alma and Maria (Quote Forms). Jose was subsequently issued the Policy effective February 19, 2014, to February 19, 2015. Century alleged in the Complaint that the Policy contained an endorsement entitled exclusion of named driver, which applied to Maria (Endorsement) and excluded her from permissive user coverage under the policy. Century contended that this Endorsement applied to any renewals of the coverage. On July 13, 2016, Maria was driving one of the vehicles insured under the Policy, a 2007 Toyota Corolla, and was involved in a collision with Townsend, who was driving a motorcycle.
We will refer to the exclusion of driver forms signed by Jose in February 2014 as "Quote Forms" as designated by the parties.
On August 26, 2016, Townsend filed a lawsuit in Riverside County Superior Court, case No. RIC 1611099, against Jose, Maria and Century alleging negligence, negligence per se, negligent entrustment and statutory negligent entrustment of a motor vehicle. Century agreed to represent Jose and Maria with a reservation of right to investigate the exclusion of Maria in the Policy, which they insisted excluded her from permissive user coverage. Century argued in the Complaint that they had no duty to indemnify Jose and Maria.
Maria and Jose filed a denial and answer to the complaint. Townsend filed a separate answer to the complaint. Century filed a motion for summary judgment or summary adjudication on November 17, 2017. Townsend filed his own opposition, and Maria and Jose joined in the opposition. The motion for summary judgment was denied.
The parties stipulated to a bench trial and all parties filed trial briefs. The parties stipulated prior to trial to "preclude all evidence and argument regarding the facts of the underlying accident, liability for the underlying accident and any discussion of Jeffrey Townsend's injuries."
B. TRIAL
The parties stipulated to the following facts prior to trial: On February 18, 2014, Valley West submitted a personal automobile application for insurance to Century for Jose to cover Jose's three vehicles: a 2002 Chevy, a 2007 Toyota Corolla, and a 2014 Honda Accord. The Quote Forms were included in the application, which excluded Maria and Alma as drivers. Jose included payment with the application. Alma obtained her driver's license on March 15, 2014. When the Policy was renewed on February 19, 2015, the same three vehicles were listed but three insureds were listed: Jose, his wife and Alma. A 2016 Honda Pilot was added to the policy on October 29, 2015. Jose signed an exclusion of named driver endorsement for Oscar Perez on December 18, 2015. On June 3, 2016, a 2016 Toyota Corolla was added to the Policy. On July 13, 2016, Maria was driving the 2007 Toyota Corolla in Fullerton when she was involved in an accident with Townsend. On August 18, 2016, Century denied coverage of the accident.
The following testimony was presented at the bench trial. Maria Cervantes was an insurance agent employed by Valley West. She was responsible for submitting applications to carriers for insurance coverage. Cervantes explained that an activity log was kept for each file at Valley West, which documented everything that happened on a file.
Jose applied for insurance on February 18, 2014. He was provided a quote and he completed the application. The application was then submitted to Century for it to prepare the Policy. Cervantes had reviewed the initial application. Included with the application were the two Quote Forms for Alma and Maria.
Cervantes explained that while Valley West was waiting for the insurance carrier to prepare an insurance policy, she was able to issue a binder of insurance, which covered the person until the policy was issued.
The binder for Jose was effective on March 19, 2014. It listed the three cars and the drivers as Jose and his wife. No other information, including any exclusion of driver forms or information, were made part of the binder. Valley West had no emails, attachments to the activity logs or notes showing that Jose had transmitted an exclusion of driver form for Maria other than the Quote Form submitted in the original application.
Century issued the Policy effective from February 19, 2014, through February 18, 2015. The Endorsement was not signed by Jose. It did not have an effective date. There was no statement that the exclusion would be effective upon renewal. There was no copy of a signed Endorsement in Valley West's records. The Endorsement included a signature line as follows: "Accepted __________ Date:__________." The Endorsement included the Policy number and stated in all capital and boldface lettering that "This endorsement changes this policy. Please read it carefully." It was signed by the president and secretary of Century.
The Policy issued to Jose contained the following language: "[Century] agrees to insure you according to the terms of this policy based upon: [¶] 1. Your payment of the required premiums for the coverages you have selected, and [¶] 2. Our reliance on your statements in these declarations. [¶] You agree, by acceptance of this policy: [¶] 1. That the statements in these declarations are your statements and are true, and [¶] 2. That we are insuring you in reliance upon the truth of your statements, and [¶] 3. That this policy contains all of the agreements between you, and us, and [¶] 4. That you will notify us of any changes in your residence address or garaging location." In addition, the Policy specifically provided permissive user coverage for "any other person while using such a car if its use is with the permission of you or your spouse."
