Explorer Insurance Company v. Gonzalez
Filed July 16, 2008
Court of Appeals of the State of California, Third Appellate District
Appeal from the judgment of the Superior Court of Placer County
Superior Court Number MCV24091
Cite as 2008 SOS 4205

Judgment Affirmed in Underinsured Motorist Policy Conflicts

Dwaine Gonzalez was injured in an automobile collision caused by Benjamin Fernandez.

Benjamin Fernandez was insured by a Fireman’s Fund Insurance Company policy that covered liability arising out of the use of his automobile with combined single limits in the amount of $100,000.00 for all bodily injury and property damage caused by any single accident.

Dwaine Gonzalez on the otherhand was insured by an Explorer Insurance Company policy that included uninsured and underinsured motorist benefits of $100,000 for all damages from bodily injury sustained by any one person in any single accident.

After the accident and as per the policy, Fireman’s Fund Insurance Company paid Gonzalez $21,584.11 for property damage and $78,415.89 for bodily injuries arising from the collision, exhausting the limits of the $100,000 Fireman’s Fund policy.

Dwaine Gonzalez then made a claim against the underinsured motorist bodily injury provision of his Explorer Insurance Company policy for $21,584.11, the difference between the $78,415.89 he received from Fireman’s Fund for bodily injuries and the $100,000 limit of his Explorer underinsured motorist coverage.

This was denied by Explorer Insurance Company policy, concluding that its claim did not qualify as an underinsured motorist claim.; On this respect, explorer brought a declaratory relief action to the Superior Court of Placer County, seeking a judicial determination that Gonzalez had no cognizable claim for underinsured motorist benefits.

Following a bench trial on undisputed facts, the trial court entered a judgment in favor of Explorer Insurance Company.; The case went up to the appellate division of the Superior Court.; Later it issued a decree affirming the judgment.

Gonzalez then petitioned for a transfer of the case to Court of Appeals of the State of California, Third Appellate District.

After due consideration of the facts and issues involved in the case, the appellate court affirmed the trial court’s ruling and held that an underinsured motorist coverage held by person injured in vehicle collision caused by another driver was not triggered under Insurance Code Sec. 11580.2.

This is so because the tortfeasor’s policy covered damages for bodily injury up to $100,000 if there was no property damage.; Thus, it cannot be said that the tortfeasor’s policy was for an amount less than the $100,000 bodily injury coverage of the underinsured motorist provision in the injured person’s policy.

Comparison in coverage is based on potential for recovery, not what is actually recovered in a particular case.