Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC332916. Jane L. Johnson, Judge. Affirmed.
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.
ROTHSCHILD, J.
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 Cimarusti’s negligence. When Amco Insurance Company denied coverage under Cimarusti’s homeowner’s policy, Brown, Linder, Cimarusti and Cimarusti’s limited receiver, Martin Goldberg, joined in bringing this action against Amco for breach of contract. The trial court found Amco’s 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.
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 court’s evidentiary rulings on appeal and we have not considered facts as to which objections were sustained.
In 2001, Rocco Cimarusti’s 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. Cimarusti’s 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. At one time, Cimarusti’s 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.
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.
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 homeowner’s policy. Amco drafted the policy based on standard “ISO” forms sold in states throughout the country. In response to questions from Amco’s 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.
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.)
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 Cimarusti’s 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. 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 court’s interpretation of the policy. (Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 45.)
The plaintiffs’ action focuses only on the coverage issue. Plaintiffs do not challenge Amco’s refusal to defend Cimarusti in the underlying lawsuit.
DISCUSSION
I. THE RELEVANT POLICY PROVISIONS
Cimarusti’s homeowner’s 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, Cimarusti’s 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) 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.) 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].” 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.
All statutory references are to the Vehicle Code.
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.)
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.)
Amco argues that California’s 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 Amco’s 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.) (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.)
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 DMV’s ownership requirements a person receives an “identification certificate,” not a registration. (§ 38070.)
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 Webster’s 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 Amco’s 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. 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.”
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 .
In determining the meaning of a coverage condition we follow California’s 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 insured’s 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. Amco’s 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 Webster’s 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 meaning—“to dwell permanently or continuously.” (Merriam Webster’s 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.
Amco’s 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 buggy—the 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 Amco’s 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 homeowner’s 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 plaintiff’s property. Plaintiff filed a claim with defendant under his homeowner’s 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 defendant’s 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 homeowner’s 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 Cimarusti’s 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 Decker’s farm. Decker’s 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 Decker’s 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 court’s 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 insured’s 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 Decker’s 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 policy’s “exclusive use” requirement would be meaningless. (Ibid.)
Amco’s policy, however, uses the term “temporarily residing” in an entirely different context than the policy in Decker. Under Amco’s 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 insured’s objectively reasonable expectations, we affirm the judgment for the insured.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
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.
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 court’s 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.”’ . . . Decker’s 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 court’s order denying coverage.” (Ibid., citations omitted)
The dissenting justice in Decker concluded that because the insured’s 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. 865–866 (dis. opn. of Maring, J.).) The dissent did not dispute the majority’s conclusion that the insured was not temporarily residing at the resort. (See id. at pp. 864–868.)
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 one’s domicile or a place of temporary sojourn . . . .” (Merriam-Webster’s Online Dict. (2008) [as of Dec. 2, 2008], italics added.) Black’s Law Dictionary is in agreement: “Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.” (Black’s Law Dict. (6th ed. 1997) p. 1309, col. 1.)
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, Cimarusti’s 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.