A declaration page was incorporated into the Policy, which was a summary of the liability limits, the cars covered and the drivers. For the period of February 19, 2014, through February 19, 2015, the declarations page listed the 2002 Chevrolet, the 2007 Toyota Corolla and the 2014 Honda Accord. It listed Jose and his wife as drivers. The endorsements applicable to the Policy were listed only by small numbers in the bottom corner. The names of the endorsements were not next to the numbers. The body of the Policy did not reference the Endorsement.
Jose added Alma to the Policy on December 1, 2014. He had called in March 2014, and got a quote to add her, but when he was told the cost, he waited until December. Jose added a Honda Pilot to the Policy in October 2015. On August 3, 2015, Jose notified Valley West that he had moved and provided the new address. He never indicated that Maria had left for college. Another change to the Policy involved Oscar Perez, for whom Jose submitted an exclusion of driver form, identical to the Endorsement. Jose was sent the form and signed it. He was advised by Century that if he did not sign the form, his policy would be canceled.
The Policy was renewed each year. None of the declaration pages for the Policy renewals contained a reference to the Endorsement. The only reference to an exclusion of driver form were the small codes on the bottom of the declaration page. PA0005, which was one of the endorsement numbers listed, referred to the number on an excluded driver form. Cervantes explained that Jose would not know what these codes meant. When the Policy was renewed each year, he would have only received the declarations page.
Jose Olivo indicated that in 2014, he had a homeowner's insurance policy with Valley West and wanted to obtain automobile insurance. Jose signed the application. Jose understood that at the time he applied for insurance and signed the application on February 18, 2014, Maria would not be covered; she did not have driver's license so he was not concerned about adding her. He admitted he sent all of the pages of the application to Century. He did not recall ever receiving a copy of the Policy once it was issued.
Jose used a Spanish interpreter.
Jose added Alma to the Policy when she got her driver's license in December 2014, and had to pay more money. Jose called Valley West in August 2015 to update his address. He was issued new insurance cards reflecting the new address.
When Jose and the family moved to the new address, Maria had already moved out to go to college. He did not tell Cervantes at the time he changed the address that Maria had moved out. At the end of 2015 or the beginning of 2016, defendant called Cervantes. He told Cervantes that Maria had moved out and gone to college. He asked whether Maria would be covered by the Policy if she wanted to borrow one of his cars. Cervantes did not mention the Endorsement and told him that Maria would be covered. Maria had obtained her license in October 2015. Cervantes did not ask what vehicle Maria would be driving.
Jose had received the declaration pages from Century that contained the reference to endorsements and exclusions but only by number. He acknowledged the Policy was renewed from February 19, 2016, to February 19, 2017. There were four drivers listed when the Policy was renewed and this did not include Maria. Maria went to college in Fullerton in 2014 and she would sometimes come home to visit on the weekends and on holidays. She also would come home temporarily in the summer. Maria borrowed his 2007 Toyota Corolla for extended periods of time. When Maria got her license, he believed that she would be covered under the Policy. He would have never allowed Maria to drive his vehicle if he thought she was not covered.
Patricia Katz worked for Century in 2014 as an automobile policy underwriter. Valley West was an agent of Century. Katz received Jose's application from Valley West for Jose on February 19, 2014. Katz investigated whether there were any accidents related to Jose and his wife, and the vehicles. Katz verified that the information in the application was accurate. Katz understood that Maria and Alma were going to be excluded from the Policy. She relied on the exclusions in deciding to issue the Policy.
Once Katz completed her investigation, she printed out the Policy. These documents included the terms of the Policy, declaration page, the exclusions and the unsigned Endorsement. On the declarations page sent to Jose, the only way to know about the exclusions were the small numbers on the bottom of the page. Katz insisted that since she had the signed Quote Forms submitted with the application, she did not need the Endorsement to be signed.
The parties agreed that exhibit No. 48 was a standardized insurance policy that contained the terms of the Policy; it was not sent to Jose.
