Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-04-430628
Reardon, J.
In a declaratory relief action interpreting an insurance policy issued by respondent State Farm Mutual Automobile Insurance Company (State Farm), the trial court granted summary judgment to State Farm, ruling that the policy did not cover appellant Anne Mairesse’s newly acquired car. As a result, appellant Kelly Borden was not entitled to recover for her personal injuries under that policy. On appeal from the subsequent judgment, Mairesse and Borden contend that an exclusionary provision of the policy was invalid, making the summary judgment erroneous. We affirm the judgment.
I. FACTS
In February 2002, appellant Anne Mairesse received a Volkswagen as a gift from her boyfriend, Robert Mellin. In April 2002, while driving the Volkswagen, Mairesse struck appellant Kelly Borden. The Volkswagen was still insured under Mellin’s AIG policy at the time of the accident. Mairesse also owned a Peugeot, which was separately insured by respondent State Farm. The State Farm policy granted coverage for a newly acquired car for the first 30 days of ownership or until it was placed on the declarations page of the State Farm policy or another insurance policy, whichever was earlier in time. It also excluded coverage for any newly acquired car if there was already other vehicle liability coverage on that car.
We are hindered in our review of the contextual issue on appeal because Mairesse failed to include a copy of the entire policy in the clerk’s transcript. On appeal, we must presume that the trial court’s decision is correct. We indulge all intendments and presumptions in support of it on matters on which the record is silent, and an appellant must affirmatively show error in order to prevail on appeal. This is not simply a principle of appellate practice, but an ingredient of the constitutional doctrine of reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Shepherd v. Greene (1986) 185 Cal.App.3d 989, 994.) As Mairesse has not provided us with a sufficient record on appeal to determine any contextual issue based on the entire policy, we evaluate those issues on the basis of the parties’ version of the exclusionary provision offered in their briefs and in their moving papers in the trial court.
The State Farm policy defines a newly acquired car to include a newly owned additional car. Mairesse’s Volkswagen met the policy definition of a newly owned additional car.
According to State Farm’s statement of undisputed facts, this exclusionary provision reads:
AIG notified State Farm of the accident, but State Farm—invoking the exclusionary clause—advised Mairesse that the accident was not covered under her policy because the Volkswagen was insured by AIG. After Borden filed a personal injury action against Mairesse as a result of the accident, AIG notified State Farm of the lawsuit. AIG defended Mairesse against the action and paid Borden $50,000, the maximum policy limit. Mairesse settled with Borden for $250,000, assigning to Borden any claim she had against State Farm. State Farm reopened the claim, filing a declaratory relief action to determine whether Mairesse’s policy precluded coverage for the Volkswagen accident with Borden. Borden cross-claimed against State Farm for breach of the covenant of good faith and fair dealing. State Farm moved for summary judgment on the declaratory judgment claim and the bad faith cross-claim, arguing that Mairesse’s policy did not cover the accident with Borden. The trial court granted summary judgment to State Farm, finding that the exclusionary clause applied and there was no coverage under the State Farm policy because the Volkswagen was covered by the AIG policy. In March 2006, judgment entered in favor of State Farm consistent with the court’s order granting summary judgment.
II. DISCUSSION
A. Standard of Review
On appeal, Mairesse claims that the policy provision excluding coverage for newly acquired cars is invalid, for several reasons. Specifically, she argues that the exclusionary provision’s placement within the policy is not conspicuous; that its subheading is inconspicuous; and that the exclusion contradicts an explicit grant of coverage for newly acquired cars found in the policy.
Mairesse and her assignee Borden are both appellants in this matter. For convenience, we refer to both as “Mairesse.”
On appeal, we make an independent review of the issues underlying the declaratory judgment, as they involve the legal interpretation of an insurance policy. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866; Citizens for Goleta Valley v. HT Santa Barbara (2004) 117 Cal.App.4th 1073, 1076; see also Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) An exclusionary provision of an insurance policy must be conspicuous, plain, and clear as placed within the policy. (Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, 1204 (Haynes); see Ponder v. Blue Cross of Southern California (1983) 145 Cal.App.3d 709, 719 [unambiguous exclusion does not preclude coverage if not conspicuous and understandable to insured].) Two tests guide our analysis of the provision. First, we determine if the exclusionary provision was placed and printed in the policy in a manner that would attract the insured’s attention. Second, we assess whether the exclusionary provision’s substance was written in words that convey the intended meaning to the average layperson who might read the policy. The insurer bears the burden of making policy coverage exceptions and limitations conspicuous, plain and clear. (Haynes, supra, 32 Cal.4th at p. 1204 .) With this standard of review in mind, we address each of Mairesse’s claims in turn.
