STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Respondent, v. GLYNICE ANN MROZEK, Defendant and Appellant, 29 Cal. App. 3d 113

Opinion BROWN (Gerald), P. J. State Farm Mutual Automobile Insurance Company sued its insured, Glynice Ann Mrozek, for declaratory relief, to deny arbitration to her under the uninsured motorist insuring provisions of her policy with the company. State Farm prevailed below. Mrozek appeals the judgment. We reverse on the ground there is coverage under the policy. Shortly after midnight, November 27, 1969, Mrozek was sleeping in her sleeping bag in the sand dunes of Imperial County, about one-fourth mile off the highway. State Farm alleges “an uninsured motorist operating a dune buggy” struck and injured Mrozek.

She is said to be permanently paralyzed. In her brief, Mrozek ably states the issue and argument, in part, thusly: “[T]he issue in the trial court and on appeal is whether . . . dune buggies used off public highways are considered uninsured motor vehicles under

Section 11580.2 of the California Insurance Code. ‘Uninsured motor vehicle’ as defined in

Section 11580.2(

b) includes any motor vehicle that is not covered by liability insurance at the time of accident.

Section 11580.2(b)(2) goes on to specify certain exclusions from this language: ‘The term “uninsured motor vehicle” shall not include an automobile owned by the named insured. . . . , . or certain governmental entities . . .’ or a land motor vehicle or trailer operated on rails or crawler-treads or while located for use as a residence or premises and not as a vehicle, or a farm-type tractor or equipment designed for use principally off public roads, except while actually used upon public roads.’ “. . . the trial court held . . . this quoted language excluded the dune buggy in question.

The holding was that the language ‘farm-type tractor or equipment designed for use principally off public roads except while actually used on ‘public roads’ should be interpreted as excluding two types of equipment, to wit, farm-type tractors and any other type of equipment whether farm-type or not which is used principally off public roads. The dune buggy was then excluded under the second category. “The trial court properly did not base its opinion on cited foreign case law dealing with medical pay provisions in auto policies as opposed to uninsured motorists’ clauses in statute.

The trial court properly based its decision on

interpretation of the statutory language in the subject statute. A diligent search has turned up no California cases or out-of-state cases interpreting the subject statutory language or statutes similar to the subject statute in other states. Therefore, the

interpretation of the statutory language in question must be based on general principles of statutory

interpretation. It is submitted that in applying said general principles to the subject clause, the trial court erred. “The trial court, as pointed out above, found that

Section 11580.2 excluded from uninsured motor vehicles, farm-type tractors and any other type of equipment, whether farm-type or not, It is the contention of the appellant that the words ‘farm-type’ in this statutory language modify both the word ‘tractor’ and the word ‘equipment,’ thereby excluding only farm-type tractors and equipment. This

interpretation is indicated by the context of the statute and by the syntax of the statute. As pointed out in appellant’s trial brief, the subject

section 11580.2 has three groups of exclusions. The first group reads to exclude ‘. . . an automobile owned by the named insured or any resident of the same household or self-insured within the meaning of the Safety Responsibility Law of the state in which a motor vehicle is registered or which is owned by the United States of America, Canada, a state or political subdivision of any such government, or an agency of any of the foregoing.’ This group is set off by commas and deals exclusively with exclusions involving ownership of the insured vehicle.

The second group reads, ‘. . . or a land motor vehicle or trailer operated on rails or crawler-treads or while located for use as a residence or a premises and not as a vehicle.’ “This group is also set off by commas and deals with exclusions based exclusively on the manner in which the subject vehicle is used.

The third group of exclusions reads ‘. . . or a farm-type tractor or equipment designed for use principally off public roads, except while actually upon public roads.’ This group, likewise, is set off by commas and under the construction used in this section, excludes vehicles based on their type, namely ‘farm-type.’ Had the authors of this

section intended to make a separate exclusion for equipment other than farm-type designated for use principally off public roads, they would have created a fourth category of exclusions by placing a comma after the word ‘tractor.’ No comma is present in the existing language after the word ‘tractor.’ This would lead to the conclusion that the last category of exclusions was intended to exclude farm-type machinery while being operated off the highway. “The trial court in its decision takes issue with this position and submits that it is equally logical for the third classification of exclusions to deal with both farm-type tractors and any other type of equipment, whether farm-type or not.

However, it is submitted that had the legislature intended this

interpretation, there would have been no reason for including the words ‘farm-type’ in the language of the statute at all. In other words, the,broader exclusion of equipment designed for use principally off public roads except while actually used upon public roads, would include the category of farm-type tractors designed for use principally off public roads.

Logic then indicates that this exclusion should not apply to other than farm-type off highway vehicles.” [Italics ours.] Interpreting the phrase “farm-type tractor or equipment,” we hold the compound adjective “farm-type” modifies both “tractor” and “equipment.” There is no comma after “tractor.” The phrase reasonably means farm-type tractor or farm-type equipment. In Indemnity Ins. Co. v. Pacific Clay Products Co., 13 Cal.App.3d 304, 313 [91 Cal.Rptr. 452], the phrase “any written contract or agreement” was similarly construed.

The adjective “written” modifies both “contract or agreement.” The court said: “Fidelity [argues], the definition of the word ‘contract’ as a ‘written contract or agreement’ is ambiguous; the adjective ‘written’ modifies only the word ‘contract’ and does not modify the word ‘agreement’; the definition of the word ‘contract,’ thus construed, includes an oral agreement; . . . “It should be noted, as in the clause defining the word ‘contract’ as ‘any written contract or agreement, . . .’ there is no comma following the word ‘contract,’ but there is a comma following the word ‘agreement.’ The language and punctuation used indicates the adjective ‘written’ modifies the phrase ‘contract or agreement.’ (St.

Louis-San Francisco Ry. Co. v. Bengal Lumber Co., 145 Okla. 124 [292 P. 52, 53].) “A contract should reasonably receive such

interpretation as will make it reasonable and avoid absurdities. (Civ. Code, §§ 1638, 1643; Golden v. Fischer, 27 Cal.App. 271, 279 [149 P. 797].) Were Fidelity’s

interpretation accepted, the clause ‘written contract or agreement’ would mean any written contract, or written or oral agreement, expressed or implied. This is unreasonable and absurd.” Were the phrase “farm-type tractor or equipment” ambiguous we would be required to resolve the ambiguity in favor of coverage. We find no ambiguity which would bring this rule in play. Judgment reversed. Ault, J., concurred.