Katz explained that everyone in a household must be added or excluded to an insurance policy. A college student would have to be added or excluded from a policy. Century's standard policy provided insurance for permissive users. Katz admitted nothing on the Quote Forms advised the customer that the exclusion would renew automatically. Katz admitted the exclusion of driver forms did not provide a warning that the customer was giving up permissive use coverage.
C. JUDGMENT
The trial court took the matter under submission. Neither party requested a statement of decision. The trial court issued a Ruling on Submitted Matter but specifically noted that neither party had requested a statement of decision.
In its 20-page ruling, the trial court found that in order for the Endorsement to be effective with the Policy, it had to be signed. Nothing in Insurance Code section 11580.1 allowed an unsigned exclusion form to be effective. Further, there was no mention of the exclusion of driver endorsement with the binder of insurance or in the body of the Policy terms. The trial court rejected that the application, including the Quote Forms, were part of the Policy. It referred to the part of the Policy that stated it contained all the agreements between the parties in rejecting that any parol evidence was allowed to show the meaning of the Policy. As such, any exclusions signed with the application would not be part of the Policy. The trial court concluded that since the Endorsement was not signed by Jose, it was not part of the Policy.
The trial court further found that, even if parol evidence was considered, since there was no evidence that Jose was aware that such exclusion continued with any renewal of the policy, the exclusion of Maria as a named driver was not valid. It found that the inclusion of the small numbers on the renewal policy was not enough to alert Jose that the exclusion of Maria as a driver continued. Maria was a permissive user at the time of the accident and was covered under the Policy.
The trial court issued the following ruling by minute order: "1. Plaintiff to take nothing by way of its Complaint; [¶] 2. Plaintiff has a duty and obligation to defend Defendants Jose M. Olivo and Maria Olivo in the underlying third party action of Townsend v. Olivo, Case Number RIC 1611099 (hereinafter referred to as 'the third party action'). [¶] 3. Plaintiff has a duty and obligation to indemnify Defendants Jose M. Olivo and Maria Olivo for any judgment resulting from the third party action, including any pre-judgment interest, post-judgment interest, and costs associated with the judgment. [¶] 4. Plaintiff is not entitled to any reimbursement from Defendants Jose M. Olivo and Maria Olivo for costs incurred by Plaintiff in defending Defendants Jose M. Olivo and Maria Olivo in the third party action. [¶] 5. Plaintiff's entitlement, if any, to reimbursement from Defendant Townsend for costs incurred by Plaintiff in defending Defendants Jose M. Olivo and Maria Olivo in the third party action are to be determined in the third party action. [¶] 6. Plaintiff has a duty to pursue settlement options and to settle the third party action against Defendants Jose M. Olivo and Maria Olivo as legally feasible and responsible."
Jose and Maria were ordered to prepare the judgment consistent with the court's ruling. The judgment was prepared with the language mirroring the ruling by the trial court. There was no objection to the proposed judgment by Century and it was signed by counsel. It was filed on August 7, 2018.
DISCUSSION
A. EXCLUSION OF MARIA AS A DRIVER
Plaintiff contends the mutual intent of Jose and Century was to exclude Maria as an insured driver under the Policy. Jose was aware when he signed the Quote Form for Maria, that the effect of the document was to identify Maria as an excluded driver and it would apply to the Policy. Century insists that the Endorsement, which was never signed by Jose, did not have to be signed to be effective. Jose and Century could agree by a separate writing, here the Quote Form, to exclude Maria as a permissive user pursuant to Insurance Code section 11580.1, subdivision (d). Further, the Endorsement did not have to be signed, and the presence of the signature line did not present an ambiguity because Jose testified that he understood that Maria was an excluded driver under the Policy from its inception. Additionally, based on the language of Insurance code section 11580.1, subdivision (d), the Endorsement continued through any renewal period.
Both parties agree that despite the trial court taking evidence during a bench trial, this appeal concerns the interpretation of an insurance policy, which is a question of law reviewed de novo.
"The proper construction of an insurance policy is a question of law, . . . , which we independently review." (Bluehawk v. Continental Ins. Co. (1996) 50 Cal.App.4th 1126, 1131.)