Mairesse does not dispute that the content of the disputed exclusionary clause is anything but plain and clear. She only disputes that its subheading obfuscates that clause’s content, thus, failing to draw the insured’s attention to its limiting, plain and clear language for newly acquired cars.
B. Conspicuous Language
1. Provision Placement
First, Mairesse contends that the placement of the exclusionary provision in the policy is not conspicuous. If an exclusionary provision is found to be inconspicuous, then the provision is unenforceable as a matter of law. (Jauregui v. Mid-Century Ins. Co. (1991) 1 Cal.App.4th 1544, 1549-1550.) We find that the exclusionary provision is conspicuous within the policy. The California Supreme Court cites various types of printing—boldface, italicized type, enlarged lettering, underlining, use of different fonts, capitalization, or any other distinction from the policy’s fine print—that can demonstrate the conspicuousness of an exclusionary provision. (See, e.g., Haynes, supra, 32 Cal.4th at p. 1207.) In the challenged exclusionary provision, the subheading is in bold print, affording recognition of the provision to the insured. The exclusionary language itself is capitalized and part of it appears in boldface and italicized type, further alerting an insured that this clause contains important content. Notably, the words “newly acquired car” in the exclusionary clause are capitalized, in boldface, and italicized, clearly indicating that the clause includes pertinent liability language about a newly acquired car. Thus, we find that the exclusionary clause was not inconspicuous.
2. Provision Subheading
Mairesse also urges us to invalidate the exclusionary clause on the ground that the subheading fails to alert the insured to its exclusionary content. She contends that the subheading “If There Is Other Liability Coverage” cannot be deemed conspicuous, relying on an appellate case holding that a subheading entitled “Other Insurance” was inconspicuous, and thus invalid. (See Jauregui v. Mid-Century Ins. Co., supra, 1 Cal.App.4th at p. 1549.)
We disagree with Mairesse’s argument, finding the cited case to be distinguishable. As we read her cited authority, the appellate court found that the “Other Insurance” subheading was insufficient because the exclusion beneath it was not related to that topic. (Jauregui v. Mid-Century Ins. Co., supra, 1 Cal.App.4th at p. 1549; see Haynes, supra, 32 Cal.4th at pp. 1205, 1208.) We do not find Jauregui to stand for the general holding—as Mairesse argues—that insurance companies are prohibited from using a subheading of “Other Insurance” because such a subheading is inconspicuous. The subheading of State Farm’s exclusionary provision is related to its content, barring coverage for a newly acquired car if it is covered by another insurance policy. Thus, we find that the format and substance of the exclusionary provision make it conspicuous within the State Farm policy.
C. Conflicting Provisions
Finally, Mairesse contends that the exclusionary provision on page eight of the policy is invalid because it conflicts with the grant of coverage for newly acquired cars found on page two of the same policy. She reasons that the grant of coverage is more specific than the exclusionary provision, and thus the grant clause prevails over the exclusionary clause. Mairesse relies on Code of Civil Procedure section 1859 (section 1859) to support this argument. That statute provides that when we construe an instrument, if general and particular provisions are inconsistent, the particular provision prevails over the general one. (§ 1859.) However, that statute only applies if there is an inconsistency between provisions in a policy. (Boghos v. Certain Underwriters at Lloyd’s of London (2005) 36 Cal.4th 495, 504.) Here, the provisions are consistent.
The State Farm policy limits coverage for newly acquired cars in both provisions when other insurance coverage has been obtained for that car. In its clause granting coverage, the policy states that a newly acquired car is covered as an additional car only until the earliest of (1) 12:01 a.m. on the 31st day after receipt of the car; or (2) the effective date and time of another insurance policy that describes the car on its declarations page. This grant of temporary coverage constitutes a limitation of coverage similar to the exclusionary provision that bans coverage altogether if a newly acquired car is covered by another insurance policy. Read together, we find that both provisions are on the same plane of specificity, accumulating limitations of liability coverage when a newly acquired car is insured with another insurance provider. As they are not inconsistent, section 1859 does not apply. Thus, the trial court properly granted summary judgment to State Farm because Mairesse’s policy excluded coverage for the vehicle involved in the Borden accident.
In light of this ruling, we need not consider State Farm’s alternate grounds for affirmance.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.
“If There Is Other Liability Coverage
“. . .
“4. Newly Acquired Car
“THIS COVERAGE DOES NOT APPLY IF THERE IS OTHER VEHICLE LIABILITY COVERAGE ON A NEWLY ACQUIRED CAR. ” (First boldface type added.)