The rules on interpretation of insurance agreements are " 'well-established.' " (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1145 (Dollinger).) "When determining whether a particular policy provides a potential for coverage and a duty to defend, we are guided by the principle that interpretation of an insurance policy is a question of law" and that insurance policies are subject to general rules of contract interpretation. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18; see also Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, 1204 (Haynes).) " ' "The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give effect to the 'mutual intention' of the parties. 'Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation." ' " (Dollinger, at pp. 1145-1146.) "The rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it." (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1409; see also Haynes, supra, 32 Cal.4th at p. 1204.) " 'Courts will not adopt a strained or absurd interpretation in order to create an ambiguity where none exists.' " (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1070.)
"When the relevant provisions of an insurance policy are ambiguous, extrinsic evidence may be admitted to determine the proper interpretation." (Palacin v. Allstate Ins. Co. (2004) 119 Cal.App.4th 855, 862.) However, "[t]he significance and effect of the policy's integration clause is that under the parol evidence rule, the policy may not be contradicted by evidence of a prior or contemporaneous collateral agreement. 'When the parties to an agreement incorporate the complete and final terms of the agreement in a writing, such an integration in fact becomes the complete and final contract between the parties. Such a contract may not be contradicted by evidence of purportedly collateral agreements. . . . The rule comes into operation when there is a single and final memorial of the understanding of the parties. When that takes place, prior and contemporaneous negotiations, both oral and written, are excluded.' " (In re Installment Fee Cases, supra, 211 Cal.App.4th at p. 1413.)
"[I]f, after the court evaluates the policy's language and context, ambiguities still exist, the court must construe the ambiguous language against the insurer, who wrote the policy and is held " 'responsible'" for the uncertainty. ' " (Dollinger, supra, 199 Cal.App.4th at p. 1146.)
Here, Century presented the Endorsement as part of the Policy. Language on the Endorsement form included that it changed the policy and that the insured should read it carefully. It stated that "the insurance offered by this policy shall not apply to any claim arising from: [¶] 1. Accidents which occur while an auto is being operated by Maria Olivo." A signature line was provided as follows: "Accepted ___ Date: ___." It was not signed by Jose. The Endorsement did not reference the permissive user clause that appeared in the Policy, which covered those who used an insured vehicle with the insured's permission.
Century claims the Endorsement did not have to be signed because the Quote Form submitted with the application showed that the mutual intent of the parties was that Maria was an excluded driver. Century further claims that Insurance Code section 11580.1 allows for it to enter into a "separate agreement" to exclude coverage to certain drivers, and that subdivision (d) provides that such exclusion continues through each renewal.
Insurance Code section 11580.1, subdivisions (a), and (b)(4), require that every policy of insurance contain a provision affording insurance to the insured and any person who uses the insured's vehicle with his or her permission. "Section 11580.1, subdivision (b)(4), mandates coverage for permissive users of vehicles owned or leased to the named insured to the same extent the policy provides coverage to the named insured. 'An automobile liability insurance policy will include an "omnibus" clause that defines . . . the term "insured" to include not only the named insured but also any other person using a covered automobile with the expressed or implied permission of the named insured.' " (Mercury Casualty Co. v. Chu (2014) 229 Cal.App.4th 1432, 1453.) Subdivision (d) of Insurance Code section 11580.1 allows the parties to include in the terms or in "separate writing relating thereto" an agreement to limit the persons covered by the permissive user coverage.
Here, Century completely ignores the presence of the integration clause in the Policy in arguing that the Quote Form submitted was a "separate writing," which excluded Maria as a permissive user. The terms of the Policy were clear that it constituted the entire agreement between the parties. The Policy stated in a paragraph entitled "Your Statement to Us" that "You also agree that this policy contains all of the agreements between you and the company or any of its representatives relating to this insurance." This language restricted the Policy to only those agreements in the Policy and incorporated therein. Although the trial court heard evidence regarding the application for insurance submitted by Jose, reviewed the signed Quote Forms, and took other evidence, such parol evidence was unnecessary based on the integration clause.
Century argues for the first time in its appellant's reply brief that the integration clause does not foreclose the consideration of evidence of the agreement to exclude Maria, reached between itself and Jose prior to the Policy being issued, because it is raising a claim of mistake or imperfection in the writing to which the parol evidence rule does not apply. Century was well aware that the integration clause was an issue in this case based on the 20-page ruling by the trial court. As such, we will not consider this argument raised for the first time in the reply brief. --------
The only issue properly considered here is whether the Endorsement form with the Policy was effective even though it was not signed by Jose. This court does not consider the evidence that Jose signed the Quote Form or that he believed at the time he signed that Maria would be excluded as a driver. Century included the integration clause in the Policy, which clearly stated that the Policy contained all of the agreements between the parties. Jose signed the Quote Form prior to the Policy being effective. Century, by drafting the Policy to include the integration clause, itself excluded consideration of the prior signed Quote Form. It is well-established under California law that the terms of a final, integrated contract " 'may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement.' " (Grey v. American Management Services (2012) 204 Cal.App.4th 803, 807, citing Code of Civ. Proc. § 1856, subd. (a).)
The case of Allstate Insurance Company v. Dean (1969) 269 Cal.App.2d 1 (Dean) is instructive. In Dean, a wife applied for automobile insurance from Allstate. Allstate sent the wife a driver exclusion agreement in the mail stating that her husband would be excluded from any current or future policy. (Id. at p. 2.) The wife signed and returned the document to Allstate. Allstate sent her the printed insurance policy but did not include a copy of the exclusion agreement and the declarations page did not refer to an exclusion of the husband as a driver. The written policy contained an integration clause. (Id. at p. 3.) The husband had an accident while driving his wife's insured automobile. Allstate filed a suit for declaratory relief that the husband was excluded from the policy. The trial court found the exclusion agreement enforceable. (Ibid.)
On appeal, the appellate court reversed, finding the exclusion had not been made part of the policy. (Dean, supra, 269 Cal.App.2d at p. 3.) The court noted that the exclusion agreement was not included by Allstate when it issued the written policy. (Id. at pp. 3-4.) The court rejected Allstate's assertion that the policy incorporated a separate writing—the exclusion agreement executed by the wife prior to issuance of the policy—under Insurance Code section 11580.1. It stated, "As we view this section, the force necessary to put it into effect lies within the word Agree, which we interpret to refer to the consent of both parties on the substance of the exclusion." (Dean, supra, 269 Cal.App.2d at p. 5.) It also rejected the argument because the policy included an integration clause that provided the policy "embodied all agreements between insurer and insured." (Id. at p. 6.)
Similarly here, Jose signed the Quote Form for Maria when he submitted the application. However, he never signed the Endorsement form with the Policy. Since Century included an integration clause in its policy, this court cannot consider the Quote Form and must rely on the Endorsement.
Century insists that the Endorsement did not have to be signed by Jose to be effective. However, this does not explain why the Endorsement form specifically provided for a signature line for Jose, which stated "accepted." The Policy was the entire agreement between the parties and the Endorsement was never agreed to by Jose. Further, as in Dean, supra, despite the earlier signing of a Quote Form, it was ambiguous as to whether Jose understood that exclusion of Maria from the Policy was effective upon the issuance of the policy. Such ambiguities—the signature line and lack of information as to its effective date—is construed against Century. (Dollinger, supra, 199 Cal.App.4th at p. 1146.)
Moreover, this court's conclusion that the Endorsement had to be signed to be effective is furthered by the fact that in order for Jose to have waived his right to permissive user coverage, Century had to provide conspicuously in the contract plain and unambiguous language that he was waiving this coverage for Maria. A clause or exclusion limiting coverage for a permissive user must be placed conspicuously in the contract and its language must be plain and unambiguous. (Thompson v. Mercury Casualty Co. (2000) 84 Cal.App.4th 90, 95.) " 'The policy should be read as a layman would read it and not as it might be analyzed by an attorney or an insurance expert.' " (Id. at p. 95.)
"The legislative purpose behind [permissive user] coverage is 'to protect innocent third parties from the careless use of automobiles and that this protection should be paramount to the rights of an owner who has permitted the use of his car by others even though he, personally, was not guilty of negligence.' " (Mercury Casualty Co. v. Chu, supra, 229 Cal.App.4th at p. 1453.) "[A]ny attempt to exclude coverage for permissive users of insured automobiles is viewed with disfavor. All ambiguities and doubts must be resolved in favor of coverage. . . . Exclusions must be construed strictly against the insurer." (Lovy v. State Farm Insurance Co. (1981) 117 Cal.App.3d 834, 845-846.)
Here, the permissive user coverage was not limited in any way. The declaration page accompanying the Policy did not list any limitation on the permissive user coverage. The Endorsement form itself made no reference to the fact that Jose was waiving coverage under the permissive user clause. The permissive user clause was included in the Policy and no other provisions mentioned a limitation on that coverage. An unsigned Endorsement form was not enough for Jose to be found to have agreed to forego permissive user coverage for Maria.
We also reject that the Endorsement was effective and applied to the renewals of the policy because the form number appeared on the declaration pages sent to Jose. On the declaration pages, as noted, there was a section entitled "Forms and Endorsements applicable to this policy." The number PA0005 was listed in small numbers. The declaration page for the renewal period during which the accident occurred contained the same language and numbers.
Initially, this assumes that the Endorsement was effective. However, as noted ante, the fact that Jose never "accepted" the Endorsement rendered it inoperative. Moreover, in Haynes, supra, 32 Cal.4th 1198, the California Supreme examined an insurance policy to determine if the policy limiting the coverage for permissive users was sufficiently conspicuous, plain and clear to be enforceable. It noted the declaration page listed the policy limits, and then referenced endorsements by listing them by small numbers. (Id. at p. 1202.) The endorsement limiting the permissive user coverage was on the 24th page and only part of the text on the page. (Id. at p. 1203.) The California Supreme Court found that this was not enforceable because it was not conspicuous, plain or clear. First, the text of the limitation was not clearly identified as a limitation on coverage and was hidden in the policy. Further, the numbers on the declaration page were not enough to alert the insured of the limitation of coverage. (Id. at pp. 1206-1207, 1209.)
Here, the presence of the number of the exclusion of driver form on the declarations received by Jose from Century were not enough to show that Jose understood that the unsigned Endorsement form limited his coverage. Moreover, it certainly did not alert Jose the exclusion was applicable to any renewal period.
Here, Century received Jose's signed Quote Form with the application. When it prepared the Policy, it included an integration clause and included a new exclusion form, the Endorsement. Jose never signed the Endorsement despite it providing for his signature. This unsigned Endorsement was not sufficient to show the mutual intent of the parties was to forever exclude Maria from the Policy, and to evidence that Jose agreed to limit the permissive user coverage to exclude Maria. As such, Maria was a permissive user of Jose's insured vehicle and was covered under the Policy.
B. JUDGMENT EXCEEDED TRIAL COURT'S AUTHORITY
Century contends the trial court lacked authority to order it to settle the Townsend claim or to indemnify Jose and Maria in the third-party action ignoring any policy limits. Century insists that since the order is not limited to the acceptance of a reasonable policy limit settlement demands, it is contrary to the language of the Policy and to California law. Century insists that Jose, Maria and Townsend concede the issue. However, Maria, Jose and Townsend argued in the respondents' brief that there was no reason to reverse the findings because these issues necessarily had to be determined in a separate proceeding, and Century approved the form of the judgment.
As stated, a minute order was prepared, which stated the final ruling of the trial court. It included language that "Plaintiff has a duty and obligation to indemnify Defendants Jose M. Olivo and Maria Olivo for any judgment resulting from the third party action, including any pre-judgment interest, post-judgment interest, and costs associated with the judgment," and "Plaintiff has a duty to pursue settlement options and to settle the third party action against Defendants Jose M. Olivo and Maria Olivo as legally feasible and responsible." Maria, Jose and Townsend were ordered to prepare the judgment. That judgment was served on Century. It was signed by Century without objection.
Century has forfeited any objection to the judgment. California Rules of Court 3.1590, rule (h) provides as follows: "Preparation and filing of written judgment when statement of decision not prepared. [¶] If no party requests or is ordered to prepare a statement of decision and a written judgment is required, the court must prepare and serve a proposed judgment on all parties that appeared at the trial within 20 days after the announcement or service of the tentative decision or the court may order a party to prepare, serve, and submit the proposed judgment to the court within 10 days after the date of the order." California Rules of Court, 3.1590, rule (j) provides: "Objection to proposed judgment [¶] Any party may, within 10 days after service of the proposed judgment, serve and file objections thereto."
Here, Century made no objection to the judgment prepared by Maria, Jose and Townsend. It accepted and signed the judgment. Century had the opportunity to object to the judgment, and advise the trial court it lacked authority to enter such judgment. A plaintiff's failure to object to the form of the judgment precludes a claim of error on appeal. (Altvater v. Breckenridge (1959) 174 Cal.App.2d 790, 795.) Century did not raise such issues below, and therefore, has forfeited such claim on appeal.
DISPOSITION
We affirm the judgment. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.